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A  TREATISE 


ON   THE 


LAW    OF   AGENC17 


INCLUDING  NOT  ONLY  A  DISCUSSION  OF  THE  GENERAL  SUBJECT 


SPECIAL     CHAPTERS    ON 


7" 


By  FLOYD  R.   MECHEM,   LL.D. 

AUTHOR  OF  MECHEM  ON  PUBLIC  OFFICERS,  MECHEM  ON  SALES,  ETC.  ;  FORMERLY  TAPPAN 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  MICHIGAN  ;  PROFESSOR  OF  LAW 

IK  THE  UNIVERSITY  OF  CHICAGO 


SECOND  EDITION 

IN  TWO  VOLUMES. 


VOLUME  II 


CHICAGO 

CALLAGHAN  AND  COMPANY 
1914 


T/IKOA    rTO    77  A  J. 


3HT 


Entered  according  to  Act  of  Congress,  in  the  year  1888,  by 

FLOYD  R.  MECHEM, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 

C'/1U1J1  l/h  Mr!   X  njL'l  7J  )]  [  J  J/x  ,s  I  k.-i  r^lUi  I  A 


Copyright,  1914, 

by 
FI.OYD  R.  MECHEM. 

Mj&S-^&r 

19 14 


Cm  A  KAl 


• 

TABLE  OF  CONTENTS,  VOL.  II. 


CHAPTER  V. 

THE  DUTIES  AND  LIABILITIES  OF  THE  PRINCIPAL  TO  THIRD 

PERSONS 

[References  are  to  sections:   §§  1-1705,  Vol.   I;  §§  1706-2588,    Vol.  II.] 

Purpose  of  chapter  1706 

I.    THE  LIABILITY   OF  THE  PRINCIPAL  UPON   CONTRACTS   MADE   BY   AN   AGENT 

In  general 1707 

1.  The  Contractual  Liability  of  the  Disclosed  Principal 

In  general •  • 1708 

Principal  liable  on  contracts  made  in  his  name  by  his  authority 1709 

Principal  liable  on  informal  contracts  not  expressly  charging  agent's 

responsibility  • 1710 

Informal  entries  or  charges  against  agent  not  conclusive 1711 

Principal  may  often  be  liable  though  agent  also  bound  1712 

Written  contract  in  agent's  name — Principal  not  liable 1713 

Same  subject— Principal  liable  1714-1716 

Principal  not  liable  where  credit  given  exclusively  to  agent 1717 

For  what  contracts  and  contractual  act*  of  agent  is  principal  liable. . .  1718 

Qui  facit  per  alium,  facit  per  se 1719 

Principal  liable  for  acts  and  contracts  within  scope  of  authority 1720 

Third  person  must  ascertain  agent's  authority 1721 

What  constitutes  authority 1722 

• Secret  instructions  and  restrictions  of  principal  or  secret  motives 

of  agent — Mistake  of  agent  1723 

General  and  special  agents  1724 

Special  agent's  authority  must  be  strictly  pursued  1725 

Effect  of  ratification 1726 

Performance  of  unlawful  act  not  enforced 1727 

Principal  not  bound  where  agent  had  an  adverse  interest 1728 

2.  The  Contractual  Liability  of  an  Undisclosed  Principal 

Preliminary  considerations  as  to  liability  1729,  1730 

General  rule — Undisclosed  principal  liable  when  discovered  1731 

Rule  applies  to  all  simple  contracts  1732 

Parol  evidence  to  identify  the  principal 1733 

Does  not  apply  to  contracts  under  seal 1734,  1735 

Does  not  apply  to  negotiable  instruments 1736 

Exceptions  to  the  general  rule 1737 

Of  the  first  exception — Change  in  accounts — Misleading  conduct 1738 

Thompson  v.  Davenport 1739 

Heald  v.  Kenworthy  1740 


IV  TABLE  OF  CONTENTS 

[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  II.] 

Armstrong  v.  Stokes 1741 

Irvine  v.  Watson — In  the  Queen's  Beiich  1742 

—  Irvine  v.  Watson — In  the  Court  of  Appeal  1743 

What  is  misleading  conduct 1744 

-  Delay,  etc 1745-1747 

—  The  rule  in  the  United  States 1748 

General  conclusions 1749 

Of  the  second  exception — "Election" 1750 

—  Theories  of  election 1751 

Knowledge  necessary  1752,  1753 

What  constitutes  an  election 1754 

I.  Before  discovery  of  principal 1755 

II.  After  discovery  of  principal  . .  1 '.•'}?. •.'MH^i'TJ  .-i1.1.1. ;'?.  IfH'.'l'j'A  »W.  1756 

Presenting  claim 1757 

Commencement  of  act  ion 1758 

Taking  judgment  against  agent  1759 

Taking  agent's  note 1760 

Charging  goods  to  agent  1761 

Mere  delay— Statute  of  limitations  . .  .'I1.0.0.  .1?™™lll  .n.LJ 1762 

Intermediate  party  must  have  been  agent  and  not  principal 1763 

Alleged  agent  must  have  been  really  such 1764-1766 

-  "Apparent"  authority "A1.!? .??£?. . . . .  1767,  1768 

Right  of  assignee  of  other  party  against  principal V???V?.f.: 1769 

Apparent  agent  the  real  principal rXXfl'* 1770 

Excluding  principal's  liability  by  terms  of  contract  1771 

Cases  in  which  the  agent  may  not  be  liable 1772 

II.    BESPONSIIULITY  OF  THE  PRINCIPAL  FOR  THE  AGENT'S   STATEMENTS,   REPRESENTA- 
TIONS AND  ADMISSIONS 

In  general 1773 

Agent's  authority  must  be  first  shown 1774 

Authority  cannot  be  shown  by  agent's  admissions 1775 

Representations  by  agent .-  .?I:J'.*7?. J.^fJ'. ''.'•?.  k  ....  1776 

Principal  liable  for  statements  and  representations  expressly  author- 
ized : : 1777 

Statements  of  agent  expressly  authorized  to  give,  or  referred  to  for, 

information  1778 

Statements  of  agent  impliedly  referred  to  for  information 1779 

Statements  of  agent  made  as  incidents  of  his  position — General  man- 
ager— General  agents,  etc 1780 

Statements  of  agent  made  as  incident  to  an  authorized  act — Res  gestae  1781 

Various  statements  of  the  doctrine  1782 

Limitations  upon  the  rule 1783 

Further  limitations 1784 

-How  question  determined  1785 

Effect  of  these  statements  not  dependent  upon  their  being  true 178R 

Statements  showing  notice  to  or  knowledge  by  the  agent 1787 

Statements  of  agent  made  to  modify,  qualify  or  explain  the  act 1788 

Illustrations  . ,  1789 


TABLE  OF   CONTENTS  V 
[References  are  to  section*:   §8  1-1705,   Vol.  I;  §8  1706^2588,  Vol.  II.] 

Statements  indicative  of  the  agent's  state  of  mind 1790 

Words  themselves  constituting  or  aggravating  the  wrong 1791 

Admissions  of  agent  generally  not  competent  to  charge  principal 1792 

Declarations  and  admissions  of  agent  as  part  of  res  gestae 1793 

Meaning  of  res  gestae  as  here  u^ed 1794 

What  sort  of  statements  admissible 1796 

What  embraced  within  res  gestae  1796 

How  admissibility  determined    1797 

Illustrations  of  what  has  been  called  part  of  the  res  gestae — Inadmis- 
sible declarations 1798 

Illustrations — Admissible  declarations  1799 

When  principal  bound  by  agent's  representation  of  extrinsic  facts  upon 

which  authority  dep&nds 1800 

—  Illustrations  —  Bills    of    lading  —  Warehouse    receipts  —  Certified 
checks 1801 

III.    THE  EFFECT  UPON  THE  PRINCIPAL'S   EIGHTS  AND   OBLIGATIONS   OF  NOTICE   TO  OR 
KNOWLEDGE  IN  HIS  AGENT 

In  general 1802 

General  rule — No.tice  to  the  agent  is  notice  to  the  principal 1803 

Illustrations 1804 

The  theory  of  the  rule — a.  Identification 1805 

6.  Conclusive  presumption  of  communication   1806 

I.  Notice  acquired  during  agency 1807 

II.  Knowledge  acquired  prior  to  agency  1808 

Requirements  of  present  knowledge   1809-1811 

What  is  meant  by  notice  acquired  "during  the  agency"  or  "prior 

to  agency" '. 1812 

The  resulting  rule 1813 

The  first  exception — Privileged  communications 1814 

The  second  exception — Agent  acting  adversely  to  principal 1815 

Reasons  for  the  exception 1816 

—  Further  of  these  reasons  1817-1821 

The  true  exception  1822-1824 

Applicability  of  exception  to  corporate  agents 1825 

The  third  exception — Collusion  of  party  claiming  benefit  of  notice  ....  1826 

Who  can  avail  himself  of  the  notice 1827 

What  notice  includes — Actual  and  constructive  notice  1828,  1829 

Agent  must  be  agent  of  person  to  whom  notice  is  to  be  imputed 1830 

Rule  applies  only  to  notice  respecting  matters  within  agent's  authority  1831 

Notice  after  termination  of  authority  does  not  bind  1832 

Notice  must  be  of  some  material  matter 1833 

Notice  must  come  to  someone  who  is  an  agent 1834 

—  Ratification 183~> 

Releasing  agent  from  duty — Enlarging  it 1836 

Agent  of  two  principals .-*h<™»a>  •  1837-1839 

Two  agents  of  same  principal 1840 

ivuil    .' 


VI  TABLE  OF  CONTENTS 

[References   are  to  section*:   §§  1-1705,   Vol.   I?  §§   170<^25S8,  Vol.  II.] 

Notice  to  snbagent  when  notice  to  principal 1841 

Notice  of  what  sort  of  facts  imputed .>.;•:  i'JlyU'pWiP.  g?'. 1842 

These  rules  apply  to  corporations — Notice  to  agent .33$.-ll*.<Vl!*&-     1843 

What  officer  or  agent  -;lri.'Jv;  *tft'3  .WiVr-.     1844 

Ordinary  exceptions  apply  here .-.  wl'i'i •» 1845-1847 

When  notice  must  be  acquired 1848-1850 

When  notice  to  director  is  notice  to  corporation  1851-1853 

Notice  to  stockholder  not  notice  to  the  corporation  1854 

IV.    THE  LIABILITY  OF  THE  PRINCIPAL  FOR   HIS   AGENT'S  TORTS   AND  CRIMES 

In  general 1855 

Theories  of  liability 1856,  1857 

1.  Did  Relation  of  Principal  and  Agent  or  of  Master  and  Servant  Exist 

Necessity  for  existence  of  the  relation  1858 

When  relation  exists 1859 

Several  masters   of   one   servant — General   and   special   master — 

Lending  servants — Adopting  servants  of  others 1860 

Servant  performing  his  own  master's  business  under  direction  of 

master's  employer 1861 

Furnishing  persons  to  be  employed  as  servants  1862 

Tests  for  determining  question  1863 

Court  or  jury 1864 

Contractual  agreement  as  to  who  shall  be  principal 1865 

Strangers  assisting  servants 1866-1869 

Independent  contractors 1870,  1871 

Subagents 1872 

2.  Liability  for  Acts  Expressly  Directed 
Principal  liable  for  acts  expressly  directed 1873 

3.  Liability  for  Negligent  Act  of  Servant  or  Agent 

Liable  for  agent's  negligent  act  in  course  of  employment 1874 

Liability  dependent  upon  agency 1875 

Rules  stated 1876,  1877 

Forms  of  negligence 1878 

What  meant  by  course  of  employment 1879 

Not  merely  a  question  of  time  or  place 1880 

Master's  prohibition  or  warning  not  conclusive   1881 

Intention  to  benefit  the  master  not  the  test 1882 

Principal's  ignorance  or  good  faith  will  not  exonerate  him 1883 

Ordinary  and  natural  attributes  in  the  light  of  the  event 1884 

The  question  of  apparent  powers 1885 

Illegal  or  unlawful  acts  1886 

Application  of  rules 1887 

Illustrations 1888 

Further  illustrations 1889-1891 

Forbidden  acts 1892,  1893 

Act  of  servant  having  large  degree  of  discretion 1894 


TABLE  OF  CONTENTS  vii 

[Reference**   are  to  sections:   §§  1-1705,  Vol.  I;  §§  ITOe-ZJIS^   Vol.  II.] 

Servant  combining  his  own  business  with  that  of  master 1895 

Servant  using  master's   vehicle,   implement,   etc.,   upon  servant's 

business — Facilitating  master's  business 1896 

Servant  under  immediate  direction  of  patron  of  master 1897 

Master  not  liable  for  negligence  not  in  course  of  employment  1898 

Departure  from  service — Detour  1899 

— —  Distinction  between  a  mere  detour  and  a  departure  1900 

Illustrations  1901-1904 

Resumption  of  service  after  departure 1905,  1906 

Comments  on  these  views 1907,  1908 

Other  acts  not  within  course  of  employment 1909-1911 

Further  illustrations 1912 

Injuries  to  servants'  invitees 1913 

Negligence  when  servant  off  duty  1914,  1915 

How  question  determined  1916 

Master's  liability  for  acts  of  independent  contractor  1917-1920 

Effect  of  ratification 1921 

4.  Liability  for  Trespass  or  Conversion 

Liable  for  trespass  or  conversion  in  course  of  employment 1922 

•  Special  cases  1923 

Illustrations 1924 

Not  liable  if  acts  were  not  within  course  of  employment 1925 

5.  Liability  for  Wilful  or  Malicious  Acts  of  Servant 

In  general 1926-1929 

Special  classes  of  cases  1930 

I.  Where  the  master  owed  the  plaintiff  a  special  duty 1931 

Non-delegable  duties 1932 

Rule  applied  to  carriers  of  passengers  1933 

Illustrations  of  the  carrier  cases  1934 

Plaintiff  provoking  assault 1935 

Limitations  of  doctrine  1936 

Servant  a  public  officer  1937 

Servant  insane 1938 

Application  to  other  cases — Difficulty  of  determining  classes  1939-1944 

II.  Where  master  confides  to  servant  the  care  of  a  dangerous  instru- 
mentality     1945-1950 

III.  Where  the  master  entrusts  to  servant  performance  of  duties  in- 
volving the  use  of  force 1951 

Breach  of  instructions  no  defense 1952 

Master  not  liable  for  servant's  personal  malice 1953 

Act  must  have  been  within  course  of  employment 1954 

— • —  Use  of  force  must  have  been  authorized  1955 

Other  limitations  1956 

IV.  Master's  liability  for  malicious  acts  in  other  cases 1957 

Illustrations .-.  .'.:.• 1958-1972 

False  imprisonment  and  unauthorized  arrest 1973, 1974 


Vlll  TABLE  OF  CONTENTS 

[Reference*  are  to  ne<-(l<»iiM:   §g  1-1705,  Vol.   I;  SS   17O6-2588,  Vol.  II.] 

Unfounded  prosecutions 1975 

—  Malicious  prosecution  1976 

Assaults 1977,  1978 

Shooting  1979 

Slander  and  libel  1980,  1981 

How  question  decided — Court  or  jury   1982 

Ratification 1983 

6'.  Liability  for  Fraudulent  Acts  and  Representations 

Liability  for  agent's  fraudulent  act 1984,  1985 

Agent's  fraud  supplemented  by  some  act  or  omission  of  the  prin- 
cipal    1986 

Liability  of  principal  for  agent's  false  or  fraudulent  representations..  1987 

No  liability  for  representations  if  any  representation  is  outside 

authority 1988 

Representations  within  apparent  authority 1989 

Liability  for  representations  not  made  for  principal's  benefit....  1990 

—  Representations  concerning  facts  which  condition  authority  1991,  1992 
Liability  by  ratification  or  adoption  of  act 1993 


Effect  of  misrepresentations — Remedies  1994 

—  Action  of  deceit 1995,.  1996 

Effect  of  fraud  not  avoided  by  recitals  in  contract  that  there  was  none  1997 

?'.  Liability  for  Penal  or  Criminal  Acts  of  Agent 

What  here  involved  1998 

a.  Civil  Liability 

Principal's  civil  liability  for  agent's  criminal  or  penal  act -. 1999 

Civil  liability  for  statutory  torts  committed  in  course  of  employment  2000 

No  civil  liability  for  acts  not  in  course  of  employment 2001 

Usury 2002,  2003 

Liability  by  ratification  2004,  2005 

b.  Criminal  or  Penal  Liability 

Principal's  criminal  liability  for  agent's  criminal  or  penal  acts 2006 

Penal  acts  2007 

Illustrations 2008 

Contrary  holdings 2009 

8.  Matters  Relating  to  Procedure 

Joinder  of  principal  and  agent  in  one  action 2010 

Weight  of  authority  permits  joinder  2011 

Master  cannot  be  held  if  servant  not  liable  2012 

The  measure  of  damages  against  the  principal — Compensation 2013 

Exemplary  damages  2014 

Exemplary  damages  not  allowed 2015 

Exemplary  damages  allowed 2016 

Unsatisfied  judgment  against  agent  no  bar  to  action  against  principal  2017 

Principal  or  master  liable  although  other's  negligence  also  contributed  2018 


TABLE  OF  CONTEXTS  IX 


CHAPTER  VI. 

THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE  AGENT 
[References  are  to  sections:   8§  1-17O5,  Vol.  I;  §§  170O-2588,  Vol.  II.] 

What  here  involved  .  •  •     2019 


I.    IN  CONTRACT 

In  general — Right  of  action  in  principal  alone  2020 

Considerations  affecting  this  rule   2021 

How  cases  may  be  classified 2022 

Agent  may  sue  when  principal  has  clothed  him  with  title  or  authority 

for  that  purpose   2023 

Agent  may  sue  on  contract  made  with  him  personally  2024 

Undisclosed  principal  2025 

Disclosed  principal   2026 

When  agent  only  can  sue 2027 

Statutes  requiring  suit  by  real  party  in  interest 2028 

Assignees  of  bankrupt  agent  2029 

Illustrations  of  rule  permitting  agent  to  sue  2030-2032 

Agent  may  sue  when  he  has  a  beneficial  interest 2033 

What  meant  by  rule  2034 

What  interest  suffices  2035,  2036 

Although  agent  may  thus  sue,  principal  may  usually  sue  or  control  ac- 
tion   2037 

Action  on  sealed  contract,  negotiable   instrument,   or   contract  made 

with  agent  personally  must  be  in  agent's  name  2088 

Agent's  rights  depend  upon  the  contract  2039 

Right  of  assumed  agent  to  show  himself  principal  2040 

1.  Where  he  contracted  for  a  named  principal 2041,  2042 

2.  Where  he  contracted  for  an  unnamed  principal  2043 

Agent  may  recover  money  paid  by  him  under  mistake  or  illegal  con- 
tract     2044 

What  defenses  open  to  third  person 2045 

Set-off 2046 

Admissions — Discovery 2047 

What  damages  agent  may  recover  on  contract 2048 

n.  IN  TORT 

Agent  may  sue  for  personal  trespass  2049 

When  agent  may  sue  for  injuries  to  principal's  property 2050 


TABLE  OF  CONTENTS 


CHAPTER  VII. 

THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE 

PRINCIPAL 

{References  are  to  sections:   §§   1-1705,  Vol.  I;   88  1706-25S8,  Vol.  II. J 

In  general  2051 

The  rule  stated  2052 

1.  Right  to  Sue  on  Contracts  Made  fty  Agent 
a.  The  Disclosed  Principal 

In  general  , 2053 

May  sue  on  contracts  in  the  name  of  the  principal  2054 

May  usually  sue  on  contracts  made  in  his  behalf  but  in  agent's  name  2055 
May  sue  on  contracts  made  on  his  account  without  authority  but  sub- 
sequently ratified 2056 

But  principal  must  take  contract  as  he  finds  it  2057 

Defenses  of  other  party  based  upon  dealings  with  agent  205S 

&.  The  Undisclosed  Principal 

May  sue  on  contracts  made  in  his  behalf  but  in  agent's  name 2059 

One  of  several  undisclosed  principals  cannot  sue  on  entire  con- 
tract    2060 

One  of  several  apparently  joint  parties  may  show  himself  to  be  the 

real  principal  2061 

Right  of  one  who  contracted  as  agent  to  show  himself  to  be  the 

real  principal 2062 

— —  What  actions  included 2063 

Exceptions  —  Instruments  under  seal 2064 

Negotiable  instruments  2065 

Principal's  remedies  here — Rescission — Enforcement  of  trust 2066 

How  when  contract  involves  elements  of  personal  trust  and  confidence  2067 

What  contracts  do  involve  personal  elements  2068 

Contracts  of  suretyship  2069 

Principal  cannot  sue  where  terms  of  contract  exclude  him  or  where 

contract  is  solely  with  agent  personally 2070,  2071 

Principal's  right  of  action  usually  superior  to  agents 2072 

Principal's  rights  governed  by  the  contract   2073 

When  principal  subject  to  defenses  which  could  have  been  made  against 

agent — a.  Those  arising  out  of  terms  of  contract  itself  2074 

- 

b.  Payment  to  agent   2075,  207G 

— -  c.  Set-off  of  claims  against  agent  2077,  2078 

Limitations  of  rule  2079 

Performance  by  agent 2080 

Release  by  agent 2081 


TABLE  OF  CONTENTS  XI 

[References   are  to   *«•<•< iou«:   8§  1-1705,  Vol.  I;  §§  170«  2588,  Vol.  II.] 

Assignment  by  agent 2082 

Repudiation  of  unauthorized  contract  by  other  party  2083 

How  principal  affected  by  agent's  fraud  2034 

How  principal  affected  by  notice  to  or  knowledge  of  his  agent 2085 

Principal's  action — Measure  of  damages   2086 

Third  person  cannot  set  up  agent's  want  of  authority  to  dispute  prin- 
cipal's right   2087 

2.  Right  to  Recover-  Money  Paid  or  Used  by  Agent 

In  general .'V*  V .V-i^i 2088 

o.  Money  Wrongly  Paid  on  Principal's  Account 

Right  to  recover  money  wrongly  paid  on  principal's  account 2089 

b.  Money  Wrongfully  Appropriated  to  Agent's  Usea 
Principal's  right  to  recover  money  wrongfully  disposed  of  by  agent 

on  agent's  account  2090-2094 

Illustrations— Bank  deposits 2095-2100 

Other   illustrations    2101-2103 

Further  illustrations — Restrictive  indorsements  2104 

3.  Right  to  Recover  Property 

In  general  2105,  2IO& 

Principal's  title  cannot  be  divested  except  by  his  consent  or  voluntary 

act   210T 

Recovery  of  property  disposed  of  by  agent  in  excess  of  authority 2108 

Recovery  of  property  wrongfully  disposed  of  by  one  alleged  to  be  os- 
tensible agent  or  owner '. 2109 

Possession  as  evidence  of  ownership  or  authority  2110 

Money — Negotiable  paper 2111 

Possession  confided  to  recognized  sales  agent 2112-2114 

Possession  coupled  with  indicia  of  ownership  2115 

Principal  may  lose  through  agent's  fraud  2116 

But  other  party  must  have  acted  in  good  faith  and  with  reason- 
able prudence 2117 

Illustrations — Pickering  v.  Busk    2118 

McNeil  v.  The  Tenth  National  Bank 2119 

Commercial  Bank  v.  Armsby 2120 

Calais  Steamboat  Co.  v.  Van  Pelt 2121 

Nixon  v.  Brown   2122 

Other  cases — Title  put  in  agent's  name — Instruments  delivered  in 

blank 2123 

Limitations  on  doctrine  in  general  2124 

Limitations  on  rule  of  McNeil  v.  Tenth  National  Bank 2125 

Notice  of  principal's  right  from  descriptive  words  in  document..  2126 

Rule  of  McNeil  v.  Tenth  National  Bank  does  not  apply  to  ordinary 

chattels 2127 

Possession  under  the  Factor's  Acts  2128 


Xll  TAI5LE  OF  COXTEXTS 

fUeferenoen   are  to  Mectionn:   gg  1-1705,  Vol.  I;  gg   1700-Z588,  Vol.  II.] 

Principal  may  recover  his  property  appropriated  to  payment  of  agent's 

debts  or  seized  by  agent's  creditors  2129 

Right  to  recover  securities  wrongfully  released  2130 

Right  to  recover  property  wrongfully    sold    to    third    person  for  the 
agent's  benefit  2131 

4.  Right  to  Recover  for  Torts 
Principal  may  recover  for  injuries  to  his  interests  by  third  person's 

torts 2132 

For  enticing  agent  away 2133 

For  preventing  agent  from  performing  2134 

For  personal  injury  to  agent  causing  loss  of  service  2135 

Third  person  not  liable  to  principal  for  agent's  fraud  or  neglect 213fi 

5.  Remedies  for  Double  Dealing 

How  when  third  person  conspires  with  agent 2137 

How  when  agent  in  secret  employment  of  the  other  party 2138,  213M 

One  of  two  principals  not  liable  to  other  for  defaults  of  their  common 
agent 2140 

6.  Collusiveness  upon  Principal  of  Judgment  against  Agent 
Principal  not  bound  by  judgment  respecting  property  rights  against 

agent  in  action  to  which  he  was  not  a  party 2141 

Otherwise  as  to  contract  rights 2142 


TABLE  OF  CONTENTS  Xlll 


BOOK    V 


PARTICULAR  CLASSES  OF  AGENTS 


CHAPTER  I. 

DuA 


OF  ATTORNEYS  AT  LAW 


[References   are  to  HIM- (Ions:   §§  1-1705,  Vol.  I;   §§   1706-2588,  Vol.  II.] 

Scope  of  chapter 2143 

. 

1.  OF  THE  OFFICE 

Who  meant  by  attorney  at  law 2144 

Attorney  at  law  defined 2145 

Is  an  officer  of  the  court 2146 

Who  may  be 2147 

Party  may  appear  in  person 2148 

May  not  appear 'by  agent 2149 

, 

II.    OF  THE  RELATION   OF   ATTORNEY  AND   CLIENT 

/.  A.  Relation  of  Agency 
Rules  of  agency  govern 2150 

2.  Plow  Created 

No  formal  power  necessary 2151 

III.    APPEARANCE  PRESUMPTIVELY  AUTHORIZED 

Presumption  of  authority 2152 

The  presumption  not  conclusive 2153 

a.  While  Proceedings  Are  Pending 

1.  Opposite  party  may  require  production  of  authority 2154 

2.  What  evidence  sufficient 2155 

3.  Client  may  dispute  authority 215(5 

6.  In  Actions  upon  the  Judgment 

1.  Foreign  judgments  2157 

2.  Domestic  judgments    2158 

IV.    IMPLIED  AUTHORITY  OF  ATTORNEY 

In  general  2159 

Has  general  control  of  conduct  of  suit 2160 

Presumption  of  authority 2161 

What  included 2162 

What  not  included. .  2163 


xiv  TABLE  OF  CONTENTS 

[References  are  to  section*:   88  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 

Can  not  delegate  his  powers 2164,  2165 

May  not  employ  counsel '.!;.i.i(  }.U. 2166 

May  employ  subordinates 2167 

Authority  to  institute  action 2168 

Authority  to  incur  expense  on  client's  account 2169 

Authority  to  bind  client  by  contracts 2170 

Authority  to  bind  clients  by  bonds. 2171-2174 

Authority  to  bind  client  by  receipt  of  notice — Notice  to  attorney  as  no- 
tice to  client 2175-2177 

Authority  to  bind  client  by  admissions 2178,  2179 

Authority  to  receive  payment : 7/.  .?£ 2180,  2181 

After  judgment 2182 

JO 

What  constitutes  payment 2183 

Authority  to  enforce  judgment 2184-2186 

Ratification 2187 


V.   DUTIES   AND   LIABILITIES   OF  ATTORNEY  TO   CLIENT 

Bound  to  highest  honor  and  integrity 2188 

Duty  to  disclose  adverse  interests — Must  not  assume  antagonistic  po- 
sitions    2189 

Duty  to  remain  loyal — Incapacities  resulting • 2190 

Effect  on  opposite  party ...» 2191 

Duty  to  use  reasonable  care  and  skill 2192 

Errors  in  law  or  judgment 2193-2195 

Negligence  in  collecting 2196,  2197 

Negligence  in  bringing  suit 2198-2200 

Negligence  in  trial  of  action 2201 

Negligence  in  examining  titles 2202 

Neglect  in  preparing  contracts,  etc 2203 

Neglect  of  partners,  clerks,  etc 2204 

Neglect  of  subagent  in  collecting 2205 

Liability  for  exceeding  authority,  or  violating  instructions 2206 

Liability  for  money  collected 2207 

When  action  may  be  brought 2208 

J Statute  of  limitations 2209 

Liability  for  interest 2210 

Attorney  liable  through  acting  gratuitously 2211 

The  burden  of  proof  and  measure  of  damages 2212 

VI.    LIABILITY  OF  ATTORNEY  TO  TIIIBD  PERSONS 

Not  liable  for  breach  of  duty  owing  to  client  only 2213 

Cases  in*  which  he  would  be  liable 2214,  2215 

Liable  where  he  contracts  personally 2216 

Liability  for  clerk's,  officer's,  witnesses's  and  other  fees 2217 

Liability  to  third  person  in  tort 2218-2223 

Liability  for  words  written  or  spoken 2224 

Liability  for  money  received 2225 


TABLE  OF  CONTENTS  XV 
[References   are  to  sections:   SS   1-1T05,    Vol.  I;  §§  1706-2588,  Vol.  II.] 

VII.    LIABILITY   OF  CLIENT  TO  THIRD   PERSON 

In  contract 2226 

In  tort 2227,  2228 

VIII.    LIABILITY  OF  CLIENT  TO  ATTORNEY 

1.  Attorney's  Right  to  Reimbursement  and  Indemnity 

Attorney  entitled  to  reimbursement  and  indemnity 2229 

2.  Attorney's  Right  to  Compensation 

a.  In  General 

Attorney  entitled  to  compensation 2230 

Attorney  may  sue  for  compensation 2231 

1.  Where  There  Was  a  Special  Contract 

In  general  • 2232 

Parties  may  agree  upon  amount  of  compensation 2233 

Where  such  a  contract  is  fairly  made  it  is  conclusive 2234 

Extra  compensation    2235 

Contracts  for  contingent  compensation 2236 

What  contracts  champertous 2237 

Statutory    changes 2238 

—  The  effect  of  champerty 2239 

What    contracts    barratrous 2240 

Quantum  meruit  when  contract  void  for  champerty 2241 

Agreements    restricting    settlement 2242 

Contracts  for  contingent  fees  do  not  defeat  settlement  by  client 2243 

But  attorney  may  recover  from  client 2244 

2.  Where  There  Was  No  Special  Contract 

Attorney  entitled  to  statutory  or  usual  rate,  if  any,  otherwise  to  rea- 
sonable value  of  his  services 2245 

What    evidence    admissible 2246 

What   evidence   not   admissible 2247 

6.  When  Compensation  Deemed  to  be  Earned 

In  cases  of  ordinary  retainer 2248 

Compensation  under  express  contract  earned  when  undertaking  sub- 
stantially   performed    • 2249 

Lack  of  success  no  defense 2250 

Negligence  or  bad  faith  may  be  shown 2251 

Fees  forfeited  by  breach  of  trust 2252 

How  when  attorney  abandons  service 2253 

What   will   justify   abandonment 2254 

When   discharged   by   client 2255 

In  violation  of  agreement 2256 


XVI  TABLE  OF  CONTENTS 

[Reference*  are  to  Meetioni:  gf  1-17O5,  Vol.  I)  §§  17O6-25S8,  Vol.  II.J 

—  What  will  justify  discharge  ....................................  2257 

Effect  of  death  of  attorney  or  client  ................................  2258 

—  Irrevocable  power  —  Powers  coupled  with  an  interest  ........   2259,  2260 

Right  to  interest    ...............................  .  ..................  2261 

When  attorney's  claim  barred  by  limitation  ..............  t  ..........  2262 

3.  Attorney's  Right  to  Lien 

Two  kinds  of  lien  ..................................................  2263 

1.  The  General  or  Retaining  Lien 

General  nature  of  this  lien  .........................................  2264 

Declared  by  statute  in  some  states  ..................................  22G5 

What  this  lien  adheres  to  ..........................................  2266 

—  a.  Upon   papers    ...............................................  2267 

-  b.  Upon  property   ..............................................  2268 

--  c.  Upon    money  ...m^-}  -p.  ........................................  2269 

What  charges  the  lien  secures  ...........................  ......  .....  2270 

Against  what  parties  lien  prevails  ..................................  2271 


How  lien  may  be  lost  ...................  .-••  v  •••>••  «\-  ••«•••  .......... 

TT        11                 i           •     ^  ™™ 

How  lien  may  be  waived  ...........................................  2273 

Enforcement    of    lien  ...............................................  2274 

2.  The  Special  or  Charging  Lien 

General  nature  of  this  lien  ..........................................  2275 

In  what  states  it  exists  .............................................  2276 

Whom  this  lien  protects  .........  .,  ..^  ^  fcv  ^Maoft-  mni^-r  .........  2277 

What  this  lien  protects  .............................................  2278 

When  lien  attaches  .................................................  2279 

To  what  the  lien  attaches  ..........................................  2280 

How   lien   protected  —  Settlement  —  Set   off  —  Notice  ....................  2281 

-  Abandonment  —  Discharge     .  ....................................  2282 

How  lien  enforced  ..................................................  2283 

—  If  the  judgment  has  resulted  in  a  fund  ...............  ,  x..^,.  .....  2284 

—  Statute  of  limitations,  etc  ......................................  2285 

Liens  by  contract  —  Equitable  protection  independent  of  lien  ...........  228G 

How  lien  lost  or  waived  .....  .......................................  2287 

By  what  law  governed   .............................................  2288 

IX.    DEALINGS    BETWEEN    ATTORNEY    AND   CLIENT 

In  general  —  Good  faith  and  perfect  fairness  required  ................  2289 

Purchases  from  and  sales  to  client  —  Adverse  purchases  ..............  2290 

-  Private  purchases  by  the  attorney  of  the  client's  property  ......  2291 

-  Gifts  from  client  to  attorney  ...................................  2292 

-  Other  dealings   ................................................  2293 

-  Contracts  for  compensation  made  after  relation  exists  ..........  2294 


TABLE  OF  CONTENTS  XV11 

[Deference*   are  to  Kectlons:   §§  1    1705,  Vol.  1}  §g    170«  afiss,   Vol.  II.] 
X.   PRIVILEGED  COMMUNICATIONS 

Confidential  communications  privileged 2297,  2298 

What  communications  included — By  client  to  attorney 2299,  2300 

By  attorney  to  client 2301 

Under  what  circumstances  privileged — No  suit  need  be  pending — 

Must  be  confidential 2302 

Criminal  acts  2303 

-  Fraudulent  or  illegal  acts 2304 

Non  confidential  communications  2305 

Non-professional  employments  2306 

—  Collateral  facts  2307 

Relation  of  attorney  and  client  must  exist 2308 

Attorney  as  scrivener 2309 

Communications  must  have  been  made  to  an  attorney 23KJ 

Privilege  is  the  client's — Waiver 2311 

How  long  it  continues 2312 

Attorney  may  disclose  for  his  own  protection 2313 

XI.    TERMINATION   OF   THE   RELATION 

By  operation  of  law 2311 

By  act  of  the  parties 2315 

Notice   of   termination.  ..••..• 231G 


CHAPTER  II. 

OF  AUCTIONEERS 
Purpose  of  this  chapter   2317 

1.  Of  the  Auctioneer 

Definition  2318 

Who  may  be 2319 

Whose  agent  he  is 2320 

2.  How  Authorized 
Like  other  agents 2321 

3.  Auctioneer's  Implied  Authority 

To  fix  terms  of  sale 2322 

To  accept  the  bid 2323 

To  make  the  necessary  memorandum 2324 

To  receive  the  price 2325 

To  sue  in  his  own  name  for  the  price 2326 

None — To  delegate  his  authority   2327 

b 


XV111  TABLE  OF  CONTENTS 

[Ref«r«nceM  are  to  Ke<>tlon«:   88  1-17O5,  Vol.   I:  88  170O-2588,  Vol.   II.] 

None— To  sell  on  credit 2328 

None — To  rescind  or  alter  sale 2329 

None— To  sell  at  private  sale 2330 

None— To   bid    for   himself '*.&—.$'. 2331 

None — To   warrant  quality 2332 

--31:'  .     iii;a    o'.-  a    iflbttW 

4.  Auctioneer's  Duties  and  Liabilities  to  Principal 

Bound  for  reasonable  skill  and  diligence  2333 

To  act  with  loyalty  and  good  faith ».Mf>»>*r>i< 2334 

To  obey  instructions   f!tK«*»"xvKi-flh»  25535 

To  account  for  proceeds  2336 

To  take  care  of  goods «  .**»(«.  i'aatto  ixw  •^HfwMij-ld'H'  2337 

To   sell   for   cash   only 2338 

To  sell  to  third  parties  only 2339 

To   sell   in   person *..  .>vt 2340 

To  disclose    his    principal 2341 

5.  Auctioneer's  Duties  and  Liabilities  to  Third  Persons 

Liable  where  he  conceals  principal 2342 

Liable  where  he  exceeds  his  authority 2343 

Liable  where  he  contracts  personally 2344 

Liability  for  selling  property  of  stranger 2345 

Not  liable  for  not  holding  auction  as  advertised 2346 

Liable  for  refusing  to  surrender  properly  bought 2347 

Liability  for  money  received 2348 


6.  Auctioneer's  Rights  Against  his  Principal 

Compensation — Reimbursement — Indemnity    2349 

—  Recoupment  of  damages  of  principal 2350 

Auctioneer's  lien  2351 

Cannot  dispute  principal's  title    2352 

T.  Auctioneer's  Rights  against  Third  Persons 

Right  to  sue  bidder 2353 

Right  to  sue  wrong-doer 2354 

8.  Principal's  Rights  against  Third  Persons 

To  recover  purchase  price 2355 

Where  bidder  refuses  to  complete  purchase 2356 

9.  Rights  of  Third  Persons  against  Principal 

Principal's   liability    for    auctioneer's   acts 2357 

Liability  for  breach  of  contract 235S 

Liability  for  not  holding  sale,  withdrawing  property,  etc 2359 

Liability  for  failure  of  title  to  goods  sold .• 2360 


TABLE  OF  CONTENTS  xix 

CHAPTER  III. 
OF  BROKERS 

[Reference*  are  to  flections:   88  1-1705,  Vol.  I;  88   1700-2588,  Vol.  II.] 

iiJl'tr.  liea 

Purpose  of  this  chapter •  • . .  • 2361 

.    OiflUii    vV. 
I.    DEFINITIONS    AND    DIVISIONS 

Brokers— In  general    2362 

Different  kinds  of  brokers 2363 

Bill  and  note-brokers 2364 

Exchange-brokers    2365 

Insurance-brokers 2366 

Distinctions 2367-2369 

Broker's  duties  to  employer   2370 

Right  to  sue   2371 

Right  to   lien    iC  .4Wl  .'J'K  ;3(it&  2372 

Merchandise  brokers 2373 

As  agent  of  both  parties  2374 

How  authorized    2375 

When  special  agent   2376 

When  not  authorized  to  sign 2377 

"Bought  and  sold  notes"  in  the  English  practice. 2378 

English  rules  governing  "bought  and  sold  notes 2379,  2380 

"Bought  and  sold  notes"  in  the  United  States 2381 

Pawnbrokers     2382 

Real  estate  brokers   2383 

Ship   brokers 2384 

Stock    brokers    2385 

New  York  rules  governing  relation  2386 

—  Broker  a  pledgee 2387 

Massachusetts    rule    2388 

New  York  view  generally  adopted — Substitution  of  other  shares — Re- 
pledge     2389 

<J  irfSift  A     . 

PI.    APPOINTMENT  AND  TERMINATION 

Appointed   like  other  agents    2390 

How  authority  terminated    2391 

III.    IMPLIED  AUTHORITY  OF  BROKERS 

In    general    2392 

How  affected  by  usage 2393 

Local  usages  or  customs 2391 

Usual  and  necessary  authority    2395 

Authority  to  make  and  sign  necessary  memorandum 2396 

Effect  of  instructions   2397 


XX  TABLE  OF  CONTENTS 

[References   are  to  sections:   SS   1-1705,  Vol.  I;  g§  1706-2688,  Vol.  II.] 

Acting  for  both  parties   2398 

May  not  delegate  his  powers  2309 

Usually  must  act  in  the  name  of  his  principal 2400 

Implied  authority  to  fix  the  price , 2401 

—  Terms  of  sale  ,^.,._t.^., „.,„>. r<r*-*.,*>>  2402 

May  sell  with  warranty — When   2403 

When  may  sell  on  credit 2404 

No  authority  to  receive  payment  2405 

No  authority  to  rescind  or  arbitrate 2406 

No  authority  to  accept  or  waive  performance 2407 

Authority  to  sell  property  purchased  by  him   ^frrrtf  *}r.-  »bm>(-  T.T  240S 

Authority  to  pledge   property ?(Tr*w-*f\»tc  •!'!•  2409 

IV.    DUTIES  AND  LIABILITIES  TO  PRINCIPAL 

Reasonable  skill  and  diligence  required 2410 

Fidelity  to  his  principal — Concealing  facts — Dealing  with  or  for  him- 
self      2411 

Acting  for  both  parties    2412 

How  when  mere  "middle  man" 2413 

Duty  to   obey   instructions ,rf.  }<>.}«>•  •  •  •  •  2414 

Illustrations    ,{WM .  w«>  2415 

Imperiling  broker's  security 241G 

Duty  to  keep  and  render  accounts  and  to  pay  proceeds  and  deliver 

property 2417 

V.    DUTIES  AND  LIABILITIES   TO  THIBD  PERSONS 

Not  liable  when  he  contracts  for  a  principal  disclosed 2418 

Liability  when  principal  concealed  2419 

Liable  when  he  expressly  charges  himself 2420 

Liable  when  he  acts  without  authority 2421 

Liability  for  money  received   (»«.  ,-f*ic-  2422 

When  guilty  of  a  conversion 2423 

VI.    BIGHTS  OF  BKOKER  AGAINST  PRINCIPAL 

1.  Right  to  Compensation 

Entitled  to  compensation    2424 

How  amount  determined 2425 

Broker  must  show  employment — Volunteer — Ratification 2426 

Broker  must  have  performed  undertaking 2427 

Real  estate  broker — Nature  of  his  undertaking 2428,  2429 

Usually  need  not  conclude  a  binding  sale — Find  purchaser  ready,  will- 
ing and  able  to  buy   2430 

When  is  such  a  purchaser  "found?" 2431,  2432 

Contract  in  particular  cases  may  require  less 2433 

Contract  with  broker  need  not  be  in  writing 2434 

Broker  must  be  procuring  cause — May  be  such  though  not  present  at. 

sale — Directness  of  cause 2435,  2436 


TABLE  OF  CONTENTS  XXI 
[References  are  to  Hectiong:   §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 

Must  be  on  terms  required — 1.  Where  terms  were  prescribed 2437 

—  2.  Where  no  terms  were  prescribed    2438 

Must  be  within  time  limited 2439 

Readiness  and  willingness  of  purchaser 2440 

Pecuniary  responsibility  of  purchaser   2441 

Abandonment  by  broker  before  success   2442 

Must  be  sale,  not  mere  option  or  conditional  contract 2443 

Must  be  sale,  not  exchange 2444 

Sale  by  principal  in   person — Exclusive  agencies 2445 

Giving  time    2446 

Broker's  right  not  defeated,  how — Principal's  default 2447 

Buyer's   default    244S 

Revocation  of  authority 2449 

Reasonable  time  in  which  to  find  purchaser 2450 

Definite  time — Contract  for 2451 

When  such  contract  exists— Consideration  for 2452-2454 

Performance  liberally  viewed  in  order  to  avoid  hardships  to  broker 2455 

Employment  of  two  or  more  brokers 2456 

When  one  entitled — How  determined 2457 

—  Same    subject — Interpleader 2458 

Abandonment  by  one  broker — Termination  of  his  authority 2459 

Duty  to  notify  principal,  when  purchaser  found 2460 

How  much  compensation  broker  entitled  to — Quantum  meruit 2461 

At  what  time  commission  payable 2462 

Broker  to  sell  chattels 2463 

Abandonment  by  one  broker — Termination  of  his  authority 2459 

Revocation  of  authority 2465 

—  Several  brokers   2466 

Broker  to  effect  loan    2467 

Broker  to  effect  exchange    2468 

—  Bringing  parties  to  terms 2469 

Failure  of  contract   2470 

Broker  to  purchase  land    2471 

Broker  to  find   a  tenant    2472 

Other  cases  within  the  same  principles 2473 

Commissions  from  both  parties  2474 

How  in  case  of  mere  middle-man 2475 

How  affected  by  misconduct  2476 

How  affected  by  disloyalty,  double  dealing,  etc 2477 

No  compensation  where  undertaking  illegal 2478 

How  when  not  licensed 2479 

2.  Right  to  Reimbursement  and  Indemnity 

Entitled    to    reimbursement 2480 

Needless  expenses — Illegal  transactions   2481 

How  when  undertaking  not  performed  2482 

S.  Right  to  a  Lien 

No  general  lien  2483 


XX11  TAIJLE  OF  CONTENTS 

[Reference*   are  to  lectlona:   gg  1-1705,  Vol.  I;  gg   1706  2588,  Vol.   IT.] 

Liens  in  special  cases — Stock  brokers^ — Real  estate  brokers — Insurance 

brokers     2484 

Equitable    liens    2485 

No  lien  except  for  debt  due  from  principal 2486 

VII.    RIGHTS  OF  BROKER   AGAINST  THIRD   PKKSOXS 

1.  In  Contract 

In  general,  no  right  of  action  on  contracts  2487 

When  he  may  sue 2488 

What  defenses  may  be  made  when  broker  sues 2489 

2.  In  Tort 
May  recover  when  he  sustains  injury  in  the  line  of  his  business 2*90 

VIII.  RIGHTS   OF  PRINCIPAL  AGAINST  THIRD   PERSONS 

Same  as  in  other  cases  of  agency  2491 

No  set-off  of  broker's  debts  or  obligations  2492 

Right  to  recover  money  and  property 2493 

IX.  BIGHTS    OF   THIRD    PERSONS    AGAINST    PRINCIPAL 

Same  as  in  other  cases  of  agency  2494 

No  remedy  if  broker  did  not  act  as  defendant's  agent  2495 


CHAPTER  IV. 

OF  FACTORS 

Purpose   of   this   chapter    2496 

I.   DEFINITIONS   AND   DISTINCTIONS 

Factor  or  commission  merchant  defined  2497,  2498 

Distinction  between  factor  and  purchaser 2499 

H.    HOW  APPOINTED 

Same  as  other  agents 2500 

in.  IMPLIED  AUTHORITY  OF  FACTORS 

In  general    2501 

How  affected  by  usage 2502 

To  fix  price  and  terms 2503 

To  sell  on  credit 2504 

To  sell  in  his  own  name 2505 

To  warrant  quality   2506 

To  warrant  title   2507 

To  receive  payment    2508 

To  pledge  2509,  2510 

Under  factor's  act..  2511 


TABLE  OF  CONTENTS  XX111 

[Reference*   are  to  neotlons:   §§  1-1705,  Vol.  I;  S§   1700-2588,  Vol.  II.] 

To  pay  his  own  debts  2512 

To  barter  or  exchange 2513 

To  delegate  his  authority    2514 

To  compromise  or  compound  the  debt 2515 

To  submit  to  arbitration 2516 

To  rescind  sale   2517 

To  extend  time  of  payment  2518 

To  receive  anything  but  money  in  payment 2519 

rn                  l                         *•     vi  ocon 

To  make  negotiable  paper    2520 

To  insure  property 2521 


To  sell  to  himself  2522 

IV.  DUTIES   AND  LIABILITIES  TO  PRINCIPAL 

To  use  reasonable  care  and  prudence  2523 

To  be  loyal  to  his  principal's  interest 2524 

To  obey  instructions   2525 

Instructions  to  sell   2526 

—  Factor's  right  to  sell,  or  to  decline  to  sell,  for  his  own  protection  2527 

The  measure  of  damages  2528,  2529 

Instructions  to  sell  for  cash 2530 

Instructions  to  insure   2531 

Duty  to  inform  principal  2532 

Duty  to  sell  only  to  responsible  purchaser 2533 

—  Del    credere    commission    2534 

Factor's  duty  to  care  for  property  2535 

Unforeseen  contingency — Sudden  emergency 2536 

General  duty  as  to  sales 2537 

Duty  as  to  place  of  sale 2538 

Duty   as  to   time   of   sale 2539 

Duty  as  to  price  2540 

Duty   in  collecting  price 2541 

Factor's  duty  in  keeping  account 2542 

Not  obliged  to  keep  funds  separate 2543 

Factor's  duty  to  account  for  money  and  property 2544,  2545 

Set-off     2546 

Conclusiveness  of  accounts   2547 

Duty  in  remitting  money  2548 

When  principal  may  sue  factor  2549 

Liability  for  acts  of  sub-agents  2550 

V.  BIGHTS   OF  FACTOR  AGAINST  PRINCIPAL 

a.  Commissions 

Factor  entitled  to  compensation   2551 

When  factor  may  have  commissions  from  both  parties 2552 

When  commission  earned — Upon  what  computed 2553 

b.  Reimbursement 

Factor  entitled  to  reimbursement  2554,  2555 


XXIV  TABLE  OF  CONTENTS 

[Heferene«M  are   to  aeetionii:  g§  1-17O5,  Vol.  I;  88   1TO«-25S8,   Vol.  II.  J 

-  Interest  upon  advances  .......................................     2556 

-  Collusiveness  of  accounts  .....................................     2557 

c.  Indemnity 
Factor  entitled  to  indemnity  against  losses  ..........................     2558 

d.  Lien 
Factor  entitled  to  lien   .............................................     2559 

When  lien  does  not  exist  ...........................................     2560 

Nature  of  the  lien   .....................  2561 

.  ..... 

When  lien  attaches   ............................................  2562-2564 

Who  may  confer  lien  ...............................................    '2565 

How  lien  may  be  lost  ..............................................     2566 

How  lien  enforced   .........  .......................  ^^  uWsnrwwr  ••    2567 


VI.  BIGHTS  OF  FACTOR  AGAINST  THIRD  PERSONS 

a.  In  Contract 
May  sue  for  price  of  goods  sold  ................................   2568,  2569 

-  Defences    ..............................  ........................     2570 

May  sue  on  contracts  made  in  his  name  .............................     2571 

&.  In  tort 
May  maintain  trespass,  replevin  or  trover  ..........................     2572 

Actions  against  carriers    ...........................................     2573 

VII.  BIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS 

a.  In  Contract 
May  sue  for  price  of  goods  sold  .....................................     2574 

-  What  defenses  principal  subject  to  .............................     2575 

Right  to  follow  property  .......................................  2576,  2577 

b.  In  Tort 

For  injuries  to  or  conversion  of  the  goods  ..........................     2578 

• 

Vm.  RIGHTS  OF  THIRD  PERSONS  AGAINST  PBINCIPAI, 

Same  as  in  other  cases  .............................................  "    2579 

How  when  principal  undisclosed    ...................................     2580 

How  when  exclusive  credit  given  to  the  factor  .......................     2581 

IX.  BIGHTS  OF  THIRD  PERSONS  AGAINST  FACTOB 

Same  as  in  other  cases  ...........................................  •  •     2582 

When  liable  for  conversion  .........................................     2583 

How  in   case  of   foreign   factor  .....................................     2584 

X.   HOW  RELATION   TERMINATED 

As  in  other  cases  of  agency  —  Revocation  by  principal  ................     2585 

—  Renunciation  by  agent   ........................................     2586 

-  Lapse  of  time,  etc  ..............................................     2587 

-  -  War,  death,  bankruptcy   .......................................     2588 


THE  LAW  OF  AGENCY 


BOOK  IV. 

OF  THE  RIGHTS,  DUTIES  AND  LIABILITIES  ARISING  OUT 

OF  THE  RELATION 

(Continued) 

CHAPTER  V 

THE  DUTIES  AND  LIABILITIES  OP  THE  PRINCIPAL  TO  THIRD 

PERSONS 


§  1706.  Purpose  of  chapter. 

I.  THE  LIABILITY  OF  THE  PRINCIPAL 
UPON  CONTRACTS  MADE  BY  AN 
AGENT. 

1707.  In  general. 

1.  The    Contractual   Liability    of  the 
Disclosed  Principal. 

1708.  In  general. 

1709.  Principal  liable  on  contracts 

made  in  his  name  by  his 
authority. 

1710.  Principal   liable   on   informal 

contracts  not  expressly 
charging  agent's  responsi- 
bility. 

1711. Informal       entries       or 

charges  against  agent  not 
conclusive. 

1712.  Principal  may  often  be  liable 

though  agent  also  bound. 

1713.  - —  Written       contract      in 

agent's  name  —  Principal 
not  liable. 


1714-1716.  Same   subject— 

Principal  liable. 

1717.  Principal    not    liable    where 

credit  given  exclusively  to 
agent. 

1718.  For  what  contracts  and  con- 

tractual acts  of  agent  is 
principal  liable. 

1719.  Qui  facit  per  alium,  facit  per 

se. 

1720.  Principal  liable  for  acts  and 

contracts  within  scope  of 
authority. 

1721.  Third  person  must  ascertain 

agent's  authority. 

1722.  What  constitutes  authority. 
1723. Secret   instructions  and 

restrictions  of  principal  or 
secret  motives  of  agent — 
Mistake  of  agent. 

1724.  General  and  special  agents. 

1725.  Special  agent's  authority 

must  be  strictly  pursued. 

1726.  Effect  of  ratification. 


THE    LAW   OF   AGENCY 


[BOOK    IV 


1727.  Performance  of  unlawful  act 

not  enforced. 

1728.  Principal    not    bound    where 

agent  had  an  adverse  inter- 
est. 


2.  The 

1729. 
1731. 

1732. 
1733. 
1734, 
1736. 
1737. 
1738. 

1739. 
1740. 
1741. 
1742. 

1743. 
1744. 

1745- 
1748. 

1749. 
1750. 

1751. 

1752, 

1754. 
1755. 

1756. 


Contractual    Liability    of   an 
Undisclosed  Principal. 

1730.  Preliminary  considera- 
tions as  to  liability. 

General  rule  —  Undisclosed 
principal  liable  when  dis- 
covered. 

Rule  applies  to  all  simple 
contracts. 

Parol  evidence  to  identify  the 
principal. 

1735.  Does  not  apply  to  con- 
tracts under  seal. 

Does  not  apply  to  negotiable 
instruments. 

Exceptions  to  the  general 
rule. 

Of  the  first  exception — 
Change  in  accounts — Mis- 
leading conduct. 

Thompson  v.  Davenport. 

Heald  v.  Kenworthy. 

Armstrong  v.  Stokes. 

Irvine     v.     Watson — In 

the  Queen's  Bench. 

Irvine     v.     Watson — In 


the  Court  of  Appeal. 

What  is  misleading  con- 
duct. 

1747.  Delay,  etc. 

—  The  rule  in  the  United 
States. 

General  conclusions. 

Of    the    second     exception — 
"Election." 

Theories  of  election. 

1753.  Knowledge    neces- 
sary. 

What  constitutes  an  election. 

I.  Before    discovery    of    prin- 
cipal. 

II.  After    discovery    of    prin- 
cipal. 


1757.  Presenting  claim. 

1758.  Commencement     of     ac- 
tion. 

1759.  -    -  Taking        judgment 

against  agent. 

1760.  Taking  agent's  note. 

1761.  Charging  goods  to  agent. 

1762.  Mere    delay — Statute    of 

limitations. 

1763.  Intermediate       party       must 

have  been  agent  and  not 
principal. 

1764-1766.  Alleged  agent  must 
have  been  really  such. 

1767,  1768.  "Apparent"  author- 
ity. 

1769.  Right    of    assignee   of    other 

party  against  principal. 

1770.  Apparent  agent  the  real  prin- 

cipal. 

1771.  Excluding    principal's    liabil- 

ity by  terms  of  contract. 

1772.  Cases  in  which  the  agent  may 

not  be  liable. 

II.  RESPONSIBILITY  OF  THE  PRINCIPAL 
FOB  THE  AGENT'S  STATEMENTS, 
REPRESENTATIONS  AND  ADMIS- 
SIONS. 

1773.  In  general. 

1774.  Agent's    authority    must     be 

first  shown. 

1775.  Authority    cannot    be    shown 

by  agent's  admissions. 

1776.  Representations  by  agent. 

1777.  Principal     liable     for     state- 

ments and  representations 
expressly  authorized. 

1778.  Statements  of  agent  of  agent 

expressly  authorized  to 
give,  or  referred  to,  for  in- 
formation. 

1779.  Statements  of  agent  implied- 

ly  referred  to  for  informa- 
tion. 

1780.  Statements  of  agent  made  as 

incidents  of  his  position — 
General  manager — General 
agents,  etc. 


1294 


CHAP.    V]  LIABILITY    OF    PRINCIPAL   TO    THIRD    PARTIES 


1781. 

1782. 
1783. 

1784. 
1785. 

1786. 

1787. 
1788. 


1789. 
1790. 

1791. 


1792. 
1793. 

1794. 
1795. 
1796. 
1797. 
1798. 

1799. 
1800. 


Statements  of  agent  made  as 
incident  to  an  authorized 
act — Res  gestae. 

Various     statements     of 

the  doctrine. 

—  Limitations     upon     the 
rule. 

Further  limitations. 

How      question      deter- 
mined. 

Effect  of  these  statements  not 

dependent  upon  their  being 

true. 
Statements  showing  notice  to 

or  knowledge  by  the  agent. 
Statements  by  agent  made  to 

modify,  qualify   or   explain 

the  act. 

Illustrations. 

Statements  indicative  of  the 

agent's  state  of  mind. 

Words  themselves  constitut- 
ing or  aggravating  the 
wrong. 

Admissions  of  agent  gener- 
ally  not  competent  to 
charge  principal. 

Declarations  and  admissions 
of  agent  as  part  of  res  ges- 
tae. 

Meaning    of    res    gestae 

as  here  used. 

What  sort  of  statements 


admissible. 

What   embraced    within 

res  gestae. 

How  admissibility  de- 
termined. 

Illustrations  of  what  has 
been  called  part  of  the  res 
gestae — Inadmissible  decla- 
rations. 

Illustrations  —  Admissi- 
ble declarations. 

When  principal  bound  by 
agent's  representation  of 
extrinsic  facts  upon  which 
authority  depends. 


1801.  Illustrations  —  Bills    of 

lading — Warehouse  receipts 
— Certified  checks. 

III.  THE  EFFECT  UPON  THE  PRINCIPAL'S 
RIGHTS  AND  OBLIGATIONS  OF  NO- 
TICE TO  OR  KNOWLEDGE  IN  HIS 
AGENT. 


1802. 
1803. 


1804. 
1805. 

1806. 
1807. 
1808. 
1809- 
1812. 


In  general. 

General  rule — Notice  to  the 
agent  is  notice  to  the  prin- 
cipal. 

Illustrations. 

The  theory  of  the  rule — 
a.  Identification. 

b.  Conclusive 


1813. 
1814. 

1815. 


1816. 
1817- 

1822- 
1825. 

1826. 

1827. 
1828, 


presump- 
tion of  communication. 

I.  Notice      acquired      during 
agency. 

II.  Knowledge  acquired  prior 
to  agency. 

1811.  Requirement        o  f 

present  knowledge. 

What  is  meant  by  notice 

acquired  "during  the 
agency"  or  "prior  to 
agency." 

The  resulting  rule. 

The  first  exception — Privi 
leged  communications. 

The  second  exception — Agent 
acting  adversely  to  princi- 
pal. 

Reasons    for   the   excep- 
tion. 
-1821.  -    -  Further     of    these 

reasons. 
-1824.  The  true  exception. 

Applicability  of  excep- 
tion to  corporate  agents. 

The  third  exception — Collu- 
sion of  party  claiming 
benefit  of  notice. 

Who  can  avail  himself  of  the 
notice. 

1829.  What  notice  includes— 
Actual  and  constructive  no- 
tice. 


1295 


THE    LAW    OF    AGENCY 


[BOOK  iv 


1830.  Agent  must  be  agent  of  per- 

son to  whom  notice  is  to  be 
imputed. 

1831.  Rule   applies    only   to    notice 

respecting    matters    within 

agent's  authority. 
Notice   after   termination   of 

authority  does  not  bind. 
Notice  must  be  of  some 


1832. 
1833. 
1834. 


material  matter. 
Notice    must   come   to   some- 
one who  is  an  agent. 

1835. Ratification. 

1836.  Releasing  agent  from  duty — 
Enlarging  it. 

1837-1839.  Agent  of  two  principals. 

1840.  Two  agents  of  same  principal. 

1841.  Notice  to  subagent  when  no- 

tice to  principal. 

1842.  Notice  of  what  sort  of  facts 

imputed. 

1843.  These  rules  apply  to  corpora- 

tions— Notice  to  agent. 

1844.  What  officer  or  agent. 

1845-1847.  Ordinary     excep- 
tions apply  here. 

1848-1850.  When  notice  must 

be  acquired. 

1851-1853.  When  notice  to  di- 
rector is  notice  to  corpo- 
ration. 

1854.  Notice  to  stockholder 

not  notice  to  the  corpora- 
tion. 


18C1. 

1862. 
1863. 

1864. 
1865. 

1866- 
1870, 

1872. 


Servant  performing  his 

own   master's   business   un- 
der   direction    of    master's 
employer. 

Furnishing    persons    to 


be  employed  as  servants. 

Tests     for     determining 

question. 

—  Court  or  jury. 

Contractual  agreement  as  to 
who  shall  be  principal. 

1869.  Strangers  assisting  serv- 
ants. 

1871.  Independent      contract- 
ors. 

Subagents. 


IV.  THE    LIABILITY    OF   THE    PRINCIPAL 
FOB     HIS     AGENT'S     TORTS     AND 

CRIMES. 

1855.  In  general. 

1856,  1857.  Theories  of  liability. 

1.  Did  relation  of  Principal  and  Agent 
or  of  Master  and  Servant  Exist. 

1858.  Necessity  for  existence  of  the 

relation. 

1859.  When  relation  exists. 

1860.  Several  masters  of  one 

servant — General    and    spe- 
cial  master — Lending   serv- 
ants— Adopting  servants  of 
others. 

1296 


Liability   for   Acts    Expressly   Di- 
rected. 

1873.  Principal   liable   for  acts  ex- 

pressly  directed. 

Liability  for  Negligent  Act  of 
Servant  or  Agent. 

1874.  Liable    for    agent's   negligent 

act  in  course  of  employ- 
ment. 

1875. .  Liability  dependent  upon 
agency. 

1876,  1877.  Rules  stated. 

1878.  Forms  of  negligence. 

1879.  What   meant   by    course 

of  employment. 

1880.  Not  merely  a  question  of  time 

or  place. 

1881.  Master's  prohibition  or  warn- 

ing not  conclusive. 

1882.  Intention  to  benefit  the  mas- 

ter not  the  test. 

1883.  Principal's  ignorance  or  good 

faith  will  not  exonerate 
him. 

1884.  Ordinary    and   natural    attri- 

butes in  the  light  of  the 
event. 

1885.  The  question  of  apparent  pow 

ers. 

1886.  Illegal  or  unlawful  acts. 

1887.  Application  of  rules. 

1888.  Illustrations. 
1889-1891.  Further  illustrations. 
1892,  1893.  Forbidden  acts. 


CHAP.    V]  LIABILITY   OF    PRINCIPAL   TO   THIRD   PARTIES' 


1894.  Act    of    servant    having 

large  degree  of  discretion. 

1895.  Servant    combining    his 

own  business  with  that  of 
master. 

1896.  Servant   using   master's 

vehicle,  implement,  etc., 
upon    servant's    business — 
Facilitating    master's    busi- 
ness. 

1897.  Servant    under   immedi- 
ate  direction   of   patron   of 
master. 

1898.  Master   not   liable   for   negli- 

gence not  in  course  of  em- 
ployment. 

1899.  Departure   from   service — De- 

tour. 

1900.  Distinction     between     a 

mere  detour  and  a  depart- 
ure. 

1901-1904.  Illustrations. 

1905,  1906.  Resumption         of 

service  after  departure. 
1907,  1908.  Comments  on  these 


views. 

1909-1911.  Other       acts      not 

within    course    of    employ- 
ment. 

1912.  Further  illustrations. 

1913.  Injuries  to  servant's  in- 
vitees. 

1914.  1915.  Negligence   when   serv- 

ant off  duty. 

1916.  How      question      deter- 
mined. 

-:1917-1920.  Master's  liability  for 
acts  of  independent  con- 
tractor. 

1921.  Effect  of  ratification. 

4.  Liability  for  Trespass  or  Conver- 
sion. 

1922.  Liable    for    trespass    or    can- 

version    in    course    of    em- 
ployment. 

1923.  Special  cases. 

"1924.  •  Illustrations. 

1925.  Not   liable   if  acts   were   not 
within    course    of    employ- 
ment. 
82  1297 


Liability  for  Wilful  or  Malicious 
Acts  of  Servant. 

1926-1929.  In  general. 

1930.  Special  classes  of  cases. 

1931.  I.  Where    the    master    owed 

the  plaintiff  a  special  duty. 

1932.  Non-delegable  duties. 

1933.  Rule  applied  to  carriers 

of  passengers. 

1934.  Illustrations  of  the  car- 
rier cases. 

1935.  Plaintiff    provoking    as- 
sault. 

1936.  Limitations  of  doctrine. 

1937.  Servant  a  public  officer. 

1938.  Servant  insane. 

1939-1944.  Application  to  oth- 
er cases — Difficulty  of  de- 
termining classes. '!!  ,10 

1945-1950.  II.  Where  master  con- 
fides to  servant  the  care  of 
a  dangerous  instrumental- 
ity. 

1951.  III.  Where    the    master    en- 

trusts  to   servant   perform- 
ance of  duties  involving  the 
>9btovj;    use  of  force. 

1952. Breach    of    instructions 

no  defense. 

1953.  Master    not    liable     for 

servant's  personal  malice. 

1954.  Act     must     have     been 

within    course  .  pf    employ- 
ment. 

1955. Use  of  force  must  have 

been  authorized. 

1956.  Other  limitations. 

1957.  IV.  Master's  liability  for  ma- 

licious acts  in  other  cases. 

1958-1972.  Illustrations. 

1973,  1974.  False  imprison- 
ment and  unauthorized  ar- 
rest. 

1975.  Unfounded  prosecutions. 

1976.  Malicious  prosecution. 

1977.  1978.  >  Assaults. 

1979.  Shooting. 

1980,  1981.  Slander  and  libel. 

1982. 

1983. 


How  question  decided — Court 

or  jury. .j  Tjiiju  'io  ^ 
Ratification. 


CHAP.    V]  LIABILITY   OF    PRINCIPAL   TO   THIRD   PARTIES 


[§ 


6.  Liability  for  Fraudulent  Acts  and 

Representations. 

1984,  1985.  Liability  for  agent's 
fraudulent  act. 

1986.  Agent's     fraud     supple- 
mented by  some  act  or  omis- 
sion of  the  principal. 

1987.  Liability     of     principal     for 

agent's  false  or   fraudulent 
representations. 

1988.  No    liability    for    repre- 
sentations if  any  represen- 
tation is  outside  authority. 

1989.  Representations    within 

apparent  authority. 

1990.  Liability  for  representa- 
tions not  made   for  princi- 
pal's benefit. 

1991.  1992.  Represent  a  t  i  o  n  s 

concerning  facts  which  con- 
dition authority. 

1993.  Liability  by  ratification 

or  adoption  of  act. 

1994.  Effect    of   misrepresentations 

— Remedies. 

1995.  1996.  Action  of  deceit. 

1997.  Effect   of   fraud   not   avoided 

by  recitals  in  contract  that 
there  was  none. 

7.  Liability    for    Penal    or    Criminal 

Acts  of  Agent. 

1998.  What  here  involved. 

a.  Civil  Liability. 

1999.  Principal's  civil  liability   for 

agent's    criminal    or    penal 

act. 
ito  ni  EJOB  aooi'jil 

,_,,  ,  „'    <~  ~C[__£,"(>f 

§  1706.  Purpose  of  chapter. — It  is  obvious  that  one  of  the  most 
important  questions  in  the  law  of  agency  is  that  which  deals  with  the 
duties  and  liabilities  of  the  principal  to  third  persons,  based  upon  and 
growing  out  of  the  acts,  declarations,  contracts  and  misconduct  of  the 
agent  in  his  dealings  and  transactions  with  them.  To  some  extent  and 
for  some  time,  the  agent  has  been  invested  with  authority  by  his  prin- 
cipal and  sent  out  into  the  world  to  obtain  for  the  principal  the  profits, 
benefits  or  other  objects  which  he  desired,  and  to  bind  the  principal 

1298 


2000.  Civil    liability    for    statutory 

torts    committed    in    course 
of  employment. 

2001.  No    civil    liability    for    acts 

not    in    course    of    employ- 
ment. 

2002.  2003.  Usury. 

2004,  2005.  Liability  by  ratification. 

6.  Criminal  or  Penal  Liability. 

2006.  Principal's  criminal  liability 

for  agent's  criminal  or  penal 
acts. 

2007.  Penal  acts. 

2008.  Illustrations. 

2009.  Contrary  holdings. 

8.  Matters  Relating  to  Procedure. 

2010.  Joinder  of  principal  and  agent 

in  one  action. 

2011.  Weight  of  authority  per- 
mits joinder. 

2012.  Master   cannot   be   held 

if  servant  not  liable. 

2013.  The     measure     of     damages 

against    the    principal — 
Compensation. 

2014.  Exemplary  damages. 

2015.  Exemplary  damages  not 

allowed. 

2016.  Exemplary   damages   al- 
lowed. 

2017.  Unsatisfied  judgment  against 

agent     no     bar     to     action 
against  principal. 

2018.  Principal  or  master  liable  al- 

though    other's    negligence 

also  contributed. 

.nor 


CHAP.    V]  LIABILITY    OF    PRINCIPAL   TO   THIRD    PARTIES  [§    1706 

when  necessary  by  such  representations,  contracts  and  other  acts  as 
are  suitable  to  the  occasion,  and  within  the  terms  and  objects  of  the 
authorization. 

In  pursuing  these  objects,  the  agent  may  have  kept  either  the  fact 
of  the  agency,  or  the  name  of  his  principal,  or  both,  concealed  from 
the  persons  with  whom  he  dealt,  and  in  this  event  the  question  arises 
whether,  in  either  case,  the  actual  principal  can  be  made  liable  when 
discovered. 

Or  the  agent  may  have  disclosed  both  the  fact  of  his  agency  and 
the  name  of  his  principal,  and  in  this  event  it  is  material  to  know 
whether  the  act,  contract  or  representation  of  the  agent,  assumed  to 
be  done  or  made  by  virtue  of  his  authority,  was  in  fact  within  its  na- 
ture and  its  scope. 

~J*  »V"WtrTiR    ^O    «>/fi    rti\£     'V 

So  the  question  may  arise  how  far  the  principal  can  be  held  respon- 
sible for  the  misrepresentations,  deceits,  trespasses  and  other  wrongs 
committed  by  the  agent  in  pursuance  of,  or  while  engaged  in,  the  un- 
dertaking. For  convenience  of  treatment  there  will  be  considered: — 

1.  The  liability  of  a  disclosed  principal. 

2.  The  liability  of  an  undisclosed  principal. 

I.  The  liability  of  the  principal  upon  contracts  made  by  his  agent, 

including:— 

IL  The  responsibility  of  the  principal  for  the  agent's  statements, 
representations  and  admissions. 

III.  The  effect  upon  the  principal  of  notice  to  or  knowledge  in  his 

agent. 

IV.  The  liability  of  the  principal   for  the   torts  and  crimes  of  his 

agent  or  servant. 
Hereunder  will  be  considered  such  questions  as — 

1.  Did  relation  of  principal  and  agent  or  of  master  and  servant  ex- 

ist? 

2.  Liability  for  acts  expressly  directed. 

3.  Liability  for  negligent  acts  of  servant  or  agent. 

4.  Liability  for  trespass  or  conversion  by  servant  or  agent. 

5.  Liability  for  wilful  or  malicious  acts  of  servant  or  agent. 

6.  Liability  for  fraudulent  acts  and  representations  of  servant  or 

agent. 

7.  Liability  for  penal  or  criminal  acts  of  agent 

8.  Matters  relating  to  procedure. 

1299 


§§  17®7-17°9]  THE  LAW  OF  AGENC*  [BOOK  iv 


I. 
THE  LIABILITY  OF  THE  PRINCIPAL  UPON  CONTRACTS  MADE  BY  AN  AGENT. 

G  ftonss^wi*  srfMfr  •  ft  ITIC  ,i 

§  1707.  In  general.  —  In  dealing  with  the  liability  of  the  principal 
upon  contracts  made  by  his  agent,  there  must  be  deemed  to  be  in- 
cluded not  only  the  making  of  the  contracts  but  the  alteration,  modifica- 
tion or  termination  of  them,  the  performing  and  receiving  performance 
of  them,  and  the  various  other  acts  which  are  incidental  to  the  contract 
relation. 

As  has  already  been  suggested,  in  view  of  one  of  the  peculiar  situa- 
tions in  the  law  of  agency,  the  questions  must  be  considered  not  only 
in  relation  to  a  disclosed  principal  but  also  to  an  undisclosed  principal. 

For  the  purpose  of  disposing  of  the  general  before  the  particular,  the 
case  of  the  disclosed  principal  will  be  considered  first. 

1.  The  Contractual  Liability  of  the  Disclosed  Principal. 

§  1708.  In  general.  —  The  case  in  which  the  principal  is  disclosed 
at  the  time  of  making  the  contract  or  doing  the  act  is  the  usual  and 
typical  one.  To  this  case  the  great  majority  of  the  rules  and  principles 
of  the  subject  are  directed,  although,  as  will  be  seen  many  of  them 
apply  equally  to  the  case  of  the  undisclosed  principal  where  he  is  liable 
at  all.  It  is  fitting  therefore  to  consider  them  at  the  outset. 

§  1709.  Principal  liable  on  contracts  made  in  his  name  by  his 
authority.  —  Beginning  with  the  simplest  aspects,  it  may  be  noted 
that  the  principal  is  liable  on  all  lawful  contracts  made  in  his  name  by 
his  agent  acting  within  the  scope  of  his  authority.  This  is  the  normal 
and  typical  case,  and  to  this  case  the  general  rules  of  agency  have  their 
fullest  application. 

In  this  case  the  agent  is  not  liable  and  cannot  be  held  even  though 
the  principal  fails,  or  is  unable,  to  perform.  The  contract  is  made  in 
the  principal's  name  and  not  in  the  agent's,  and  no  liability  on  the  part 
of  the  agent  can  arise  upon  the  contract.  The  contract,  by  the  hypo- 
thesis, is  made  with  the  principal's  authority,  and  there  is  therefore 
no  room  for  liability  on  the  part  of  the  agent  based  either  upon  deceit 
or  on  any  warranty  of  authority. 

1300 


CHAP.    V]       LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§    I?!©,  17  M 


The  principal  is  also  liable  to  the  same  extent  upon  contracts  made 
by  his  authority  in  a  name  adopted  as  the  principal's  trade  name.1 

§  1710.  Principal  liable  on  informal  contracts  not  expressly  charg- 
ing agent's  responsibility.  —  The  principal  is  also  liable  on  all  in- 
formal contracts  entered  into  on.  his  account  and  by  his  authority  and 
not  expressly  made  on  the  agent's  responsibility  rather  than  the  prin- 
cipal's.2 The  contract  is,  by  the  hypothesis,  made  on  the  principal's 
account  and  by  his  authority  ;  and  it  should  naturally  and  normally  be 
the  principal's  contract.  It  is,  however,  true,  as  has  been  seen,3  thai 
an  authorized  agent  may,  intentionally  or  unintentionally,  charge  his 
own  personal  responsibility  rather  than  that  of  his  principal  ;  but,  as 
has  also  been  seen,4  where  a  person  is  known  to  be  acting  as  the  agent 
of  a  disclosed  principal  the  presumption  is  that  the  principal  and  not 
the  agent  is  to  be  bound,  and  the  burden  of  proof  is  upon  him  whc 
alleges  that  the  agent  pledged  his  own  responsibility. 

The  rule  of  liability  in  this  case  is  simple  and  just.  An  agent  is 
sent,  for  example,  to  buy  goods.  He  discloses  his  agency  and  the 
name  of  his  principal.  After  examination  and  negotiation,  he  says, 
"I  will  take  these  goods  at  this  price,"  etc.  Whom  does  he  bind? 
Who  is  "I"  in  such  a  case?  Obviously  his  principal,  unless  the  con- 
trary is  clearly  indicated-  either  by  some  express  agreement  or  by  a 
course  of  dealing.  Ordinary  business  is  too  informally  done  to  re- 
quire that  the  person  known  to  be  acting  as  agent  of  a  known  principal 
shall  constantly  reiterate  that  he  is  speaking  for  his  principal  and  not 
for  himself. 

§  1711.  -  Informal  entries  or  charges  against  agent  not  con- 
clusive. —  The  fact  that,  in  such  a  case,  goods  are  charged  to  the 
agent  or  bills  or  other  memoranda  are  made  out  in  his  name,  is  not 
conclusive  that  the  credit  was  not  given  to  the  principal.  These  charges 
or  entries  may  be  merely  informal  and  for  the  purpose  of  identification 
or  to  serve  until  more  formal  and  regular  entries  can  be  made.  Unless 
some  one  has  been  reasonably  mislead  by  them  to  his  prejudice,  they 
are  inconclusive.8 

i  Sec  Conroe  v.  Case,  79  Wis.  338,  Y.),  252;  Owen  v.  Gooch,  2  Esp.  567; 

Where  the  principal  was  doing  busl-  Ex  parte  Hartop,  12  Ves.  349;    Rob- 

ness  in  a  name  which  was  formerly  Ins  v.  Bridge,  3  M.  &  W.  114. 

the  business  name  of  the  agents.  3  See  ante,  §  1405. 

3  Whitney  v.  Wyman,  101  U.  S.  392,  *  See  ante,  §  1422. 

25  L,.  Ed.  1050;  Bonynge  v.  Field,  81  »  Guest  v.  Burlington  Opera  House 

N.  Y.  159;  Covell  v.  Hart,  14  Hun  (N.  Co.,  74  Iowa,  457. 

1301 

op,  ot 


§§    1712,1713]  THE  LAW  OF  AGENCY  [BOOK    IV 

§  1712.  Principal  may  often  be  liable  though  agent  also  bound. — 
The  principal,  moreover,  may  often  be  liable  though  the  agent  is  also 
bound.  The  agent,  by  special  agreement,  may  bind  himself  jointly 
with  the  principal.6  He  may  also,  in  the  same  manner,  make  himself 
a  surety  for  his  principal.  But  entirely  outside  of  these  forms  of  bar- 
gaining, it  is  also  possible  for  both  principal  and  agent  to  be  liable. 
This  is  true,  as  seen  in  the  preceding  subdivision,  where  the  principal 
was  undisclosed  at  the  time  of  the  bargaining ;  but  it  may  also  be  true 
where  both  were  then  known,  though  the  theory  of  liability  is  differ- 
ent. Where  the  principal  is  known  and  the  agent  is  known  to  be  act- 
ing for  him,  it  is,  as  has  been  seen,7  the  presumption  that  the  principal, 
and  the  principal  alone,  is  to  be  bound.  But  the  agent  may  pledge  his 
own  responsibility ;  and  he  may  do  so  in  two  ways :  either  instead  of 
his  principal's,  or  in  addition  to  his  principal's. 

§  1713.  Written  contract  in  agent's  name — Principal  not 

liable. — Where,  when  the  principal  is  known  at  the  time  of  the  bar- 
gaining, the  written  obligation  of  the  agent  is  taken,  it  is  often  said  that 
this  amounts  to  an  election  to  give  the  credit  to  the  agent  and  not  to 
the  principal,  and  that  the  latter  can  therefore  not  be  held.*  This 
case,  it  is  said,  is  unlike  the  case  of  the  undisclosed  principal.  There 
the  obligation  of  the  agent  is  taken  because  no  principal  is  known  to 
exist;  but  when,  later,  the  existence  of  the  principal  is  discovered,  the 
law  gives  the  other  party  the  right  to  choose  between  them.  Here,  it 
is  said,  both  parties  are  known  at  the  time  of  making  the  contract,  and 
the  other  party  by  taking  the  agent's  obligation  elects  in  the  first  in- 
stance to  rely  upon  him  rather  than  upon  the  principal.  It  also  vio- 
lates the  rule  of  evidence,  it  is  urged,  to  permit  a  party  [the  principal] 

«  See  ante,  §  1419.  is  implied  in  the  terms  of  the  propo 
i  See  ante,  §  1422.  sition  that  a  party  may  pursue  an 
s  Chandler  v.  Coe  (1874),  54  N.  H.  undisclosed  principal;  and,  indeed, 
561,  22  Am.  Rep.  437;  Ferguson  v.  the  rule  is  elementary,  neither  need- 
McBean,  91  Cal.  63,  14  L.  R.  A.  65;  ing  nor  permitting  citation  of  au- 
Gillig  v.  Lake  Bigler  Road  Co.,  2  Nev.  thority  in  its  support." 
214.  Where  money  was  loaned  upon  the 
In  Matter  of  Bateman,  7  Misc.  633,  note  of  the  agent,  endorsed  by  the 
it  is  said:  "Where  a  party  contracts  person  now  claimed  to  have  been  an 
with  an  agent  as  such,  in  ignorance  undisclosed  principal,  it  was  held 
of  the  existence  of  a  principal,  he  that  there  was  no  room  for  the  doc- 
may,  on  discovering  the  principal,  trine  of  the  undisclosed  principal  and 
elect  to  hold  him.  But,  if  he  know  the  liability  of  the  parties  as  fixed  by 
the  principal  at  the  time  of  the  co»'  the  contract  could  pot  be  changed, 
tract,  and  yet  chooses  to  engage  with  Brown  v.  Tainter,  114  N.  Y.  App.  Div. 
the  agent,  he  is  estopped  afterward  446. 
to  go  against  the  principal.  So  much 

1302 


CHAP.    V]  LIAPILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1714 

to  be  charged  upon  a  contract  in  writing  made  with  knowledge  of  his 
existence  yet  containing  no  word  showing  an  intention  to  bind  him. 
Thus  it  was  said  by  the  court  in  New  Hampshire.9  "We  are  of  opin- 
ion that  where  a  principal  is  sought  to  be  charged  upon  a  contract  in 
writing,  made  in  the  name  of  his  agent,  the  rule  of  evidence,  which 
prohibits  the  parties  to  a  written  contract  from  contradicting  or  vary- 
ing its  terms  by  parol  testimony,  applies  if  the  principal  was  known, 
but  not  if  he  was  unknown."  A  number  of  cases  have  adopted  this 
view. 

§  1714.  Same  subject — Principal  liable. — Notwithstanding 

these  cases,  however,  there  is  excellent  authority  for  the  position  that 
the  principal  also  may  be  held  in  such  a  case.  It  does  not  violate  the 
parol  evidence  rule,  it  is  replied,  because  the  effect  is  not  to  release  the 
agent  but  simply  to  add  the  liability  of  the  principal.  Taking  the  ob- 
ligation of  the  agent  may  be  evidence  of  election  it  is  conceded ;  but  it 
is  urged  that  it  is  not  conclusive  and  should  ordinarily  be  a  question  for 
the  jury.  The  leading  case  on  this  side  is  Calder  v.  Dobell,10  decided 
in  1871,  by  the  English  court  of  common  pleas  and  the  exchequer 
chamber.  It  appeared  that  one  Cherry,  a  broker,  had  proposed  to  the 
defendant,  a  Liverpool  merchant,  to  buy  cotton  "to  arrive,"  and  the 
defendant  had  authorized  Cherry  to  buy  100  bales  for  him  but  declined 
to  allow  his  name  to  appear  in  the  transaction.  Cherry  offered  to  buy 
the  cotton  of  the  plaintiffs  but  they  refused  to  trust  him,  and  he,  being 
pressed,  disclosed  the  name  of  the  defendant  as  his  principal.  A  writ- 
ten contract  was  then  entered  into  between  plaintiffs  and  Cherry,  in 
which  Cherry  alone  was  named  as  the  buyer  and  which  he  signed  in 
his  own  name  without  any  reference  in  the  contract  to  the  fact  that  he 
was  acting  for  another.  An  invoice  was  later  made  in  Cherry's  name, 
he  was  charged  with  the  cotton  on  plaintiffs'  books  and  when  the  cot- 
ton arrived  he  was  repeatedly  asked  to  accept  and  pay  for  it.  He* 
failed  to  do  so,  and,  the  price  of  cotton  having  fallen,  an  action  for 
damages  was  brought  against  the  defendant.  It  was  urged  at  the  trial 
that  the  taking  of  the  contract  in  Cherry's  name  was  a  conclusive  elec- 
tion to  hold  him  only,  but  the  trial  judge  left  the  question  of  election 
to  the  jury  and  the  jury  found  for  the  plaintiffs.  Against  this  action 
appeal  was  taken.  Four  judges  in  the  common  pleas  gave  opinions, 
all  in  favor  of  affirmance.  A  variety  of  views  were  expressed  but  all 
agreed  that  the  matter  of  election  was  for  the  jury.  Montague-Smith, 

» Chandler  v.  Coe.  supra.  486.     See  other  quotations  from  this 

10  Calder  v.   Dobell,  L.  R.   6   C.  P.     case  ante,  §  1420,  note  20. 

lyoit 


§1715]  THE  LAW  OF  AGENCY  [BOOK    IV 

J.,  said  of  the  contention  that  the  entering  into  the  contract  in  Cherry's 
own  name  was  conclusive  evidence  of  an  election  to  hold  him  alone  as 
the  principal :  "I  agree  that  it  was  strong  evidence ;  but,  if  the  parol 
evidence  [that  defendant  had  authorized  the  purchase]  was  admissible, 
it  shows  what  the  real  transaction  between  the  parties  was.  Being 
employed  to  buy  cotton  for  the  defendant,  with,  an  injunction  not  to 
allow  the  defendant's  name  to  appear,  Cherry  buys  in  his  own  name; 
but  the  sellers,  for  reasons  of  their  own,  insisting  upon  knowing  who 
the  principal  was.  Cherry,  disregarding  his  instructions  in  that  respect, 
disclosed  the  defendant's  name.  The  plaintiffs  required  the  principal's 
name,  with  a  view  of  fixing  him ;  but,  because  he  desired  that  his  name 
should  not  appear,  the  contract  was  made  out  in  the  name  of  the  agent. 
The  plaintiffs  clearly  never  intended  to  make  the  bargain  with  Cherry 
alone.  At  all  events,  it  was  a  question  for  the  jury."  This  judgment 
was  affirmed  by  the  exchequer  chamber,  all  the  judges  regarding  it  as 
a  question  of  election  not  conclusively  determined  by  the  form  of  the 
contract.  This  case  undoubtedly  has  some  peculiar  features,  but  the 
same  doctrine  has  been  applied  in  cases  which  did  not  have  them. 

§  1715.  Thus  in  Byington  v.  Simpson  "  decided  in  1883 

by  the  supreme  court  of  Massachusetts  the  suit  was  to  recover  a  bal- 
ance due  under  a  building  contract.  The  contract  was  in  writing  and 
purported  on  its  face  to  be  made  by  the  plaintiffs  with  J.  B.  Simpson. 
It  provided  that  the  work  should  be  done  under  the  direction  of  J.  B, 
Simpson,  agent,  and  was  signed  "J.  B.  Simpson,  agent."  J.  B.  Simp- 
son was  in  fact  contracting  as  agent  for  the  defendant,  his  wife,  and 
this  was  known  to  the  plaintiffs  at  the  time  the  contract  was  made.  It 
was  contended  that  inasmuch  as  the  plaintiffs  knew  the  principal  and 
yet  were  contented  to  accept  a  written  contract  which  on  its  face  bound 
the  agent  they  must  be  taken  to  have  dealt  with,  and  to  have  given 
credit  to,  the  agent  alone.  But  the  court  said:  "We  are  of  opinion 
that  the  plaintiffs'  knowledge  does  not  make  their  case  any  weaker 
than  it  would  have  been  without  it.  Whatever  the  original  merits  of 
the  rule,  that  a  party  not  mentioned  in  a  simple  contract  in  writing  may 
be  charged  as  a  principal  upon  oral  evidence,  even  where  the  writing 
gives  no  indication  of  an  intent  to  bind  any  other  person  than  the 
signer,  we  cannot  reopen  it,  for  it  is  as  well  settled  as  any  part  of  the 
law  of  agency.  And  it  is  evident  that  words  which  are  sufficient  on 
their  face,  by  established  law,  to  bind  a  principal,  if  one  exists,  cannot 

11  Byington  v.   Simpson,  134  Mass.      Merrell  v.  Witherby,  120  Ala.  418,  74 
169,  45  Am.  Rep.  314.    See  also,  York      Am.  St.  Rep.  39. 
County  Bank  v.   Stein,   24   Md.  447; 

1304 


•CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1716 


be  deprived  of  their  force  by  the  circumstance  that  the  other  party  re- 
lied upon  their  sufficiency  for  that  purpose.  Yet  that  is  what  the  de- 
fendant's argument  comes  to.  For  the  same  parol  evidence  that  shows 
the  plaintiffs'  knowledge  of  the  agency  may  warrant  the  inference  that 
the  plaintiffs  meant  to  have  the  benefit  of  it,  and  to  bind  the  principal." 

§  1716.  -  Conceding  that  the  other  party's  election  is  not 
conclusively  determined  by  taking  the  written  contract  of  the  agent, 
his  situation  seems  to  be  thenceforward  like  that  of  one  who  has  dealt 
with  the  agent  of  an  undisclosed  principal  —  he  would  not  lose  his  right 
to  proceed  against  the  principal  merely  by  conduct  showing  an  inten- 
tion to  preserve  his  rights  against  the  agent  and  not  amounting  to  a 
discharge  or  merger  of  the  claim.12  Thus  in  Calder  v.  Dobell  it  was 
suggested  that  the  other  party  might  sue  either  principal  or  agent,  and 
that  there  would  be  no  conclusive  election  unless  he  had  sued  to  judg- 
ment. 

The  doctrine  of  Calder  v.  Dobell  would  doubtless  be  also  subject  to 
the  qualification  that  the  written  contract  made  in  the  name  of  the 
agent  was  not  an  instrument  under  seal  or  a  negotiable  instrument. 


12  In  Cross  v.  Matthews  (K.  B. 
Div.),  91  Law  Times  Rep.  500,  it 
appeared  that  the  plaintiffs  sued  M. 
and  W.  jointly.  M.  did  not  appear, 
and  plaintiffs  entered  a  judgment  by 
default  against  him.  When  the  case 
came  on  for  .  trial  against  W.  it 
appeared  that  M.  was  simply  W.'s 
agent,  and  that  the  credit  was  really 
given  W.,  although  the  invoices  had 
been  made  out  in  the  name  of  M. 
W.  objected  to  judgment  against  him- 
self upon  the  ground  that  the  plain- 
tiffs had  already  elected  by  taking 
judgment  against  M.  Against  W.'s 
objection  the  judgment  against  M. 
was  set  aside,  and  upon  the  hearing, 
judgment  was  rendered  against  W. 
On  appeal  this  was  held  to  be  er- 
roneous, the  court  saying  that  the 
taking  of  Judgment  against  M. 
"showed  an  election  on  the  part  of 
the  plaintiffs  to  accept  the  liability 
of  the  agent."  Hammond  v.  Scho 
field,  [1891]  1  Q.  B.  453,  was  cited  to 


the  point  that  the  effect  of  taking 
judgment  could  not  be  obviated  by 
subsequently  setting  aside  that  judg- 
ment upon  the  consent  of  the  defend- 
ant therein  only. 

In  Wilson  v.  Blanck,  [1909]  Trans- 
vaal L.  R.,  the  plaintiff,  who  had  fur- 
nished goods  upon  the  order  of  de- 
fendant's agent,  sued  the  agent  and 
recovered  in  the  lower  court  upon 
the  theory  that  the  agent  had  pledged 
his  own  credit.  Upon  appeal  it  was 
held  that  he  had  not  pledged  his 
own  credit,  and  the  judgment  against 
him  was  reversed.  Plaintiff  then 
sued  this  defendant,  and  was  held 
entitled  to  recover.  It  was  held  that 
the  doctrine  of  election  did  not  apply 
because  the  result  in  the  other  case 
showed  that  plaintiff  never  had  any 
claim  against  the  agent,  and  the 
mere  prosecution  of  an  unsuccessful 
action  in  which  no  judgment  could 
legally  be  obtained,  did  not  constitute 
an  election. 


1305 


(8  .Y  .T/  8Si 


§§    I7I7~I7I9]  THE  LAW  OF  AGENCY  [BOOK   IV 

§  1717.  Principal  not  liable  where  credit  given  exclusively  to 
agent. — As  has  already  been  pointed  out,13  it  is  entirely  possible 
that  a  known  agent  may  pledge  his  own  responsibility,  and  that  the 
contract,  although  made  for  the  benefit  of  the  principal,  shall  be  made 
solely  and  exclusively  on  the  credit  of  the  agent.  Where  this  is  the 
situation,  the  principal  cannot  be  held  upon  the  contract.14  Whether 
the  credit  was  thus  given  exclusively  to  the  agent,  is,  as  has  been  seen, 
ordinarily  a  question  of  fact  to  be  determined  in  the  light  of  all  the 
circumstances  of  the  case.15  In  two  particular  classes  of  cases,  how- 
ever, already  frequently  referred  to, — namely,  the  case  of  the  negotiable 
instrument  and  the  instrument  under  seal, — the  question  is  determined 
by  the  established  rule  that  no  one  can  be  charged  upon  the  contract 
except  the  one  who  upon  its  face  appears  to  be  the  party  to  it.16 

§  1718.  For  what  contracts  and  contractual  acts  of  agent  is  prin- 
cipal liable. — With  this  much  of  preliminary  discussion,  the  ques- 
tion next  arises,  for  what  particular  contracts  and  contractual  acts  is 
the  principal  responsible.  A  detailed  answer  to  this  question  is  here 
impracticable.  All  that  has  gone  before  has  been  designed  to  aid  in 
its  solution.  How  authority  is  conferred,"  how  it  is  to  be  interpreted 
and  construed.18  how  it  is  to  be  executed,19  and  especially  what  acts 
and  contracts  fall  within  or  without  the  scope  of  particular  authori- 
ties,20 have  already  been  considered  at  much  length.  The  only  thing 
which  is  practicable  here  is  to  refer  back  to  those  discussions,  and  to 
recall  to  mind  some  of  the  more  general  principles  which  must  always 
be  taken  into  account  when  endeavoring  to  solve  a  particular  problem. 
In  the  field  of  these  general  principles,  those  which  follow  are  perhaps 
the  most  important. 

§  1719.  Qui  facit  per  alium,  facit  per  se. — It  is  the  fundamental 
principle  of  the  law  of  agency,  that  what  one  person  does  for  and  by 
the  authority  of  another  is  to  be  considered  as  the  act  of  that  other. 
The  principle  has  taken  the  form  of  the  familiar  maxim  Qui  facit  per 
alium,  facit  per  se.  That  this  should  be  so,  is  an  obvious  natural  and 
moral  necessity  as  well  as  a  legal  one,  founded  upon  manifest  doctrines 
of  good  faith  and  moral  and  legal  responsibility.  The  law  of  agency, 

• 

is  See  ante,  §  419.  Lynch,  31  N.  Y.  Misc.   724;    Lament 

**See   Paterson   v.   Gandasequi,   15  v.  Hamilton,  [1907]  Scotch  S.  C.  628. 

East,   62;    Addison  v.   Gandasequi,  4  «  See  ante,  §  1422  et  seg. 

Taunt.   574;    Hazelhurst   Lumber   Co.  i«  See  ante,  §  1425;   post,  §  1734. 

v.  Carlisle  Mfg.  Co.,  130  Ky.  1;  Silver  17  See  ante,  §§  209-253. 

v.  Jordan,  136  Mass.  319;    Perkins  v.  ™  See  ante,  §§  764-793. 

Cady,  111  Mass.  318;  Burns  v.  Royal  19  See  ante,  §§  1079-1183. 

Bank,  128  N.  Y.  Supp.  723;    Davis  v.  20  See  ante,  §§  794-1078. 

1306 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  I72O,  1721 

however,  is  wider  than  this  maxim.  For  the  principal  is  liable  in  many 
cases,  especially  of  tort,  in  which  he  can  not  be  deemed  to  have  author- 
ized or  intended  the  act.  On  the  other  hand,  that  the  maxim  is  not  a 
principle  of  unlimited  application  in  the  law  of  agency,  has  already 
been  shown.21  It  is  not  every  act  done  by  one  person  for  another  which 
is  binding  upon  the  latter.  The  act  done  must  have  been  a  lawful  one, 
done  in  the  name  and  behalf  of  that  other,  and  by  his  express  or  im- 
plied authority.  What  acts  are  lawful  to  be  done  by  an  agent  have 
been  determined.22 

§  1720.  Principal  liable  for  acts  and  contracts  within  scope  of 
authority. — Out  of  these  principles,  however,  grows  the  general  rule 
that  the  lawful  acts  and  contracts  of  the  agent,  done  or  made  for  the 
principal  and  in  his  behalf,  are  binding  upon  the  principal,  if  so  done 
or  made  by  the  agent  while  he  was  acting  in  the  course  of  his  under- 
taking and  within  the  real  or  apparent  scope  of  his  authority,23  or  if 
they  have  subsequently,  with  full  knowledge  of  the  facts,  been  ratified 
and  confirmed  by  the  principal.24 

The  converse  of  this  rule  follows  as  a  necessary  consequence.  If 
the  act  done  or  contract  made  was  not  a  lawful  one,  the  law,  as  has 
been  seen,  will  not  enforce  it.23  If  the  agent  acted  for  himself  and  in 
his  own  behalf  instead  of  for  his  principal,  and  the  other  party  with  full 
knowledge  so  dealt  with  him,  the  principal  is  not  liable.26  If  the  agent 
were  not  acting  in  the  course  of  his  principal's  business,  but  was  acting 
entirely  outside  of  that,  and  for  some  purpose  of  his  own,  the  act  is  not 
the  principal's,  unless  he  has  adopted  it.  If  the  act  done  or  contract 
made  was  not  within  the  scope  of  his  authority,  but  exceeded  or  dis- 
regarded it,  then  no  liability  attaches  to  the  principal,  unless  he  volun- 
tarily affirms  and  ratifies  it. 

§  1721.  Third  person  must  ascertain  agent's  authority. — Every 
person  dealing  with  an  assumed  agent  is  bound,  at  his  peril  as  pre- 
viously explained,  to  ascertain  the  nature  and  extent  of  the  agent's 
authority.  The  very  fact  that  the  agent  assumes  to  exercise  a  dele- 
gated authority  is  sufficient  to  put  the  person  dealing  with  him  upon 
his  guard,  to  satisfy  himself  that  the  agent  really  possesses  the  pre- 
tended authority.27 

21  See  ante,  §§  80,  81.  28  See  ante,  §§  1419  et  seq. 

22  See  ante,  §§  79-126.  27  See  ante,  §  743.     Jacobs  v.  MOT- 

23  Ante,  §§  275-291.  ris,  [1902]  1  Ch.  816;  Forman  v.  The 

24  See  Book  I,  Chap.  V,  Of  Ratifica-  Liddesdale,    [19001    App.    Gas.    190; 
tion.  Wigaud  v.  De  Wertheimer,  35   Can. 

25  See  ante,  §§  275-291.  Super.  436. 

O7 


§§    1722,1723]  THE  LAW  OF  AGENCY  [BOOK    IV 

If,  having  relied  upon  it,  he  seeks  to  hold  the  alleged  principal  re- 
sponsible, he  must  be  prepared  to  prove,  if  either  be  denied,  not  only 
that  the  agency  existed,  but  that  the  agent  had  the  authority  which  he 
exercised.28 

But  as  has  been  frequently  pointed  out,  it  is  not  essential  that  an 
actual  authority  existing  should  have  been  known  and  specifically  re- 
lied upon  at  the  time.  If  it  existed,  it  may  be  proved,  although  the 
other  party  did  not  then  rely  upon  it.29 

§  1722.  What  constitutes  authority. — An  attempt  has  been  made 
in  an  earlier  portion  of  the  work  to  show  what  constitutes  authority. 
It  has  been  seen  that  it  is  a  composite  matter  into  which  a  number  of 
different  elements  may  enter.80  All  authority  emanates  from  the  prin- 
cipal, who  may  in  general  confer  as  little  or  as  much  as  suits  his  pur- 
poses, and  unless  an  alleged  authority  can  be  traced  home  to  him  as  its 
author  and  its  source,  it  can  not  operate  against  him.  It  rests  upon 
his  will  and  intention.  That  will  and  intention  may  find  expression  in 
words,  but  it  may  also  be  declared  by  conduct.  The  authority  of  the 
agent,  then,  so  far  as  third  persons  are  concerned,  is  as  broad  not  only 
as  the  words  of  the  principal,  but  as  broad  also  as  his  acts  and  conduct. 
In  other  phrase,  it  is,  so  far  as  third  persons  are  concerned,  as  broad 
as  the  principal  has  made  it  appear  to  be.31  As  respects  the  mutual 
rights  and  dealings  of  the  principal  and  agent,  the  actual  authority 
may  govern ;  but  as  respects  the  liability  of  the  principal  to  third  per- 
sons for  the  acts  and  contracts  of  the  agent,  it  is  the  apparent  authority 
in  the  sense  previously  explained,  which  controls.  This  apparent  au- 
thority may  be  the  result  of  the  principal's  negligent  act — of  his  omis- 
sion, silence,  or  acquiescence.32  Every  person  is  presumed  by  law  to 
contemplate  and  intend  the  natural  and  proximate  results  of  his  own 
acts,  and  he  cannot  avoid  them  by  asserting  that  he  did  not  really  in- 
tend or  contemplate  them.  If  the  principal  leads  third  persons,  acting 
reasonably  and  in  good  faith,  to  believe  that  his  agent  possesses  a  cer- 
tain authority,  then,  as  to  them,  the  principal  will  be  estopped  to  deny 
that  the  agent  does  possess  it.33 

§  1723.  Secret  instructions  and  restrictions  of  principal, 

or  secret  motives  of  agent — Mistakes  of  agent. — As  has  been  seen, 

-«  See  ante,  §  745.    Hambro  v.  Burn-          ^>  See  ante,  §  728. 
and,  [1903]  2  K.  B.  399,  s.  c.,  [1904]  2  ^  See  ante,  §  710. 

K.   B.   10.  32  See  ante,  §  720. 

20  See  ante,  §  744.    See  Hambro  v.         s3  See  ante,  §§  245,  722. 
Burnand,  [1904]  2  K.  B.  10,  and  par- 
ticularly the  opinion  of  Romer,  L.  J. 

1308 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1723 

however,  the  agent's  authority  is  not  unlimited.  The  principal  may 
impose  upon  it  as  many  limitations  and  restrictions  as  he  thinks  best, 
and  these  limitations  and  restrictions  are  binding  upon  third  persons  if 
they  have  knowledge  or  are  charged  with  notice  of  them.  The  prin- 
cipal cannot,  however,  expect  third  persons  to  have  notice  of  limita- 
tions and  restrictions  which  are  in  their  nature  secret  and  undisclosed. 
And  while,  as  has  been  stated,  persons  dealing  with  the  agent  are  bound 
to  know  the  extent  of  his  authority,  they  may  reasonably  take  the  vis- 
ible and  apparent  interpretation  of  that  authority  by  the  principal  him- 
self as  the  true  one,  and  as  the  one  by  which  he  chooses  to  be  bound. 
It  is  therefore  the  rule  of  the  law  that  the  rights  of  third  parties,  who 
have  reasonably  and  in  good  faith  relied  upon  the  apparent  authority 
of  the  agent,  as  previously  explained,  cannot  be  prejudiced  by  secret 
limitations  or  restrictions  upon  it  of  which  they  had  no  notice.3* 

So  where  the  act  of  the  agent  is  apparently  within  the  terms  of  an 
express  authority,  the  principal  may  be  bound,  although  the  agent, 
unknown  to  the  party  dealing  with  him,  is  secretly  engaged  in  abusing 
his  authority,  or  has  a  secret  motive  to  divert  the  authority  to  per- 
sonal or  other  illegitimate  ends.35 

3*  See  ante,  §  710.  such  act  is  binding  on  the  constituent 

35  Thus    in    Hambro    v.    Burnand,  as  to  all  persons  dealing  in  good  faith 

[1904]  2  K.  B.  10,  it  was  held  by  the  with   the   agent.      Such    persons   are 

English    court    of    appeal,    reversing  not    bound    to     inquire    into     facts 

s.  o.,   [1903]  2  K.  B.  399,  that  where  aliuntie.     The  apparent  authority  is 

an  agent  had  written  authority  to  is-  the  real  authority."     (This  had  also 

sue  underwriting  policies,  his  princi-  been  approved  by  the  Privy  Council, 

pals   were   liable   on   policies   of  the  in  the  case  of  a  bill  of  exchange,  in 

sort  authorized  and  apparently  regu-  Bryant  v.  Quebec  Bank,   [1893]  App. 

lar,  although  he  was  secretly  abusing  Gas.  170,  180.) 

his  power  because  the  policies  were  The  court  thought  the  case  distin- 
issued  for  the  benefit  of  an  in-  guishable  from  such  cases  as  Grant 
solvent  concern  in  which  the  agent  v.  Norway,  10  C.  B.  665;  Whitechurch 
was  personally  interested.  The  court  v.  Cavanagh,  [1902]  App.  Gas.  117; 
cited  and  relied  upon  the  New  York  and  British  Mut.  Bank  Co.  v.  Charn- 
cases  of  North  River  Bank  v.  Aymar,  wood  Forest  Ry.  Co.,  18  Q.  B.  Div. 
3  Hill,  262,  and  President,  etc.,  v.  714.  Romer,  L.  J.,  referred  to  them 
Cornen,  37  N.  Y.  320 — cases  of  promis-  as  cases  of  master  and  servant,  in- 
sory  notes — and  quoted  with  approv-  volving  implied  rather  than  formal 
al  the  rule  approved  by  Cowen,  J.,  that  written  authority.  "They  have  noth- 
"Whenever  the  very  act  of  the  agent  ing  to  do  with  a  case  where  there  is 
is  authorized  by  the  terms  of  the  an  express  authority  in  writing." 
power,  that  is,  whenever  by  compar-  Mathew,  L.  J.,  held  that  when  plain- 
ing the  act  done  by  the  agent  with  tiffs  saw  that  the  written  authority 
the  words  of  the  power,  the  act  la  was  sufficient,  they  were  not  bound  to 
in  itself  warranted  by  the  terms  used,  inquire  into  his  .motives,  where  there 

1309 


§§    I724-I726]  <i  CJflTHE  LAW  OF  AGENCY,    /TIJIH  [BOOK    IV 

So  where  the  agent  was  authorized  to  act,  the  mere  fact  that  he 
acted  mistakenly, — that  he  erred  in  judgment,  sold  for  too  low  a  price, 
paid  too  much,  sold  too  soon  or  too  late,  granted  too  liberal  terms, 
selected  the  wrong  article,  did  not  sufficiently  safe-guard  the  princi- 
pal's interest,  made  or  accepted  offers  contrary  to  his  real  intention, 
and  the  like, — where  the  other  party  was  innocent  and  ignorant  of  the 
mistake,  will  not  ordinarily  release  the  principal,88 

§  1724.  General  and  special  agents. — These  principles  apply  to 
all  agents  whether  they  be  general  or  special.  It  is  true,  of  course, 
that  the  scope  of  the  general  agent's  authority  is,  from  the  very  nature 
of  the  case,  wider  and  more  flexible  than  that  of  the  special  agent. 
The  latter  is  essentially  and  necessarily  limited  and  restricted.  In  the 
former  case,  particular  instructions  are  unusual ;  in  the  latter,  they  are 
expected.  In  each  case  the  actual  authority  will  be  the  determining 
authority,  unless  the  principal  gives  to  it  the  appearance  of  a  wider 
scope.  In  neither  case  can  the  apparent  authority  be  controlled  by 
secret  limitations.  The  true  distinction  between  general  and  special 
agents  lies,  as  has  been  stated,  in  this,  that  the  apparent  scope  of  the 
special  authority  is  naturally  and  necessarily  a  limited  one.  Of  these 
limitations,  its  very  nature  gives  peculiar  warning  to  which  the  persons 
interested  must  give  heed.3T 

§  1725.  Special  agent's  authority  must  be  strictly  pursued. 

When,  therefore,  it  is  said  that  the  act  of  the  agent  must  be  within 
the  scope  of  his  authority  in  order  to  be  binding  upon  the  principal,  the 
statement  applies  alike  to  general  and  special  agents.  None  the  less 
true  on  this  account,  however,  is  the  well  settled  and  often  asserted 
rule  that  the  authority  of  the  special  agent  must  be  strictly  pursued. 
It  is  in  its  nature  limited,  and  these  limits  may  not  be  exceeded.88 

§  1726.  Effect  of  ratification. — Although  the  agent  may  have  acted 
beyond  the  scope  of  his  authority,  or  may  have  acted  without  any  au- 
thority at  all,  the  principal  may  yet  subsequently  see  fit  to  recognize 

was  nothing  to  arouse  suspicion.  Col-  (N.  Y.),  194;    Comer  v.  Granniss,  75 

line,  M.  R.,  thought  the  case  covered  Ga.  277;  Borden  v.  Richmond,  etc.,  R. 

by    the    case    of    Bryant    v.    Quebec  Co.,  113  N.  Car.  570,  37  Am.  St.  Rep. 

Bank,  supra,  and  since  the  bill  there  632;  Natcher  v.  Natcher,  47  Pa.  496; 

was  signed  per  proc.,  he  thought  that  Hasbrouck  v.  Western  Un.  Tel.  Co., 

the  fact  that  that  was  a  negotiable  in-  107  Iowa,  160,  70  Am.  St.  Rep.  181; 

strument  was  immaterial.     See  also,  Beaufort  v.  Neeld,  12  Cl.  &  F.  248. 
Rainey  v.  Potter,  57  C.  C.  A.  113,  120          ST  See  ante,  §  739. 
Fed.  651;    Lysaght  v.  Falk,  2  Comw.          ss  See  ante,   §   742.     Russo-Chinese 

L.  R.  (Australia)  421.  Bank  v.  Sam,  [1910]  App.  Cas.  174. 
»«  See  Levy  v.  Terwilliger,  10  Daly 

1310 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1/27,  1728 


and  adopt  the  act  as  his  own.  This  recognition  and  adoption  is  termed 
ratification,  the  doctrine  of  which  has  been  hereinbefore  discussed. 
By  such  ratification,  as  has  there  been  seen,  the  principal  accepts  the 
act  with  its  burdens  and  responsibilities  precisely  as  though  he  had 
previously  authorized  it.39 

§  1727.  Performance  of  unlawful  act  not  enforced.—  No  contract 
for  the  performance  of  an  act  which  is  either  illegal  in  itself  or  which 
ts  opposed  to  public  policy,  will  be  enforced.  No  authority  to  make 
any  such  contract  or  to  perform  any  such  act  can,  as  has  been  seen,40' 
be  lawfully  delegated.  And  even  though  the  agent  deeming  himself 
authorized  should  perform  the  act  or  execute  the  contract  with  all 
formalities,  yet  such  performance  or  such  contract  will  furnish  no 
ground  of  action.  The  law,  in  general,  leaves  all  such  parties  where 
it  finds  them.*1 

§  1728.  Principal  not  bound  where  agent  had  an  adverse  interest. 
As  has  been  seen,  the  principal  is  entitled  to  demand  and  receive  from 
the  agent  a  loyal,  zealous  and  disinterested  service.  He  presump- 
tively contracts  for  the  exercise  of  all  the  agent's  skill,  knowledge  and 
ability  in  his  own  behalf  and  for  his  own  advantage,  and  the  policy  of 
the  law  will  not  tolerate  the  existence  of  a  secret  and  undisclosed  in- 
terest in  the  agent  antagonistic  to  that  of  his  principal,  on  account  of 
the  temptation  offered  to  the  agent  to  sacrifice  the  principal's  interest 
to  his  own.  The  principal  may,  if  he  sees  fit,  intrust  his  interests  in 
the  hands  of  an  agent  whom  he  knows  to  also  have  an  interest  in  the 
same  transaction  which  is  or  may  be  adverse  to  his  own.  But  this  is 
not  to  be  presumed,  and  it  must  appear  that  the  interest  of  the  agent 
was  fully  and  fairly  disclosed  to  the  principal.42 

Where,  therefore,  the  agent  while  ostensibly  acting  only  for  his 
principal,  is  secretly  acting  as  the  agent  of  the  other  party,  or  is  him- 
self the  other  party,  the  acts  done  or  contracts  made  by  him  will  not 
be  binding  upon  the  principal  if  he  sees  fit  to  repudiate  them.*3 

This  rule  is  frequently  applied  to  the  case  of  the  agent  who,  while 
apparently  acting  only  for  his  principal  in  the  purchase  or  sale  of  prop- 

39  See  ante,   Chapter  on  RATIFICA-  neau,  1  Wis.   151,  60  Am.  Dec.  368; 

TION.  Switzer  v.  Skiles,  3  Gilm.   (111.)    529, 

*o  See  ante,  §  82  et  seg.  44   Am.    Dec.    723;    Harrison   v.    Mc- 

41  See  ante,  §  83.  Henry,   9   Ga.   164,   52  Am.   Dec.   435. 

42  See  ante,  §  1188  et  seg.    Bartram  A  fortiori  where  the  other  party  ha& 
v.  Lloyd,  90  Li.  T.  Rep.  357.  bribed  the  agent.    Shipway  v.  Broad- 

43Wassell  v.  Reardon,  11  Ark.  705,  wood,  [1899]  1  Q.  B.  369.  See  also,. 
54  Am.  Dec.  245;  Herman  v.  Marti-  post.  §§  3037  et  seq. 

1311 


§    1729]  THE  LAW  OF  AGENCY  [BOOK    IV 

erty,  is,  in  reality,  acting  under  the  commission  of  the  contemplated 
purchaser  or  seller,  and  more  often,  to  the  case  of  the  agent  who,  being 
authorized  to  sell  or  buy  property  for  the  principal,  secretly  sells  to  or 
buys  of  himself. 

2.  The  Contractual  Liability  of  an  Undisclosed  Principal. 

§  1729.  Preliminary  considerations  as  to  liability. — It  is  ordi- 
narily to  the  interest,  as  it  is  usually  the  duty,  of  an  agent  in  making 
contracts  for  his  principal  to  full)-  disclose  the  fact  of  the  agency  and 
to  make  the  contract  in  the  name  and  on  the  account  of  the  principal. 
It  often  happens,  however,  that  the  agent  will  either  intentionally  or 
unintentionally  omit  to  do  this.  He  may  (i)  disclose  that  he  has  a 
principal  but  conceal  his  name  and  identity ;  or  he  may  (2)  wholly  con- 
ceal the  fact  that  he  is  an  agent  and  contract  as  though  he  were  him- 
self the  principal  in  the  transaction.  In  either  of  these  cases  the  agent 
usually  makes  himself  personally  liable  upon  the  contract.  In  the 
second  case  the  liability  of  the  agent  is  ordinarily  clear,  because  no 
other  person  being  known  in  the  transaction,  the  agent  is  the  one  upon 
whom  the  liability  directly  rests.  In  the  first  case  also  the  agent  may 
be  liable  because,  though  disclosing  the  fact  that  he  has  a  principal, 
but  concealing  his  name,  he  may  be  held  to  have  pledged  his  own  re- 
sponsibility.** 

Conceding  that  the  agent  thus  is,  or  may  be,  liable  upon  the  con- 
tract, the- question  arises  whether  the  principal,  if  discovered,  may  be 
held  liable  upon  it  also.  In  favor  of  such  a  liability  it  may  be  urged 
that  in  as  much  as  there  is  a  principal  in  the  transaction  who  has  au- 
thorized'the  contract  to  be  made  and  who  is  entitled  to  its  benefit,  the 
principal  should  be  held  liable  upon  the  contract  when  he  is  discovered. 
Inasmuch  as  the  principal  must  ordinarily  settle  with  some  one, — being 
liable  to  the  agent,  perhaps  upon  an  express  contract  of  indemnity  or 
reimbursement,  or  upon  an  implied  one  wherever  the  non-disclosure 
of  the  principal  and  the  pledging  of  the  agent's  own  credit  do  not  con- 
stitute such  a  violation  of  duty  as  to  disentitle  the  agent  to  such  re- 
lief,45— it  seems  to  be  a  convenient  "short-cut,"  if  nothing  more,  to 
give  the  third  party  a  direct  claim  upon  the  principal  instead  of  re- 
quiring him  to  pursue  the  agent  who  will  then  pursue  the  principal. 
Where  this  is  attempted  before  the  principal  has  paid  or  settled  with 

«  One  cannot  be  held  as  an  undis-      time.     Brown  v.  Tainter,  114  N.  Y. 
closed    principal    whose    relation    to       App.  Div.  446. 
the   transaction   was   known   at   the         «  gee  ante,  §§  1601  et  seq. 

1312 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  I73O,  173! 

agent, — and  this  seems  to  have  been  the 'typical  case  in  the  first  in- 
stances,— nothing  but  more  or  less  technical  rules  of  procedure  would 
seem  to  stand  in  the  way  of  it.  Although  in  theory  such  an  action 
might  be  regarded  as  founded  upon  some  right  of  the  third  party  to  be 
subrogated  to  the  agent's  claim  upon  the  principal,  in  practical  effect 
it  would  be  likely  to  come  to  be  looked  upon  as  a  direct  right  of  the 
third  party  against  the  principal  upon  the  contract. 

§  1730.  Against  such  a  liability  it  may  be  urged  (i)  that 

it  is  contrary  to  the  general  principles  of  contract  to  permit  a  person 
to  be  bound  upon  a  contract  who  does  not  appear  to  be  a  party  to  it, 
and  (2)  that,  in  the  case  where  no  principal  was  known  to  exist,  the 
effect  of  such  a  rule  is  to  give  to  the  other  party  the  benefit  of  a  liabil- 
ity which  he  did  not  contemplate  at  the  time  of  making  the  contract 
and  for  which  he  did  not  stipulate.  A  right  to  hold  the  undisclosed 
principal  in  such  a  case  would,  as  was  pointed  out  by  a  distinguished 
English  judge,  come  to  the  other  party  as  a  mere  "God-send." 

Whatever  may  be  thought  where  the  contract  is  informal  and  oral, 
it  is  certain  that  where  the  contract  is  in  writing  and  especially  where 
it  contains  no  intimation  of.  the  existence  of  a  principal,  a  rational 
theory  for  the  principal's  liability  is  not  easy  to  discover.  The  con- 
tract is  in  the  name  and  over  the  signature  of  the  agent.  How  can 
that  name  and  signature  be  treated  as  the  name  and  signature  of  the 
principal?  If  the  agent  also  could  not  be  held  upon  it,  it  might  then 
be  said  that  the  agent's  name  had,  for  the  time  being,  been  adopted  as 
the  business  name  of  the  principal,  and  was  therefore,  in  this  case,  the 
name  of  the  principal.46  But  if  the  agent  is  to  be  held  liable  also  be- 
cause it  is  his  name,  how  can  the  principal  be  held  upon  the  theory  that 
the  name  used  is  not  the  agent's  name  but  the  business  name  of  the 
principal  ?  May  the  same  be,  at  the  same  time,  the  actual  name  of  the 
agent  and  the  trade  name  of  the  principal? 

A  theory  of  the  legal  identification  of  the  principal  with  the  agent 
leads  to  the  same  result.  If  the  principal  and  the  agent  are  legally  one 
and  that  one  the  principal,  it  may  not  be  difficult  to  see  that  the  con- 
tract is  the  principal's  contract,  but  it  is  not  easy  to  see  how  the  con- 
tract is  also  the  contract  of  the  agent. 

§  1731.  General  rule — Undisclosed  principal  liable  when  discov- 
ered.— Notwithstanding  these  objections,  the  considerations  mak- 
ing for  the  principal's  liability  have  generally  prevailed  under  Eng- 
lish law,  though  not  under  the  Continental  systems,  and  it  is  unques- 

4«  See  Isham  v.  Burgett,  157  Mass.  546. 
83 


THE  LAW  OF  AGENCY 


[BOOK  iv 


.tionably  the  general  rule  of  our  law  that  an  undisclosed  principal,  when 
subsequently  discovered,  may,  at  the  election  of  the  other  party,  if 
exercised  within  a  reasonable  time,  be  held  liable  upon  all  simple  non- 
negotiable  contracts  made  in  his  behalf  by  his  duly  authorized  agent, 
although  the  contract  was  originally  made  with  the  agent  in  entire 
ignorance  of  the  principal.*7 


*f  Mississippi  Valley  Co.  v.  Abeles, 
87  Ark.  374;  Bryant  Lumber  Co.  v. 
Crist,  87  Ark.  434;  Merrill  v.  Ken- 
yon,  48  Conn.  314;  Appeal  of  National 
Shoe  &  Leather  Bank,  55  Conn.  469; 
Dashaway  Ass'n  v.  Rogers,  79  Cal. 
211;  Curran  v.  Holland,  141  Cal.  437; 
Simpson  v.  Patapsco  Guano  Co.,  99 
Ga.  168;  Baldwin  v.  Garrett,  111  Ga. 
876  (but  the  matter  is  regulated  by 
the  Code,  §  3024);  Guest  v.  Burling- 
ton Opera  House  Co.,  74  Iowa,  457; 
Steele-Smith  Grocery  Co.  v.  Potthast, 
109  Iowa,  413;  Edwards  v.  Gildemei- 
ster,  61  Kan.  141;  Jones  v.  Johnson, 
86  Ky.  530;  Ware  v.  Long,  24  Ky. 
Law  Rep.  696;  Cecil  v.  Citizens'  Nat. 
Bank,  145  Ky.  842;  Hyde  v.  Wolf,  4 
La.  234,  23  Am.  Dec.  484;  Maxcy 
Mfg.  Co.  v.  Burnham,  89  Me.  538,  56 
Am.  St.  Rep.  436;  Henderson  v.  May- 
hew,  2  Gill  (Md.),  393,  41  Am.  Dec. 
434;  Mayhew  v.  Graham,  4  Gill 
(Md.),  339;  Tobin  v.  Larkin,  183 
Mass.  389;  Schendel  v.  Stevenson,  153 
Mass.  351;  Hunter  v.  Giddings,  97 
Mass.  41,  93  Am.  Dec.  54;  Exchange 
Bank  v.  Rice,  107  Mass.  37,  9  Am.  Rep. 
1;  Byington  v.  Simpson,  134  Mass. 
169,  45  Am.  Rep.  314;  Huntington  v. 
Knox,  7  Cush.  (Mass.)  371;  Eastern 
R.  R.  Co.  v.  Benedicts  Gray  (Mass.), 
561,  66  Am.  Dec.  384;  Lerned  v.  Johns, 
9  Allen  (Mass.),  419;  Nat'l  Ins.  Co.  v. 
Allen,  116  Mass.  398;  Schweyer  v. 
Jones,  152  Mich.  241;  Lindeke  Land 
Co.  v.  Levy,  76  Minn.  364  (Rowell  v. 
Oleson,  32  Minn.  288,  overruled); 
Simmons  Hdw.  Co.  v.  Todd,  79  Miss. 
163;  Weber  v.  Collins,  139  Mo.  501; 
Lamb  v.  Thompson,  31  Neb.  448; 
Grrenburg  v.  Palmleri,  71  N.  J.  L.  83; 
Elliott  v.  Bodine,  59  N.  J.  L.  567; 
Yates  v.  Repetto,  65  N.  J.  L.  294; 


Borcherling  v.  Katz,  37  N.  J.  Eq.  150; 
Jennings  v.  Davies,  29  App.  Div.  227; 
Taintor  v.  Prendersrast,  3  Hill  (N. 
Y.),  72,  38  Am.  Deo.  618;  Briggs  v. 
Partridge,  64  N.  Y.  357,  21  Am.  Rep. 
617;  Cobb  v.  Knapp,  71  N.  Y.  348,  27 
Am.  Rep.  51;  Inglehart  v.  Thousand 
Islands  Hotel  Co.,  7  Hun  (N.  Y.), 
547;  Coleman  v.  First  Nat'l,  53  N.  Y, 
388;  Dykers  v.  Townsend,  24  N.  Y.  57; 
Meeker  v.  Claghorn,  44  N.  Y.  319; 
Jessup  v.  Steurer,  75  N.  Y.  613; 
Adolff  v.  Schmitt,  13  Misc.  623;  Davis 
v.  Lynch,  31  Misc.  724;  City  Trust 
Co.  v.  Amer.  Brew.  Co.,  174  N.  Y. 
486;  Patrick  v.  Grand  Forks  Merc. 
Co.,  13  N.  D.  12;  Harper  v.  Tiffin  Nat'l 
Bank,  54  Ohio  St.  425:  Smith  V. 
Plummer,  5  Whart.  (Penn.)  89,  34 
Am.  Dec.  530;  Hubbert  v.  Borden,  6 
Whart.  (Penn.)  79;  Rice  v.  Fidelity 
&  Casualty  Co.,  1  Lack.  Leg.  News 
(Penn.)  Ill;  Episcopal  Church  v. 
Wiley,  2  Hill  (S.  C.),  Ch.  584,  s.  c., 
1  Riley  (S.  C.),  Ch.  156,  30  Am.  Dec. 
386;  Waddill  v.  Sebree,  88  Va.  1012, 
29  Am.  St.  Rep.  766;  Belt  v.  Wash- 
ington Water  Power  Co.,  24  Wash. 
387;  Pennsylvania  Casualty  Co.  v. 
Washington  Portland  Cement  Co.,  63 
Wash.  689;  Ford  v.  Williams,  21  How- 
ard (U.  S.),  287,  16  L.  Ed.  36;  Moore 
v.  Sun  Ptg.  &  Pub.  .Ass'n,  41  C.  C.  A. 
506,  101  Fed.  591;  Boland  v.  North- 
western Fuel  Co.,  34  Fed.  523;  Hig- 
gins  v.  Senior,  8  M.  &  W.  834;  Brown- 
ing v.  Provincial  Ins.  Co.,  L.  R.  5 
P.  C.  App.  263;  Calder  v.  Do'^ell,  L. 
R.  6  C.  P.  486;  Trueman  v.  Loder,  11 
A.  &  E.  589;  Smethurst  v.  Mitchell, 
1  E.  &  E.  622;  Thomson  v.  Davenport, 
9  B.  &  C.  78.  (This  list  does  not 
purport  to  be  complete.) 


CHAP.    V] 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1732 


The  rule  applies  not  only  where  the  principal  has  in  fact  received  the 
benefits  of  the  contract,  but  also  where  the  contract  still  remains  ex- 
ecutory.48 

The  rule  itself  is  doubtless  an  anomaly,  but  even  so  it  is  undoubtedly 
as  well  settled  as  any  other  rule  in  the  law  of  agency.49 

§  1732.  Rule  applies  to  all  simple  contracts. — This  general  rule 
imposing  obligation  upon  the  undisclosed  principal  when  discovered, 
extends  to  all  contracts  made  by  oral  negotiation  under  his  authority. 
It  also,  by  the  weight  of  authority,  applies  to  all  simple  non-negotiable 
contracts  in  writing,  entered  into  by  an  agent  in  his  own  name  and 
within  the  scope  of  his  authority,  although  the  name  of  the  principal 
does  not  appear  in  the  instrument,  and  was  not  disclosed,  and  although 
the  party  dealing  with  the  agent  supposed  that  the  latter  was  acting 
for  himself ; so  and  this  rule  obtains  as  well  in  respect  to  contracts 

The    same    principle    was    applied      this  liability  of  the  principal  to  the 

agent,  thereby  putting  the  liability 
ultimately,  where  it  justly  belongs, 
upon  the  principal  on  whose  account 
the  contract  was  made.  Many  prac- 
tical objections  to  a  remedy  purely 
equitable  will,  however,  at  once  sug- 
gest themselves.  The  less  familiar 
and  more  complicated  procedure,  and 
the  fact  that  many  small  claims  are 
not  within  the  statutory  jurisdiction 
of  courts  of  equity,  may  be  mentioned. 
An  interesting  discussion  of  the  ques- 
tion by  Professor  William  Draper 
Lewis,  of  the  University  of  Pennsyl- 
vania, will  be  found  in  9  Columbia 
Law  Review,  116.  Professor  Lewis, 
after  discussing  the  theory  of  subro- 
gation as  an  explanation  of  the  rule, 
and  suggesting  but  rejecting  the  argu- 
ment that  the  principal's  liability 
may  be  founded  upon  the  theory  of 
his  deceit  in  holding  out  some  one- 
other  than  himself  as  the  principal, 
contends  that  historically  it  is  per- 
fectly consistent  with  the  theory  of 
the  obligations  enforced  in  the  ac- 
tion of  assumpsit  that  the  undis- 
closed principal  should  be  held  liable, 
because  he  was  really  the  one  who 
caused  the  plaintiff  to  act  ta  his  det- 
riment. 

e«  Briggs  v.  Partridge,  64  N.  Y.  357, 
21   Am.  Rep.   617;    Dykers  v.  Town- 


where  a  corporation  doing  business 
under  an  assumed  name  was  held  for 
contracts  made  in  that  name.  "An 
undisclosed  principal  is  bound  by  the 
contracts  of  his  agent  acting  within 
the  scope  of  his  authority,  although 
the  party  with  whom  the  contract  was 
made  may  have  known  the  principal 
under  some  other  name."  Phillips  v. 
International  Text  Book  Co.,  26  Pa. 
Super.  230. 

48  See  Tobin  v.  Larkin,  183  Mass. 
389;  Lerned  v.  Johns,  9  Allen  (Mass.), 
419;  Dykers  v.  Townsend,  24  N.  Y. 
61;  Hubbert  v.  Borden,  6  Whart. 
(Pa.)  79;  Waddill  v.  Sebree,  88  Va. 
1012,  29  Am.  St.  Rep.  766. 

«  Kayton  v.  Barnett,  116  N.  Y.  625. 

In  an  article  upon  the  general  sub- 
ject by  Professor  James  Barr  Ames 
of  Harvard  in  18  Yale  Law  Journal, 
443,  it  is  suggested  that,  instead  of 
attempting  to  work  out  a  rule  under 
which  the  principal  can  be  held  di- 
rectly liable  in  an  action  at  law,  the 
legal  liability  should  be  held  to  be 
where  the  contract  itself  puts  it, 
namely,  upon  the  agent,  but  that  then,  ' 
in  as  much  as  it  is  the  duty  of  the 
principal  to  exonerate  the  agent  from 
the  liabilities  incurred  on  his  ac- 
count, the  other  party  should  be  per- 
mitted In  equity  to  avail  himself  of 


1315 


§§  1733.  X734j 


THE  LAW  OF  AGENCY 


[BOOK  iv 


which  are  required  to  be  in  writing,  as  to  those  to  whose  validity  a 
writing  is  not  essential.61 

§  1733.  Parol  evidence  to  identify  the  principal. — For  the  pur- 
pose of  identifying  the  principal,  parol  evidence  may  be  admitted.  It 
does  not  violate  the  principle  which  forbids  the  contradiction  of  a  writ- 
ten agreement  by  parol  evidence,  nor  that  which  forbids  the  discharg- 
ing of  a  party  by  parol  from  the  obligations  of  his  written  contract. 
The  writing  is  not  contradicted,  nor  is  the  agent  discharged;  the  re- 
sult is,  merely,  that  an  additional  party  is  made  liable.52  As  is  said  by 
a  learned  judge  in  a  Massachusetts  case :  "Whatever  the  original  mer- 
its of  the  rule  that  a  party  not  mentioned  in  a  simple  contract  in  writ- 
ing may  be  charged  as  a  principal  upon  oral  evidence,  even  where  the 
writing  gives  no  indication  of  an  intent  to  bind  any  other  person  than 
the  signer,  we  cannot  reopen  it,  for  it  is  as  well  settled  as  any  part  of 
the  law  of  agency."  53 

§  1734.  Does  not  apply  to  contracts  under  seal. — It  was  a  funda- 
mental principle  of  the  common  law  that,  upon  an  instrument  under 
seal,  those  persons  only  can  be  charged  who  appear  upon  its  face  to 

' 

send,  24  N.  Y.  61;  Coleman  v.  First  v.  Coe,  54  N.  H.  561,  22  Am.  Rep.  437; 
Nat.  Bank,  53  N.  Y.  393;  Ford  v. 
Williams,  21  How.  (U.  S.)  289,  16  L. 
Ed.  36;  Weber  v.  Collins,  139  Mo.  501; 
Waddill  v.  Sebree,  88  Va.  1012,  29  Am. 
St.  Rep.  766;  Belt  v.  Washington  Pow- 
er Co.,  24  Wash.  387. 

siTobin  v.  Larkin,  183  Mass.  389; 
Borcherling  v.  Katz,  37  N.  J.  Eq.  150; 
Briggs  v.  Partridge,  supra.  Compare 
Bourne  v.  Campbell,  21  R.  I.  490,  prob- 
ably wrong. 

62  Higgins  v.  Senior,  8  M.  &  W.  834; 
Huntington  v.  Knox,  7  Cush.  (Mass.) 
371;  Ford  v.  Williams,  21  How.  (U. 
S.)  287,  16  L.  Ed.  3G;  Curran  v.  Hol- 
land, 141  Cal.  437;  Pleins  v.  Wachen- 
heimer,  108  Minn.  342;  Lindeke  Land 
Co.  v.  Levy,  76  Minn.  364  (overrul- 
ing Rowell  v.  Oleson,  32  Minn.  288); 
Belt  v.  Washington  Power  Co.,  24 
Wash.  387.  There  is  language  con- 
trary in  a  number  of  cases  though 
they  are  practically  all  distinguish- 
able. Ferguson  v.  McBean,  91  Cal. 
63,  14  L.  R.  A.  65  (a  sealed  instru- 
ment) ;  Gillig  v.  Road  Co.,  2  Nev.  214 
(a  negotiable  instrument) ;  Chandler 


Heffron  v.  Pollard,  73  Tex.  96,  15  Am. 
St.  Rep.  764;  Silver  v.  Jordan,  136 
Mass.  319;  Matter  of  Bateman,  7  N.  Y. 
Misc.  633;  Brown  v.  Tainter,  114  N. 
Y.  App.  Div.  446,  sometimes  referred 
to,  were  cases  of  a  disclosed  principal 
and  involved  a  different  question,  else- 
where considered.  Murphy  v.  Clark- 
son,  25  Wash.  585,  is  contra,  but  the 
court  apparently  overlooked  the  dis- 
tinction between  ordinary  simple  con- 
tracts in  writing  and  negotiable  in- 
struments, which  was  involved  in 
Shuey  v.  Adair,  18  Wash.  188,  63  Am. 
St.  Rep.  879,  39  L.  R.  A.  473. 

53  Holmes,  J.,  in  Byington  v.  Simp- 
son, 134  Mass.  169,  45  Am.  Rep.  314, 
[citing  Huntington  v.  Knox,  7  Cush. 
(Mass.)  371;  Eastern  R.  R.  v.  Bene- 
dict, 5  Gray  (Mass.),  561,  66  Am.  Dec. 
384;  Lerned  v.  Johns,  9  Allen 
(Mass.),  419;  Hunter  v.  Giddings,  97 
Mass.  41,  93  Am.  Dec.  54;  Exchange 
Bank  v.  Rice,  107  Mass.  37,  9  Am. 
Rep.  1;  National  Ins.  Co.  v.  Allen, 
116  Mass.  398;  Higgina  v.  Senior,  8 
M.  &  W.  834]. 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1734 


be  the  parties  to  it.54    Under  this  rule  an  undisclosed  principal  could 
not  be  charged  upon  such  an  instrument.55     The  mere  fact  that  the 


54  "Where  a  contract  is  made  by 
deed,  under  seal,  on  technical  grounds,, 
no  one  but  a  party  to  the  deed  is 
liable  to  be  sued  upon  it,  and,  there- 
fore, if  made  by  an  attorney  or  agent, 
it  must  be  made  in  the  name  of  the 
principal,  in  order  that  he  may  be 
a  party,  because  otherwise  he  is  not 
bound  by  it."  Shaw,  C.  J.,  in  Hunt- 
ington  v.  Knox,  1  Gush.  "(Mass.)  374. 

ss  Huntington  v.  Knox,  supra; 
Haley  v.  Belting  Co.,  140  Mass.  73; 
Mahoney  v.  McLean,  26  Minn.  415; 
Briggs  v.  Partridge,  64  N.  Y.  357,  21 
Am.  Rep.  617;  Kiersted  v.  Orange, 
etc.,  R.  Co.,  69  N.  Y.  343,  25  Am.  Rep. 
199;  Schaefer  v.  Henkel,  75  N.  Y.  378; 
Henricus  v.  Englert,  137  N.  Y.  488; 
Farrar  v.  Lee,  10  N.  Y.  App.  Div. 
130;  Whitehouse  v.  Drisler,  37  N.  Y. 
App.  Div.  525;  Williams  v.  Magee,  76 
N.  Y.  App.  Div.  512:  Spencer  v.  Hunt- 
ington, 100  N.  Y.  App.  Div.  463  (aff'd 
without  opinion,  183  N.  Y.  506) ;  Fur- 
culi  v.  Bittner,  69  N.  Y.  Misc.  112; 
Denike  v.  DeGraaf,  87  Hun  (N.  Y.), 
61  (aff'd  no  opinion),  152  N.  Y. 
650;  Benham  v.  Emery,  46  Hun 
(N.  Y.),  156;  Smith  v.  Pierce,  45  App. 
Div.  (N.  Y.)  628;  Stanton  v.  Grang- 
er, 125  N.  Y.  App.  Div.  174;  Willard 
v.  Wood,  135  U.  S.  309,  313,  34  L. 
Ed.  210;  Badger  Silver  Min.  Co.  v. 
Drake,  31  C.  C.  A.  378,  88  Fed.  48; 
City  of  Providence  v.  Miller,  11  R.  I. 
272;  Lenney  v.  Finley,  118  Ga.  718; 
Van  Dyke  v.  Van  Dyke,  123  Ga.  686, 
3  Ann.  Cas.  978. 

Briggs  v.  Partridge,  64  N.  Y.  357, 
21  Am.  Rep.  617,  is  a  leading  case. 
In  this  case  it  appeared  that  an  agent 
appointed  by  parol.  had,  without  dis- 
closing his  agency,  made  in  his  own 
name  a  contract  under  seal  for  the 
purchase  of  real  estate,  but  it  was 
held  that  the  contract  was  not  en- 


forceable against  the  principal  either 
as  a  contract  under  seal  or  as  a  sim- 
ple contract.  See  also,  Klein  v.  Me- 
chanics Bank,  145  App.  Div.  615;  Tut- 
hill  v.  Wilson,  90  N.  Y.  423. 

Neither  does  the  rule  apply  to  a 
lease  under  seal.  Nor  can  liability 
be  enforced  in  equity.  The  relation 
between  the  owner  of  land  and  those 
who  occupy  it  is  of  a  purely  legal 
character  (Borcherling  v.  Katz,  37 
N.  J.  Eq.  150);  and  this  is  true  al- 
though the  fact  of  the  agency  is  re- 
cited and  it  extrinsically  appears 
that  the  lessee  acted  as  agent  and  al- 
though the  principal  occupies  the 
premises  without  assignment  of  the 
lease  and  furnishes  money  to  pay  the 
rent.  Kiersted  v.  Orange,  etc.,  R.  R. 
Co.,  69  N.  Y.  343,  25  Am.  Rep.  199. 
See  also,  Haley  v.  Belting  Co.,  140 
Mass.  73;  Schaefer  v.  Henkel,  75  N. 
Y.  378;  Rand  v.  Moulton,  72  App.  Div, 
236;  Lenney  v.  Finley,  118  Ga.  718. 

A  contract  for  the  sale  of  land 
made  by  the  agent  under  seal  in  his 
own  name  and  not  disclosing  any 
principal  cannot  be  specifically  en- 
forced against  the  principal,  even 
though  it  be  alleged  that  he  ratified 
it.  Stanton  v.  Granger,  125  N.  Y. 
App.  Div.  174,  aff'd,  193  N.  Y.  656.  No 
action  for  damages  against  the  prin- 
cipal will  lie  in  such  a  case.  Ma- 
honey  v.  McLean,  26  Minn.  415. 

But  in  Schenkberg  v.  Treadwell,  94 
N.  Y.  Supp.  418,  it  is  held  that  where 
persons,  assuming  to  act  as  officers  of 
a  non-existing  corporation,  sign  a 
lease  in  its  assumed  name  but  adding 
their  pretended  official  titles,  they  are 
personally  liable,  although  the  lease 
was  under  seal.  One  judge  dissented. 
There  was  no  discussion  by  the  ma- 
jority, merely  a  citation  of  cases  to 
a  per  curiam  affirmance. 


.Y  .W  >' 


1317 


§  1735]  rffE  LAW  OF  AGENCY  [BOOK  iv 

principal  received  the  benefit  of  the  contract  does  not,  it  is  held,  alter 
this  rule.56 

The  common  law  incidents  attached  to  the  presence  of  a  seal  were 
confessedly  highly  technical,  and  efforts  have  been  made  in  many 
places  to  abolish  them.  In  several  states  statutes  have  been  enacted, 
though  not  always  in  the  same  form  or  having  the  same  effect.  In 
Minnesota,  for  example,  the  statute  has  abolished  seals  and  declared 
that  the  addition  of  a  seal  to  an  instrument  should  "not  affect  its  char- 
acter in  any  respect."  Under  this  statute  it  has  been  held  that  an  un- 
disclosed principal  may  be  charged  upon  an  instrument  under  seal.57 

On  the  other  hand  in  Texas  where  the  statute  declares  that  a  seal 
shall  not  be  necessary  to  the  validity  of  any  contract,  etc.,  and  that  the 
addition  of  a  seal  shall  not  "in  any  way  affect  the  force  and  effect  of 
the  same,"  it  was  held  that  the  statute  had  not  changed  the  common  law 
rule  with  respect  of  the  undisclosed  principal.58 

§  I735-  With  reference  to  authority  for  the  execution  of 

instruments,  a  distinction  has  been  made,  as  has  been  seen,  between 
instruments  to  wrhose  validity  a  seal  is  an  essential  and  those  to  which 
a  seal  may  happen  to  be  attached  but  which  would  be  perfectly  valid 
and  effective  without  it — it  being  held  in  the  latter  case  that  the  un- 
necessary seal  might  be  disregarded  as  so  much  surplusage  and  the  in- 
strument dealt  with,  so  far  as  authority  for  its  execution  is  concerned, 
as  though  no  seal  were  attached.59 

Extending  that  doctrine  still  further  it  has  been  suggested  that  it 
may  be  availed  of  here, — that  is  to  say,  that  for  the  purpose  of  charg- 
ing an  undisclosed  principal  an  unnecessary  seal  may  be  regarded  as 
non-existent;  and  a  number  of  cases  have  adopted  the  suggestion,  at 
least  so  far  as  to  permit  the  undisclosed  principal  to  sue  upon  the  con- 
tracts.60 

So  far  as  action  upon  the  contract  itself  is  concerned,  however,  many 
other  cases,  chiefly  in  New  York,  have  refused  to  apply  this  theory  and 
have  held  to  the  general  rule.'1 

BO  Klein  v.  Mechanics  Bank,  145  ««  Stowell  v.  Eldred,  39  Wis.  614; 

N.  Y.  App.  Div.  615.  Kirschbon  v.  Bonzel,  67  Wis.  178; 

BT  Streeter  v.  Janu,  90  Minn.  393;  Lancaster  v.  Knickerbocker  Ice  Co., 

Efta  v.  Swanson,  115  Minn.  373.  To  153  Pa.  427;  Love  v.  Sierra  Nevada, 

same  effect:  Gibbs  v.  Dickson,  33  Ark.  etc.,  Co.,  32  Cal.  639,  91  Am.  Dec.  602. 

107.  6i  Briggs  v.  Partridge,  64  N.  Y.  357, 

ss  Sanger  v.  Warren,  91  Tex.  472,  21  Am.  Rep.  617;  Kiersted  v.  Orange, 

66  Am.  St.  Rep.  913.  See  also,  Jones  etc.,  R.  Co.,  69  N.  Y.  343,  25  Am.  Rep. 

v.  Morris,  61  Ala.  518,  524.  199;  Schaefer  v  Henkel,  75  N.  Y.  378: 

5i»  See  ante,  §  215.  Henricus  v.  Englert,  137  N.  Y.  488; 

I3l8 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1736 


In  a  few  cases  contracts  clearly  intended  to  be  the  contract  of  the 
principal,  but  sealed  with  the  seal  of  the  agent,  have  been  held  enforce- 
able by  and  against  the  principal  as  simple  contracts.62 

There  may  also  be  cases  in  which,  though  no  action  will  lie  against 
the  principal  upon  the  contract  itself,  there  may  yet  be  such  elements 
of  adoption  or  receipt  of  benefits  of  a  contract  actually  authorized  by 
him  as  to  justify  a  recovery  against  him  upon  an  implied  promise.03 

§  1736.  Does  not  apply  to  negotiable  instruments.  —  In  addition  to 
the  limitation  upon  the  principal's  liability  growing  out  of  the  nature 
of  the  instrument  under  seal,  "there  is,"  as  pointed  out  in  a  case  al- 
ready referred  to,6*  "a  well  recognized  exception  to  the  rule  in  the  case 
of  notes  and  bills  of  exchange,  resting  upon  the  law  merchant.  Per- 
sons dealing  with  negotiable  instruments  are  presumed  to  take  them 
on  the  credit  of  the  parties  whose  names  appear  upon  them  ;  and  a  per- 
son not  a  party  cannot  be  charged  upon  proof  that  the  ostensible  party 
signed  or  indorsed  as  his  agent."  This  doctrine  has  been  applied  in 
many  cases.65 

It  is  entirely  possible,  however,  notwithstanding  this  rule,  that  an 
action  may,  in  many  instances,  be  maintained  by  the  original  creditor 


Spencer  v.  Huntington,  100  N.  Y. 
App.  Div.  463;  Denike  v.  De  Graaf, 
87  Hun  (N.  Y.),  61;  Smith  v.  Pierce, 
45  N.  Y.  App.  Div.  628;  Stanton  v. 
Granger,  125  N.  Y.  App.  Div.  174, 
aff'd,  193  N.  Y.  656,  and  other  New 
York  cases  cited,  supra. 

But  in  New  York  it  is  held  that 
the  recital  of  a  seal  where  none  is 
affixed  does  not  make  the  instrument 
a  sealed  instrument  within  the  gen- 
eral  rule.  Slade  v.  Squier,  133  N. 
Y.  App.  Div.  666. 

82  Randall  v.  Van  Vechten,  19 
Johns.  (N.  Y.)  60,  10  Am.  Dec.  193; 
Dubois  v.  Delaware  &  Hud.  Canal 
Co.,  4  Wend.  (N.  Y.)  285. 

«3  Moore  r.  Granby  Mining  Co.,  80 
Mo.  86. 

G*  Briggs  v.  Partridge,  64  N.  Y.  357, 
21  Am.  Rep.  617. 

«s  Heaton  v.  Myers,  4  Colo.  59; 
Sparks  v.  Dispatch  Transfer  Co.,  104 
Mo.  531,  24  Am.  St.  Rep.  351,  12  L. 
R.  A.  714;  Webster  v.  Wray,  19  Neb. 

3  " 


558,  56  Am.  Rep.  754;  Cortland 
Wagon  Co.  v.  Lynch,  82  Hun  (N.  Y.), 
173;  Ranger  v.  Thalmann,  84  App. 
Div.  341,  affirmed  on  opinion  below, 
178  N.  Y.  574;  Anderton  v.  Shoup,  17 
Ohio  St.  126;  Shuey  v.  Adair,  18 
Wash.  188,  63  Am.  St.  R.  879,  39  L. 
R.  A.  473;  Cragin  v.  Lovell,  109  U.  S. 
194,  27  L.  Ed.  903;  Ducarrey  v.  Gill, 
Mood.  &  Mai.  450. 

Action  against  the  principal  has, 
however,  been  permitted  in  a  number 
of  cases  upon  the  ground  that  though 
the  agent's  name  was  signed  to  the 
note,  usually  with  the  word  "agent," 
etc.,  added,  that  name  had  been 
adopted  as  the  principal's  name  and 
therefore  the  note  was  originally  the 
note  of  the  principal.  See  Burkhalter 
v.  Perry,  127  Ga.  438,  119  Am.  St.  Rep. 
343;  Moore  v.  McClure,  8  Hun  (N. 
Y.),  557;  Pentz  v.  Stanton,  10  Wend. 
(N.  Y.)  271,  25  Am.  Dec.  R58;  Kay- 
ton  v.  Barnett,  116  N.  Y.  625. 


:  - 


§§  I737>  I73&]  THE  LAW  OF  AGENCY  [BOOK  iv 

against  the  principal,  not  upon  the  note  itself,  but  upon  the  considera- 
tion for  which  it  was  given.66 

§  1737.  Exceptions  to  the  general  rule. — The  general  rule,  how- 
ever, is  subject  to  certain  exceptions.  Of  these  the  most  direct  and  im- 
mediate are  two.  One  of  them  grows  out  of  the  question  whether  the 
other  party  should  be  permitted  to  recover  of  the  principal  if  the  latter 
has  already  paid,  credited  or  settled  with  the  agent.  The  other,  whether 
such  a  recovery  should  be  allowed  if  the  other  party  had  already  takeri 
steps  indicating  that  he  intends  to  charge  the  agent,  even  though  there 
has  been  no  such  payment  or  settlement. 

For  the  purpose  of  discussion,  these  two  exceptions  may  be  tenta- 
tively stated  as  follows : — 

1.  Where  principal  has  settled  with  agent. — That  the  principal  is  not 
liable  where,  before  the  other  party  has  intervened  with  his  claim,  the 
principal  has  settled  with,  paid  or  credited  the  agent  in  good  faith* 
and  in  reliance  upon  such  a  state  of  conduct  or  representations  on  the 
part  of  the  other  party,  as  to  reasonably  lead  the  principal  to  infer 
that  the  agent  had  already  settled  with  such  other  party,  or  that  the 
latter  looks  exclusively  to  the  agent  for  payment. 

2.  Where  other  party  has  elected  to  hold  agent  only. — That  the  prin- 
cipal cannot  be  held  liable  where  the  other  party,  with  full  knowledge 
as  to  who  was  the  principal,  and  with  the  power  of  choosing  between 
him  and  the  agent,  has  distinctly  and  unquestionably  elected  to  treat 
the  agent  alone  as  the  party  liable. 

§  1738.  Of  the  first  exception — Change  in  accounts — Misleading 
conduct. — This  subject  has  been  much  discussed  in  the  English 
courts  and  various  and  conflicting  rules  have  been  laid  down  in  suc- 

es  Coaling  Co.  v.  Howard,  130  Ga.  The  court   said   that   if  there  had 

807,  21  L.  R.  A.  (N.  S.)  1051.  been  an  Instrument  under  seal  given, 

In  the  Georgia  case,  land  had  been  instead  of  the  notes,  the  action  could 

sold  and  conveyed  to  one  W,  who  was  not  have  been  maintained,  as  in  that 

described  as  "trustee"  and  who  was  case  the  simple  contract  would  have 

really  the  undisclosed  agent  or  trus-  been  merged  in  the  higher.    See  Van 

tee  of  the  defendants  in  making  the  Dyke  v.  Van    Dyke,    123    Ga.    686,  3 

purchase.    For  a  portion  of  the  pur-  Ann.  Cas.  978.    But  that  the  note  was 

chase  price,  W  gave  notes  signed  by  a  simple  contract  and  that  one  sim- 

himself    with     the     word     "trustee"  pie  contract  did  not  merge  another, 

added.    Held,  that  an  action  could  be  Theoretically  and  historically  there 

maintained  for  the  recovery  of  the  seems  to  be  as  much  reason  to  say 

balance  of  the  purchase  price  against  this  in  the  case  of  the  negotiable  in- 

the  defendants  as  undisclosed  princi-  strument. 
pals,  not   upon   the    notes  'but  upon 
"the  original  consideration." 

1320 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1739,  I74-C 

cessive  cases.  Some  of  these  rules  have  been  adopted  by  the  courts 
and  textwriters  in  this  country,  but  have  been  afterwards  denied  or 
limited  by  later  cases  in  the  English  courts,  and  the  result  has  been  an 
exceedingly  unsatisfactory  condition  of  the  law. 

The  question,  as  will  be  seen,  is  substantially  whether  the  rule  shall 
go  beyond  the  point  marked  by  the  *  in  its  statement  above. 

§  I739-  Thomson  v.  Davenport. — One  of  the  earliest  of 

these  cases  is  that  of  Thomson  v.  Davenport,67  decided  in  the  court  of 
King's  Bench,  in  1829.  In  that  case  the  agent  disclosed  that  he  was 
acting  for  a  principal  in  Scotland  but  did  not  disclose  his  principal's 
name.  Lord  Tenterden,  in  his  opinion,  said :  "I  take  it  to  be  a  general 
rule,  that  if  a  person  sells  goods  (supposing  at  the  time  of  the  contract 
he  is  dealing  with  a  principal),  but  afterwards  discovers  that  the  per- 
son with  whom  he  has  been  dealing  is  not  the  principal  in  the  transac- 
tion, but  agent  for  a  third  person,  though  he  may  in  the  meantime  have 
debited  the  agent  with  it,  he  may  afterwards  recover  the  amount  from 
the  real  principal ;  subject,  however,  to  this  qualification,  that  the  state 
of  the  account  between  the  principal  and  the  agent  is  not  altered  to  the 
prejudice  of  the  principal,"  and  Bayley,  J.,  in  the  same  case,  said: 
"Where  a  purchase  is  made  by  an  agent,  the  agent  does  not,  of  neces- 
sity, so  contract  as  to  make  himself  personally  liable ;  but  he  may  do  so. 
If  he  does  make  himself  personally  liable,  it  does  not  follow  that  the 
principal  may  not  be  liable  also,  subject  to  this  qualification,  that  the 
principal  shall  not  be  prejudiced  by  being  made  personally  liable  if  the 
justice  of  the  case  is  that  he  should  not  be  personally  liable.  If  the 
principal  has  paid  the  agent,  or  if  the  state  of  accounts  between  the 
agent  and  the  principal  would  make  it  unjust  that  the  seller  should  call 
on  the  principal,  the  fact  of  payment  or  such  a  state  of  accounts  would 
be  an  answer  to  the  action  brought  by  the  seller  where  he  had  looked 
to  the  responsibility  of  the  agent." 

The  rule  as  laid  down  by  Lord  Tenterden  was  approved  by  Mr.  Par- 
sons in  his  work  on  Contracts,68  and  by  Judge  Story  in  his  work  on 
Agency.69  It  was  also  adopted  in  Indiana.70 

§  1740.  Heald  v.  Kenworthy. — Following  this  case  came 

Heald  v.  Kenworthy,71  decided  in  the  Exchequer  in  1855.  The  case 
arose  upon  the  sufficiency  of  a  plea  to  a  declaration  for  goods  sold  and 
delivered.  The  plea  alleged  that  the  goods  were  bought  for  defendant 

«T  9  Barn.  &  Cress.  78.  TO  Thomas  v.  Atkinson,  38  Ind.  248. 

«8  Parsons  on  Contracts,  63.  "  10  Exch.  739. 

«9  Story  on  Agency,  449,. 

1321 


§    I741]  THE  LAW  OF  AGENCY  [BOOK   IV 

by  his  agent;  that  the  latter  bought  in  his  own  name  and  not -in  that 
of  defendant;  that  plaintiff  gave  credit  to  the  agent  not  knowing  of 
defendant,  and  that  while  plaintiff  still  gave  credit  to  the  agent,  de- 
fendant, in  good  faith,  "at  reasonable  and  proper  times  and  according 
to  the  usual  course  of  dealing"  between  himself  and  his  agent,  settled 
with  the  agent,  believing  and  having  reason  to  believe  that  the  latter 
would  settle  with  the  plaintiff. 

The  plea  was  held  not  to  be  good :  the  expressions  of  Lord  Tenter- 
den  and  Bayley,  J.,  were  shown  to  be  mere  dicta,  and  were  held  to  be 
inaccurate  statements  of  the  law.  Parke,  B.,  who  delivered  the  leading 
opinion,  limited  the  rule  to  those  cases  in  which  the  principal  has  been 
misled  by  the  action  of  the  seller,  saying:  "If  the  conduct  of  the  seller 
would  make  it  unjust  for  him  to  call  upon  the  buyer  for  the  money,  as 
for  example,  where  the  principal  is  induced  by  the  conduct  of  the  seller 
to  pay  his  agent  the  money  on  the  faith  that  the  agent  and  seller  have 
come  to  a  settlement  on  the  matter,  or  if  any  representation  to  that  ef- 
fect is  made  by  the  seller,  either  by  words  or  conduct,  the  seller  cannot 
afterwards  throw  off  the  mask  and  sue  the  principal." 

§  1741.  Armstrong  v.  Stokes. — Afterwards  arose  the  case 

of  Armstrong  v.  Stokes,72  decided  in  the  court  of  Queen's  Bench  in 
1872.  In  this  case  J.  &  O.  Ryder,  who  were  commission  merchants 
at  Manchester,  acting  sometimes  for  themselves  and  sometimes  as 
agents,  having  received  an  order  for  goods  from  defendants,  bought 
them  of  plaintiff,  without  disclosing  that  they  were  not  acting  for 
themselves. 

J.  &  O.  Ryder  delivered  the  goods  to  defendants  who  paid  for  them 
in  good  faith.  Afterward  J.  &  O.  Ryder  failed,  not  having  paid  the 
plaintiff.  Later  it  was  discovered  by  plaintiff  that  J.  &  O.  Ryder  had 
bought  the  goods  for  the  defendants  and  thereupon  the  plaintiff  brought 
the  action  to  charge  defendants  as  undisclosed  principals,  but  it  was 
held  that  defendants'  payment  to  J.  &  O.  Ryder  was  a  bar  to  recovery. 
Blackburn,  J.,  who  delivered  the  opinion  of  the  court  (Blackburn,  Mel- 
lor  and  Lush),  held  that  the  rule  laid  down  by  Parke,  B.,  was  too  nar- 
row and  cited  and  approved  that  advanced  by  Lord  Tenterden  and 
Mr.  Justice  Bayley. 

Referring  to  the  rule  of  Parke,  B.,  the  court  say :  "We  think  that  if 
the  rigid  rule  thus  laid  down  were  to  be  applied  to  those  who  were 
only  discovered  to  be  principals  after  they  had  fairly  paid  the  price 
to  those  whom  the  vendor  believed  to  be  the  principals,  and  to  whom 

w 
»2  L.  R.  7  Q.  B.  598. 

1322 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1/42 

alone  the  vendor  gave  credit,  it  would  produce  intolerable  hardship. 
It  may  be  said,  perhaps  truly,  this  is  the  consequence  of  that  which 
might  originally  have  been  a  mistake,  in  allowing  the  vendor  to  have 
recourse  at  all  against  one  to  whom  he  never  gave  credit,  and  that  w,e 
ought  not  to  establish  an  illogical  exception  in  order  to  cure  a  fault  in 
a  rule.  But  we  find  an  exception  (more  or  less  extensively  expressed) 
always  mentioned  in  the  very  cases  that  lay  down  the  rule ;  and  with- 
out deciding  anything  as  to  the  case  of  a  broker,  who  avowedly  acts 
for  a  principal  (though  not  necessarily  named),  and  confining  our- 
selves to  the  present  case,  which  is  one  in  which,  to  borrow  Lord  Ten- 
terden's  phrase  in  Thomson  v.  Davenport,73  the  plaintiff  sold  the  goods 
to  J.  &  O.  Ryder  (the  agents),  'supposing  at  the  time  of  the  contract 
he  was  dealing  with  a  principal,'  we  think  such  an  exception  is  estab- 
lished. We  wish  to  be  understood  as  expressing  no  opinion  as  to  what 
would  have  been  the  effect  of  the  state  of  the  accounts  between  the 
parties  if  J.  &  O.  Ryder  had  been  indebted  to  the  defendants  on  a 
separate  account,  so  as  to  give  rise  to  a  set-off  or  mutual  credit  between 
them.  We  confine  our  decision  to  the  case  where  the  defendants,  after 
the  contract  was  made,  and  in  consequence  of  it,  bona  fide  and  with- 
out moral  blame,  paid  J.  &  O.  Ryder  at  a  time  when  the  plaintiff  still 
gave  credit  to  J.  &  O.  Ryder  and  knew  of  no  one  else.  We  think  that 
after  that  it  was  too  late  for  the  plaintiff  to  come  upon  the  defendant." 

§  1742.  Irvine  v.  Watson — In  the  Queen's  Bench.— This 

case,  in  its  turn,  was  followed  by  Irvine  v.  Watson,7*  decided  in  the 
Queen's  Bench  in  1879  H1  which  Bowen,  J.,  laid  down  the  following- 
rules  :  "There  are  two  classes  of  sales  through  an  agent  to  an  undis- 
closed principal  which  it  is  necessary  to  distinguish.  I.  Where  the 
seller  supposes  himself  to  be  dealing  with  a  principal,  but  discovers 
afterwards  that  he  has  been  selling  to  an  agent,  and  that  there  is  an 
undisclosed  principal  behind,  the  law  allows  the  seller  to  have  recourse 
on  such  discovery  to  the  undisclosed  principal,  provided  always  75  that 
the  principal  has  not  meanwhile  paid  the  agent,  or  that  the  state  of  ac- 
counts between  the  principal  and  agent  does  not  render  it  unjust,  i.  e., 
inequitable  that  the  seller  should  any  longer  look  to  the  principal  for 
payment.  This  statement  of  the  proviso  which  relieves  the  undisclosed 
principal  in  certain  cases  from  all  necessity  to  pay  the  seller  was  thought 
by  Parke,  B.,  and  the  other  judges  in  Heald  v.  Kenworthy  7e  to  be  too 

73  Supra.  and  Bayley,  J.,  In  Thomson  v.  Daven- 

7*  5  Q.  B.  Div.  102.  port,  9  B.  &  C.  78.  ^  BT 

T5  See,  per  Lord  Tenterden,  C.  J.,         78  10  Exch.  745. 


THE  LAW  OF  AGENCY  [BOOK   IV 

large  without  further  explanation,  and  they  expressed  the  view  that  the 
only  case  in  which  the  seller  under  such  circumstances  was  precluded 
from  having  recourse  to  the  undisclosed  principal  when  discovered, 
was  when  the  seller,  by  some  conduct  of  his  own,  had  misled  the  prin- 
cipal into  paying  or  settling  with  his  agent  in  the  interim.  The  prin- 
cipal, such  is  the  reasoning  of  the  court  of  Exchequer,  has  originally 
authorized  his  agent  to  create  a  debt,  and  the  principal  cannot  be  dis- 
charged from  the  debt  unless  the  seller  has  estopped  himself,  by  his 
conduct,  from  enforcing  it  against  him.  The  court  of  Queen's  Bench 
in  Armstrong  v.  Stokes,77  do  not  adopt  this  narrower  version  of  Lord 
Tenterden's  and  Mr.  Justice  Bayley's  proviso.  They  revert  to  the 
wider  language  used  by  Lord  Tenterden  and  Bayley,  J.,  in  Thomson 
v.  Davenport,78  and  it  must  now  be  taken  to  be  the  law  that  a  seller 
who  has  given  credit  to  an  agent,  believing  him  to  be  a  principal,  can- 
not have  recourse  against  the  undisclosed  principal,  if  the  principal 
has  bona  fide  paid  the  agent  at  a  time  when  the  seller  still  gave  credit 
to  the  agent,  and  knew  of  no  one  else  except  him  as  principal. 

"2.  The  present  case  is  one  that  belongs  to  a  distinct  but  analogous 
class.  At  the  time  of  the  dealing  in  the  goods,  the  seller  was  informed 
that  the  person  who  came  to  buy  was  buying  for  a  principal,  but  was 
not  told,  and  did  not  ask,  who  that  principal  was,  nor  anything  further 
about  him.  Thomson  v.  Davenport 79  is  the  leading  authority  to  show 
that,  in  such  a  case,  where  no  payment  or  settlement  in  account  be- 
tween the  undisclosed  principal  and  his  agent  has  intervened,  the  seller 
may  afterwards  have  recourse  to  the  undisclosed  principal.  But  what 
if  the  undisclosed  prin:ipal  has  meanwhile  innocently  paid  or  settled 
with  his  agent?  If  ineeed  such  payment  or  settlement  is  the  result  of 
any  misleading  conduct  on  the  part  of  the  seller,  then,  no  doubt,  the 
general  principal  alluded  to  in  Heald  v.  Ken  worthy,80  would  equally 
apply,  and  the  seller  could  no  longer  pursue  his  remedy  against  the 
man  whom  he  had  misled.  But  is  this  the  only  proviso,  or  must  a 
wider  proviso  still  in  the  present  class  of  cases  be  engrafted  on  the 
statement  of  the  rule,  similar  to  the  proviso  as  finally  sanctioned  in 
Armstrong  v.  Stokes.81  This  was  a  case  in  which,  at  the  time  of  sale, 
exclusive  credit  had  been  given  by  the  seller  to  the  agent,  who  bought 
in  his  own  name  as  principal.  In  the  present  instance  the  agent  bought, 
it  is  true,  in  his  own  name,  but  held  out  to  the  seller  the  additional 

it  Supra.  so  supra. 

73  supra.  si  Supra. 

19  Supra. 

1324 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1742 

advantage  of  the  credit  of  an  unnamed  principal  behind.  What  dif- 
ference to  the  liability  of  the  principal  does  this  make?  It  is  obvious 
that  when,  as  in  Armstrong  v.  Stokes,82  the  seller  deals  exclusively 
with  the  agent  as  principal,  the  seller  sells  knowing,  if  his  buyer  turns 
out  to  have  a  principal  behind  him,  the  principal  will  have,  at  all  events, 
been  justified  in  assuming,  as  the  fact  is,  that  the  seller  deals  simply 
with  the  agent.  The  principal  may  be  expected  to  arrange  with  his 
agent  on  this  basis.  If  before  recourse  is  had  to  him,  the  undisclosed 
principal  has  put  his  agent  in  funds  to  pay,  the  seller  cannot  afterward 
object  that  the  undisclosed  principal,  who  had  a  right  to  suppose  his 
credit  was  not  looked  to  in  the  matter,  should  have  held  his  hand.  The 
case  is  altered  where  the  agent,  when  buying,  states  he  has  a  principal 
whose  existence,  though  he  does  not  name  him,  he  is  authorized  in 
mentioning.  I  think  that  the  liability  of  the  principal,  who  under  such 
circumstances  pays  his  agent,  to  pay  over  again  to  the  seller  must  de- 
pend in  each  case  on  what  passes  between  the  seller  and  the  agent, 
acting  within  the  scope  of  his  authority,  and  on  the  precise  nature  of 
the  contract  which  the  agent  has  lawfully  made.  *  *  *  The  es- 
sence of  such  a  transaction  is  that  the  seller,  as  an  ultimate  resource, 
looks  to  the  credit  of  some  one  to  pay  him  if  the  agent  does  not.  Till 
the  agent  fails  in  payment,  the  seller  does  not  want  to  have  recourse  to 
this  additional  credit.  It  remains  in  the  background :  but  if,  before  the 
time  comes  for  payment,  or  before,  on  non-payment  by  the  agent,  re- 
course can  be  fairly  had  to  the  principal  whose  credit  still  remains 
pledged,  the  principal  can  pay  or  settle  his  account  with  his  own  agent, 
he  will  be  depriving  the  seller  behind  the  seller's  back  of  his  credit.  It 
surely  must,  at  all  events,  be  the  law  that  in  the  case  of  sales  of  goods 
to  a  broker  the  principal,  known  or  unknown,  cannot,  by  paying  or 
settling  before  the  time  of  payment  comes,  with  his  own  agent,  relieve 
himself  from  responsibility  to  the  seller,  except  in  the  one  case,  where 
exclusive  credit  was  given  by  the  seller  to  the  agent.  But  may  the 
payment  or  settlement  to  or  with  the  agent  be  safely  made  in  such  a 
case  after  the  day  of  payment  has  arrived,  and  if  so  within  what  time  ? 
It  seems  to  me  that  it  can  only  safely  be  made  if  a  delay  has  intervened 
which  may  reasonably  lead  the  principal  to  infer  that  the  seller  no 
longer  requires  to  look  to  the  principal's  credit, — such  a  delay,  for  ex- 
ample, as  leads  to  the  inference  that  the  debt  is  paid  by  the  agent,  or  to 
the  inference  that,  though  the  debt  is  not  paid,  the  seller  elects  to  aban- 
don his  recourse  to  the  principal  and  to  look  to  the  agent  alone." 

sz  Supra. 
1325 


§§    I743»  J744]  THE  LAW  OF  AGENCY  [BOOK    IV 

§  1743.  Irvine  v.  Watson  in  the  court  of  appeal — Irvine  v. 

Watson,  however,  went  to  the  court  of  appeal 83  where,  while  the  re- 
sult reached  below  was  affirmed,  the  court  declare  the  rule  as  laid  down 
by  Parke,  B.,  in  Heald  v.  Kenworthy,  to  be  the  true  one. 

The  court  did  not  expressly  overrule  Armstrong  v.  Stokes  [Bram- 
well,  L.  J.,  spoke  of  it  as  "a  very  remarkable  case ;"  and  Brett,  L.  J., 
declared  it  depended  upon  "the  peculiar  customs  obtaining  in  Man- 
chester in  relation  to  the  business  of  commission  merchants"]  as  the 
difference  in  the  facts  enabled  them  to  draw  a  distinction  between  the 
cases,  but  Bramwell,  L.  J.,  said :  "It  is  to  my  mind  certainly  difficult  to 
understand  that  distinction,  or  to  see  how  the  mere  fact  of  the  vendor's 
knowing  or  not  knowing  that  the  agent  has  a  principal  behind  him  can 
affect  the  liability  of  that  principal.  I  should  certainly  have  thought 
that  his  liability  would  depend  upon  what  he  himself  knew,  that  is  to 
say,  whether  he  knew  that  the  vendor  had  a  claim  against  him  and 
would  look  to  him  for  payment  in  the  agent's  default,"  and  Brett,  L.  J., 
said :  "If  the  case  of  Armstrong  v.  Stokes  arises  again,  we  reserve  to 
ourselves  sitting  here,  the  right  of  reconsidering  it."  The  distinction 
of  Parke,  B.,  was  again  approved  in  Davison  v.  Donaldson,84  decided 
in  the  court  of  appeal  in  1882. 

The  result,  therefore,  of  the  English  cases  seems  to  be  to  limit  the 
exception  to  that  first  stated  by  Parke,  B.,83  although  that  may  perhaps 
not  be  settled  beyond  controversy.86 

§  1744. What  is  misleading  conduct. — The  question  of 

what  acts  or  conduct  of  the  other  party  may  be  sufficient  to  reasonably 
lead  the  principal  to  believe  that  the  agent  only  is  relied  upon,  has  not 

83  5  Q.  B.  Div.  414;    49  L..  J.  C,  L.  Browne  had  failed  to  distinguish  be- 

531,  42  L.  T.  800.     The  opinions  dif-  tween  the  author's  own  statement  and 

fer  more  or  less  as  reported  in  these  his  quotation  from  an  English  judge, 

various   reports.     The   quotations   in  Upon  having  his  attention  called  to 

the  text  are  made  from  the  official  thfs   fact,   Mr.    Browne   promptly  ac- 

edition.  knowledged  his  error,  and  promised 

a*  L.  R.  9  Q.  B.  Div.  623.     In  Can-  to  correct  it  in  future  reprints,  and 

ada,  see  Arbuthnot  v.  Dupas,  15  Mani-  this  has  now  been  done, 

toba,  634.    In  Scotland,  see  Lament  v.  ssThus    Mr.    Bowsteart    in    his    Di- 

Hamilton,  [1907]  S.  C.  628.  gest  of  the  Law  of  Agency    (3d  ed. 

SB  The  learned  American  editor  of  1907),  p.  303,  says  that  Armstrong  v, 
"English  Ruling  Cases,  Vol.  2,  p.  483,  Rtokfs  "must  be  treated  as  still  be- 
first  impression,  in  referring  to  this  insr  law,  because  it  has  not  been 
statement  erroneously  suggested  that  dffinitely  overruled.  It  is,  however, 
the  present  author  had  been  incon-  of  very  doubttvi  authority,  and  cer- 
sistent  in  stating  the  result  of  the  tainly  will  not  be  in  the  least  ex- 
English  cases.  The  fact  was  that  Mr.  tended." 

1326 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1744 

been  much  considered,  and  it  is  not  one  which  readily  lends  itself  to 
definite  rules.  It  must  be  largely  a  question  of  fact  in  each  particular 
case.  In  Irvine  v.  Watson  8T  the  defendants  had  given  their  broker 
an  order  to  buy  goods,  and  the  broker  had  bought  them  in  his  own  name 
of  the  plaintiffs,  stating  that  he  had  a  principal  but  not  disclosing  his 
identity.  The  invoice  given  by  plaintiffs  to  the  broker  stated  that  the 
terms  were,  "cash  (or  before  delivery  if  required)  allowing  two  and 
one-half  per  cent  discount."  The  broker  rendered  to  defendants  a 
statement  of  the  purchase  stating  terms  of  payment,  "cash,  less  two 
and  one-half  per  cent."  The  sellers,  however,  did  not  insist  upon  cash 
on  or  before  delivery.  They  made  no  demand  on  the  broker  for  pay- 
ment for  five  or  six  days.  Then  they  demanded  payment  from  him  at 
intervals  for  about  ten  days,  after  which,  the  broker  having  stopped 
payment,  they  made  demand  for  the  first  time  upon  defendants.  In 
the  meantime  defendants  had  paid  the  broker.  Under  these  circum- 
stances defendants  urged  that  they  had  a  right  to  believe  from  the  fact 
that  the  terms  were  "cash"  that  plaintiffs  would  not  have  delivered  the 
goods  unless  they  had  gotten  their  pay  and  that  therefore  defendants 
were  justified  in  paying  the  broker  within  the  rule  of  Heald  v.  Ken- 
worthy.  It  appeared,  however,  that  even  where  the  terms  of  sale  were 
"cash,"  there  was  no  fixed  custom  of  insisting  upon  payment  at  the 
precise  time  of  delivery  and  that  it  was  not  infrequent  to  allow  a  few 
days  of  grace  after  delivery.  It  also  appeared  that  defendants  had  paid 
the  broker  (by  accepting  his  draft  which  he  immediately  discounted) 
before  part  of  the  goods  had  in  fact  been  delivered.  It  was  held  that 
these  facts  furnished  no  sufficient  evidence  that  defendants  had  been 
misled  by  the  plaintiffs.  Bramwell,  L.  J.,  said :  "The  terms  of  the  con- 
tract were  'cash  on  or  before  delivery'  and  it  is  said  that  the  defendants 
had  a  right  to  suppose  that  the  sellers  would  not  deliver  unless  they 

87  Irvine  v.   Watson,   5   Q.   B.    Div.  Argument  in  Heald  v.  Kenworthy,  10 

414,   49   L.   J.   531,   42  L.   T.   800.      In  Exch.  739. 

Kymer  v.   Suwercropp,  1  Camp.   109,          In  Horsfall  v.  Faimtleroy,  10  B.  & 

it  was  said  that  permitting  the  time  C.   755   a   statement  in   a  sales  cata- 

of  payment  to  pass  without  a  demand  logue    that    the    terms    of    credit    on 

upon   the   principal,    was   a   mislead-  which  the  agent  bought  were  billed  at 

ing  circumstance;   but  no  such  point  two    months    was    held    sufficient    to 

was   actually    involved    in    the    case,  lead  the  principal  to  believe  that  the 

See  Smyth  v.  Anderson,  7  C.  B.   21.  agent   must  hgve  given  his  bill  for 

Compare  Macfarlane  v.  Giannaeopulo,  the  goods  and  to  protect  him  in  therc- 

8   H.   &   N.    860.     See   this   point   in  upon  accepting  the  agent's  draft 
Armstrong  v.  Stokes,  supra;  also  the 

1327 


§  1745]  THE  LAW  OF  AGENCY  [BOOK  iv 

received  payment  of  the  price  at  the  time  of  delivery.  I  do  not  think, 
however,  that  this  is  a  correct  view  of  the  case.  The  plaintiffs  had  a 
perfect  right  to  part  with  the  oil  to  the  broker  without  insisting  strictly 
upon  their  right  to  prepayment  and  there  is,  in  my  opinion,  nothing  in 
the  facts  to  justify  the  defendants  in  believing  that  they  would  so  in- 
sist. No  doubt  if  there  was  an  invariable  custom  in  {he  trade  to  in- 
sist on  prepayment  where  the  terms  of  the  contract  entitled  the  seller  to 
it,  that  might  alter  the  matter;  and  (in  such  case  non-insistence  on  pre- 
payment might  discharge  the  buyer  if  he  paid  the  broker  on  the  faith 
of  the  seller  already  having  been  paid.  But  that  is  not  the  case  here ; 
the  evidence  shows  that  there  is  no  invariable  custom  to  that  effect." 

§  1745.  Delay,  etc. — In  Davison  v.  Donaldson  88  one  of 

several  owners  of  a  boat  bought  supplies  for  her  of  the  plaintiff.  The 
latter  knew  that  there  were  other  owners  though  it  does  not  appear  that 
he  knew  who  they  were.  The  goods  were  charged  to  the  one  who 
bought  them.  He  collected  the  amount  from  the  other  co-owners  but 
did  not  pay  the  plaintiff.  The  plaintiff  finally  sued  the  other  owners. 
Their  defence  was  that  they  had  settled  with  the  managing  owner  be- 
lieving that  he  had  paid  the  plaintiff,  and  that  they  had  been  misled  by 
the  fact  that  the  plaintiff  had  not  pressed  his  claim  against  the  pur- 
chaser who  had  now  become  insolvent.  It  did  not  appear,  however,  that 
there  had  been  any  unreasonable  delay  at  the  time  they  settled  with 
the  managing  owner,  and  the  real  gist  of  the  defendants'  contention 
was  that  if  they  had  known  of  plaintiff's  claim  against  them  they  could 
have  recovered  the  money  from  the  managing  owner  before  he  became 
insolvent.  This  was  held  not  sufficient  to  release  defendants.  Jessel, 
M.  R.,  said :  "The  principal  cannot  be  heard  to  say  that  the  subsequent 
conduct  of  the  plaintiff  induced  him  not  to  sue  the  agent  for  repayment 
of  the  money.  Independently  of  the  settlement  of  accounts  there  is  no 
evidence  that  the  mere  abstaining  from  pressing  the  agent  is  an  injury 
to  the  principal.  A  debtor  must  find  out  his  creditor  and  go  and  pay 

ss  Davison   v.   Donaldson,   9    Q.    B.  There   are   dicta   In   a   number   of 

Dlv.  623,  47  L.  T.  564.    See  also,  The  cases  that  the  right  to  charge  the  un- 

Huntsman,  [1894]  Pro.  Div.  214.  disclosed  principal  must  be  exercised 

In  Berry  v.  Chase,  102  C.  C.  A.  572,  within  a  reasonable  time.    See  Smeth- 

179  Fed.  426,  it  was  held  that  a  de-  hurst  v.  Mitchell,  1  El.  &  El.  622;  Fell 

lay  of  three  or  four  months  in  mak-  v.  Parkin,  52  L.  J.  Q.  B.  99,  47  L.  T. 

ing  claim   upon   the   principal   after  Rep.  350;  Curtis  v.  Williamson,  L.  R. 

discovery   was-  not   so   unreasonable  10  Q.  B.  57;   Irvine  v.  Watson,  5  Q. 

as  to  discharge  him  In  the  absence  B.  Div.  102. 
of  anything  to  prejudice  him  there- 
by. 

1328 


CHAP.  Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1746-1748 

him."  "No  doubt  in  many  cases  principals  may  reasonably  rely  on 
the  honor  of  their  agents,  and  may  not  require  vouchers ;  but  when  they 
come  into  a  court  of  law  and  seek  to  excuse  themselves  from  liability, 
and  it  turns  out  that  they  have  not  required  the  production  of  vouchers, 
they  must  expect  the  court  to  deal  strictly  with  them."  Bowen,  L.  J., 
said :  "I  do  not  say  that  in  very  special  circumstances  mere  delay  may 
not  amount  to  misrepresentation:  it  may  be  conduct  misleading  the 
defendant.  But  that  can  only  be  when  there  is  something  in  the  origi- 
nal contract  or  in  the  conduct  of  the  parties  which  renders  the  delay 
misleading.  The  creditor  is  not  obliged  to  apply  to  all  his  debtors  if  he 
can  get  payment  from  one  of  them."  This  case,  however,  as  was 
pointed  out  by  the  judges,  was  not  the  mere  case  of  principal  and  agent 
because  the  defendants  were  co-owners  or  partners  with  the  managing 
owner  and  jointly  liable  with  him. 

§  1746.  Giving  the  agent  a  receipt  for  the  price,  even 

though  mistakenly,  upon  the  strength  of  which  the  principal  in  good 
faith  pays  or  credits  the  agent,  will  be  such  conduct  as  protects  the 
principal.89 

§  1747.  It  must  be  kept  in  mind  that  this  exception  dif- 
fers from  the  following  one.  This  is  not  a  question  of  election  but  of 
misleading.  It  is  essential  here  that  the  principal  shall  have  done 
something — shall  have  paid  or  credited  or  otherwise  altered  his  situa- 
tion— which  will  prejudice  him  if  he  now  be  called  upon  to  pay.  No 
such  act  is  necessary  where  election  alone  is  involved. 

It  is  also  possible  that  that  which  would  not  suffice  to  constitute  an 
election  may  be  sufficient  to  relieve  the  principal  under  this  rule  if  he 
has  reasonably  acted  upon  it  to  his  prejudice.  For  example,  the  com- 
mencement of  suit  against  the  agent  is,  as  will  be  seen,  not  usually  re- 
garded as  sufficient  to  constitute  an  election.  But  would  the  principal 
be  liable  again  if,  after  the  other  party  who  knows  there  is  a  principal 
and  has  had  an  opportunity  to  sue  him  has  sued  the  agent,  the  princi- 
pal in  reliance  thereon  should  pay  the  agent  ?  It  would  seem  that  there 
might  be  cases  in  which  the  conduct  of  the  plaintiff  was  so  unambiguous 
and  decisive  as  to  be  reasonably  relied  upon  by  the  principal. 

§  1748.  The  rule  in  the  United  States. — The  subject  has 

not  very  frequently  arisen  in  the  United  States  and  has  not  been  thor- 
oughly considered  in  any  very  recent  case  by  a  court  of  last  resort. 

so  Cheever  v.  Smith,  15  Johns.  (N.      Co.,  30  Md.  39;  Hyde  v.  Wolf,  4  La. 
Y.)    276;    English  pv.    Rauchfuss,    21      234,  23  Am.  Dec.  484. 
N.  Y.  Misc.  494;   Brown  v.  Telegraph 

84  1329 


§  1749] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


In  the  earlier  cases,  as  was  naturally  to  be  expected,  the  tendency  was 
to  follow  the  rule  laid  down  by  Judge  Story  and  Professor  Parsons, 
based  upon  the  dictum  of  Lord  Tenterden,90  (that  is,  as  far  as  the  * 
in  §  1737  ante.)  A  general  statement  of  the  rule  was  made  some  years 
ago  by  the  New  York  court  of  appeals  91  with  the  exception  "provided 
he  has  not  in  the  meantime  in  good  faith  paid  the  agent,"  but  the  state- 
ment was  a  mere  dictum.  Most  of  the  cases  which  have  arisen  since 
Irvine  v.  Watson  was  decided  by  the  court  of  appeal,  have  either  ig- 
nored that  decision  or  apparently  failed  to  note  its  full  significance.92 
§  1749.  General  conclusions. — Notwithstanding  the  re- 
marks of  Bramwell,  L.  J.,  the  distinction  between  the  case  where  the 
other  party  knows  that  there  is  a  principal  in  existence  though  he  does 
not  know  who  he  is  and  that  where  he  is  totally  ignorant  of  the  exist- 
ence of  such  a  person,  seems  not  without  significance.  Certainly  if  the 
other  party  is  to  be  charged  with  the  consequences  of  his  misleading 


»o  Thus  for  example  in  1847  in  Clea- 
land  v.  Walker,  11  Ala.  1058,  46  Am. 
Dec.  238;  in  1855,  in  Fish  v.  Wood,  4 
E.  D.  Smith  (N.  Y.  Com.  Pleas),  327; 
in  1871,  in  Thomas  v.  Atkinson,  38 
Ind.  248;  in  1879,  in  McCullough  v. 
Thompson,  45  N.  Y.  Super.  449.  See 
also,  Ketchum  v.  Verdell,  42  Ga.  534; 
Emerson  v.  Patch,  123  Mass.  541. 
The  Georgia  code  enacts  substantially 
the  rule  of  Thomson  v.  Davenport. 
On  the  contrary,  in  1866,  in  York 
County  Bank  v.  Stein,  24  Md.  447, 
the  rule  of  Baron  Parke  in  Heald  v. 
Kenworthy,  was  approved  in  reliance 
upon  the  staterrient  of  the  Editor  of 
Story  on  Agency. 

91  Knapp    v.    Simon    (1884),   96   N. 
Y.  284. 

92  The  question  was  quite  fully  con- 
sidered in  1885  in  Laing  v.  Butler,  37 
Hun    (N.  Y.),   144.     The   court  cites 
Armstrong   v.    Stokes   and    Irvine    v. 
Watson     as     applying     to     different 
classes  of  cases  and  apparently  with- 
out   attaching    much    importance    to 
the  comments  made  upon  the  former 
case   by   the   Court   of   Appeal   when 
Irvine  v.  Watson  was  before  it. 

There  is  also  a  very  interesting 
discussion  in  Fradley  v.  Hyland 


(1888),  37  Fed.  49,  2  L.  R.  A.  749; 
Irvine  v.  Watson,  in  the  Queen's 
Bench  Division,  is  cited,  but  not  the 
case  in  the  Court  of  Appeal.  See  al- 
so, Harder  v.  Continental  Printing 
Co.,  64  N.  Y.  Misc.  89. 

A  very  general  reference  to  the 
matter  is  made  in  Berry  v.  Chase,  77 
C.  C.  A.  161,  146  Fed.  625,  102  C.  C. 
A.  572,  179  Fed.  426. 

The  question  was  involved  in  Nich- 
olson v.  Pease,  61  Vt.  534,  and  the 
syllabus  indicates  the  case  as  holding 
that  "a  traveling  salesman  who  is 
furnished  with  money  by  his  employ- 
er to  pay  his  expenses  while  on  the 
road,  cannot  bind  his  principal  for 
the  payment  of  such  expenses  if,  be- 
fore receiving  notice  from  the  party 
extending  such  credit,  the  employer 
has  settled  with  his  salesman  and  al- 
lowed him  the  amount  of  such  ex- 
penses." There  is,  however,  no  dis- 
cussion of  the  point  in  the  opinion. 
There  is  a  statement  of  the  English 
rule  as  a  dictum  in  Simmons  Hard- 
ware Co.  v.  Todd,  79  Miss.  163;  and 
Guest  v.  Burlington  Opera  House  Co., 
74  Iowa,  457.  See  the  cases  reviewed 
in  1889  by  Mr.  John  W.  Beaumont  in 
23  American  Law  Review,  565. 


1330 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    I/5O 

conduct,  it  seems  much  more  reasonable  and  just  to  do  so  where  he 
knows  that  there  is  a  principal  whose  actions  may  be  affected  by  his 
conduct  than  where  he  has  no  such  knowledge.  It  may  be  suggested 
that  every  person  who  dc?.k  without  expressly  excluding  that  possibil- 
ity may  always  be  regarded  as  potentially  an  agent  with  an  undisclosed 
principal ;  but  the  suggestion  seems  forced  if  not  fanciful. 

Nevertheless,  the  rule  of  Parke,  B.,  seems  on  the  whole  to  be  rea- 
sonable and  just.  If  a  principal  sends  an  agent  to  buy  goods  for  him 
and  on  his  account,  it  is  not  unreasonable  that  he  should  see  that  they 
are  paid  for.  Although  the  seller  may  consider  the  agent  to  be  the 
principal,  the  actual  principal  knows  better.  He  can  easily  protect  him- 
self by  insisting  upon  evidence  that  the  goods  have  been  paid  for  or 
that  the  seller  with  full  knowledge  of  the  facts  has  elected  to  rely  upon 
the  responsibility  of  the  agent,  and  if  he  does  not,  but,  except  where 
misled  by  some  action  of  the  seller,  voluntarily  pays  the  agent  without 
knowing  that  he  has  paid  the  seller,  there  is  no  hardship  in  requiring 
him  to  pay  again.  If  the  other  party  has  the  right,  within  a  reasonable 
time,  to  charge  the  undisclosed  principal  upon  his  discovery, — and  this 
right  seems  to  be  abundantly  settled  in  the  law  of  agency — it  is  diffi- 
cult to  see  how  this  right  of  the  other  party  can  be  defeated,  while  he 
is  not  himself  in  fault,  by  dealings  between  the  principal  and  the  agent, 
of  which  he  had  no  knowledge,  and  to  which  he  was  not  a  party. 

§  1750.  Of  the  second  exception — "Election." — The  second  excep- 
tion to  the  general  rule  is  commonly  said  to  rest  upon  the  theory  of 
"election."  A  wholly  anomalous  situation  is  presented.  A  contract 
has  been  made  which  in  terms  binds  the  agent  only.  Nevertheless  the 
principal  may  be  made  liable  upon  it.  How  is  he  liable  ?  Although  the 
other  party  may  perhaps  sue  both  severally  but  simultaneously,  or  pos- 
sibly sue  both  jointly,93  the  obligation  can  hardly  be  deemed  a  joint 
one  in  the  sense  that  it  can  ultimately  be  enforced  against  both.9-1 
Neither  can  it  be  said  that  both  are  liable  severally  in  the  sense  that 
recovery  can  be  had  partly  from  each.  The  liability  is  commonly  said 
to  be  an  alternative  one.  The  agent  can  be  held  because  he  made  the 
contract  in  his  own  name,  or  the  principal  can  be  held  because  it  is  in 
law  deemed  to  be  his  contract.  Which  one  shall  be  held  ?  The  answer 
ordinarily  given  is  that  the  other  party  may  "elect"  between  them.  As 

»3  See  cases  post,  §  1758,  note  14.  742;    Belt  v.  Washington  Power  Co., 

»4  See  Tew   v.   Wolfsohn,   77  N.  Y.  24  Wash.   387;    Steele-Smith  Grocery 

App.  Div.  454;    McLean  v.  Sexton,  44  Co.  v.  Potthast,  109  Iowa,  413;  Good- 

N.  Y.  App.  Div.  520;    Gay  v.  Kelley,  ale  v.  Page,  92  S.  Car.  413. 
109   Minn.   101,  26  L,  R.  A.    (N.  S.) 

1331 


§    I751]  THE  LAW  OF  AGENCY  [BOOK    IV 

a  corollary  to  this,  it  is  said  that  the  other  party  has  but  one  choice ; 
that  when  he  has  made  his  election  his  determination  is  final ;  and  he 
cannot  afterwards  make  a  new  choice  even  though  his  first  efforts  did 
not  result  in  a  satisfaction  of  his  claim.  How  far  this  is  true,  it  is  now 
necessary  to  inquire.  Before  doing  so,  it  may  be  well  to  notice  one  pre- 
liminary matter. — 

Election  properly  is  a  matter  of  choice.  It  does  not  rest  upon  estop- 
pel. It  is  not  therefore  essential  in  order  to  make  it  conclusive  that  it 
shall  appear  to  have  misled  the  principal  to  his  prejudice.  If,  however, 
it  has  misled  him — if  the  principal,  being  apprised  of  the  fact  that  the 
other  party  has  elected  to  look  to  the  agent,  settles  with  the  agent  upon 
that  basis  and  either  pays  him  or  allows  him  a  corresponding  credit, — 
nothing  could  be  more  unjust  than  to  permit  the  other  party  after- 
wards to  repudiate  his  action  with  the  agent  and  resort  to  the  princi- 
pal.95 

§  1751.  Theories  of  election. — With  reference  to  this  mat- 
ter of  election  four  views  are  possible: — I.  That  the  other  party  un- 
expectedly finds  himself  in  a  situation  where  he  can  hold  one  of  two 
parties  liable  and  he  must  simply  choose  between  them.  2.  That  the 
other  party,  inasmuch  as  he  has  a  contract  in  terms  with  the  agent,  will 
presumptively  pursue  this  obligation,  and  that  therefore  some  affirma- 
tive action  is  necessary  to  show  that  he  intends  to  abandon  this  for 
his  remedy  against  the  principal.  3.  That  the  other  party,  as  soon  as 
he  discovers  the  existence  of  the  principal,  will  presumptively  look  to 
him  rather  than  to  the  agent,  and  that  some  affirmative  act  is  therefore 
necessary  to  show  that  he  prefers  to  hold  the  agent.  4.  That  the  other 
party,  having  actually  dealt  with  the  agent  as  principal  and  obtained 
an  obligation  against  him,  but  finding  unexpectedly  that  he  also  has  a 
claim  against  the  principal,  intends  to  make  the  most  of  the  situation — 

»Bpaterson  v.  Gandasequi,  15  East,  Smith,  15  Johns.   (N.  Y.)   276;    Bush 

62;   Addison  v.  Gandasequi,  4  Taunt,  v.  Devine,  5  Har.   (Del.)  375;   Brown 

574;   Thomson  v.  Davenport,  9  Barn.  v.  Bankers,  etc.,  Tel.  Co.,  30  Md.  39; 

&  Cress.  78;    Horsfall  v.  Fauntleroy,  Schepflin  v.  Dessar,  20  Mo.  App.  569; 

10  Barn.  &  Cress.  755;   Smyth  v.  An-  Hyde  v.  Wolfe,  4  La.  234,  23  Am.  Dec. 

derson,  7  Com.  Bench,  21;  Irvine  v.  484;  Romans  v.  Lambard,  21  Me.  308. 
Watson,  5  Q.  B.  Div.  102;  Armstrong  One  who  gives  a  receipt  to  a  state 

V.  Stokes,  L.  R.,  7  Q.  B.  599;   Heald  agent,  without  actual  payment  cannot 

v.  Kenworthy,  10  Exch.  739;   Kymer  afterward  hold  the  state  although  he 

v.    Suwercropp,    1   Camp.    109:    Mac-  has  given  notice  to  the  accounting  of- 

farlane   v.   Giannacopulo,   3   Hurl.   &  fleers  not  to  allow  such  receipt  as  a 

Nor.  859;  Clealand  v.  Walker,  11  Ala.  credit  to  the  agent.     Pitler  v.  Com- 

1058,   46   Am.   Dec.   238;    Cheever   v.  monwealth,  31  Pa.  406. 

1332 


CHAP.  V7]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1752,  1753 

to  keep  and  enforce  his  claims  against  both  until  he  has  obtained  sat- 
isfaction from  one  of  them  or  has  done  something  which  in  fact  or  in 
law  shows  that  he  has  abandoned  his  claim  against  one  or  the  other  of 
them. 

Any  one  of  these  views  might  undoubtedly  be  taken,  but  no  one  of 
them,  in  fact,  has  been  consistently  held.  The  field  is  therefore  open 
for  the  adoption  of  the  one  which  seems  most  consistent  with  principle 
and  the  peculiarities  of  the  situation.  That  the  last  is  the  sound  and 
natural  view  would  seem  to  require  no  argument  to  establish,  although 
it  undoubtedly  is  not  election  in  the  ordinary  sense.  From  the  stand- 
point of  the  liability  of  the  principal  it  would  lead  to  this  conclusion : 
that  no  act  with  reference  to  keeping  alive  or  enforcing  the  liability  of 
the  agent  would  discharge  the  principal  unless  it  also  showed  that  the 
other  party  did  not  intend  to  charge  the  principal. 

§  1752.  Knowledge  necessary. — Election,  as  has  been 

pointed  out  involves  choice,  and  choice  presupposes  knowledge  of  the 
alternatives  and  freedom  to  choose  between  them.  The  other  party 
cannot  elect  between  the  principal  and  the  agent  so  long  as  he  does  not 
know  that  there  was  a  principal  in  the  transaction,  or  does  not  know 
who  he  was ;  and  this  knowledge  must  include  not  only  the  fact  of  the 
agency  but  the  name  and  identity  of  the  principal.96  What  he  may  do 
before  that  can  not  be  charged  to  him  as  an  election. 

§  I753-  At  this  stage  it  seems  desirable  to  notice  more 

fully  a  question  already  referred  to,  namely,  whether  the  rules  are  the 
same  whether  the  other  party  knows  there  is  a  principal  but  does  not 
know  who  he  is,  or  is  totally  ignorant  of  the  existence  of  any  principal, 
and  believes  that  the  agent  is  the  only  person  interested.  In  general,  as 
has  been  pointed  out,  that  distinction  is  deemed  immaterial.  It  was  fully 
discussed  in  Thomson  v.  Davenport,97  where  Bayley,  J.,  said  "There 
is  no  authority  to  show  that  mere  knowledge  that  there  is  a  principal 
destroys  the  right  of  the  seller  to  look  to  that  principal  as  soon  as  he 
knows  who  that  principal  is,  provided  he  did  not  know  who  he  was  at 
the  time  when  the  purchase  was  originally  made."  It  is  true  that  Lord 
Blackburn,  in  Armstrong  v.  Stokes,98  refers  to  such  a  distinction,  cit- 
ing the  case  of  the  broker  who  is  usually  known  to  be  acting  for  a  prin- 
cipal, though  the  latter's  identity  may  not  be  disclosed.  But  in  Irvine 

as  Greenburg  v.  Palmieri,  71  N.  J.  Kenyon,  48  Conn.  314,  40  Am.  Rep. 

L.    83;    Steele-Smith   Grocery   Co.    v.  174;   Reid  v.  Miller,  205  Mass.  80. 

Potthast,  109    Iowa,  413;  Curtis  v.  Wil-  ^  9  B.  &  C.  78. 

liamson,  L.  R.,  10  Q.  B.  57;  Merrill  v.  »«  L,  R.  7  Q.  B.  598. 

1333 


§  1754]  THE  LAW  OF  AGENCY  [BOOK  iv 

v.  Watson,09  as  has  been  seen,1  Lord  Bramwell,  referring  to  that  case, 
said,  "It  is  to  my  mind  certainly  difficult  to  understand  that  distinction, 
or  to  see  how  the  mere  fact  of  the  vendor  knowing  or  not  knowing  that 
the  agent  has  a  principal  behind  can  affect  the  liability  of  that  princi- 
pal." Several  American  cases  2  have  approved  the  views  of  Bayley,  J., 
saying  that  even  if  the  other  party  knew  there  was  a  principal,  but  did 
not  know  who  he  was,  he  could  not  then  choose  between  them  or  debit 
the  real  principal. 

It  seems  to  be  everywhere  agreed  that  the  fact  that  the  other  party 
knows  there  is  an  undisclosed  principal  in  existence  does  not  charge 
him  with  the  duty  of  then  finding  out  who  he  is  and  giving  the  credit  to 
him  alone.3 

The  utmost  effect  which  the  knowledge  of  an  existing  but  unnamed 
principal  would  seem  to  have  would  be  to  make  it  easier,  as  a  mere  mat^ 
ter  of  fact,  for  the  other  party  to  elect,  at  the  time  of  the  transaction, 
by  some  unequivocal  means,  to  deal  with  the  agent  only,  to  the  exclu- 
sion of  any  principal  named  or  unnamed.4 

§  1754.  What  constitutes  an  election. — It  is  impossible  to  lay 
down  any  hard  and  fast  rule  by  which  it  can/in  all  cases,  be  determined, 
what  constitutes  an  election  until  there  is  agreement  as  to  what  is 
meant  by  election.  The  other  party  may,  of  course,  by  some  express 
and  unequivocal  act,  done  with  that  direct  intent,  declare  his  purpose  to 
treat  the  agent  only  as  his  debtor  in  such  a  manner  as  to  leave  no  room 
for  doubt;  but,  in  the  majority  of  the  cases,  the  intention  of  the  other 
party  is  to  be  gathered  from  his  words  and  conduct,  and  the  various 
circumstances  which  surround  the  case.  If  the  case  were  one  of  ordi- 
nary election,  any  act  which  unequivocally  indicated  a  purpose  to  pur- 
sue either  the  principal  or  the  agent  would  suffice  ;5  but  it  is  quite  clear 
that  we  are  not  dealing  with  an  ordinary  case  at  all.  This  will  be  evi- 
dent from  a  consideration  of  the  cases  which  have  actually  been  de- 
cided, distinguishing  between  what  is  done  before  and  what  is  done 
after  the  discovery  of  the  principal. 

9»  5  Q.   B.   Div.  414.  4  This  seems  to  be  the  ground  upon 

1  See  ante,  §  1743.  which  certain  inconclusive  cases,  like 

2  See,   e.   g.  Merrill  v.   Kenyon,   48  Jablon  v.   Traynor,   135   N.   Y.   Supp. 
Conn.  314,  40  Am.  Rep.  174;  Raymond  545,  are  to  be  based. 

v.  Crown,  etc.,  Mills,  2  Mete.  (Mass.)  »  There  is  good  discussion  of  "elec- 

319.  tion"  by  Lord  Blackburn,  in  Scarf  v. 

•A  See  Thomson  v.  Davenport;   Ray-  Jardine,  7  App.  Gas.  345. 
mond  v.  Crown,  etc.,  Mills. 

1334 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1/55 

§  1755.  I.  Before  discovery  of  principal. — As  has  already  been 
pointed  out,  any  act  done  before  knowledge  of  the  principal,  unless  it 
amounts  to  an  absolute  discharge,  extinction  or  merger  of  the  debt, 
cannot  amount  to  such  an  election  to  charge  the  agent  as  will  release 
the  principal  when  discovered. 

Thus  it  has  been  held,  the  taking  of  an  agent's  promissory  note  or 
acceptance  for  the  price  of  goods  sold  to  him  by  one  who  knew  he  was 
acting  as  agent  but  who  did  not  know  for  whom,  will  not  conclude  the 
seller  from  holding  the  principal  also  when  subsequently  discovered,0 
nor  will  the  fact  that  the  vendor  charged  the  goods  to  the  agent,7  or 
sent  him  a  statement  of  the  account  made  out  in  his  name,8  supposing 
him  to  be  the  principal,  prevent  the  vendor  from  subsequently  charging 
the  real  principal  when  ascertained  to  be  such. 

The  commencement  of  an  action  against  the  agent,  before  knowl- 
edge, cannot  be  deemed  an  election  ;9  and  even  the  recovery  of  a  judg- 
ment against  the  agent,  before  discovery  of  the  principal,  has  been 
held  not  to  be  a  bar  to  an  action  against  the  principal  when  discovered 
unless  the  principal  discharges  the  judgment  against  the  agent.10  This 
latter  holding  may,  perhaps,  be  open  to  question,  not  because  the  re- 
covery of  judgment  constitutes  an  election  but  upon  the  ground  of  mer- 
ger.11 

e  Merrill  v.  Kenyon,  48  Conn.  314,  (N.   Y.),    353;     Steele-Smith    Grocery 

40  Am.  Rep.  174.     See  also,  Harper  v.  Co.  v.  Potthast,  109  Iowa,  413. 

Tiffin  Nat.  Bank,  54  Ohio  St.  425.   "If  Filing  claim  and  having  it  allowed 

the    vendor    on    a   sale   made   to   an  against  estate  of  bankrupt  agent  be- 

agent,   take   the   promissory   note   of  fore  discovering   principal,   does  not 

the  agent  for  the  amount  of  the  pur-  preclude   following  the  principal   af- 

chase,  on  failure  of  payment  by  the  ter    he    is    discovered.      Sweeney    v. 

agent,  the  principal  would  be  equally  Douglas  Copper  Co.,  149  N.  Y.  App. 

liable    to    an    action    by    the    vendor,  Div.  568. 

founded  upon  the  original  considera-  10  Greenburg  v.  Palmieri,  71  N.  J. 

tion,  as  if  the  note  had  been  given  by  369,  8  Ann.  Gas.  1024,  6  L.  R.  A.   (N. 

the    principal    himself."      Keller    v.  L.  83;   Lindquist  v.  Dickson,  98  Minn. 

Singleton,  69  Ga.  703.  S.)  729;    Brown  v.  Reiman,  supra. 

7  Yates  v.  Repetto,  65  N.  J.  L.  294.  "  This  question  of  merger  is  not 
See  also,  Raymond  v.  Crown,  etc.,  easy  to  dispose  of.  How  many  con- 
Mills,  2  Mete.  (Mass.)  319;  French  tracts  are  there?  Is  there  the  visible 
v.  Price,  24  Pick.  (Mass.)  13;  Guest  contract  of  the  agent  and  another, 
v.  Burlington  Opera  House  Co.,  74  invisible,  contract  of  the  principal? 
Iowa,  457.  Is  there  but  one  contract  either  of 

s  Henderson     v.     Mayhew,     2     Gill  the  principal  or  of  the  agent  at  the 

(Md.),  393,  41  Am.  Dec.  434.  election  of  the  other  party?     Is  there 

9  Brown   v.   Reiman,    48   App.    Div.  but  one  contract  upon  which  prinei- 

295;    Ranger  v.   Thalmann,   39   Misc.  pal  and  agent  may  be  held  jointly,  as 

420;    Remmel  v.  Townsend,   83   Hun  is  said  in  several  of  the  cases  cited  in 

1335 


§§    I75^-I758]  THE  LAW  OF  AGENCY  [BOOK   IV 

§  1756.  II.  After  discovery  of  principal. — After  knowledge  of  the 
existence  and  identity  of  the  principal  comes  to  the  other  party,  he  is 
in  a  position  to  choose  between  the  principal  and  the  agent.  All  of  the 
aspects  of  election  are  at  once  presented.  If  it  be  treated  merely  as  a 
matter  of  choice,  the  question  is,  when  has  a  choice  been  indicated. 
Treating  the  election  in  the  manner  suggested,  however,  the  question 
becomes :  What  acts  of  the  other  party,  in  view  of  the  liability  of  both 
principal  and  agent,  manifest  an  intention  not  to  hold  the  principal? 
A  number  of  situations  have  been  considered  in  this  connection. 

§  I757«  Presenting  claim. — In  one  case,12  after  the  discov- 
ery of  the  principal,  the  creditor  filed  a  claim  against  the  estate  of  the 
agent  who  had  become  insolvent.  The  proof  was  sent  by  mail.  "Al- 
most immediately"  after  this  had  been  posted,  the  creditor's  attorneys, 
fearing  that  the  presentation  of  this  claim  might  prejudice  the  demand 
against  the  principal,  sent  a  telegram  to  stop  its  presentation,  but  the 
telegram  arrived  too  late  as  the  proof  had  already  been  filed.  Nothing 
further,  however,  was  done  under  it  and  no  dividend  was  ever  received. 
As  a  mere  matter  of  election,  many  cases  could  be  imagined  wherein 
the  filing  of  such  a  claim  would  be  enough.  Considered  as  evidence  of 
an  intention  not  to  hold  the  principal,  it  could  be  strongly  urged  that 
merely  keeping  the  claim  alive  against  the  agent  was  slight,  if  any,  evi- 
dence that  the  creditor  did  not  intend  to  follow  the  principal  also.  It 
was  held  not  to  be  conclusive  evidence,  as  a  matter  of  law,  of  an  inten- 
tion to  treat  the  agent  as  the  only  debtor.  The  argument  was  that,  as 
the  mere  commencement  of  an  action  against  the  agent  was  not  conclu- 
sive, the  filing  of  the  claim,  which  was  less  than  the  commencement  of 
an  action,  ought  not  to  be. 

§  1758.  Commencement  of  action. — As  suggested  in  the 

preceding  case,  the  mere  commencement  of  an  action  against  the  agent, 
although  this  act  is  often  regarded  as  an  election  in  other  fields,  is  not 

a  following  note?  Here  are  obvious-  the  estate  of  the  Insolvent  agent  and 
ly,  but  in  a  different  form,  the  same  received  a  small  dividend  upon  it. 
questions  which  arise  under  the  doc-  Held,  that  this  did  not  defeat  his  ac- 
trine  of  election.  See  the  (dissent-  tion  against  the  principal, 
ing)  opinion  of  Lord  Penzance,  In  In  Hoffman  v.  Anderson  (1902),  112 
Kendall  v.  Hamilton,  4  App.  Gas.  504.  Ky.  893,  the  claim  was  presented 
12  Curtis  v.  Williamson  (1874),  L.  first  against  the  estate  of  the  princl- 
R.  10  Q.  B.  57.  In  Jones  v.  Johnson  pal  and  a  small  dividend  received. 
(1888),  86  Ky.  530,  while  the  creditor  Held,  that  this  did  not  prevent  a  sub- 
had  an  action  pending  against  the  sequent  proceeding  against  the  agent 
principal,  he  filed  a  claim  against 


CHAP.    V] 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1758 


here  deemed  to  constitute  a  conclusive  election  as  a  matter  of  law,13 
whatever  may  be  its  force  as  evidence  of  an  election  as  a  matter  of  fact. 
There  is,  moreover,  as  has  been  seen,  authority  for  saying  that  principal 
and  agent  may  be  simultaneously  sued  severally,  and  possibly  even 
jointly.14 


is  Ferry  v.  Moore,  18  111.  App.  135; 
Curtis  v.  Williamson,  supra;  Ray- 
mond v.  Crown,  etc.,  Mills,  2  Mete. 
(Mass.)  319;  Weil  v.  Raymond,  142 
Mass.  206,  213;  Cobb  v.  Knapp,  71  N. 
Y.  348,  27  Am.  Rep.  51. 

In  Raymond  v.  Crown,  etc.,  Mills, 
supra,  the  creditor  took  out  a  writ 
against  the  agent  before  discovering 
the  principal;  before  the  writ  was 
served  he  discovered  the  principal 
and  inserted  his  name  also,  and  the 
writ  was  thus  served;  later  the  cred« 
itor  discontinued  as  to  the  agent. 
Held,  not  as  matter  of  law  to  defeat 
the  action  against  the  principal.  See 
also,  McLean  v.  Sexton,  44  App.  Div. 
520;  Tew  v.  Wolfsohn,  77  App.  Div. 
454;  Gay  v.  Kelley,  109  Minn.  101,  26 
L.  R.  A.  (N.  S.)  101. 

In  Barrell  v.  Newby,  62  C.  C.  A. 
382,  127  Fed.  658,  the  other  party  had 
sued  the  agent  and  attached  or  gar- 
nished funds  of  his,  which  suits  were 
still  pending  and  plaintiff  claimed 
the  right  to  proceed  under  them, 
though  no  money  had  yet  been  re- 
alized; they  had  also  "elected  to  ap- 
ply and  did  apply"  certain  funds  in 
their  hands  belonging  to  the  agent 
upon  their  claim.  It  was  held  that 
this  action  was  an  election.  The 
court  takes  a  more  narrow  view  of 
election  than  is  taken  in  several  other 
cases. 

i*  In  Pollock  on  Contracts  (7th  ed. 
p.  105,  Williston's  Wald's  Pollock  p. 
116)  it  is  said:  "When  it  is  said  that 
he  [the  other  party]  has  a  right  of 
election  this  means  that  he  may  sue 
either  the  principal  or  the  agent  or 
may  commence  proceedings  against 
both  but  may  only  sue  one  of  them 
to  judgment;  and  a  judgment  ob- 


tained against  one,  though  unsatis- 
fied, is  a  bkr  to  an  action  against  the 
other." 

In  McLean  v.  Sexton,  44  App.  Div. 
520,  [an  action  to  foreclose  a  me- 
chanic's lien]  it  is  held  that,  under 
the  'New  York  code  at  least,  both 
principal  and  agent  may  be  sued  in 
the  same  action.  This,  however, 
must  be  taken  in  connection  with 
what  is  there  said  to  be  the  rule  in 
New  York, — that  prosecuting  the  ac- 
tion against  either  to  judgment  is  not 
an  election. 

In  Tew  v.  Wolfsohn,  77  App.  Div. 
454,  it  is  said:  "Assuming  that  the 
plaintiff  is  only  entitled  to  judgment 
against  one  of  the  defendants  and 
that  he  must  elect  which  party  he  in- 
tends to  hold,  he  cannot  be  required 
to  make  that  election  until  the  close 
of  the  case."  This  case  was  affirmed 
in  the  court  of  appeals,  Tew  v.  Wolf- 
sohn, 174  N.  Y.  272,  though  that  court 
declined  to  treat  it  as  a  case  of  un- 
disclosed principal.  The  dissenting 
opinion  of  Cullen,  J.,  discusses  the 
general  question  quite  fully.  But  in 
Cherrington  v.  Burchell,  147  App.  Div. 
16,  the  right  to  sue  jointly  is  denied. 

In  Gay  v.  Kelley,  109  Minn.  101,  26 
L.  R.  A.  (N.  S.)  742,  it  is  held  that 
while  prosecuting  the  action  to  judg- 
ment against  one  of  the  parties 
would  be  an  election,  where  done  with 
full  knowledge,  still  where  -the  al- 
leged principal  denies  that  he  was 
such,  the  other  party  may  join  both 
in  one  action  and  cannot  be  compelled 
to  elect  until  the  close  of  the  testi- 
mony. In  Mussenden  v.  Raiffe,  131 
111.  App.  456,  it  is  said  that  the 
plaintiff  may  join  both  but  must  dis- 
continue as  to  one  before  judgment. 


1337 


§  1759] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


§  I759-  Taking  judgment  against  agent. — Prosecuting  the 

action  to  judgment  against  the  agent,  after  discovery  of  the  principal, 
has  been  held  in  several  cases  to  constitute  an  election  as  a  matter  of 
law.15  As  a  mere  matter  of  ordinary  election,  this  is  undoubtedly  sound  ; 
as  a  matter  of  a  possible  merger  it  may  also  be  sound ;  but  if  election  be 
treated  in  the  manner  which  has  been  suggested  it  cannot  well  be  said 
that  changing  the  form  qf  the  agent's  obligation,  or  putting  it  into  a  con- 
dition in  which  it  can  be  more  readily  enforced,  is  inconsistent  with  an 
intention  to  proceed  against  the  principal  also.  Nothing'  short  of  satis- 
faction of  the  judgment  against  the  agent  would  then  release  the  prin- 
cipal as  a  matter  of  law,  and  some  cases  have  so  held.16 


In  Coaling  Co.  v.  Howard,  130  Ga. 
807.  21  L.  R.  A.  (N.  S.)  1051,  a  joint 
action  against  several  principals,  only 
one  of  whom  was  disclosed  at  the 
time  of  contracting,  was  permitted. 
There  was  no  discussion  of  the  ques- 
tion. 

In  Weil  v.  Raymond,  142  Mass.  206, 
it  is  said  that  while  the  third  party 
may  proceed  against  each  separately 
(though  not  after  judgment  against 
one)  he  cannot  sue  both  jointly. 

In  Pittsburg  Plate  Glass  Co.  v. 
Roquemore  (Tex.  Civ.  App.),  88  S.  W 
449,  it  is  said  that  if  the  other  party 
sues  the  agent  who  then  discloses  his 
principal  and  the  plaintiff  brings  him 
into  the  action,  the  plaintiff  must 
then  elect  against  which  one  he  will 
ask  for  judgment. 

™  Priestly  v.  Fernie  (1865),  3  H. 
&  C.  977;  Kingsley  v.  Davis  (1870), 
104  Mass.  178;  Weil  v.  Raymond,  142 
Mass.  206  (dictum)  ;  Tuttill  v.  Wilson, 
90  N.  Y.  423;  per  Lord  Ch.  Cairns  in 
Kendall  v.  Hamilton,  L.  R.  4  App. 
Cas.  504;  Sessions  v.  Block,  40  Mo. 
App.  569;  Lindquist  v.  Dickson,  98 
Minn.  369,  8  Ann.  Cas.  1024,  6  L.  R. 
A.  (N.  S.)  729;  Codd  Co.  v.  Parker, 
97  Md.  319;  Murphy  v.  Hutchinson, 
93  Miss.  643,  17  Ann.  Cas.  611,  21  L. 
R.  A.  (N.  S.)  785;  Semisch  v.  Guen- 
ther,  10  Br.  Col.  L.  R.  371;  Hoffman  v. 
Anderson,  112  Ky.  873.  See  also 
Coles  v.  McKenna,  80  N.  J.  L.  48. 

is  Beymer   v.   Bonsall,   79   Pa.    298. 


This  has  been  said  to  be  the  rule  in 
New  York:  McLean  v.  Sexton,  44  App. 
Div.  520:  Tew  v.  Wolfsohn,  77  App. 
Div.  454,  largely  upon  such  approval 
of  Beymer  v.  Bonsall  as  is  to  be 
found  in  Cobb  v.  Knapp,  71  N.  Y.  348, 
27  Am.  Rep.  51;  and  First  Nat.  Bank 
v.  Wallis,  84  Hun,  376,  neither  one 
precisely  in  point.  But  it  seems  to 
be  denied  in  Cherrington  v.  Burchell, 
147  App.  Div.  16.  Maple  v.  Railroad 
Co.,  40  Ohio  St.  313,  48  Am.  Rep.  685, 
so  holds  but  it  was  an  action  of  tort. 
Beymer  v.  Bonsall  is  disapproved  in 
Barrell  v.  Newby,  62  C.  C.  A.  382,  127 
Fed.  656. 

As  strong  a  statement,  probably,  as 
has  l:een  made  against  this  view  is 
that  of  Lord  Chancellor  Cairns,  in 
Kendall  v.  Hamilton,  4  App.  Cas.  504 
(a  case  of  partnership).  He  said: 
"Now,  I  take  it  to  be  clear  that, 
where  an  agent  contracts  in  his  own 
name  for  an  undisclosed  principal, 
the  person  with  whom  he  contracts 
may  sue  the  agent,  or  he  may  sue  the 
principal,  but  if  he  sues  the  agent 
and  recovers  judgment,  he  cannot  af- 
terwards sue  the  principal,  even  al- 
though the  judgment  does  not  result 
in  satisfaction  of  the  debt  If  any 
authority  for  this  proposition  is  need- 
ed, the  case  of  Priestly  v.  Fernie,  3 
H.  &  C.  977,  may  be  mentioned.  But 
the  reasons  why  this  must  be  the  case 
are,  I  think,  obvious.  It  would  be 
clearly  contrary  to  every  principal  of 


1338 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


§  1760.  Taking  agent's  note. — The  effect  of  taking  the 

agent's  promissory  note  or  bill  of  exchange,  after  the  discovery  of  the 
principal,  for  a  debt  contracted  before,  is  involved  in  some  uncertainty. 
If  the  paper  be  expressly  taken  as  payment,  no  question  could  ordina- 
rily arise.  In  a  few  States  the  paper  is  presumptively  taken  as  payment, 


justice  that  the  creditor  who  had 
seen  and  known  and  dealt  with  and 
given  credit  to  the  agent,  should  be 
driven  to  sue  the  principal  if  he  does 
not  wish  to  sue  him,  and,  on  the  other 
hand,  it  would  be  equally  contrary  to 
justice  that  the  creditor  on  discover- 
ing the  principal,  who  really  has  had 
the  benefit  of  the  loan,  should  be 
prevented  suing  him  if  he  wishes  to 
do  so.  But  it  would  be  no  less  con- 
trary to  justice  that  the  creditor 
should  be  able  to  sue  first  the  agent 
and  then  the  principal,  when  there 
was  no  contract,  and  when  it  was 
never  the  intention  of  any  of  the  par- 
ties that  he  should  do  so.  Again,  if 
an  action  were  brought  and  judgment 
recovered  against  the  agent,  he,  the 
agent,  would  have  a  right  of  action 
for  indemnity  against  his  principal, 
while,  if  the  principal  were  liable 
also  to  be  sued,  he  would  be  vexed 
with  a  double  action.  Farther  than 
this,  if  actions  could  be  brought  and 
judgments  recovered,  first  against  the 
agent  and  afterwards  against  the  prin- 
cipal, you  would  have  two  judgments 
in  existence  for  the  same  debt  or 
cause  of  action;  they  might  not  nec- 
essarily be  for  the  same  amounts, 
and  there  might  be  recoveries  had,  or 
liens  and  charges  created,  by  means 
of  both,  and  there  would  be  no  mode, 
upon  the  face  of  the  judgments,  or 
by  any  means  short  of  a  fresh  pro- 
c^eding,  of  shewing  that  the  two 
judgments  were  really  for  the  same 
debt  or  cause  of  action;  and  that  sat- 
isfaction of  one  was,  or  would  be,  sat- 
isfaction of  both."  [But  in  Judd  Lin- 
seed Oil  Co.  v.  Hubbell,  76  N.  Y.  543, 
it  was  held  that  it  was  merely  an  ir- 
regularity if  two  separate  judgments 
for  slightly  different  amounts  were 


taken    against    two    partners    respec- 
tively.] 

The  opinion  in  Beymer  v.  Bonsall, 
79  Penn.  298,  which  is  the  leading 
case  on  the  other  side,  is  very  brief 
and  was  per  curiam.  The  court  said : 
"Undoubtedly  an  agent  who  makes  a 
contract  in  his  own  name  without  dis- 
closing his  agency  is  liable  to  the 
other  party.  The  latter  acts  upon  his 
credit  and  is  not  bound  to  yield  up 
his  right  to  hold  the  former  personal- 
ly, merely  because  he  discloses  a  prin- 
cipal who  is  also  liable.  The  princi- 
pal is  liable  because  the  contract  was 
for  his  benefit,  and  the  agent  is  bene- 
fitted  by  his  being  presumably  the 
creditor,  for  there  can  be  but  one 
satisfaction.  But  it  does  not  follow 
that  the  agent  can  afterwards  dis- 
charge himself  by  putting  the  creditor 
to  his  election.  Being  already  liable 
by  his  contract,  he  can  be  discharged 
only  by  satisfaction  of  it,  by  himself 
or  another.  So  the  principal  has  no 
right  to  compel  the  creditor  to  elect 
his  action,  or  to  discharge  either  him- 
self or  his  agent,  but  can  defend  his 
agent  only  by  making  satisfaction  for 
him." 

In  McLean  v.  Sexton,  44  App.  Div. 
520,  after  quoting  with  approval  the 
rule  in  Pollock's  Contracts  that  the 
other  party  may  sue  either  principal 
or  agent  or  may  commence  proceed- 
ings against  both,  but  may  sue  only 
one  of  them  to  judgment,  it  is  said: 
"If  they  may  be  sued  in  separate  ac- 
tions, there  is  no  good  reason  why 
both  the  principal  and  agent  who  are 
liable  for  a  debt  should  not  be  sued 
in  the  same  action.  Both  will  be  dis- 
charged by  the  satisfaction  of  the 
debt,  and  neither  can  be  discharged 
without  it." 


1339 


§§    I76l,I/62j  THE  LAW  OF  AGENCY  [BOOK   IV 

and  would  ordinarily  release  the  principal.17  In  the  majority  of  the 
States,  however,  the  paper  is  not  presumptively  payment  and  such  a 
conclusion  would  not  follow.18  In  a  case  10  in  Massachusetts,  where  a 
note  is  presumptively  payment,  the  court  said :  "If  the  plaintiff,  knowing 
O.  to  be  the  agent  of  the  defendant,  accepted  his  note  in  payment  for 
property  sold  to  the  defendant,  intending  to  receive  it  as  payment  and 
to  give  exclusive  credit  to  O.,  it  would  operate  as  payment ;  and  he  could 
not  thereafter  fall  back  upon  the  defendant  for  the  price  of  the  prop- 
erty, although  the  note  of  O.  should  be  dishonored."  This,  however, 
was  not  a  case  of  undisclosed  principal  at  all,  but  of  election  between  a 
known  principal  and  a  known  agent  tendering  his  individual  responsi- 
bility,— a  case  which  may  be  analogous  but  is  not  identical.  In  a  simi- 
lar case  20  in  Missouri,  where  a  note  is  held  to  be  not  presumptively  pay- 
ment,21 it  was  said  that  "where  the  creditor  with  knowledge  of  the  prin- 
cipal's liability  sees  fit  to  take  the  individual  note  of  the  agent,  without 
taking,  at  the  time  of  the  transaction,  any  steps  indicative  of  an  intent  to 
hold  the  principal,  this  is  equivalent  to  a  discharge  of  the  principal  as 
a  matter  of  law."  Considering  that  these  two  rules  were  inconsistent, 
the  court  in  a  later  case  suggested  that  the  conclusion  in  the  agency  case 
might  perhaps  be  regarded  as  an  exception  to  the  previous  more  general 
rule.22 

On  the  principle  of  election  suggested,  while  the  taking  of  the  agent's 
note  may  have  some  effect  as  evidence,  it  is  difficult  to  see  why,  unless 
actually  taken  as  payment,  it  should  operate  as  matter  of  law  to  dis- 
charge the  principal. 

§  1761.  Charging  goods  to  agent. — A  fortiori  would  there 

be  no  release  merely  because  the  goods  were  charged,  or  a  bill  made 
out,  to  the  agent  after  the  discovery  of  the  principal.23 

§  1762.  Mere  delay — Statute  of  limitations. — The  question 

of  the  effect  of  delay  is  not  easily  dealt  with.  Delay  reasonably  leading 

17  Paige  v.  Stone,  10  Mete.   (Mass.)  bone   v.   Tucker,    15   Wend.    (N.   Y.) 

160,  43  Am.  Dec.  420;  Wilkins  v.  Reed,  498;   Muldon  v.  Whitlock,  1  Cow.  (N. 

6  Greenl.  (Me.)  220,  19  Am.  Dec.  211;  Y.)  290,  13  Am.  Dec.  533. 

French  v.  Price,  24  Pick.  (Mass.)  13;  "  Perkins  v.  Cady,  111  Mass.  318. 

Green   v.   Tanner,    8    Mete.    (Mass.)  20  Ames    Packing    &    Prov.    Co.    v. 

411;    Chapman   v.    Durant,   10   Mass.  Tucker,  8  Mo.  App.  95. 

47;   Tudor  v.  Whiting,  12  Mass.  212.  21  Commiskey    v.    McPike,    20    Mo. 

is  See  Atlas  S.  S.  Co.,  v.  Columbian  App.  82. 

Land  Co.,  42  C.  C.  A.  398,  102  Fed.  22  Schepflin  v.  Dessar,  20  Mo.  App. 

358,  where  the  question  is  fully  dis-  569. 

cussed  though  the  case  was  not  really  23  Dyer   v.    Swift,    154    Mass.    159; 

one  of  undisclosed  principal.     Rath-  Gardner  v.  Bean,  124  Mass.  374. 

1340 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1763-1765 

to  and  followed  by  a  detrimental  change  of  position  would  bar  recovery ; 
but  unless  it  thus  results  in  an  alteration  of  the  situation  it  seems  quite 
certain  that  no  ordinary  delay  in  seeking  to  charge  the  principal  will,  as 
a  matter  of  law,  operate  to  release  him.  But  a  delay  so  long  that  all 
right  of  action  against  the  agent  is  barred  by  the  statute  of  limitations, 
will,  it  is  held,  ordinarily  bar  a  recovery  against  the  principal.24 

§  1763.  Intermediate  party  must  have  been  agent  and  not  princi- 
pal.— Where  it  is  sought  to  hold  one  as  undisclosed  principal,  for 
example  for  goods  bought,  it  is  essential  that  the  intermediate  party 
through  whom  the  goods  were  secured  shall  have  been  an  agent  of  the 
principal  sought  to  be  held  and  not  his  vendor.25  Thus,  for  illustration, 
if  A  orders  goods  of  B  as  seller,  but  B,  not  happening  to  have  them  on 
hand,  buys  them  in  his  own  name  of  C  -and  supplies  them  to  A,  A  will 
not  be  liable  to  C  as  undisclosed  principal  if  B  fails  to  pay  C.  A  would 
not  be  liable  to  C  in  such  a  case  if  he  had  been  disclosed.  There  was  no 
agency  and  no  principal  disclosed  or  undisclosed. 

The  same  doctrine  would,  of  course,  apply  to  other  cases  than  the 
sale  of  goods — to  leasing,  borrowing,  employing,  and  the  like. 

§  1764.  Alleged  agent  must  have  been  really  such. — It  must  be 
kept  in  mind  that  the  rules  here  considered  contemplate  the  actual  ex- 
istence of  authority  from  a  principal,  though  he  be  not  disclosed.  There 
is  no  more  warrant  for  holding  an  undisclosed  party  liable  for  acts 
which  he  did  not  authorize  than  there  is  for  holding  a  disclosed  party 
in  such  a  case.  In  fact  there  is  often  much  less  warrant.  It  is  therefore 
an  indispensable  part  of  the  plaintiff's  case  to  show  that  the  alleged 
principal  was  really  such  as  to  the  act  in  question.26 

§  1765.  It  must  also  usually  appear  that  the  fact  that  the 

undisclosed  principal  was  undisclosed  was  not  so  far  in  violation  of 
his  authority  or  consent  as  to  practically  destroy  the  agency.  An  au- 
thority to  contract  for  the  purchase  of  goods,  for  example,  in  the  prin- 
cipal's name  and  upon  his  credit  only,  can  ordinarily  not  be  deemed 
to  warrant  a  contract  in  the  agent's  name  and  upon  his  credit.  It  is,  of 

2*  In  Gay  v.  Kelley,  109  Minn.  101,  383,  37  Am.  Rep.  369;  Consol.  Safety 

26  L.  R.  A.    (N.  S.)   742,  a  delay  for  Pin  Co.  v.  Humbert,  128  N.  Y.  Supp. 

a  year  was  held  not  conclusive,  and  710. 

a  verdict  against  the  principal  was  2«  Young  v.  Inman,  146  Iowa,  492; 
upheld.  Delay  until  action  against  Moline  v.  Neville,  38  Neb.  433;  Dick- 
agent  is  barred  by  statute  of  limi-  erson  v.  Rogers,  114  N.  Y.  405;  Mc- 
tations  bars  action  against  principal.  Kenna  v.  Stayman  Mfg.  Co.,  112  N. 
Ware  v.  Galveston  City  Co.,  Ill  U.  S.  Y.  Supp.  1099;  Edwards  v.  Annan 
170.  (Tex.  Civ.  App.),  127  S.  W.  299;  Harp- 

25  See  Stoddard  v.  Ham,  129  Mass.  er  v.  Sinclair,  7  Wash.  372.    See  also, 

1341 


§§    i;66,  1767]  THE  LAW  OF  AGENCY  [BOOK    IV 

course,  true  that  custom,  or  the  distinction  between  instructions  and 
authority,27  or  ratification  with  knowledge,  may  affect  the  matter,  but 
in  the  absence  of  some  element  of  that  nature  the  rule  must  be  as  stated. 

§  1766.  Where  goods  are  bought  upon  credit  it  must  also 

be  usually  a  part  of  the  plaintiff's  case  that  a  purchase  upon  credit  was 
authorized,  subject  to  the  qualifications  mentioned  in  the  preceding  par- 
agraph. A  principal  who  supplies  an  agent  with  funds  with  which  to 
buy  and  pay  for  goods  can  not,  it  is  held,  ordinarily  be  made  liable  where 
the  agent,  concealing  the  principal,  buys  the  goods  upon  his  own  credit 
and  makes  some  other  disposition  of  the  money.28 

Moreover  there  can  ordinarily  in  such  a  case  be  no  ratification  of 
which  the  other  party  may  avail  himself,  in  view  of  the  rule  denying 
ratification  by  an  undisclosed  principal. 

§  1767.  "Apparent"  authority. — Granting  that  an  agency 

actually  exists,  it  is  held  that  the  usual  incidents  attach  to  it,  and, 
among  others,  that  the  undisclosed  principal  is  liable  for  acts  which 
fall  within  the  usual  scope  of  such  an  agency,  even  though  the  principal 
may  have  given  private  instructions  to  the  contrary.  Thus  where  the 
defendants  put  an  agent  in  charge  of  their  business  to  be  carried  on  in 
his  own  name  and  gave  him  authority  to  buy  certain  classes  of  goods 
but  instructed  him  not  to  buy  other  appropriate  classes  because  they 
would  furnish  these  goods  themselves,  it  was  held  that  defendants  were 
nevertheless  liable  to  the  plaintiff  for  the  price  of  goods  of  the  forbid- 
den class  bought  by  the  agent,  although  the  plaintiff  at  the  time  of  the 
sale  knew  nothing  of  the  agency  and  supposed  the  agent  to  be  the  prin- 
cipal.28 Wills  J.,  said:  "Once  it  is  established  that  the  defendant  was- 

Pitkin  v.  Benfer,  50  Kan.  108,  34  Am.  of  the   disclosed   principal  see   ante, 

St.  Rep.  110;    Brown  v.  Tainter,  114  §§  913,  914. 

N.  Y.  App.  Div.  446.  29  Watteau  v.  Fenwick,  [1893]  1  Q. 

27  Thus,  in  the  converse  case,  it  is  B.     346.     Followed    in    Kinahan    v. 
held  that  the  principal  may  be  liable,  Parry,  [1910]  2  K.  B.  389,  distinguish- 
although  he  instructed  the  agent  to  ing  Daun  v.   Simmins,  41  L.  T.  782. 
buy  in  his   (the  agent's)   own  name,  But  see,  Kinahan  v.  Parry,  [1911]  1 
the  seller  being  ignorant  of  the  spe-  K.  B.  459;  Edmunds  v.  Bushell,  L.  R. 
cial  instructions.    Perth  Amboy  Mfg.  1  Q.  B.   97,  was  relied  upon,  where 
Co.  v.  Condit,  21  N.  J.  L.  659.     See  Cockburn,   C.   J.,  said:    "If  a  person 
also,  Calder  v.  Dobell,  L.  R.  6  C.  P.  employs   another   as   an   agent   in   a 
486.  character  which  involves  a  particular 

28  Laing  v.  Butler,  37  Hun  (N.  Y.),  authority,  he  cannot  by  a  secret  res- 
144;    Fradley  v.  Hyland,  37  Fed.  49,  ervation  divest  him  of  that  author- 
2  L.  R.  A.  749;  Harder  v.  Continental  ity."    Watteau  v.  Fenwick  is  followed 
Printing  Co.,  64  N.  Y.  Misc.  89  in   Brooks   v.   Shaw,   197    Mass.   376. 

For  the  ordinary  rule  in  the  case 


CHAP.    V] 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§ 


the  real  principal.  The  ordinary  doctrine  as  to  principal  and  agent  ap- 
plies— that  the  principal  is  liable  for  all  the  acts  of  the  agent  which  are 
within  the  authority  usually  confided  to  an  agent  of  that  character,  not- 
withstanding limitations,  as  between  the  principal  and  the  agent,  put 
upon  that  authority.  It  is  said  that  it  is  only  so  where  there  has  been  a 
holding  out  of  authority — which  cannot  be  said  of  a  case  where  the  per- 
son supplying  the  goods  knew  nothing  of  the  existence  of  a  principal. 
But  I  do  not  think  so.  Otherwise,  in  every  case  of  undisclosed  princi- 
pal, or  at  least  in  every  case  where  the  fact  of  there  being  a  principal 
was  undisclosed,  the  secret  limitation  of  authority  would  prevail  and 
defeat  the  action  of  the  person  dealing  with  the  agent,  and  then  discov- 
ering that  he  was  an  agent  and  had  a  principal."  A  number  of  other 
cases  have  adopted  similar  views,  as  will  be  seen  from  the  note. 

§  1768.  This  doctrine,  however,  has  been  severely  criti- 
cised.30 It  has  been  thought  by  some  to  be  merely  one  more  extension 
of  a  confessedly  anomalous  principle.  It  clearly  can  not  be  sustained 


A  similar  conclusion  had  previously 
been  reached  in  Hubbard  v.  Tenbrook 
(1889),  124  Pa.  291,  10  Am.  St.  Rep. 
585,  2  L.  R.  A.  823.  In  this  case  an 
agent  had  been  put  forward  to  man- 
age a  business  apparently  as  owner 
but  with  instructions  not  to  buy 
goods'  on  credit.  He  did  so  buy  of 
plaintiff  and  his  principal  was  held 
liable.  Mitchell,  J.,  said:  "We  have 
thus  the  question  presented  whether 
an  agent  can  be  put  forward  to  con- 
duct a  separate  business  in  his  own 
name,  and  the  principal  escapes  lia- 
bility by  a  secret  limitation  on  the 
agent's  authority  to  purchase.  The 
answer  is  not  at  all  doubtful.  A  man 
conducting  an  apparently  prosperous 
and  profitable  business  obtains  credit 
thereby,  and  his  creditors  have  a 
right  to  suppose  that  his  profits  go  in- 
to his  assets  for  their  protection  in 
case  of  a  pinch  or  an  unfavorable 
turn  in  the  business.  To  allow  an 
undisclosed  principal  to  absorb  the 
profits,  and  then  when  the  pinch 
comes,  to  escape  responsibility  on  the 
ground  of  orders  to  his  agent  not  to 
buy  on  credit,  would  be  a  plain  fraud 
on  the  ruLlic.  No  exact  precedent 


has  been  cited.  None  is  needed.  The 
rule  so  vigorously  contended  for  by 
the  plaintiff  in  error  that  those  deal- 
ing with  an  agent  are  bound  to  look 
to  his  authority  is  freely  conceded, 
but  this  case  falls  within  the  equally 
established  rule  that  those  clothing  an 
agent  with  apparent  authority,  are, 
as  to  parties  dealing  on  the  faith  of 
such  authority,  conclusively  estopped 
from  denying  it."  Hubbard  v.  Ten- 
brook  was  followed  in  Cracken  v. 
Hamburger,  139  Pa.  326;  Ernst  v. 
Harrison,  86  N.  Y.  Supp.  247;  Lamb 
v.  Thompson,  31  Neb.  448;  Patrick  v. 
Great  Falls  Merc.  Co.,  13  N.  D.  12; 
Napa  Valley  Wine  Co.  v.  Cassanova, 
140  Wis.  289;  Mississippi  Valley 
Const.  Co.  v.  Abeles,  87  Ark.  374;  and 
Allison  v.  Sutlive,  99  Ga.  151,  are  to 
the  same  effect. 

30  For  example,  by  Mr.  Ewart  in  his 
book  on  Estoppel  pp.  246-248;  by 
the  Solicitors'  Journal,  Vol.  37  p.  280; 
in  10  Columbia  Law  Review,  p.  763. 
It  is  doubted  in  9  Law  Quarterly  Re- 
view, p.  111.  The  court  in  Watteau 
v.  Fenwick  did  not  cite,  or  apparently 
have  their  attention  called  to,  Miles 
v.  Mcllwraith  (1883),  8  App.  Cas.  120, 


rauH 


1343 


§  i?68] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


upon  the  ordinary  principles  of  estoppel  as  applied  to  agency.  The 
person  in  charge  did  not  appear  to  be  an  agent  but  an  owner.  If  the 
question  had  been  what  an  ostensible  owner  may  do,  it  would  be  easier 
of  solution.  If  he  had  attempted  to  deal  with  the  goods,  or  even  pos- 
sibly to  get  credit  in  reliance  upon  their  ownership,31  there  might  be 


and  although  the  precise  issue  wag 
not  the  same  the  general  question 
was  similar  and  there  is  much  in  the 
opinions  in  the  cases  not  easy  to 
reconcile.  Miles  v.  Mcllwraith  was 
an  action  for  a  penalty  brought  un- 
der a  statute  imposing  penalties  up- 
on any  one  who  being  in  the  public 
service  should  be  interested  in  a  pub- 
lic contract.  Defendant  was  a  mem- 
ber of  a  Colonial  legislature.  The 
colony  was  about  to  lease  boats.  De- 
fendant was  part  owner  of  a  number 
of  steamships  for  which  a  certain 
firm  (the  agents  herein)  were  agents. 
This  firm  proposed  to  offer  boats  to 
the  government  and,  In  order  not 
to  involve  defendant,  he  required  the 
agents  not  to  offer  any  ships  in  which 
he  was  interested  as  part  owner. 
With  reference  to  one  ship  in  particu- 
lar it  was  agreed  that  the  agents 
should  lease  her  at  a  rent  independ- 
ent of  any  they  might  obtain  on  a 
lease  to  the  government.  In  violation 
of  the  directions  the  agents  leased 
this  ship  to  the  government  on  be- 
half of  the  owners  and  in  such  form 
as  would  bind  defendant  as  one  of 
them.  The  colonial  agent  who  acted 
for  the  government  did  not  know  of 
defendant's  connection  with  the  boat. 
It  was  contended  that  defendant  had 
violated  the  statute  and  was  subject 
to  the  penalty.  But  it  was  held  that 
as  defendant  would  not  have  been 
liable  to  the  government  (since  the 
agents  violated  the  instructions  and 
there  was  no  apparent  authority  to 
bind  the  defendant  as  he  was  un- 
known) the  defendant  was  not 
amenable  to  the  statute.  A  distinc- 
tion may  be  made  here  upon  the 
ground  that  the  business  done  was 
not  so  done  with  the  consent  of  the 


alleged  principal.  Daun  v.  Simmins, 
41  L.  T.  783,  was  not  cited  in  Watteau 
v.  Fenwick,  but  the  court  in  Kinahan 
v.  Parry,  supra,  thought  it  distin- 
guishable upon  the  ground  that  the 
person  in  charge  was  known  to  be 
only  a  manager. 

In  Becherer  v.  Asher  (1896),  23 
Ont.  App.  202;  Watteau  v.  Fenwick  and 
Miles  v.  Mcllwraith  were  considered, 
and  it  was  held  that  undisclosed  prin- 
cipals who  had  employed  an  agent  to 
carry  on  business  (in  a  store  rented 
by  him)  for  the  sale  of  their  goods 
in  his  name  (his  authority  being  lim- 
ited to  the  sale  of  goods  supplied  by 
his  principals  and  his  compensation 
being  what  he  obtained  for  them 
above  invoice  prices),  were  not  liable 
for  goods  purchased  by  him  in  his 
own  name  and  which  he  added  to  the 
stock  in  the  store.  Watteau  v."  Fen- 
wick was  distinguished  on  the  ground 
that  there  the  agent  had  authority  to 
purchase  certain  goods  though  he  was 
instructed  not  to  buy  any  of  the  sort 
which  he  did  buy,  but  here  he  had  no 
authority  to  buy  any  goods  at  all. 
One  of  the  judges  said  he  thought 
that  Watteau  v.  Fenwick  was  well 
decided;  another  said:  "It  has  been 
sharply  criticised,  and,  it  would  seem, 
not  without  reason." 

31  In  several  partnership  cases  it 
has  been  held  that  firm  creditors  of 
an  ostensible  partnership,  composed 
of  apparent  partners  and  the  actual 
owner,  were  to  be  preferred  to  indi- 
vidual creditors  of  the  actual  owner 
upon  a  theory  that  the  holding  out 
the  partnership  as  proprietor  of  the 
business  estopped  the  owner  and 
those  claiming  under  him  from  set- 
ting up  the  real  situation.  Kelly  v. 
Scott,  49  N.  Y.  595;  Thayer  v.  Hum- 


1344 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§1769-177! 

found  analogies  which  would  throw  light  upon  the  situation.  But  the 
question  was  not  one  of  these  but  of  a  purely  personal  liability.  The 
most  tenable  explanation  is  probably  this :  The  defendants  when  they 
put  a  general  agent  in  charge  actually  gave  him  by  implication  all  the 
incidental  authorities  which  usually  attend  such  a  managerial  position. 
Among  these  would  be  authority  to  buy  such  goods  as  those  in  question, 
which  are  usually  dealt  in  at  such  a  place.  The  defendants  then  sought 
to  narrow  this  actual  authority  by  instructions  which  were  either  secret 
or  which  were  designed  to  limit  usual  authority  and  were  not  made  pub- 
lic. Within  well  settled  rules,  such  limitations  are  ineffective. 

§  1769.  Right  of  assignee  of  other  party  against  principal. — 
Where,  even  before  the  discovery  of  the  principal,  the  other  party  as- 
signs his  rights  under  the  contract  to  a  stranger,  it  is  held  that  the  as- 
signee will  have  the  same  right  to  follow  the  principal  when  discovered 
which  the  assignor  would  have  had.32 

§  1770.  Apparent  agent  the  real  principal. — As  has  already  been 
pointed  out  in  an  earlier  section,33  there  may  be  cases  in  which  the  un- 
disclosed principal  proves  to  have  been  no  other  than  the  alleged  agent 
himself.  In  such  a  case,  unless  it  can  be  said  that  the  terms  of  the  con- 
tract are  so  explicit  as  to  exclude  his  liability,  there  seems  to  be  no  rea- 
son why  he  may  not  be  held. 

§  1771.  Excluding  principal's  liability  by  terms  of  contract. — In 
Humble  v.  Hunter,34  where  by  the  terms  of  the  contract,  one  who  was 

phrey,  91  Wis.  276,  51  Am.  St.  Rep.  82  Berry  v.  Chase,  102  C.  C.  A.  572, 

887,  30  L.  R.  A.  549;   Van  Kleeck  v.  179  Fed.  426. 

McCabe,  87  Mich.  599,  24  Am.  St.  Rep.  ™  Ante,  §  1403.     Compare  Paine  v. 

182.     See  also,  Adams  v.  Albert,  155  Loeb,  37  C.  C.  A.  434,  96  Fed.  164. 

N.  Y.  356,  63  Am.  St.  Rep.  675;    Cod-  3*12  Q.  B.  310.     Followed  in  Form- 

ville  v.   Smart,  15  Ont.  L.  Rep.  357.  by  Bros.  v.  Formby,  102  L.  T.  Rep. 

Also,  Ex  parte  Hayman,  8  Ch.  Div.  11,  116.     Compare  Schmaltz  v.  Avery,  16 

where,  under  the  English  Bankruptcy  Q.  B.  655;   Sharman  v.  Brandt,  L.  R. 

Act,    it    was    held    that    property    of  6  Q.  B.  720;  Harper  &  Co.  v.  Vigers, 

which  the  firm  had  the  "reputed  own-  [1909]  2  K.  B.  549;  Paine  v.  Loeb,  37 

ership"  will  be  administered  as  firm  C.  C.  A.  434,  96  Fed.  164;   Humble  v. 

assets.  Hunter  is  followed  in  Moore  v.   Ce- 

To  the  contrary,  on  the  theory  that  ment  Co.,   121   N.  Y.  App.   Div.   667. 

estoppel  in  such  cases  is  purely  per-  See  also,  Winchester  v.   Howard,  97 

sonal,   see    Broadway    Nat.    Bank    v.  Mass.  303,  93  Am.  Dec.  93. 

Wood,  165  Mass.  312;  Himmelreich  v.  In    Brown    v.    Tainter,    114    N.    Y. 

Shaffer,  182  Pa.  201,  61  Am.  St.  Rep.  App.    Div.    446,    where    money    was 

698;    Swanson  v.   Sanborn,  4  Woods,  loaned  upon  the  note  of  one  person, 

625,  Fed.  Cas.  13,675;  Johnson  v.  Wil-  endorsed  by  another,  now  sought  to 

liams,   111   Va.   95,   31  L.   R.   A.    (N.  be  held  as  an  undisclosed  principal, 

S.)  406.  the  majority  of  the  court  held  that 

85  1345 


§  1772]  THE  LAW  OF  AGENCY  [BOOK  iv 

actually  an  agent  but  ostensibly  a  principal  described  himself  in  a  char- 
ter-party as  the  owner,  it  was  held  that  the  undisclosed  principal  could 
not  show  that  he  was  the  owner  and  sue  upon  the  contract.  Lord  Den- 
man  said,  "You  have  a  right  to  the  benefit  you  contemplate  from  the 
character,  credit,  and  substance  of  the  party  with  whom  you  contract." 
In  Kayton  v.  Barnett 35  it  was  held  that  the  undisclosed  principal  could 
be  held,  even  though,  at  the  time  of  making  the  contract,  the  plaintiff 
had  inquired  if  the  defendant  was  really  the  buyer  and  had  declared 
that  he  would  not  sell  the  goods  if  that  was  the  fact.  Notwithstanding 
this  declaration,  said  the  court,  the  plaintiff  did  in  fact  sell  the  goods 
to  the  defendant,  although  he  did  not  know  that  he  was  doing  so ;  and 
it  did  not  now  lie  in  defendant's  mouth  to  assert  that  he  was  not  liable 
because  he  had  succeeded  in  inducing  the  plaintiff  to  do  that  which  he 
did  not  intend  to  do.  This  case  does  not  fall  within  Lord  Denman's 
reason,  because  the  plaintiff  here  was  not  deprived  of  any  benefit  which 
he  may  have  contemplated  from  the  personality  of  the  party  with  whom 
he  ostensibly  dealt, — he  still  had  that,  and  the  only  question  was  whether 
he  might  also  avail  himself  of  the  fact  that  defendant  was  the  principal. 

But  other  questions  arise.  May  the  terms  of  the  negotiation  be  used 
to  show  that  the  real  agent  was  not  dealt  with  as  an  agent  at  all,  but 
was  the  actual  as  well  as  the  ostensible  principal  ?  If  so,  there  was  no 
agency  and  no  undisclosed  principal,  and  hence  no  room  for  the  appli- 
cation of  the  doctrine  under  consideration.30  Suppose,  also,  that  in  a 
formal  contract  it  is  made  a  term  that  no  undisclosed  person  shall  ac- 
quire rights  or  be  subject  to  liability  thereon.  May  it  afterward  be  as- 
serted that  there  was,  nevertheless,  an  undisclosed  principal  who  may 
be  made  liable  ?  3T 

§  1772.  Cases  in  which  the  agent  may  not  be  liable. — In  practi- 
cally all  of  the  cases  thus  far  considered,  it  has  been  assumed  that  the 
agent  was  liable  upon  the  contract,  and  he  ordinarily  is  liable.  It  is  en- 
tirely possible,  however,  that  a  contract  may  be  made  in  such  terms  as 

the  doctrine  of  the  undisclosed  prin-  Helvetia    Ins.    Co.,    163    Fed.    644,  'It 
cipal  could  not  apply  to  change  "the  was  held  that  an  undisclosed  princi- 
relations  established  between  parties  pal  could  not  be  held  in  contradiction 
by  their  direct  personal  contracts,  of  of  the  terms  of  the  written  contract, 
such   a  character   as   to   exclude  the  and  that  therefor  where  it  was  pro- 
idea  of  agency."  vided  in  an  insurance  policy  that  cer- 
35  Kayton  v.  Barnett,  116  N.  Y.  625.  tain  funds  only  should  be  liable  for 
3«  This   is   apparently   the   view   of  claims  arising  under  it,  another  com- 
the   lower   court   in   Kayton    v.    Bar-  pany  could  not  be  held  as  an  undis- 
nett,  54  N.  Y.  Super.  Ct.  78.  closed  principal  of  the  one  which  is- 
37  in    Western    Sugar    Ref.    Co.    v.  sued  the  policy. 

1346 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1773 

to  exclude  his  liability,  as,  for  example,  where  it  is  expressly  made  to 
bind  an  announced  but  as  yet  unnamed  principal,  but  is  not  under  any 
circumstances  to  charge  the  agent. 

There  would  seem  to  be  no  doubt  also  that  the  undisclosed  principal 
of  an  infant  agent  would  be  liable  like  any  other,  or  of  a  married  woman 
at  common  law  or  of  a  slave,  as  agent. 

There  may  also  doubtless  be  cases,  wherein  for  some  other  purely 
personal  reason  the  agent  can  not  be  held,  in  which  the  principal  may 
nevertheless  be  charged. 

The  contract  in  any  such  case  would  not  necessarily  be  void. 


II 

RESPONSIBILITY  OF  THE  PRINCIPAL  FOR  THE  AGENT'S  STATEMENTS, 
REPRESENTATIONS  AND  ADMISSIONS. 

§  1773.  In  general. — Important  and  difficult  questions  arise  re- 
specting the  power  of  the  agent  to  affect  the  principal  by  the  agent's 
statements,  representations  and  admissions,  either  when  made  directly 
and  ultimately  or  incidentally  and  as  a  concomitant  of  some  other  act. 
Such  statements,  representations  and  admissions,  may  be  such  as  af- 
fect the  principal's  liability  in  contract  or  contractual  relations,  or  in 
tort. 

It  is,  of  course,  ordinarily  true  that  one  person's  statements,  repre- 
sentations, or  admissions  can  affect  himself  only ;  and,  if  it  be  contended 
that  they  affect  some  one  else,  some  relation  or  causal  connection  be- 
tween the  latter  and  the  former  which  alters  this  general  rule  must  be 
shown. 

It  is  also  ordinarily  true  that  we  do  not,  in  our  law,  prove  facts 
merely  by  permitting  one  person  to  testify  to  what  some  other  person, 
who  is  not  a  party  to  the  proceeding,  may  have  said  about  them.  The 
rules  against  hearsay  usually  prevent  that.  If,  then,  such  statements 
are  to  be  admitted,  it  is  ordinarily  essential  to  show  some  relation  or 
connection  between  the  person  speaking  and  the  one  against  whom  his 
utterances  are  offered,  which  will  take  the  case  out  of  the  ordinary  rule. 

The  relation  or  connection  which  is  offered  here  is  that  of  agency, 
and  the  question  is  how  far  that  fact  may  serve  to  charge  the  principal 
with  responsibility  for  the  statements  of  one  who,  if  he  were  not  the 
former's  agent,  would  affect  himself  alone  by  what  he  says. 

1347 


§§    I774-I776]  THE  LAW  OF  AGENCY  [BOOK    IV 

§  1774.  Agent's  authority  must  be  first  shown. — It  is  necessary 
to  keep  constantly  in  mind  in  dealing  with  the  subject  of  the  agent's 
statements,  representations  and  admissions  that  the  fact  of  his  agency 
is  a  condition  precedent.  Before  proof,  therefore,  can  be  made  of  his 
statements,  representations  or  admissions  it  is  essential  that  the  fact 
that  he  was  an  agent  at  the  time  of  making  them  shall  either  be  admitted 
or  be  shown  by  evidence  making  a  prima  facie  case.38 

§  1775.  Authority  can  not  be  shown  by  agent's  admissions. — It 
must  also  be  kept  in  mind,  that,  as  has  been  already  seen,39  the  fact  of 
the  agent's  authority  can  neither  be  established,  nor  can  its  scope  or 
effect  be  extended  or  enlarged,  by  his  own  statements,  representations 
or  declarations,  so  as  to  charge  the  principal.  There  must  be  first  a 
prima  facie  showing  of  his  authority  by  other  evidence,  before* the  ad- 
missions, declarations  or  representations,  if  otherwise  competent,  can 
be  admitted.4* 

§  1776.  Representations  by  agent. — Representations  made  by  an 
agent  may  affect  his  principal  in  a  variety  of  cases.  They  may  be  ex- 
pressly and  specifically  authorized,  and  bind  the  principal  because  they 
were  so  authorized.  Authority  to  make  them  may  properly  be  implied 
from  an  express  authority  to  do  some  act  or  to  act  in  some  capacity.  An 
agent  authorized  to  lease  his  principal's  house  may,  by  implication,  be 
found  to  have  authority  to  make  certain  representations  respecting  it ; 
an  agent  authorized  to  sell  goods  may  be  found,  by  implication,  to  have 
authority  to  make  certain  representations  respecting  their  quality,  fit- 
ness, and  the  like.  When  made  as  a  term  of  the  contract  these  repre- 
sentations may  become  warranties  and  bind  the  principal  as  such.  This 
subject  has  already  been  considered.41 

False  and  fraudulent  representations  by  an  agent  may -affect  the  prin- 
cipal because  he  has  expressly  or  impliedly  authorized  representations 
to  be  made  by  the  agent  and  the  latter  made  false  and  fraudulent  ones. 
Even  though  no  representations  were  contemplated,  the  principal  may 
be  affected  by  the  false  and  fraudulent  representations  of  his  agent  if 
made  in  the  course  of  his  employment.  When  they  were  the  induce- 
ment to  a  contract,  the  principal,  by  taking  the  benefits  of  the  contract, 

: 

•*8  See  Smith  v.  Kron,  96  N.  C.  392;  v.  Cryder,  55  N.  J.  L.  329;  Rumbough 

Willcox  v.   Hines,  100  Tenn.   524,   66  v.  Southern  Impl.  Co.,  112  N.  C.  751, 
Am.  St  Rep.  761.                            vfcftl  :   34  Am.  St.  Rep.  528:    Gates  v.  Max, 

:-»  See  ante,  §  285.  125  N.  C.  139;  Summer-row  v.  Brauch, 

4°  See  ante,  §  292;   Taylor  v.  Com-  128  N.  C.  202. 
mercial  Bank,  174  N.  Y.  181,  95  Am.          *i  See  Warranties  by  Agent 
St.  Rep.  564,  62  L.  R.  A.  783;  Dowden 

1348 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1777 

may  be  often  found  to  have  assumed  responsibility  for  the  means  by 
which  it  was  procured.  They  may  in  a  proper  case  justify  a  rescission, 
or  they  may  be  ground  for  charging  the  principal  in  damages.  The  sub- 
ject will  be  more  fully  considered  in  a  later  subdivision.42 

Representations  made  by  an  agent,  like  those  made  by  the  principal 
in  person,  would  be  subject  to  the  rule  excluding  all  other  terms  than 
those  finally  included  in  a  written  contract.  And  the  authority  of  the 
agent  to  make  representations  which  shall  affect  his  principal  may  be 
cut  off  by  notice  or  by  express  stipulation. 

§  1777.  Principal  liable  for  statements  and  representations  ex- 
pressly authorized. — In  the  first  place  it  may  be  noted  that  the  prin- 
cipal is  of  course  responsible  for  the  statements  and  representations 
which  he  has  expressly  authorized.  It  must  be  kept  in  mind  that  the 
speaking  of  words  is  as  much  an  act  as  any  other  physical  manifesta- 
tion, and  may  be  authorized  as  readily  as  any  other  act.  In  many  cases 
the  speaking  of  words  may  be  the  very  act  authorized.  In  other  cases 
the  use  of  words  may  be  the  only  means  by  which  the  end  authorized 
can  be  accomplished.  Thus  if  the  principal  authorizes  an  offer  to  be 
made  or  accepted,  or  directs  a  notice  to  be  given  or  a  demand  to  be 
made,  the  speaking  of  the  words  which  constitute  the  offer  or  the  ac- 
ceptance or  which  make  up  the  notice  or  the  demand  is  the  very  act 
which  the  principal  has  directly  and  expressly  authorized.  So  if  the 
principal  authorizes  a  contract  to  be  made  or  modified  or  rescinded  or 
any  other  negotiation  to  be  entered  upon  or  conducted  for  which  the 
use  of  language  is  essential,  the  speaking  of  the  words  or  the  use  of  the 
language  necessary  for  the  accomplishment  of  the  purpose  is  an  act 
done  by  the  direct  authority  of  the  principal.  A  moment's  consideration 
will  suffice  to  show  in  how  large  a  proportion  of  the  cases  the  act  to  be 
done  by  an  agent  consists  of  or  involves  the  use  of  language  by  the 
agent.  If  the  distinction  between  an  agent  and  a  servant  heretofore  sug- 
gested be  considered,  the  distinguishing  feature  of  the  agent  may  appear 
to  be  that  he  speaks  as  well  as  acts  for  his  principal.  And  when  spoken 
language  is  referred  to,  it  will  be  obvious  that  written  language  is  also 
to  be  included.  Written  words  when  appropriate  may  be  just  as  much 
the  direct  object  of  the  authority  as  spoken  words. 

In  view  of  these  considerations  it  is  evident  that  there  may  be  oral 
or  verbal  acts  as  well  as  any  other,  and  that  the  principal  will  be  as  re- 
sponsible for  a  verbal  act  which  he  has  authorized  as  he  will  be  for  any 
other. 

42  See  post,  Liability  for  Fraudulent  Acts  and  Representations. 

1349 


§    1778]  THE  LAW  OF  AGENCY  [BOOK   IV 

§  1778.  Statements  of  agent  expressly  authorized  to  give,  or  re- 
ferred to  for,  information. — It  is  not  at  all  uncommon  for  the  prin- 
cipal to  put  an  agent  in  a  position  in  which  the  making  of  statements 
or  representations  or  the  giving  of  information  is  the  act  expressly  con- 
templated and  directed.  Thus  if  the  principal  refers  a  person  to  his 
agent  for  information,  the  agent  is  clearly  authorized  to  give  informa- 
tion for  the  principal  upon  the  subject  indicated.  If  a  principal  carry- 
ing on  an  extensive  business  establishes  a  bureau  of  information,  or 
designates  an  agent  to  whom  inquiries  may  be  referred  or  of  whom  in- 
formation may  be  obtained,  the  giving  of  such  information  or  the  an- 
swering of  such  inquiries  is  an  act  which  the  principal  has  directly  au- 
thorized. 

The  giving  of  information  or  the  answering  of  inquiries  in  such  a 
case  must,  of  course,  be  confined  to  the  subjects  which  have  actually  or 
apparently  been  confided  to  him  to  answer  for ;  but  within  that  sphere 
persons,  expressly  or  impliedly  referred  to  him,  who  act  in  good  faith 
and  with  reasonable  prudence  may  rely  upon  the  information  as  infor- 
mation given  by  the  principal.*3 

For  similar  reasons,  if  the  principal  refers  a  person  for  information 
to  another,  though  not  then  his  agent,  as  a  person  who  is  authorized  to 
speak  for  the  principal  and  on  his  account,  what, such  person  says  when 
so  referred  to  respecting  the  matter  in  question  will  be  admissible,44  but 
not  unless  he  was  referred  to  as  a  person  authorized  to  speak  on  the 
principal's  account.*5 

43  King  v.  Livingston  Mfg.  Co.,  plied    to    a    telephone    operator   who 

Ala.  — ,  60  South.  143;  Craig  v.  Craig,  conducted  a  conversation  between  the 

3  Rawle  (Pa.),  472,  24  Am.  Dec.  390;  parties.    Oskamp  v.  Gadsden,  35  Neb. 

Chapman  v.  Twitchell,  37  Me.  59,  58.  7,  37  Am.  St.  Rep.  428. 
Am.  Dec.  773;  Over  v.  Schiffling,  102          44  Chadsey  v.  Greene,  24  Conn.  560; 

Ind.  191;  Hahl  v.  Brooks,  213  111.  134;  Over    v.    Schiffling,     102     Ind.     191; 

Gott  v.  Dinsmore,  111  Mass.  45;  Green  Chapman  v.  Twitchell,  37  Me.  59,. 58 

v.  Boston,  etc.,  R.  Co.,  128  Mass.  221,  Am.  Dec.  773;   Armstrong  v.  Crump, 

35    Am.    Rep.    370.      See    also,    cases  25  Okla.  452;  Thayer  v.  Davis,  75  Wis. 

cited  in  following  section:  205. 

Interpreters. — When     two     persons          « This    necessary    qualification    is 

voluntarily  agree  upon  a  third  to  act  made    very    clear    in    Rosenbury    v. 

as    interpreter    between    them,    each  Angell,  6  Mich.  508.     Here  a  person 

makes   the   interpreter   his   agent  to  whose  financial  responsibility  was  in 

communicate  for  him  with  the  other,  question    referred    the    inquirer    to 

and  each  has  the  right  to  rely  upon  "the  business  men"  of  a  certain  vil- 

what  is  so  communicated  as  being  an  lage  in  another  state  where  he  had 

authorized  communication.    Miller  v.  formerly  lived.     Held,  that  this  did 

Lathrop,    50    Minn.    91;    Terrapin   v.  not  make  competent  the  statements 

Barker,  26  Okla.  93;  Sertant  v.  Crane  of  a  business  man  living  in  that  vil- 

Co.,  142  111.  App.  49.     Same  rule  ap-  lage  concerning  certain  specific  acts 

1350 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1779 


§  1779.  Statements  of  agent  impliedly  referred  to  for  information. 

Instead  of  being  expressly  put  foward  to  give  information  or  answer 
inquiries  as  contemplated  in  the  preceding  section,  the  express  author- 
ity of  an  agent  may  be  directed  to  some  other  act,  and  yet  the  giving  of 
information,  the  answering  of  inquiries  or  the  making  of  other  state- 
ments or  representations,  may  be  so  incidental  to  the  doing  of  the  act 
expressly  authorized  as  fairly  to  be  deemed  to  be  included  within  the 
scope  of  the  agent's  authority.  Thus  where  a  passenger  by  railroad  in- 
quired of  the  baggage-master  and  the  station-master  for  his  trunk, 
which  should  have  come  as  baggage,  it  was  held  that  the  statements  of 
these  agents  in  response  to  the  inquiry  were  admissible  in  evidence 
against  -the  principal.  "It  was  part  of  the  duty  of  those  agents,"  said 
the  court,  "to  deliver  the  baggage  of  passengers,  and  to  account  for  the 
same,  if  missing,  provided  inquiries  for  it  were  made  within  a  reason- 
able time.  These  declarations  were  therefore  made  by  them  as  agents 
of  the  defendants,  within  the  scope  of  their  agency,  and  while  it  con- 
tinued." 4e  So  where  a  person  who  proposed  to  become  a  passenger  on 
defendant's  railroad,  desiring  information  respecting  the  sort  of  ticket  to 

of  the  person  so  referring  while  he      to  the  plaintiffs'  demand  were  made 


lived  in  that  village.  Such  a  refer- 
ence, said  the  court,  could  mean  no 
more  than  that  the  village  in  ques- 
tion was  a  place  where  the  inquirer 
could  properly  make  such  investiga- 
tions as  he  desired  upon  his  own  ac- 
count; but  the  declarations  of  a  par- 
ticular resident  could  not  be  admis- 
sible unless  he  had  in  some  wise  been 
made  agent  to  speak  for  the  party 
giving  the  reference,  and  that  "where 
the  reference  is  made  to  all  the  busi- 
ness men  of  a  commercial  town  of 
several  thousand  inhabitants,  with- 
out distinction  of  name  or  character, 
the  idea  of  agency  becomes  too  ex- 
travagant to  be  reconciled  with  the 
theory  of  sanity  in  the  party  making 
the  reference."  See  also,  Aldridge  v. 
Aetna  L.  Ins.  Co.,  204  N.  Y.  83,  38  L. 
R.  A.  (N.  S.)  343. 

46  Morse  v.  Conn.  River  Railroad 
Co.,  6  Gray  (Mass.),  450.  To  same 
effect  see:  Lane  v.  Boston  &  Al- 
bany Railroad  Co.,  112  Mass.  455. 
(The  court  here  said:  "The  declara- 
tions of  their  freight  agent  in  answer 


in  the  performance  of  his  duty,  and 
therefore  rightly  admitted  in  evi- 
dence against  the  defendants.  The 
form  in  which  they  were  expressed 
might  affect  the  weight  which  the 
jury  would  allow  them,  but  did  not 
make  them  inadmissible.")  Gott  v. 
Dinsmore,  111  Mass.  45;  Green  v. 
Boston  &  Lowell  Railroad  Co.,  128 
Mass.  221,  35  Am.  Rep.  370;  Kivett  v. 
West.  Un.  Tel. -Co.,  156  N.  Car.  296; 
Rutland  v.  Southern  Ry.  Co.,  81  S. 
Car.  448;  Curtiss  v.  Avon,  etc.,  Rail- 
road Co.,  49  Barb.  148;  Baltimore  & 
Ohio  R.  R.  v.  Campbell,  36  Ohio  St. 
647,  38  Am.  Rep.  617;  Illinois  Cent. 
R.  Co.  v.  Tronstine,  64  Miss.  834; 
Lev!  v.  Missouri,  etc.,  Ry.  Co.,  157  Mo. 
App.  536;  Burnside  v.  Grand  Trunk 
R.  R.  Co.,  3  N.  H.  554,  93  Am.  Dec. 
474;  Lynchburg  Tel.  Co.  v.  Bokker, 
103  Va.  594;  Central  Railroad  & 
Banking  Co.  v.  Skellie,  86  Ga.  686; 
McCotter  v.  Hooker,  8  N.  Y.  497.  Com- 
pare Lafayette,  etc.,  R.  Co.  v.  Ehman, 
30  Ind.  83. 


1351 


THE  LAW  OF  AGENCY 


[BOOK  iv 


purchase  in  view  of  certain  facts,  applied  to  the  ticket  agent  for  infor- 
mation, it  was  held  that  he  was  justified  in  relying  upon  the  informa- 
tion which  the  agent  gave  him,  there  being  nothing  to  indicate  that  it 
was  unauthorized,  and  that  the  company  was  bound  by  the  information 
so  given.  Said  the  court :  "The  plaintiff  desires  information.  To  whom 
shall  he  go  to  obtain  it  ?  To  whom  can  he  go  but  to  the  person  appointed 
by  the  company  for  the  purpose  of  giving  such  information  and  selling 
the  proper  tickets  ?"*7  So,  in  general  terms,  it  was  said  by  the  supreme 
court  of  the  United  States :  "The  declarations  made  by  an  officer  or 
agent  of  a  corporation,  in  response  to  timely  inquiries  properly  ad- 
dressed to  him  and  relating  to  matters  under  his  charge,  in  respect  to 
which  he  is  authorized  in  the  usual  course  of  business  to  give  informa- 
tion, may  be  given  in  evidence  against  the  corporation."  ** 


47 Burnham  v.  Grand  Trunk  Ry. 
Co.,  63  Me.  298,  18  Am.  Rep.  220. 

48  Xenia  Bank  v.  Stewart,  114  U.  S. 
224,  29  L.  Ed.  101. 

Inquiries  made  of  a  station  agent  by 
one  about  to  load  a  car,  whether  there 
were  trains  coming  from  which  dan- 
ger might  be  apprehended,  are  proper, 
and  his  answers  are  in  the  line  of  his 
duty  and  admissible.  Chicago,  etc., 
Ry.  Co.  v.  Cox,  76  C.  C.  A.  127,  145 
Fed.  157.  To  same  effect,  see  Bachant 
v.  Boston  &  Maine  R.  R.,  187  Mass. 
392,  105  Am.  St  Rep.  408.  So  of 
statements  made  by  a  conductor  in 
response  to  inquiries  of  a  passenger 
in  regard  to  the  dangerous  appear- 
ance of  a  fellow  .passenger.  St. 
Louis  T.  M.  &'S.  Ry.  Co.  v.  Green- 
thai,  23  C.  C.  A.  100,  77  Fed.  150; 
statements  made  by  a  general  freight 
agent,  with  whom  the  matter  had 
been  taken  up,  that  a  car  in  question 
had  not  been  re-iced  according  to 
contract.  Pennsylvania  R.  Co.  v. 
Orem  Fruit  Co.,  Ill  Md.  356.  (To 
same  effect:  Dean  v.  Toledo,  etc.,  R. 
Co.,  148  Mo.  App.  428.)  And  state- 
ments by  a  telegraph  agent  as  to 
whether  a  message  had  been  deliv- 
ered. Garland  v.  Western  Un.  Tel. 
Co.,  118  Mich.  369,  43  L.  R.  A.  280. 

Where  a  person  having  a  claim 
against  an  express  company  for  lost 


goods  is  referred  from  one  agent  to 
another  until  he  reaches  a  district 
general  manager  who  takes  the  mat- 
ter up,  the  admissions  and  state- 
ments of  the  latter  are  competent. 
Hill  v.  Adams  Express  Co.,  77  N.  J. 
L.  19.  Same  effect:  Adams  Express 
Co.  v.  Berry,  35  App.  D.  C.  208,  31  L. 
R.  A.  (N.  S.)  309. 

But  where  an  express  company  was 
sued  for  the  loss  of  a  physician's  di- 
ploma, a  letter  written  by  the  attor- 
ney of  the  company  to  the  institution 
issuing  the  diploma,  stating  that  it 
was  claimed  to  be  lost  in  transit  and 
making  inquiries  about  obtaining  a 
duplicate,  etc.,  is  not  admissible 
against  the  company  as  an  admission 
that  the  company  had  received  and 
lost  the  diploma.  Whiteside  v. 
Adams  Express  Co.,  89  Neb.  430.  The 
court  said  that  the  letter  was  infor- 
mal, casual,  and  not  written  for  the 
purpose  of  any  step  in  the  proceed- 
ings. 

So  an  agent  sent  by  defendant  to 
get  a  statement  from  plaintiff  as  to 
his  claim  is  not  thereby  authorized 
to  bind  defendant  by  admissions  as 
to  the  cause  of  plaintiff's  injury. 
Doyle  v.  St.  Paul,  etc.,  Ry.  Co.,  42 
Minn.  79.  But  where  the  purpose  of 
what  he  said  was  to  induce  the 
plaintiff's  statement — "to  draw  out  a 


1352 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1780 


§  1780.  Statements  of  agent  made  as  incidents  of  his  position — 
General  manager — General  agents,  etc. — Even  though  the  making 
of  statements  or  declarations  may  not  have  been  expressly  authorized, 
they  may  be  authorized  by  implication  because  they  are  the  natural  and 
ordinary  incidents  of  the  position  which  the  agent  occupies.  Thus  a 
person  may  occupy  such  a  managerial  position,  for  example,  that  he  will 
be  constantly  called  upon,  in  the  performance  of  his  duty,  to  give  di- 
rections, to  adjust  controversies,  reject  or  accept  performance  of  con- 
tracts, give  and  receive  notices,  make  and  receive  admissions,  and  the 
like,  because'  all  of  these  things  must  be  done  by  somebody,  and,  in  the 
case  in  question  the  doing  of  them  falls  to  the  person  who  occupies  his 
position.  In  such  a  case,  the  agent's  acts  in  these  regards  are  binding 
upon  his  principal  because  they  are  done  by  his  authority.49  This  is 
• 


statement  of  any  other  injuries," 
etc.,  it  may  be  admissible.  McNich- 
olas  v.  New  England  Tel.  Co.,  196 
Mass.  138. 

49  "The  rule  of  law  is  entirely  well 
settled  that  when  an  agent  is  vested 
with  authority  to  perform  any  busi- 
ness for  his  principal,  his  words,  his 
verbal  acts,  in  conducting  that  busi- 
ness and  in  relation  thereto,  are  the 
acts  of  the  principal  and  may  be 
proved  as  against  the  latter."  Hup- 
fer  v.  National  Distilling  Co.,  119 
Wis.  417. 

"A  statement  made  by  a  general 
agent  of  a  corporation,  in  the  course 
of  his  employment,  as  to  a  fact 
within  his  official  knowledge  touch- 
ing the  status  of  a  matter  entrusted 
to  him,  is  admissible  in  evidence  ou 
behalf  of  the  party  with  whom  the 
corporation  was  dealing."  Agricul- 
tural Ins.  Co.  v.  Potts,  55  N.  J.  L. 
158,  39  Am.  St.  Rep.  637.  To  same 
effect:  Pierson  v.  Atlantic  Nat.  Bank, 
77  N.  Y.  304;  Larson  v.  Metropolitan 
St.  Ry.  Co.,  110  Mo.  234,  33  Am.  St. 
Rep.  439. 

"Where  a  corporation  invests  an 
agent  with  general  authority  to  ad- 
just claims  against  it,  the  declara- 
tions of  that  agent  made  while  en- 
deavoring to  secure  an  adjustment 
of  the  claim  are  competent  evidence 


against  his  principal."  Adams  Ex- 
press Co.  v.  Harris,  120  Ind.  73,  16 
Am.  St.  Rep.  315,  7  L.  R.  A.  214. 

The  statements  of  the  general 
manager  of  a  railroad  concerning  the 
condition  of  the  track,  which  it  was 
his  official  business  to  know,  upon 
being  informed  of  a  wreck,  are  ad- 
missible as  the  declarations  of  the 
company  whose  alter  ego  he  was  as 
to  this  matter.  Krogg  v.  Atlanta, 
etc.,  R.  Co.,  77  Ga.  202,  4  Am.  St. 
Rep.  79. 

Statements  of  an  agent  in  charge 
of  a  business,  e,  g.,  an  express  car- 
rier, as  to  the  loss  of  goods  delivered 
to  the  carrier  for  transportation  are 
competent.  Schmerler  v.  Barasch,  63 
N.  Y.  Misc.  267.  See  also,  McCotter 
v.  Hooker,  8  N.  Y.  497;  Fein  v.  Weir, 
129  N.  Y.  App.  Div.  299,  aff'd,  199 
N.  Y.  540. 

But  they  must  be  confined  to  losses, 
etc.,  within  the  territory  over  which 
the  agent's  authority  extends.  The 
statements  of  an  express  agent  in 
Atlantic  City  as  to  what  happened 
in  Chicago  would  not  ordinarily  be 
competent.  Yoshimi  v.  United  States 
Express  Co.,  78  N.  J.  L.  281. 

A  division  superintendent  of  a 
railroad  company  is  held  to  have  no 
implied  authority  to  answer  ques- 
tions or '.  make  exhibits  as  to  the 


1353 


§    1781]  THE  LAW  OF  AGENCY  [BOOK   IV 

strikingly  true,  of  course,  in  the  case  of  such  a  managing  officer  or 
agent  of  a  corporation  which  can  speak  only  through  an  agent,  and  this 
is  the  agent  appointed  for  that  purpose.50 

It  is  not  indispensable  in  cases  of  this  sort  that  the  agent  who  thus 
speaks  shall  have  himself  been  an  actor  in  the  transaction  of  which  he 
speaks  or  that  he  shall  speak  of  his  own  personal  knowledge."  He  may 
clearly  be  the  mouthpiece  of  his  principal  to  speak  of  that  which  was 
done  by  other  agents  or  servants  of  his  principal,  or  to  give  informa- 
tion, pass  upon  or  make  admissions  concerning  matters  which  have 
been  reported  to  him  or  which  he  has  caused  to  be  investigated. 

Neither  is  it  indispensable  in  these  cases  that  what  he  says  shall  be 
said  at  the  time  of  or  as  a  part  of  the  act  concerning  which  he  speaks. 
It  is  only  essential  that  it  shall  be  while  his  authority  over  the  matter 
still  continues,  and  while  he  is  acting  in  the  course  of  his  duty  with  ref- 
erence to  it. 

In  both  of  these  respects,  this  case  differs  from  the  one  to  be  consid- 
ered in  the  next  section,  though  the  distinction  is  frequently  not  ob- 
served. 

Similar  to  the  case  of  the  general  managing  agent,  is  that  of  the  agent 
who  has  general  authority  over  some  matter  or  in  some  field.  What  he 
says  with  reference  to  that  matter  while  he  is  acting  upon  it  and  while 
his  authority  over  it  still  continues  may  be  as  binding  upon  his  principal 
as  what  he  does. 

It  is  indispensable,  of  course,  in  all  these  cases  that  the  one  who  thus 
speaks  as  manager  or  superintendent  shall  be  the  one  authorized  to  deal 
with  the  matter  in  question,  and  that  what  he  says  shall  relate  to  matters 
which  are  within  his  authority. 

§  1781.  Statements  of  agent  made  as  incident  to  an  authorized 
act — Res  gestae. — Somewhat  similar  to  the  cases  referred  to  in  the 
preceding  section  though  not  resting  upon  precisely  the  same  ground, 

cause    of    an    injury    which    has    oc-  ells  Mining  Co.,  157  Ala    603;   Moran 

curred.     Huebner  v.  Erie  R.  Co.,  69  v.  Power  Co.,   29  Wash.  292;    Joslyn 

N.  J.  L.  327.  v.  Cadillac  Auto  Co.,  101  C.  C.  A.  77, 

so  See    also    Lynchburg    Telephone  177    Fed.    863;     Tenhet    v.    Atlantic 

Co.  v.  Booker,  103  Va.  594;   Virginia  Coast   Line    R.  Co.,  82    S.  Car.  465; 

Chem.    Co.    v.    Knight,  106    Va.  674;  Western   Un.   Tel.   Co.   v.   Yopst,   118 

Myers  v.  San  Pedro,  etc.,  R.  Co.,  39  Ind.  248,  3  L.  R.  A.  224;    Cleveland, 

Utah,   198;    Garfield   Coal  Co.  v.   Pa.  etc.,  Ry.  v.  Closser,  126   Ind.   348,  9 

Coal    Co.,    199    Mass.    22;     Head    v.  L.  R.  A.  754. 

Breeders'  Club,  75  N.  H.  449;   Touch-  ei  Western   Un.    Tel.    Co.    v.   Yopst, 

berry  v.  Northwestern  R.  Co.,  88  S.  118  Ind.  248,  3  L.  R.  A.  224. 
Car.  47;    Home  Ice  Factory  v.  How- 

J354 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1782 

are  the  statements,  representations,  declarations  and  admissions  of  an 
agent  which  may  be  binding  upon  his  principal  because  they  are  a  part 
of,  or  an  incident  to,  some  act  or  business  which  the  agent  was  author- 
ized to  perform.  Wherever  the  doing  of  a  certain  act  or  the  transaction 
of  a  given  affair  or  the  performance  of  certain  business  is  confided  to  an 
agent,  the  authority  to  so  act  will,  in  accordance  with  a  general  rule 
often  referred  to,  carry  with  it  by  implication  the  authority  to  do  all  of 
the  collateral  acts  which  are  the  natural  and  ordinary  incidents  of  the 
main  act  or  business  authorized.52  The  speaking  of  words, — the  mak- 
ing of  statements,  representations,  declarations,  admissions,  and  the 
like, — may  as  easily  be  such  an  incident  as  the  doing  of  any  other  sort 
of  act.  Their  utterance  is  often  described  as  a  verbal  act,  and  they  do 
not  differ  in  substance  from  any  other  acts. 

Since  the  authority  for  the  doing  of  these  incidental  acts,  however, 
springs  from  the  authority  to  do  the  main  act,  it  must  ordinarily  end 
with  it.  The  incidental  thing  must  be  a  part  of  the  main  thing.  It  must 
occur  before  the  main  act  is  completely  ended :  it  must  take  place  while 
that  is  still  going  on.  To  speak  in  the  unnecessary  and  confusing  Latin 
often  used  to  describe  the  situation,  it  must  be  a  part  of  the  res  gestce, 
although  there  is  no  more  reason  for  using  such  a  phrase  to  describe 
these  verbal  acts  than  any  of  the  other  incidental  ones  which  fall  within 
the  same  principle. 

§  1782.  Various  statements  of  the  doctrine. — This  gen- 
eral doctrine  has  found  expression  in  a  great  variety  of  forms.  Thus 
in  a  leading  English  case  53  it  is  said :  "If  P.  was  the  agent  of  the  de- 
fendants, and  it  was  within  the  scope  of  his  duty  and  authority  as  agent 
to  do  what  the  principal,  if  on  the  spot,  would  have  done,  what  he  says 
while  he  is  so  acting  is  equally  admissible  as  if  said  by  the  principal 
himself."  In  an  early  case 54  in  Maryland  the  rule  is  stated  thus : 
"Whatever  is  said  by  an  agent,  either  in  the  making  a  contract  for  his 
principal,  or  at  the  time,  and  accompanying  the  performance  of  any  act, 
within  the  scope  of  his  authority,  having  relation  to,  and  connected  with, 
and  in  the  course  of  the  particular  contract  or  transaction  in  which  he 
is  then  engaged,  is  in  legal  effect,  said  by  his  principal,  and  admissible 
in  evidence ;  not  merely  because  it  is  the  declaration  or  admission  of  an 
agent;  but  on  the  ground,  that  being  made  at  the  time  of,  and  accom- 

52  See   ante.   §    715.     See   also,   ap-          sa  Kirkstall    Brewery    Co.    v.    Fur- 
plying    the    principle    to    representa-      ness  Ry.  Co.,  L.  R.  9  Q.  B.  468. 
tions   of  agent     Conkling  v.   Stand-          54  Franklin  Bank  v.  Pennsylvania, 
ard  Oil  Co.,  138  Iowa,  596.  etc.,  Co.,  11  G.  &  J.  (Md.)  28,  33  Am. 

Dec.  687. 

1355 


§ 


THE  LAW  OF  AGENCY  7TI  [BOOK    IV 


panying  the  contract  or  transaction,  it  is  treated  as  the  declaration  or 
admission  of  the  principal,  constituting  a  part  of  the  res  gestcz,  a  part 
of  the  contract  or  transaction,  and  as  binding  upon  him  as  if  in  fact 
made  by  himself."  In  an  early  case  in  Maine  °5  it  is  said :  "The  declara- 


56  Haven  v.  Brown,  7  Greenl.  (Me.) 
421,  22  Am.  Dec.  208. 

The  following,  selected  from  a 
great  number  of  cases,  may  serve  as 
illustrations  of  statements,  represen- 
tations or  admissions  held  to  be  ad- 
missible under  this  rule:  Statements 
by  bridge  tenders  as  to  how  they 
preferred  to  have  boats  go  through 
the  draw.  Toll  Bridge  Co.  v.  Bets- 
worth,  30  Conn.  380;  statements 
made  by  the  president  of  a  corpora- 
tion, authorized  to  sell  its  land,  as 
to  where  the  boundaries  were. 
Holmes  v.  Turner  Falls  Lumber  Co., 
150  Mass.  535,  6  L.  R.  A.  283;  state- 
ments made  and  letters  written  by 
the  cashier  of  a  national  bank  while 
acting  as  such  and  respecting  pay- 
ment of  claims  left  with  the  bank 
for  collection  and  with  reference  to 
the  ownership  of  collaterals  pledged 
to  secure  payment  of  these  claims. 
Xenia  Bank  v.  Stewart,  114  U.  S.  224, 
29  L.  Ed.  101.  (But  not  if  made 
while  not  so  acting.  Gillespie  v. 
First  Nat.  Bank,  20  Okla.  768);  ad- 
missions of  an  insurance  agent  with 
reference  to  the  payment  of  pre- 
miums which  it  was  his  duty  to  col- 
lect and  remit.  Hall  v.  Un.  Cent. 
L.  Ins.  Co.,  23  Wash.  610,  83  Am.  St. 
Rep.  844,  51  L.  R.  A.  288.  To  same 
effect:  Wright  v.  Stewart,  19  Wash. 
179;  declarations  and  admissions  of 
an  agent  authorized  to  receive  deliv- 
ery of  goods  under  a  contract  that 
the  goods  were  in  accordance  with 
the  contract.  Des  Moines  Land  Co. 
v.  Polk  County  Homestead  Co.,  82 
Iowa,  663.  To  same  effect:  Worth- 
ington  v.  Given,  119  Ala.  44,  43  L.  R. 
A.  382;  Rahm  v.  Deig,  121  Ind.  283. 
See  also,  Pittsburg  Plate  Glass  Co.  v. 
Kerlin,  58  C.  C.  A.  648,  122  Fed.  414; 
statements  and  directions,  concern- 


ing materials  and  the  manner  of  do- 
ing the  work,  made  by  an  architect, 
put  in  charge  of  the  construction  of 
a  building,  to  the  contractor.  Wright 
v.  Reusens,  133  N.  Y.  298;  statements 
of  an  agent  who  had  acted  in  nego- 
tiating a  contract,  made  pending  an 
attempt  at  settlement  between  the 
parties  concerning  it,  as  to  what  its 
terms  were.  St.  Louis  Wire-Mill  Co. 
v.  Consol.  Barb  Wire  Co.,  46  Kan. 
773;  statements  made  by  conductor 
of  a  car  with  reference  to  the  pay- 
ment of  fare  by  a  passenger,  whom 
he  ejected  and  afterwards  permitted 
to  return,  made  at  the  time.  Robin- 
son v.  Superior  Transit  Co.,  94  Wis. 
345,  59  Am.  St.  Rep.  897,  34  L.  R.  A. 
205;  or  of  a  ticket  inspector  as  to 
the  reason  why  he  rejected  a  ticket, 
made  at  the  time  of  the  rejection. 
Nichols  v.  Southern  Pac.  R.  Co.,  23 
Ore.  123,  37  Am.  St.  Rep.  664,  18  L.  R. 
A.  55;  statements  made  by  an  agent 
whose  duty  it  was  to  have  repairs 
made  while  calling  attention  to  the 
need  of  repairs  and  giving  directions 
to  make  them.  Bundy  v.  Sierra 
Lumber  Co.,  149  Cal.  772;  oral  and 
written  statements  made  by  the 
freight  agent  of  defendant  to  whom 
the  property  was  delivered  for  car- 
riage, relating  to  the  investigation 
of  the  loss  and  showing  that  the 
property  had  been  in  the  company's 
possession.  Green  v.  Boston,  etc.,  R. 
Co.,  128  Mass.  221,  35  Am.  Rep.  370; 
see  also,  Illinois  Cent.  R.  Co.  v.  Trons- 
tine,  64  Miss.  834;  statements  of  an 
agent  authorized  to  cut  timber  for 
his  principal,  made  while  acting  as 
such,  as  to  where  he  cut  certain  tim- 
ber. Ayres  v.  Hubbard,  71  Mich. 
594;  statements  of  agents  sent  to 
erect  a  range,  made  while  erecting  it, 
as  to  why,  owing  to  its  peculiar  con- 


1356 


CHAP.    V] 


[§ 


tions  of  an  agent,  so  far  as  they  constitute  a  part  of  the  res  gesta,  or  in 
other  words,  such  as  are  made  by  him  at  the  time  he  is  engaged  in  mak- 


struction,  they  erected  it  in  a  cer- 
tain manner.  Wrought  Iron  Range 
Co.  v.  Graham,  25  C.  C.  A.  570,  80 
Fed.  474;  statements  of  the  agent  in 
charge  of  a  dock,  with  authority  to 
give  directions  to  incoming  vessels, 
made  to  the  master  of  a  vessel  pro- 
posing to  dock  there,  as  to  the  depth 
of  the  water.  Garfleld  Coal  Co.  v. 
Rockland  Line  Co.,  184  Mass.  60, 
100  Am.  St.  Rep.  543,  61  L.  R.  A.  946, 
a  statement  by  an  agent  authorized 
to  employ  a  domestic  servant  as  to 
the  nature  of  a  disease  known  to 
exist  in  the  principal's  family,  made 
to  quiet  the  fears  of  the  servant 
about  accepting  the  service.  Kliegel 
v.  Aitken,  94  Wis.  432,  59  Am.  St. 
Rep.  900,  35  L.  R.  A.  249.  The  state- 
ment of  the  agent  in  charge  of  a 
station  and  yards  used  by  two  com- 
panies as  to  which  railroad's  loco- 
motive passed  at  a  certain  time. 
Stroud  v.  Columbia,  etc.,  Ry.,  79  S. 
Car.  447  (the  court  said  it  was  simp- 
ly a  statement  of  fact,  not  an  admis- 
sion of  liability).  A  statement  rec- 
ognizing the  existence  of  a  right  of 
way  over  the  principal's  land  made 
by  an  agent  in  charge  of  the  land 
and  acting  as  superintendent  of  a 
mill  thereon  situated.  Bigelow 
Carpet  Co.  v.  Wiggin,  209  Mass.  542, 
a  statement  made  by  a  factory  fore- 
man that  an  employee  was  inexperi- 
enced made  on  the  occasion  of  the 
foreman's  transferring  the  employee 
from  one  task  to  another  less  dan- 
gerous. Comeau  v.  C.  C.  Manuel  Co., 
84  Vt.  501,  the  statement  of  an  at- 
torney or  other  agent  in  presenting 
a  claim  for  personal  injuries  as  to 
the  character  of  the  claim  or  ex- 
tent of  the  injury  or  how  the  client 
claimed  it  occurred.  Loomis  v.  New 
York,  etc.,  Ry.,  159  Mass.  39;  James 
v.  Boston  Elev.  Ry.,  201  Mass.  263, 
and,  generally,  that  the  statements, 
representations  and  admissions  of 


facts  of  the  agent  made  while  act- 
ing within  the  scope  of  his  authority 
and  in  reference  to  the  business 
which  he  is  employed  to  transact, 
may  be  received  in  evidence  against 
the  principal,  see  Ball  v.  Bank  of 
Alabama,  8  Ala.  590,  42  Am.  Dec. 
649;  First  National  Bank  v.  Alex- 
ander, 161  Ala.  580;  Montgomery- 
Moore  Mfg.  Co.  v.  Leith,  162  Ala. 
246;  Perkins  v.  Bennett,  2  Root 
(Conn.),  30;  Mather  v.  Phelps,  2 
Root  (Conn.),  150,  1  Am.  Dec.  65; 
Willard  v.  Buckingham,  36  Conn. 
395;  Coweta  Falls  Mfg.  Co.  v.  Rogers, 
19  Ga.  416,  65  Am.  Dec.  602;  Galcer- 
an  v.  Noble,  66  Ga.  367;  Lindblom 
v.  Ramsey,  75  111.  246;  Merchants, 
etc.,  Trans.  Co.  v.  Leysor,  89  111.  42; 
Lafayette,  etc.,  R.  R.  Co.  v.  Ehman, 
30  Ind.  83;  Mutual  Ben.  L.  Ins.  Co. 
v.  Cannon,  48  Ind.  264;  Louisville, 
etc.,  Ry.  v.  Henley,  88  Ind.  535; 
Pennsylvania  Co.  v.  Nations,  111  Ind. 
203;  United  States  Express  Co.  v. 
Rawson,  106  Ind.  215;  Wilson  Sew. 
Mach.  Co.  v.  Sloan,  50  Iowa,  367;  J. 
I.  Case  Threshing  Mach.  Co.  v.  Fish- 
er, 144  Iowa,  45;  Central  Branch  U. 
P.  R.  R.  Co.  v.  Butman,  22  Kan.  639; 
Haven  v.  Brown,  7  Greenl.  (Me.) 
421.  22  Am.  Dec.  208;  Hammatt  v. 
Emerson,  27  Me.  308,  46  Am.  Dec. 
598;  Burnham  v.  Grand  Trunk  Ry. 
Co.,  63  Me.  298,  18  Am.  Rep.  220; 
Franklin  Bank  v.  Pennsylvania,  etc., 
Co.,  11  Gill  &  John.  (Md.)  28,  33  Am. 
Dec.  687;  City  Bank  v.  Bateman,  7 
Har.  &  J.  (Md.)  104;  Stiles  v.  West- 
ern R.  R.  Co.,  8  Mete.  (Mass.)  44, 
41  Am.  Dec.  486;  Tuttle  v.  Brown,  4 
Gray  (Mass.),  457,  64  Am.  Dec.  80; 
Zart  v.  Singer  Sew.  Mach.  Co.,  162 
Mich.  387;  O'Brien  v.  N.  W.  Imp. 
Co.,  82  Minn.  136;  Dickman  v.  Wil- 
liams, 50  Miss.  500;  Robinson  v. 
Walton,  58  Mo.  380;  McCormick  v. 
Demary,  10  Neb.  515;  Union  L.  Ins. 
Co.  v.  Haman,  54  Neb.  599;  Burn- 


1357 


§    1783]  THE  LAW  OF  AGENCY  [BOOK    IV 

ing  a  contract  on  the  part  of  his  principal,  and  having  reference  to  the 
subject  matter  of  such  contract,  may  be  given  in  evidence  to  affect  his 
principal.  They  are  admitted  as  the  representations  of  the  principal 
himself,  whom  the  agent  represents  while  engaged  in  the  particular 
transaction  to  which  the  declaration  refers.  Representations  made  by 
an  agent,  at  the  time  he  is  contracting  for  his  principal,  constitute  a 
part  of  the  contract,  as  much  so  as  if  they  had  been  made  by  the  prin- 
cipal ;  and  a  fact  stated  by  an  agent  in  relation  to  a  transaction  in  which 
he  is  then  engaged,  and  while  it  is  in  progress,  forms  a  part  of  that 
transaction." 

While  these  various  statements  differ  more  or  less  in  form,  they 
agree  in  this,  that  the  statements  here  referred  to  are  admissible  against 
the  principal  because  they  are  his  acts  done  by  his  authorized  agent. 
Their  admissibility  depends  upon  the  law  of  agency  and  not  upon  the 
law  of  evidence.  They  are  offered  as  the  ultimate  fact  to  be  proved 
and  not  merely  as  admissions  to  prove  the  truthfulness  of  the  facts  to 
which  they  are  supposed  to  refer. 

§  1783.  Limitations  upon  the  rule. — Tt  will  be  evident 

from  the  statement  of  the  rule  that  it  is  subject  to  several  limitations 
which  must  be  carefully  observed.  The  statements  are  admissible  be- 
cause it  is  deemed  that  the  principal,  in  authorizing  the  act,  has  author- 
ized also  the  statements  which  are  the  usual  and  natural  concomitants 
and  incidents  of  the  doing  of  the  act  itself.  In  order,  therefore,  to  bind 

side  v.  Grand  Trunk  Ry.  Co.,  47  N.  Chorpenning   v.   Royce,    58   Pa.   474; 

H.  554,  93  Am.  Dec.  474;   Asl>more  v.  l.aurens   Telephone   Co.   v.   Bank,    90 

Penn.    Steam   Towing   Co.,    38   N.   J.  S.     Car.    50:     Moore    v.    Bettis,    11 

L.    13;    Anderson   v.    Rome,   etc.,   R.  Humph.     (Tenn.)     67,    53    Am.    Dec. 

R.  Co.,  54  N.  Y.  334;    White  v.  Mil-  771;  St.  Louis,  etc.,  Ry.  Co.  v.  Adams, 

ler,   71  N.   Y.   118,   27  Am.   Rep.   13;  55  Tex.  Civ.  App.  245;  Eddy  v.  Davis, 

Fein  v.  Weir,  129  App.  Div.  299,  199  34  Vt.  209;   Dowdall  v.  Pennsylvania 

N.  Y.  540;  Gazzam  v.  German  Un.  F.  R.   R.  Co.,  13   Blatch.    (U.   S.   C.  C.) 

Ins.  Co.,  155  N.  Car.  330;    Albert  v.  403. 

Mut.  L.  Ins.  Co.,  122  N.  Car.  92,  65  Where  the  business  on  which  the 

Am.  St.  Rep.  693;    Needham  v.  Hal-  agent  Is  engaged  is  a  continuing  one, 

verson,   22   N.    Dak.   594;    Grover   v.  or  is  not  fully  ended  by  a  single  act, 

Hawthorne,    62    Ore.    65,    121    Pac.  "but  requires  a  series  of  acts  to  oom- 

808;    Stockton   v.    Demuth,    7   Watts  plete   it   according   to   the   intention 

(Pa.),  39,  32  Am.  Dec.  735;    Dick  v.  of    the    parties    and    commercial    us- 

Cooper,  24  Pa.  217,  64  Am.  Dec.  652;  ages,"  declarations  made  at  any  time 

Sidney  School  Furn.  Co.  v.  Waisau,  during  the  transaction  and   relating 

122    Pa.    494,    9    Am.    St.    Rep.    124;  to  it,  are  within  the  rule.    Cleveland, 

Baltimore,    etc.,    Ass'n    v.    Post,    122  etc.,  Ry.  Co.  v.  Closser,  126  Ind.  34S, 

Pa.  579,  9  Am.  St.  Rep.  147;    Stewart-  9  L.  R.  A.  754. 
son   v.   Watts,    8   Watts    (Pa.),   392; 

1358 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§  1783 


the  principal,  by  statements  or  admissions  under  the  rule  here  in  ques- 
tion, it  is  essential — (i)  That  the  making  of  statements  or  admissions 
of  the  class  of  those  in  question  can  fairly  be  regarded  as  incident  to  the 
act  authorized  to  be  done.  If  there  was  no  occasion  to  say  anything, 
or  anything  of  the  sort  in  question,  there  can  be  no  foundation  for  their 
admissibility.  (2)  They  must  be  made  by  an  agent  authorized  to  act 
with  reference  to  the  subject  matter.  The  term  authority  as  here  used 
has  the  same  significance  which  it  has  in  reference  to  the  agent's  act  or 
contract.  If,  therefore,  the  statements,  representations  or  admissions 
offered  in  evidence  were  made  by  one  who  either  had  no  authority  at 
all,  or  had  no  authority  to  represent  the  principal  at  the  time  or  the 
place  or  respecting  the  matters  concerning  which  they  were  made,  they 
are  not  admissible  against  the  principal.56  (3)  The  statements,  represen- 


ts Mobile,  etc.,  R.  R.  v.  Ashcroft, 
48  Ala.  15;  Memphis,  etc.,  R.  Co.  v. 
Maples,  63  Ala.  601;  Green  v.  Ophir, 
etc.,  Co.,  45  Cal.  522;  Central  Georgia 
Ry.  v.  Americus  Cons.  Co.,  133  Ga. 
392;  Chicago  R.  R.  Co.  v.  Riddle,  60 
111.  534;  Chicago  R.  R.  Co.  v.  Lee, 
60  111.  501;  Rowell  v.  Klein,  44  Ind. 
290,  15  Am.  Rep.  235;  Ft.  Wayne, 
etc.,  Traction  Co.  v.  Crosbie,  169  Ind. 
281,  14  Ann.  Cas.  117,  13  L.  R.  A. 
(N.  S.)  1214;  Mundhenk  v.  Central 
Iowa  Ry.  Co.,  57  Iowa,  718;  Iowa  R. 
R.  Land  Co.  v.  Fehring,  126  Iowa,  1; 
Lamm  v.  Port  Deposit,  etc.,  Ass'n,  49 
Md.  233,  33  Am.  Rep.  246;  Fogg  v. 
Pew,  10  Gray  (Mass.),  409,  71  Am. 
Dec.  662;  Stiles  v.  Western  R.  R.  Co., 
8  Mete.  (Mass.)  44,  41  Am.  Dec.  486; 
Corbin  v.  Adams,  6  Gush.  (Mass.) 
93;  Wakefield  v.  South  Boston  R.  R., 
117  Mass.  544;  Robinson  v.  Fitch- 
burg,  etc.,  R.  R.  Co.,  7  Gray  (Mass.), 
92;  Crowley  v.  Boston  Elevated  Ry., 
204  Mass.  241;  Riley  v.  Roach,  168 
Mich.  294,  37  L.  R.  A.  (N.  S.)  834; 
Gates  v.  Rifle  Boom  Co.,  70  Mich. 
309;  Van  Doren  v.  Bailey,  48  Minn. 
305;  Browning  v.  Henkle,  48  Minn. 
544,  31  Am.  St.  Rep.  591;  Rodes  v. 
St.  Anthony  Elev.  Co.,  49  Minn.  370, 
Bernheim  v.  Hahn,  65  Miss.  459; 
Williams  v.  Edwards,  94  Mo.  447; 
Roberts  v.  Wabash  Ry.,  153  Mo.  App. 


638;  Pannell  v.  Allen,  160  Mo.  App. 
714;  Wood  River  Bank  v.  Kelley,  29 
Neb.  590;  Sheridan  Coal  Co.  v.  C. 
W.  Hull  Co.,  87  Neb.  117,  138  Am. 
St.  Rep.  435;  Guerin  v.  New  England 
Tel.  Co.,  70  N.  H.  133;  Meyer  v. 
Virginia,  etc.,  R.  Co.,  16  Nev.  341; 
Yoshimi  v.  U.  S.  Express  Co.,  78  N. 
J.  L.  281;  Anderson  v.  Rome,  etc., 
R.  R.  Co.,  54  N.  Y.  334;  New  York 
University  v.  Loomis  Laboratory, 
178  N.  Y.  137;  Corn  v.  Bergman,  145 
N.  Y.  App.  Div.  218;  People  v.  Ter- 
williger,  59  N.  Y.  Misc.  617;  Cake's 
Appeal,  110  Pa.  65;  Plymouth  County 
Bank  v.  Gilman,  3  S.  D.  170,  44  Am. 
St.  Rep.  782;  Waldrop  v.  Green- 
wood, etc.,  R.  R.  Co.,  28  S.  Car.  157; 
Missouri  Pac.  Ry.  Co.  v.  Sherwood, 
84  Tex.  125,  17  L.  R.  A.  643;  Belo  v. 
Fuller,  84  Tex.  450,  31  Am.  St.  Rep. 
75;  Gulf,  etc.,  Ry.  Co.  v.  York,  74 
Tex.  364;  Blain  v.  Pacific  Express 
Co.,  69  Tex.  74;  William  Cameron 
Co.  v.  Blackwell,  53  Tex.  Civ.  App. 
414;  Quanah,  etc.,  Ry.  v.  Galloway 
(Tex.  Civ.  App.),  140  S.  W.  368; 
Idaho  Forwarding  Co.  v.  Fireman's 
Fund  Ins.  Co.,  8  Utah,  41,  17  L.  R. 
A.  536;  Jammison  v.  Chesapeake  & 
Ohio  Ry.  Co.,  92  Va.  327,  53  Am.  St. 
Re]->.  £i3;  Baltimore,  etc.,  R.  R.  Co.  v. 
Chiistie,  5  W.  Va.  325. 

In    Guerin    v.    New    England    TeL 


§  1783] 


THE  LAW  OF  AGENCY 


tations  or  admissions  must  have  some  inherent  and  rational  relation  to 
the  subject-matter  of  his  agency.  If  admissible  at  all,  it  is  because  they 
are  incident  to  or  a  part  of  the  act  which  he  was  authorized  to  do.  The 
mere  idle,  desultory  or  careless  talk  of  the  agent,  having  no  legitimate 
reference  to  or  bearing  upon  the  business  of  the  principal  confided  to 
the  agent,  obviously  can  not  be  binding  upon  the  principal.  (4)  And  the 
statements,  representations  or  admissions  must  have  been  made  by  the 
agent  at  the  time  of  the  transaction,  and  either  while  he  was  actually 
engaged  in  the  performance,  or  so  soon  after  as  to  be  in  reality  a  part 
of  the  transaction. 

This  last  qualification  is  the  most  difficult  of  all.  The  statements  are 
admissible  because  they  are  a  part  of  the  act.  They  must  therefore  be 
made  before  the  act  is  completed.  To  express  this  idea,  it  is  often  said 
that  they  must  be  part  of  the  res  gestaz,  which  is  only  to  repeat  in  Latin 
what  has  already  been  said  in  English.  This  Latin  phrase  would  be 
well  enough  in  itself  and  not  objectionable  if  helpful,  were  it  not  for  the 
fact  that  it  is  constantly  confused  with  another  meaning  of  the  same 
expression,  which  has  no  connection  with  this  use  at  all.  This  use  de- 
pends upon  the  law  of  agency :  the  other,  which  will  be  explained  later, 


Co.,  70  N.  H.  133,  It  Is  said:  "To 
make  the  declarations  of  a  servant 
or  agent  binding  upon  his  master 
or  principal,  they  must  be  made  by 
virtue  of  express  authority,  or  be 
required  by  the  due  and  ordinary 
prosecution  of  the  business  (Pemi- 
gewasset  Bank  v.  Rogers,  18  N.  H. 
255,  259);  but  'the  mere  circumstance 
of  their  having  been  made  of  and 
concerning  the  business  he  was  em- 
ployed in,  does  not  give  them  any 
such  effect,  unless  the  servant  had 
been  instructed  to  make  them,  or 
unless  they  were  so  connected  with 
the  service  that  they  became  neces- 
sary in  the  due  and  effective  dis- 
charge of  it.'  Batchelder  v.  Emery, 
20  N.  H.  165,  167;  Pemigewasset 
Bank  v.  Rogers,  supra;  Woods  v. 
Banks,  14  N.  H.  101,  113." 

In  Standard  Oil  Co.  v.  Linol  Co., 
75  N.  J.  L.  294,  it  is  said:  "It  can- 
not be  too  often  pointed  out  that 
the  mere  fact  that  one  employs 
others  to  work  for  him  does  not 
make  him  chargeable  with  what  they 


may  say  about  him  or  his  affairs 
while  in  his  employ;  if  he  employs 
them  to  talk  for  him  a  different  case 
may  be  presented.  King  v.  Atlan- 
tic City  Gas  Co.,  70  N.  J.  L.  679." 

An  agent  authorized  merely  to  care 
for  or  find  a  purchaser  for  property 
real  or  personal  has  thereby  no  im- 
plied authority  to  bind  his  princi- 
pal by  representations  or  state- 
ments in  disparagement  or  limita- 
tion of  his  principal's  title.  Camer- 
on v.  Blackwell,  53  Tex.  Civ.  App. 
414;  Pier  v.  Duff,  63  Pa.  59;  Sweeney 
v.  Sweeney,  119  Ga.  76,  100  Am.  St. 
Rep.  159. 

The  statements,  etc.,  of  the  agent 
which  are  held  admissible  under 
the  rule  here  being  discussed  must 
usually  be  representations,  etc.,  of 
matters  of  fact,  and  not  mere  opin- 
ions, conclusions  or  personal  judg- 
ments as  to  the  principal's  fault, 
neglect,  or  liability.  Plymouth 
County  Bank  v.  Gilman,  3  S.  Dak. 
170,  44  Am.  St.  Rep.  782. 


1360 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


depends  wholly  upon  the  law  of  evidence.    This  double  use  makes  the 
phrase  a  misleading  and  unfortunate  one. 

Whatever  the  phrase  used,  however,  the  idea  is  important.  If  there- 
fore the  statements  offered  in  evidence  were  made  before  the  perfor- 
mance was  undertaken,  or  after  it  was  completed,  or  while  the  agent 
was  not  engaged  in  the  performance,  or  after  his  authority  had  expired, 
they  are  not  admissible.57  In  such  a  case  they  amount  to  no  more  than 

-     '• 

"Ricketts  v.  Birmingham  St.  Ry.  Dec.  625;  Gate  v.  Blodgett,  70  N.  H. 
Co.,  85  Ala.  600;  Tennessee  River 
Transportation  Co.  v.  Kavanaugh, 
101  Ala.  1;  Western  Union  Teleg. 
Co.  v.  West,  165  Ala.  399;  Hender- 
son-Mizell  Co.  v.  C.  D.  Chapman  Co., 
3  Ala.  App.  296;  Innis  v.  Steamer 
Senator,  1  Cal.  459,  54  Am.  Dec.  305; 
Borland  v.  Nevada  Bank,  99  Cal.  89, 
37  Am.  St.  Rep.  32;  Durkee  v. 
Central  Pac.  R.  Co.,  69  Cal.  533,  58 
Am.  Rep.  562;  Anthony  v.  Easta- 
brook,  1  Colo.  75,  91  Am.  Dec.  702; 
First  Nat  Bank  of  Canton  v.  North, 
6  Dak.  136;  Randel  v.  Chesapeake  & 
Del.  Canal  Co.,  1  Harr.  (Del.)  234; 
Newton  v.  White,  53  Ga.  395;  Adams 
v.  Humphreys,  54  Ga.  496;  National 
Bldg.  Ass'n  v.  Quinn,  120  Ga.  358; 
Lindblom  v.  Ramsey,  75  111.  246; 
National  Bank  v.  Farmers'  Bank, 
171  Ind.  323;  Sweetland  v.  Illinois, 
etc.,  Telegraph  Co.,  27  Iowa,  433,  1 
Am.  Rep.  285;  May  v.  Sturdivant, 
75  Iowa,  116,  9  Am.  St.  Rep.  463; 
Phelps  v.  James,  86  Iowa,  398,  41 
Am.  St.  Rep.  497;  Swift  v.  Redhead, 
147  Iowa,  94;  Swenson  v.  Aultman, 
14  Kan.  273;  Roberts  v.  Burks,  Lit- 


toll's  Sel.  Gas.  (Ky.)  411,  12  Am. 
Dec.  325;  Davis  v.  Whitesides,  1 
Dana  (Ky.),  177,  25  Am.  Dec.  138; 
Southern  Express  Co.  v.  Fox,  131 
Ky.  257,  133  Am.  St  Rep.  241;  Farm- 
ers' Bank  v.  Wickliffe,  134  Ky.  627; 
Louisville  Times  v.  Lancaster,  142 
Ky.  122;  Zinsmeister  v.  Rock  Island 
Canning  Co.,  145  Ky.  25;  Reynolds  v. 
Rowley,  3  Rob.  (La.)  201,  38  Am. 
Dec.  233;  Haven  v.  Brown,  7  Greenl. 
(Me.)  421,  22  Am.  Dec.  208;  Burn- 
ham  v.  Ellis,  39  Me.  319,  63  Am. 


316;  Sandford  v.  Handy,  23  Wend. 
(N.  Y.)  260;  First  Nat  Bank  v. 
Ocean  Nat.  Bank,  60  N.  Y.  278,  19 
Am.  Rep.  181;  White  v.  Miller,  71 
N.  Y.  118,  27  Am.  Rep.  13;  Wadele 
v.  New  York  Central,  etc.,  R.  Co.,  95 
N.  Y.  274,  47  Am.  Rep.  41;  Cobb  v. 
United  Engineering  Co.,  191  N.  Y. 
475;  Statler  v.  Ray  Mfg.  Co.,  195  N. 
Y.  478;  McComb  v.  Railroad  Co.,  70 
N.  C.  178;  Southerland  v.  Wilming- 
ton &  W.  R.  Co.,  106  N.  C.  100; 
Rounseville  v.  Paulson,  19  N.  D. 
466;  Short  v.  Northern  Pac.  Elevator 
Co.,  1  N.  D.  159;  Sullivan  v.  Oregon, 
etc.,  Co.,  12  Ore.  392,  53  Am.  Rep. 
364;  Stewartson  v.  Watts,  8  Watts 
(Pa.),  392;  American  Steamship 
Co.  v.  Landreth,  102  Pa.  131,  48  Am. 
Rep.  196;  State  Bank  v.  Johnson,  1 
Mill.  (S.  Car.)  404,  12  Am.  Dec.  645; 
Cobb  v.  Johnson,  2  Sneed  (Tenn.), 
73,  62  Am.  Dec.  457;  North  Am.  Ac- 
cident Ins.  Co.  v.  Frazer  (Tex.  Civ. 
App.),  112  S.  W.  812;  Ward  v.  Powell 
(Tex.  Civ.  App.),  127  S.  W.  851;  St. 
Louis,  etc.,  Ry.  v.  Gilbert  (Tex.  Civ. 
App.),  136  S.  W.  836;  Fort  Worth, 
etc.,  Ry.  v.  Dysart  (Tex.  Civ.  App.), 
136  S.  W.  1117;  Caldwell  Bros, 
v.  Coast  Coal  Co.,  58  Wash.  461; 
Hawker  v.  Baltimore,  etc.,  R. 
Co.,  15  W.  Va.  628,  36  Am.  Rep. 
825;  Keeley  v.  Boston,  etc.,  R.  R. 
Co.,  67  Me.  163,  24  Am.  Rep.  19; 
Franklin  Bank  v.  Pennsylvania,  etc., 
Co.,  11  Gill  &  John.  (Md.)  28,  33  Am. 
Dec.  687;  Whiteford  v.  Burckmyer, 
1  Gill  (Md.),  127,  39  Am.  Dec.  640; 
'Marshall  v.  Haney,  4  Md.  498,  59 
Am.  Dec.  92;  Lobdell  v.  Baker,  1 


86 


1361 


§  1784] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


a  mere  narrative  of  a  past  transaction,  and  do  not  bind  the  principal. 
The  reason  is  that,  while  the  agent  may  be  authorized  to  speak  as  well 
as  act  at  the  time  and  within  the  scope  of  his  authority,  he  is  not  author- 
ized, at  a  subsequent  time,  after  the  act  or  transaction  itself  is  finished, 
to  narrate  what  he  had  done  or  how  he  did  it.  To  hold  otherwise 
would  be  to  make  the  incident  more  important  than  the  main  act  it- 
self. 

§  1784.  Further  limitations. — It   is  also   to  be  borne   in 

mind  that  not  everything  which  an  agent  knows  or  thinks  is  competent 

Mete.   (Mass.)   193,  35  Am.  Dec.  358;       law   of   Agency,    it    is    said    in    Red- 


Gott  v.  Dinsmore,  111  Mass.  45;  Mc- 
Kenna  v.  Gould  Wire  Co.,  197  Mass. 
406;  Murphy  v.  Ley,  210  Mass.  371; 
Converse  v.  Blumrich,  14  Mich.  109, 
90  Am.  Dec.  230;  Baker  v.  Temple, 
160  Mich.  318;  McDermott  v.  Hanni- 
bal, etc.,  R.  Co.,  73  Mo.  516,  39  Am. 
Rep.  526;  Brooks  v.  Jameson,  55  Mo. 
505;  Robinson  v.  Walton,  58  Mo. 
380;  Adams  v.  Hannibal,  etc.,  R.  Co., 
74  Mo.  553,  41  Am.  Rep.  333;  Ryan 
v.  Gilmer,  2  Mont.  517,  25  Am.  Rep. 
744;  Cleveland  Co-op.  Co.  v.  Hovey, 
26  Neb.  624;  Union  Life  Ins.  Co.  v. 
Haman,  54  Neb.  599;  Gate  v.  Blod- 
gett,  70  N.  H.  316;  Bank  of  U.  S.  v. 
Davis,  2  Hill  (N.  Y.),  451;  North 
River  Bank  v.  Aymar,  3  Hill  (N.  Y.), 
262;  Thallhimer  v.  Brinkerhoff,  4 
Wend.  (N.  Y.)  394,  21  Am.  Dec.  155; 
Hubbard  v.  Elmer,  7  Wend.  (N.  Y.) 
446,  22  Am.  Dec.  590;  Randal]  v. 
Northwestern  Tel.  Co.,  54  Wis.  140, 
41  Am.  Rep.  17;  Stone  v.  The  North- 
western Sleigh  Co.,  70  Wis.  58f>; 
Lee  v.  Munroe,  7  Cranch  (U.  S.), 
366,  3  L.  Ed.  373;  Carpenter  v. 
American  Ins.  Co.,  1  Story  (U.  S.  C. 
C.),  57;  Brown  v.  Cranberry  Iron 
Co.,  18  C.  C.  A.  444,  72  Fed.  96;  Fi- 
delity &  Casualty  Co.  v.  Haines,  49 
C.  C.  A.  379,  111  Fed.  337;  Woolsey 
v.  Haynes,  91  C.  C.  A.  341,  165  Fed. 
391;  Bree  v.  Holbech,  2  Doug.  654; 
Fitzherbert  v.  Mather,  1  T.  R.  12; 
Fairlie  v.  Hastings,  10  Ves.  Jr.  125. 
Speaking  of  declarations  of  this 
sort,  i.  e.,  those  depending  on  the 

1362 


mon  v.  Metropolitan  St.  Ry.  Co.,  185 
Mo.  1,  105  Am.  St.  Rep.  558:  "Was 
it  [the  statement]  admissible  on  the 
ground  that  the  conductor  was  the 
agent  and  representative  of  the  com- 
pany and  made  the  statement  by  au- 
thority and  to  a  passenger  who  had 
the  right  to  demand  the  cause  of  his 
injury?  This  must  be  solved  by  the 
application  of  the  law  of  principal 
and  agent.  The  admission  or  decla- 
ration of  his  agent  binds  the  princi- 
pal only  when  it  is  made  during  the 
continuance  of  the  agency  in  regard 
to  the  transaction  then  depending. 
*  *  *  Applying  the  rule  just  stat- 
ed, the  question  arises  in  each  case, 
were  the  statements  of  the  agent 
contemporary  with  the  transaction 
and  illustrative  of  its  character,  or 
merely  a  subsequent  narrative  of 
how  it  occurred  or  an  explanation  of 
how  it  might  have  been  avoided?  If 
the  latter,  they  are  inadmissible." 
[It  may  be  suggested,  however, 
that  if  the  agent  could  be  deemed  to 
be  impliedly  authorized  by  the  com- 
pany to  give  an  answer  to  a  pas- 


senger who  had  a  right  to  demand 
the  cause  of  his  injury,  such  reply 
must,  in  the  nature  of  the  case,  be 
given  after  the  injury,  and  it  might 
conceivably  be  made  some  time  af- 
ter. Suppose,  for  example,  that  the 
injured  passenger  remains  uncon- 
sciaus  for  an  hour  or  more  and  then 
asks.] 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1784 


simply  because  he  happens  to  declare  it  while  engaged  in  the  perform- 
ance of  his  authority.  His  statement  must  be  one  concerning  that  which 
is  within  his  authority,  it  must  relate  to  matters  connected  with  his  busi- 
ness, and  it  must  be  confined  to  those  things  concerning  which  he  can 
be  deemed  authorized  to  speak  or  to  act.58  This  salutary  principle 
seems  often  to  be  ignored. 

The  rule  of  admissibility  should  also  be  confined,  in  the  case  of  the 
ordinary  agent  or  servant,  to  such  statements  and  declarations  as  are 
made  as  part  of  some  authorized  transaction  with  third  persons.  Mere 
reports  or  statements  made  by  the  agent  to  his  principal  ought  not  to 
be  competent  against  the  latter  except  to  show  notice  to  him.  They 
certainly  are  not  admissions  by  the  principal,  and  the  fact  that  they  are 
made  to  the  principal  as  part  of  the  agent's  duty  does  not  show  that  the 
principal  has  consented  to  be  bound  by  them  to  third  persons.  They 
are  ordinarily  mere  hearsay.59  This  salutary  principle  also  seems  often 
to  be  overlooked. 


68  A  statement  made  by  a  work- 
man sent  to  examine  and  repair  a 
gas  stove,  made  while  at  work,  that 
there  was  something  wrong  with  the 
stove,  held  not  admissible  against 
the  gas  company  in  an  action  for 
injuries  from  gas  poisoning:  "Where 
one  authorizes  another  to  speak  for 
him,  he  may  be  confronted  by  testi- 
mony as  to  what  his  representative 
said  within  the  scope  of  his  au- 
thority; but  where  the  employment 
is  purely  mechanical,  the  master  is 
not  bound  by  what  his  servant  may 
choose  to  say  while  at  work."  King 
v.  Atlantic  City  Gas,  70  N.  J.  L.  679. 

An  agent's  statements  concerning 
his  principal's  intentions,  or  pur- 
poses or  motives,  are  ordinarily  not 
admissible.  Walkeen  Lewis  Millin- 
ery Co.  v.  Johnston,  131  Mo.  App. 
693. 

59  Reports  made  ~by  agent  to  prin- 
cipal. —  Statements  or  admissions 
made  in  reports  made  by  the  agent 
or  servant  to  his  principal,  or  ma- 
terial gathered  by  the  latter  from 
the  former  in  investigating  acci- 
dents, etc.,  when  offered  not  for  the 
purpose  of  proving  notice  to  or 
knowledge  in  the  principal  but  as 


admissions  of  the  truth  of  the  mat- 
ters stated  therein,  are  .generally 
held  not  admissible.  See  Carrol  v. 
East  Tenn.,  etc.,  Ry.  Co.,  82  Ga.  452, 
6  L.  R.  A.  214;  Atchison,  etc.,  Ry. 
Co.  v.  Burks,  78  Kan.  515,  18  L.  R. 
A.  (N.  S.)  231;  Wabash  R.  Co.  v. 
Farrell,  79  111.  App.  508;  North  Hud- 
son, etc.,  Ry.  Co.  v.  May,  48  N.  J.  L. 
401;  Powell  v.  Northern  Pac.  Ry.  Co., 
46  Minn.  249. 

Contra:  See  Keyser  v.  Chicago, 
etc.,  R.  Co.,  66  Mich.  390:  Virginia, 
etc.,  Chemical  Co.  v.  Knight,  106  Va. 
674. 

Admissible  to  show  notice  or  knowl- 
edge. Texas,  etc.,  Ry.  Co.  v.'  Lester, 
75  Tex.  56;  Vicksburg,  etc.,  Ry.  Co. 
v.  Putnam,  118  U.  S.  545,  30  L.  Ed. 
257.  '  •  } 

Some  courts  exclude  such  reports 
upon  the  ground  that  they  are  privi- 
leged communications.  Cully  v. 
Northern  Pacific  Ry.,  35  Wash.  241; 
Ex  parte  Schoepf,  74  Ohio  St.  1,  6 
L.  R.  A.  (N.  S.)  325.  But,  contra, 
see  Petition  of  Bradley,  71  N.  H.  54; 
Carlton  v.  Western,  etc.,  Ry.,  81  Ga. 
531;  Wooley  v.  North  London  Ry.,  L. 
R.  4  C.  P.  602;  Parr  v.  London,  etc., 
Ry.,  24  L.  T.  N.  S.  558. 


1363 


§§    17^>5~17^>7]  THE  LAW  OF  AGENCY  [BOOK    IV 


§  1785.  -  How  question  determined.  —  The  question  whether 
a  given  act  or  fact  is  part  of  or  incident  to  another  act  or  fact  is  obvi- 
ously one  which  is  often  extremely  difficult  to  determine.  What  was 
the  main  act,  when  did  it  begin,  when  did  it  end,  must  first  be  decided  ; 
then  :  was  this  representation  or  statement  or  admission  a  natural  and 
ordinary  part  of  it  ?  The  incidental  verbal  part  of  it  may  come  at  any 
stage  in  the  whole  transaction.  If  that  transaction  be  the  delivery  of 
goods,  for  example,  it  may  begin  upon  the  agent's  demand  for  them 
and  end  only  with  his  acknowledgment  of  their  receipt.  The  question, 
like  other  questions  of  implied  or  incidental  authority,  is  usually  a  ques- 
tion of  'fact.  If  the  whole  transaction  is  in  writing,  or,  if  though  not  in 
writing,  the  facts  are  undisputed  and  admit  of  but  one  inference,  the 
court  will  usually  decide  it:  otherwise  it  will  be  for  the  jury. 

§  1786.  Effect  of  these  statements  not  dependent  upon  their  be- 
ing true.  —  It  must  be  observed  that,  in  all  of  these  cases  in  which 
the  agent  is  deemed  to  be  authorized,  expressly  or  by  implication,  to 
make  statements,  representations  or  admissions,  the  responsibility  of 
the  principal  for  them  does  not  necessarily  depend  upon  their  being  true. 
The  principal  may  have  intended  that  true  statements  only  should  be 
made,  but  the  mistake  or  misconduct  of  the  agent  in  this  respect  must, 
so  far  as  innocent  third  persons  are  concerned,  ordinarily  affect  the 
principal  like  any  other  unauthorized  acts  committed  within  the  scope  of 
the  authority.  Neither  is  the  principal  exonerated  merely  because  he 
instructed  the  agent  not  to  make  them.  Secret  instructions  have  no 
greater  efficacy  in  this  field  than  in  others. 

§  1787.  Statements  showing  notice  to  or  knowledge  by  the  agent. 
—  Where  the  question  is  whether  an  agent  had  notice  or  knowledge  of 
particular  facts  or  conditions,  conversations  with  or  statements  made  by 
or  to  him  while  he  was  acting  with  reference  to  the  subject  matter  of 
the  notice  or|  knowledge  and  tending  to  show  that  he  had  the  notice  or 
knowledge  in  question,  are  incident  to  his  employment  and  admissible.60 
But  here  as  elsewhere  if  the  statement  indicating  notice  or  knowledge 

ooBundy    v.    Sierra    Lumber    Co.,  88  S.  Car.  47;    Gulf,  etc.,  Ry.  Co.  v. 

149  Cal.  772;  Elledge  v.  National  City  Compton,    75   Tex.    667;    Texas,   etc., 

Ry.  Co.,  100  Cal.  282,  38  Am.  St.  Rep.  Ry.  Co.  v.  Lester,  75  Tex.   56;    Mis- 

290;  Louisville  &  N.  R.  Co.  v.  Bohan,  souri,  etc.,  Ry.  Co.  v.  Russell,  40  Tex. 

116  Tenn.  271;  St.  Louis,  etc.,  Ry.  Co.  Civ.  App.  114;    Soronen  v.  Von  Pus- 

v.  Weaver,  35  Kan.  412,  57  Am.  Rep.  tau,  112  App.  Div.  437;    Anderson  v. 

176;   Trickey  v.  Clark,  50  Oreg.  516;  New  York,  etc.,  Co.,  47  Fed.  38. 
Touchberry  v.  Northwestern  R.  Co., 

1364 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1788,  1789 

is  made  after  the  transaction  is  over,  and  after  the  agent's  authority 
in  the  premises  has  ceased,  it  is  inadmissible.61 

§  1788.  Statements  of  agent  made  to  qualify  or  explain  the  act. — 
Closely  connected  in  form  with  the  sort  of  statements  referred  to  in 
the  preceding  section  and  often  confused  with  them,  though  really  en- 
tirely distinguishable  and  depending  upon  different  considerations,  are 
statements  of  the  agent  which  may  be  material  because  they  tend  to 
qualify,  modify,  or  explain  his  act.  Thus  it  was  said  by  a  learned 
judge  62  whose  words  have  often  been  quoted:  "Declarations  of  a  party 
to  a  transaction,  though  he  was  not  under  oath,  if  they  were  made  at 
the  time  any  act  was  done  which  is  material  as  evidence  in  the  issue  be- 
fore the  court,  and  if  they  were  made  to  explain  the  act,  or  to  unfold  its 
nature  and  quality,  and  were  of  a  character  to  have  that  effect,  are 
treated,  in  the  law  of  evidence,  as  verbal  acts,  and  as  such,  are  not  hear- 
say, but  may  be  introduced  with  the  principal  act  which  they  accom- 
pany, and  to  which  they  relate,  as  original  evidence,  because  they  are 
regarded  as  a  part  of  the  principal  act,  and  their  introduction  in  evidence 
is  deemed  necessary  to  define  that  act  and  unfold  its  true  nature  and 
quality.  But  such  declarations  cannot  properly  be  received  as  evidence, 
unless  the  principal  act  which  they  accompany  and  to  which  they  relate, 
is,  itself,  material  to  the  issue  to  be  submitted  to  the  jury,  nor  unless  the 
declarations  were  made  at  the  time  the  principal  act  was  done,  nor  un- 
less they  were  of  a  character  to  explain  that  act,  or  to  unfold  its  true  na- 
ture and  quality,  as  they  are  only  admissible  as  incident  to  the  principal 
act,  and  because  they  are  a  part  of  it,  and  are  necessary  to  explain  and 
define  its  true  character." 

Statements  of  this  sort  are  only  admissible  where  the  act  itself  is 
equivocal  or  ambiguous  and  therefore  needs  explanation  or  qualifica- 
tion ;  they  are  admissible  only  where  the  act  itself,  to  which  the  words 
are  mere  incidents,  is  material ;  they  must  have  some  tendency  to  ex- 
plain or  qualify  it;  and  they  must  be  made  at  the  time  of  the  doing  of 
the  act  which  they  are  thus  to  modify  or  explain. 

§  1789.  Illustrations. — Illustrations  of  the  application  of 

this  rule  are  numerous.  Thus  if  the  question  arises  whether  in  a  given 

«i  First  National  Bank  v.  Farm-  381,  it  is  said:  "Where  the  act  may 

ers'  Bank,  171  Ind.  323;  J.  I.  Case  have  been  prompted  by  one  of  two 

Plow  Works  v.  Pulsifer,  79  Kan.  176.  or  more  motives  or  objects,  the  dec- 

62  Mr.  Justice  Clifford,  dissenting,  larations  of  the  actor  made  at  the 

in  Insurance  Co.  v.  Mosley,  8  Wall.  time  and  illustrative  of  the  motive 

(U.  S.)  397  at  p.  411,  19  L.  Ed.  or  object  are  admissible  in  evi- 

437.  In  Lewis  v.  Burns,  106  Cal.  dence." 

1365 


THE  LAW  OF  AGENCY  [BOOK    IV 


transaction  a  person  acted  on  his  own  account  or  as  agent  for  another ; 
whether  the  credit  was  extended  to  the  agent  personally  or  to  his  princi- 
pal, and  the  like,  his  statements  made  at  the  time  showing  for  whom 
he  purported  to  act  would  be  admissible.63  If  the  question  were  whether 
the  agent  had  impliedly  warranted  his  authority,  or,  on  the  other  hand, 
had  disclosed  its  nature  and  source  to  the  other  party  so  that  he  might 
determine  for  himself,  statements  made  by  the  agent  at  the  time  as  to 
the  authority  by  which  he  purported  to  act  would  be  admissible.  If  the 
question  were  as  to  the  possibility  of  ratification  because  the  agent  did 
or  did  not  purport  to  act  as  the  agent  of  the  person  subsequently  rati- 
fying,64 his  statements  made  at  the  time  as  to  the  person  for  whom  he 
purported  to  act  would  be  admissible. 

These  holdings  would  not  conflict  with  the  rule  that  the  agent's  au- 
thority cannot  be  shown  by  his  own  statements.  These  statements  are 
not  offered  for  the  purpose  of  proving  authority,  which  must  be  shown 
in  some  other  way,  but  only  for  the  purpose  of  showing  the  capacity  in 
which  the  person  making  them  at  the  time  purported  to  act.86 


ea  Lewis  v.  Burns,  106  Cal.  381;  Al- 
len v.  Duncan,  11  Pick.  (Mass.)  308; 
Thomas  v.  Leonard,  5  111.  556;  Roeb- 
ke  v.  Andrews,  26  Wis.  311;  Jefferds 
v.  Alvard,  151  Mass.  94;  Bank  v. 
Kennedy,  17  Wall.  (84  U.  S.)  19, 
21  L.  Ed.  554:  Simonds  v.  Clapp,  16 
N.  H.  222;  Chattanooga,  etc.,  R.  Co. 
v.  Davis,  89  Ga.  708;  Kentucky  Stove 
Co.  v.  Page  (Ky.),  125  S.  W.  170; 
Henderson  v.  Coleman,  19  Wyo.  183; 
Miller-Brent  Lumber  Co.  v.  Stewart, 
166  Ala.  657. 

So  statements  by  one  in  possession 
of  goods  as  to  whether  he  claimed 
to  hold  for  himself  or  his  princi- 
pal are  admissible.  Drum  v.  Harri- 
son, 83  Ala.  384. 

e*  See  ante,  §  386. 

65  Thus  in  Roebke  v.  Andrews, 
supra,  where  the  question  was  as  to 
the  admissibility  of  evidence  that 
certain  persons  in  negotiating  a 
purchase  professed  to  act  as  agents 
of  the  defendant  the  court  said: 
"Such  statements  by  them  were  not 
proof  of  the  fact  of  agency.  It 
would  be  necessary  to  prove  that 
fact  in  some  other  way,  or  to  con- 


nect the  defendant  with  the  consum- 
mation of  the  bargain.  But  it  is  still 
true  that  whatever  bargain  was 
made,  if  any,  was  negotiated  by 
those  parties.  What  that  bargain 
was,  with  whom  and  by  whom  it 
was  made,  could  only  be  proved  by 
showing  what  was  done  and  said  In 
its  actual  negotiation.  If  they  pro- 
fessed to  act  for  the  defendant,  that 
fact  entered  into  and  formed  apart 
of  the  negotiation  itself,  and  gave  it 
character.  It  was  a  part  of  the  res 
gestae  and  was  admissible  as  such, 
though  without  something  further 
it  would  have  no  binding  effect  upon 
the  defendant."  So  in  Thomas  v. 
Leonard,  supra,  where  the  question 
was  as  to  the  admissibility  of  state- 
ments of  defendant's  daughters  as 
to  the  person  on  whose  account  they 
bought  certain  goods  the  court  said: 
"The  question,  'what  did  the  daugh- 
ters say,  when  they  purchased  said 
goods?'  was  clearly  a  part  of  the  res- 
gestae,  and  competent  to  show  what 
took  place  when  the  goods  were 
purchased.  This  evidence  was  not 
offered  to  prove  that  the  defendant 


1366 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1790 

Such  declarations  are,  moreover,  admissible  not  only  against  the  prin- 
cipal but  for  him,  as  where,  for  example,  the  principal  desires  to  show 
that,  in  the  transaction  in  question,  the  alleged  agent  purported  to  act 
on  his  own  personal  account,  or  that  he  purported  to  act  as  his  agent ; 
though  ordinarily  the  mere  self-serving  declarations  of  the  agent  are 
not  admissible  in  his  principal's  behalf.66 

§  1790.  Statements  indicative  of  the  agent's  state  of  mind. — 
Wherever  the  agent's  state  of  mind  at  a  particular  time  is  material — 
where  the  question  of  his  good  faith,  his  alertness,  his  sense  of  duty  OP 
responsibility,  his  attention  to  duty,  his  motive,  his  appreciation  of  dan- 
ger, and  the  like,  is  involved — his  statements,  admissions  or  declarations 
made  at  the  time  and  indicating  what  his  state  of  mind  then  was  in  ref- 
erence to  such  matters,  would  be  admissible  in  evidence  either  for  or 
against  his  principal  wherever  the  principal  would  be  affected  by  the 
agent's  state  of  mind,  and  it  would  be  a  proper  subject  of  inquiry.  This 
is  not  upon  any  ground  of  agency,  of  course,  but  upon  the  ordinary 
rules  of  evidence. 

Thus  if  the  issue  were  an  agent's  negligence,  evidence  of  his  declara- 
tions at  the' time  tending  to  show  that  his  thoughts  and  attention  were 
upon  something  else  than  his  duty  would  be  admissible  ;67  if  the  charge 
were  his  recklessness,  declarations  showing  his  indifference  to  conse- 
quences would  be  admissible ; 68  if  the  question  was  as  to  his  malice, 

was    liable    to    pay    for    the    goods.  Canning  Co.,  145  Ky.  25;    Insurance 

That    depended    nron    the    onr-sfion  Co.  v.  Guardiola,  129  U.  S.  642,  32  L. 

whether    the    daughters    of    the    de-  Ed.  802;   Chicago  v.  McKechney,  205 

fendant    were    to    be    considered    as  111.  372;  Royle  Mining  Co.  v.  Fidelity 

the  agents  of  the  defendant  in  mak-  Co.,  161  Mo.  App.   185. 

ing   the   purchase   of  the   goods.     If  Where    two    persons    jointly    em- 

the  answer  had  been,  that  thsy  di-  ploy  the  same  agent  one  of  them  can- 

rected    that    the    goods    should    be  not    charge    the    other    upon    admis- 

charged   to   some   third   person,   this  sions    made    by    the    common    agent. 

would    have    afforded    a    strong    pre-      Austin   v.   Rupe,  Tex.   Civ.   App. 

sumption  that  they  were  not  acting      ,  141  S.  W.  547. 

as  the  agents  of  their  father.    This  <"  See    Knittel   v.    United    Ry.    Co., 

testimony    was    therefore    admissible  147  Mo.  App.  677;  Reddick  v.  Young, 

to  go  to  the  jury;  but  whether  it  was      Ind.  ,  98  N.  E.  813. 

sufficient    to    authorize    a    recovery,  68  See,  for  example,  Nashville,  etc., 

without    other    proof,    is    entirely    a  R-  Co.  v.  Messino,  1  Sneed   (Tenn.), 

diiferent    question,    and    one    which  220;  Wabash  W.  Ry.  Co.  v.  Brow,  13 

this  court  is  not  called  upon  to  de-  C.  C.  A.  222,  65  Fed.  941. 

termine."  Statements    showing   haste,    where 

oe  Self-serving  statements  of  agents  that   may   have   affected   the   result, 

not     admissible     in     principal's     be-  would  be  admissible.     Gulf,  etc.,  Ry. 

half.      Zinsmeister    v.    Rock    Island  Co.  v.  Compton,  75  Tex.  667;   but  not 


§§    179^.  1 792]  THE  LAW  OF  AGENCY  [BOOK   IV 

declarations  showing  his  dislike  or  hatred  would  be  admissible;89  and 
the  like. 

Such  evidence  might  be  admissible  for  the  principal  as  well  as  against 
him.  Thus  if  a  master  were  defending  against  liability  for  a  servant's 
act,  evidence  of  the  servant's  declarations  at  the  time  showing  that  the 
act  was  the  result  of  the  servant's  own,  private  desire  for  revenge 
against  an  enemy  rather  than  an  act  done  for  the  master,  would  be  com- 
petent. 

§  1791.  Words  themselves  constituting  or  aggravating  the  wrong. 
— The  principal  may  be  liable,  in  many  cases,  on  the  ordinary  princi- 
ples of  agency  for  words  which  in  themselves  constitute  a  wrong  or 
which  aggravate  a  wrong.  Thus  the  principal  may  be  liable  for  a  libel 
published,  or  a  slander  uttered,  by  his  agent  or  servant.  A  carrier  of 
passengers,  owing  a  duty  to  protect  them,  may  be  liable  for  the  verbal 
abuse  or  attack  upon  them  by  his  servant  to  whom  he  has  confided  the 
duty  of  protecting  them.70 

In  many  cases,  too,  an  independent  wrong  may  be  aggravated  by  the 
contumelious,  abusive  or  derisive  language  of  the  servant  or  agent  who 
perpetrates  the  wrong. 

In  these  cases  liability  does  not  depend  upon  whether  the  principal 
can  be  thought  to  have  authorized  the  words :  he  may  expressly  have  for- 
bidden them  and  still  be  liable  because  they  were  uttered  while  the  agent 
or  servant  was  acting  within  the  scope  of  his  authority  and  about  his 
master's  business. 

§  1792.  Admissions  of  agent  generally  not  competent  to  charge 
principal. — The  admissions  of  an  agent,  except  in  the  cases  already 
referred  to,71  in  which  it  can  be  said  that  he  has  been  expressly  or  im- 
pliedly  authorized  to  make  them,  are  generally  not  competent  to  charge 
his  principal.72  The  agent  may  make  admissions  which  will  charge 

otherwise:  Gardner  v.  Detroit  St.  Ry.  bins  v.  Little  Rock,  etc.,  R.  Co.,  19 
Co.,  99  Mich.  182;  statements  show-  Ark.  85,  9  Ann.  Gas.  84. 
ing  anger:  Cincinnati,  etc.,  Ry.  Co.  09  in  an  action  for  malicious  prose- 
v.  Evans,  129  Ky.  152.  cution,  the  statement  of  the  agent 
But  if  the  motive  Is  one  which  who  Instituted  the  prosecution,  show- 
would  not  affect  the  principal,  either  ing  his  motive,  are  admissible. 
at  all  or  under  the  pleadings  or  al-  Southern  Car  Co.  v.  Adams,  131  Ala. 
legations,  statements  of  the  agent  147. 

showing   his    animus    would    not    be  7°  Malecek  v.  Tower  Grove  Ry.  Co., 

admissible.      Gulf,    etc.,    Ry.    Co.    v.  57  Mo.  17. 

York,    74    Tex.    364;     Dilllngham    v.  TI  See  ante,  §§  1777-1781,  et  seq. 

Russell,  73  Tex.  47,  15  Am.  St.  Rep.  «  Fairlie  v.   Hastings,   10  Ves.   Jr. 

753,  3  L.  R.  A.  634;    Butler  v.  Man-  127;    Roberts  v.  Burks,  Littell's  Sel. 

hattan  R.  Co.,  143  N.  Y.  417.  42  Am.  Cas.    (Ky.)    411,    12    Am.    Dec.    325, 

St   Rep.   738,   20   L.   R.   A.   40;    Dob-  Clancy    v.    Barker,    71    Neb.    83,    115 

1368 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1/93 

himself,  and  the  principal  may  make  admissions  to  bind  himself,  but 
usually  one  man  can  not  admit  things  to  charge  another.  An  agent  may 
confess  his  own  negligence  or  default  so  far  as  his  own  liability  is  con- 
cerned, but  he  can  not  ordinarily  be  deemed  authorised  to  confess  his 
principal's  negligence  or  defaults.  So  far  as  the  principal'  is  concerned, 
if  he  does  not  care  to  admit  matters  affecting  his  liability  or  interests, 
he  is  entitled  to  have  the  question  tried  by  the  regular  and  established 
methods  of  determining  liability.  Unless  he  has  authorized  him  to  do 
so,  the  principal  certainly  cannot  have  his  liability  fixed  by  the  admis- 
sions of  a  person  who  happens,  for  other  purposes,  to  be  his  agent.  As 
stated  long  ago  in  the  leading  case  78  upon  the  subject,  "The  admission 
of  an  agent  cannot  be  assimilated  to  the  admission  of  the  principal.  A 
party  is  bound  by  his  own  admission,  and  is  not  permitted  to  contradict 
it.  But  it  is  impossible  to  say,  a  man  is  precluded  from  questioning  or 
contradicting  anything  any  person  has  asserted  as  to  him,  as  to  his 
conduct  or  his  agreement,  merely  because  that  person  has  been  an 
agent  of  his.  If  any  fact,  material  to  the  interest  of  either  party,  rests 
in  the  knowledge  of  an  agent,  it  is  to  be  proved  by  his  testimony,  not 
by  his  mere  assertion." 

The  fact  that  it  is  the  negligence  of  the  agent  which  is  sought  to  be 
proved  against  the  principal  does  not  make  the  agent's  admission  of  his 
own  negligence  competent  against  his  principal.  It  is  bad  enough,  in 
many  cases,  for  the  principal  to  be  liable  for  the  negligence  of  his  agent, 
without  also  fastening  his  liability  by  the  agent's  admission. 

The  fact  that  principal  and  agent  are  sued  together  does  not  affect 
the  rule  as  to  the  principal,  though  the  agent's  admission  might  be  used 
to  charge  the  agent. 

§  1793.  Declarations  and  admissions  of  agent  as  part  of  res  ges- 
tae — Spontaneous  utterances. — Although  they  thus  can  not  be  re- 
garded as  authorized,  the  declarations  and  admissions  of  an  agent  may 
often  be  put  in  evidence  upon  an  entirely  different  ground,  namely, 
that  they  constitute  part  of  what  is  called  the  "res  gesta."  Some  refer- 
ence to  one  use  of  this  term  has  already  been  made.74  That  use  de- 
Am.  St.  Rep.  559,  8  Ann.  Gas.  682,  69  122  Pa.  449;  Jungworth  v.  Chicago, 
L.  R.  A.  642;  Norfolk,  etc.,  R.  Co.  v.  etc.,  R.  Co.,  24  S.  D.  342;  People  v. 
Suffolk  Lumber  Co.,  92  Va.  413;  Jam-  Terwilliger,  59  N.  Y.  Misc.  617; 
mison  v.  Chesapeake,  etc.,  R.  Co.,  92  Guerin  v.  New  England  Tel.  Co.,  70 
Va.  327,  53  Am.  St.  Rep.  813;  Willis  N.  H.  133;  and  many  other  cases 
v.  Atlantic,  etc.,  R.  Co.,  120  N.  Car.  cited  in  the  following  sections. 
508;  McDermott  v.  Hannibal,  etc.,  73  Fairlie  v.  Hastings,  supra. 
R.  Co.,  73  Mo.  516,  39  Am.  Rep.  526;  74  See  ante,  §  1781. 

Oil  City  Fuel  Supply  Co.  v.  Boundy, 

1369 


§  1794]  THE  LAW  OF  AGENCY  [COOK  iv 

pends,  as  has  been  pointed  out,  upon  the  law  of  agency, — upon  the  fact 
that  the  person  who  made  the  declaration  in  question  was  in  some  way 
expressly  or  impliedly  authorised  to  speak  for  his  principal  because 
what  he  said  was  part  of  what  he  was  authorized  to  do.  The  use  here 
contemplated  is  a  different  one  though  the  two  are  constantly  confused. 
It  does  not  necessarily  depend  upon  the  law  of  agency  at  all.78  It  is  a 
rule  of  evidence,  and  is  just  as  applicable  in  a  proper  case  to  one  who 
was  not  an  agent  at  all  as  to  one  who  was  an  agent.  Ordinarily  one 
who  is  to  be  affected  by  the  statements  of  a  person,  whom  he  has  not 
authorized  to  speak  for  him,  has  a  right  to  be  confronted  by  the  witness, 
to  have  him  put  under  oath,  and  to  subject  him  to  cross-examination. 
The  purpose  of  this  is,  of  course,  to  make  sure  that  he  is  telling  the 
truth.  Exceptions  to  this  rule  have  been  admitted  in  various  cases  upon 
the  ground  that  there  were  some  other  peculiar  circumstances  present, 
conducive  to  truth  telling,  which  might  serve  as  a  substitute  for  the  or- 
dinary tests.  A  familiar  illustration  is  the  case  of  the  so  called  "dying 
declaration."  Another  illustration  is  found  in  the  case  before  us.  It 
is  that  where  some  unusual  and  striking  event  has  occurred, — for  ex- 
ample, a  railway  accident  or  similar  casualty, — and  a  person,  who  has 
participated  in  it,  makes  a  statement  concerning  it  either  during  it  or 
soon  after  it,  while  yet  under  the  excitement  and  influence  of  it  and  be- 
fore he  has  had  time  to  consider  the  effects  and  consequences  of  what 
he  says,  there  is  such  likelihood  that  what  he  thus  says  will  be  true  as 
to  dispense  with  the  ordinary  tests  for  assuring  truthful  utterance. 
The  theory  is  that  the  spontaneous  utterances  of  one  who  speaks  under 
the  excitement  of  the  moment  and  before  he  has  had  time  to  deliberate 
— to  concoct  a  self  favoring  story — are  likely  to  be  true.76 

§  1794.  Meaning  of  res  gestae  as  here  used. — By  reason 

of  the  fact  that  the  declarations  here  in  question  must  concern  some 
main  act,  for  example  the  accident,  and  must  be  made  by  one  who  was 
present  and  affected  by  its  influence  and  must  be  made  while  under  that 
influence,  it  has  been  said  that  the  declaration  must  be  a  part  of  the 
act — a  part  of  the  res  gesta.  This  use  of  the  Latin  phrase  is  to  be  de- 

"  See  Hupfer  v.  National  Distilling  made  the  declaration  while  he  was 

Co.,  119  Wis.  417.  surrounded  by  an  angry  mob  which 

f«In    Feldman    v.    Detroit    United  threatened    him    with    personal    vio- 

Ry.,  162  Mich.  486,  the  declarations  lence. 

were  thought  not  to  be  spontaneous          For  the  similarity,  in  principle,  to 

and  were  excluded  because  the  dec-  dying     declarations,     see     Riggs     v. 

larant,  the  motorman  of  a  car  which  Northern  Pac.  R.  Co.,  60  Wash.\292. 
had  struck  and  killed  a  child,  had 

1370 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1795 

plored  because  it  means  no  more  than  the  English  equivalent,  is  likely 
to  be  confused  with  the  other  use  of  the  same  phrase,  and  particularly 
because  it  is  likely  to  be  made  the  cover  for  loose  thinking  or  careless 
discrimination.  It  seems,  however,  to  be  firmly  fixed  in  our  legal 
phraseology.  This  use,  as  stated  above,  is  not  confined  to  agents,  or 
to  cases  involving  civil  liability.  The  statements  of  any  person  present 
may  sometimes  be  admissible  and  may  be  used  in  criminal  and  other 
cases  as  well  as  those  involving  a  principal's  or  master's  liability.  In 
the  latter  cases,  however,  which  are  the  ones  here  being  considered,  it 
is  almost  invariably  an  agent's  or  a  servant's  statement  which  is  in- 
volved, and  the  real  if  not  the  avowed  purpose  is  to  get  the  statement 
into  the  case  as  an  admission  of  the  agent  or  servant  which  will  bind 
the  principal.77  There  are  doubtless  cases  wherein  the  statement  of- 
fered might  be  sustained  under  either  use  of  the  phrase  res  gcstce;  and 
there  are  many  cases  wherein  statements  admissible  for  some  other  rea- 
son are  erroneously  justified  under  the  loose  assertion  that  "they  were 
part  of  the  res  gcsta."  The  result  is  that  the  rule  of  res  gesta  in  the 
law  of  agency  is  in  an  unsatisfactory  condition. 

§  1795.  What  sort  of  statements  admissible. — This  being 

the  theory  upon  which  such  evidence  is  admissible,  a  number  of  limita- 
tions at  once  suggest  themselves.  The  person  whose  words  are  offered 
must  have  been  a  participant  in  the  transaction  and  thus  have  come 
within  its  influence.78  The  statements  offered  must  be  relevant  to  the 

"  See   Louisville,    etc.,   Ry.    Co.   v.  knew  its  cause — which  is  the  natural 

Johnson,  131  Ky.  277,  20  L.  R.  A.  (N.  inference  from  his  statement,  if  tru- 

S.)   133.  ly    reported— yet    it    is    clear    that 

78  in  Metropolitan  R.  Co.  v.  Collins,  what  he  said,  though  near  in  point 
1  App.  Cas.  D.  C.  383,  where  the  sub-  of  time,  was  narrative  only  of  a  past 
ject  matter  of  the  inquiry  was  the  transaction.  It  was  not  a  spontane- 
alleged  sudden  starting  of  a  street  ous  outburst,  incident  to  the  occur- 
car,  statements  made  two  to  five  rence  or  illustrative  of  it."  [This 
minutes  later  by  the  transfer-agent  statement,  however,  should  have 
of  the  company  to  the  effect  that  been  inadmissible  on  another 
the  conductor  "would  get  into  ground;  it  was  merely  the  witness's 
trouble"  were  excluded.  Said  the  conclusion  or  deduction  as  to  what 
court:  "If  the  declarations  offered  would  happen  and  not  in  any  way  a 
had  been  made  by  the  conductor  of  statement  of  fact.] 
the  car  whose  negligence,  according  What  is  said  by  by-standers  after 
to  the  plaintiff,  caused  the  injury,  the  event  as  to  the  cause  of  it  is 
the  error  would  not  be  so  clear;  not  admissible.  Detroit,  etc.,  R.  Co. 
but  the  transfer  agent  was  not  an  v.  Van  Steinburg,  17  Mich.  99;  Lea- 
actor  in  the  occurrence  and  had  hey  v.  Cass  Ave.  Ry.  Co.,  97  Mo.  165, 
nothing  to  do  with  it.  If  it  be  con-  10  Am.  St.  Rep.  300;  Missouri  Pac. 
ceded  that  he  saw  the  accident  and  Ry.  Co.  v.  Ivy,  71  Tex.  409,  10  Am. 

1371 


§  I795J 


THE  LAW  OF  AGENCY 


[BOOK  iv 


transaction  and  such  as  would  be  provable  if  the  person  making  them 
was  put  upon  the  stand  as  a  witness.  Mere  conclusions,  opinions  and 
speculations  of  the  declarant  should  therefore  be  excluded.70  The 
statement  offered  must  relate  to  the  transaction  in  question  and  not  be 
merely  narrations,  though  made  at  the  time  of  that  transaction  or  soon 
afterward,  of  other  and  previous  facts,  conditions,  or  events.80  It 


St.  Rep.  758,  1  L.  R.  A.  500:  Louis- 
ville Ry.  Co.  v.  Johnson,  131  Ky.  277, 
20  L.  R.  A.  (N.  S.)  133.  Statements, 
though  by  a  participant,  as  to  what 
other  persons  thought  of  the  trans- 
action, are  not  admissible.  Boone 
v.  Oakland  Transit  Co.,  139  Cal.  490. 
Where  the  question  was  as  to  the 
negligence  of  certain  servants  of  a 
railroad  company,  to  wit,  the  bag- 
gagemen, in  leaving  a  baggage 
truck  in  a  passage  way,  declarations 
of  the  telegraph  operator,  though 
proximate  in  point  of  time,  are  not 
admissible.  He  was  not  "an  actor 
or  participant  in  that  transaction." 
Tiborsky  v.  Chicago,  etc.,  Ry.  Co., 
124  Wis.  243.  Statements  made 
among  themselves  by  the  trainmen 
of  one  train  as  to  the  speed  of  another 
train  which  caused  the  injury  but  with 
which  they  were  in  no  way  connect- 
ed are  inadmissible.  Norfolk,  etc., 
Ry.  Co.  v.  Gesswine,  75  C.  C.  A.  214, 
144  Fed.  56.  Statements  made  by  a 
foreman,  who  did  not  see  the  act, 
as  to  how  it  happened,  are  not  ad- 
missible. St.  Louis,  etc.,  Ry.  Co.  v. 
Brisco,  42  Tex.  Civ.  App.  321.  "Not 
res  gestae  but  purely  hearsay,"  said 
the  court. 

™  Thus  in  a  great  variety  of  cases 
expressions  of  opinion  as  to  whose 
fault  it  was,  who  was  to  blame, 
how  it  must  have  happened,  what 
would  have  been  the  case  if  some- 
thing else  had  happened  or  been 
done,  and  the  like,  though  made  at 
or  near  the  time,  have  been  held 
inadmissible,  as  mere  "conclusions," 
"judgments  pronounced  after  the 
event,"  "narratives  of  past  events," 
and  the  like.  See  Scott  v.  St  Louis, 


etc.,  R.  Co.,  112  Iowa,  54;  Giberson 
v.  Patterson  Mills,  174  Pa.  369,  52 
Am.  St.  Rep.  823;  Silveira  v.  Iverson, 
128  Cal.  187;  Plymouth  County  Bank 
v.  Oilman,  3  S.  D.  170,  44  Am.  St. 
Rep.  782;  Metropolitan  Nat  Bank 
v.  Commercial  State  Bank,  104  Iowa, 
682;  St.  Louis,  etc.,  Ry.  Co.  v.  Barg- 
er,  52  Ark.  78;  Balding  v.  Andrews, 
12  N.  Dak.  267;  Electric  Ry.  Co.  v. 
Carson,  98  Ga.  652;  Ohio,  etc.,  Ry. 
Co.  v.  Stein,  133  Ind.  243,  19  L.  R. 
A.  733  (such  a  statement  might,  how- 
ever, be  admissible  for  the  purpose 
of  showing  knowledge  of  the  defect- 
ive condition.  Young  v.  Seaboard 
Airline  Ry.  Co.,  75  S.  Car.  190); 
Adams  v.  Hannibal,  etc.,  R.  Co.,  74 
Mo.  553,  41  Am.  Rep.  333;  Nelson  v. 
Georgia,  etc.,  Ry.  Co.,  68  S.  Car.  462; 
Ruschenberg  v.  Southern,  Elec.  R. 
Co.,  161  Mo.  70;  Redmon  v.  Metro- 
politan St.  Ry.  Co.,  185  Mo.  1,  105 
Am.  St.  Rep.  558;  Dodge  v.  Childs, 
38  Kan.  526;  Ft.  Wayne,  etc.,  Trac- 
tion Co.  v.  Crosbie,  169  Ind.  281,  14 
Ann.  Gas.  117,  13  L.  R.  A.  (N.  S.) 
1214;  Louisville,  etc.,  R.  Co.  v.  Webb, 
99  Ky.  332;  Louisville,  etc.,  R.  Co.  v. 
Ellis,  97  Ky.  330. 

so  Thus  on  the  ground  that  it  was 
merely  a  narration  of  a  past  trans- 
action, the  statement  of  a  street  car 
driver  made  soon  after  an  accident 
that  he  had  previously  reported  the 
car  as  having  a  bad  brake,  was  held 
not  admissible.  Wormsdorf  v.  De- 
troit City  Ry.  Co.,  75  Mich.  472.  13 
Am.  St.  Rep.  453.  So  in  an  action  for 
killing  stock  evidence  of  statements 
made  afterwards  by  the  section  fore- 
man as  to  the  previous  condition  of 
the  fence,  were  held  inadmissible. 


1372 


CHAP.    Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1796 

seems  scarcely  necessary  to  decide  that  the  statements  offered  must  be 
serious  and  not  jocular.81 

And,  finally,  and  above  all,  as  will  be  more  fully  seen  in  the  following 
sections,  the  statements  must  be  made  under  the  excitement  of  the 
event, — they  must  be  "the  language  of  exclamation  or  surprise"  and 
not  "the  language  of  narrative  with  a  full  appreciation  of  the  conse- 
quences growing  out  of  a  transaction  which  is  passed  and  complete."  82 
As  stated  in  another  case,  the  statements  admissible  must  be  the  "events 
speaking  for  themselves  through  the  instinctive  words  and  acts  of  par- 
ticipants, not  the  words  and  acts  of  participants  when  narrating  the 
events."  83 

§  1796.  What  embraced  within  res  gestae. — The  question 

of  what  declarations  and  admissions  constitute  a  part  of  the  res  gesta, 
within  this  rule  is  one  exceedingly  difficult  of  determination,  and  upon 
which  the  authorities  are  conflicting.  It  was  formerly  held,  and  the 
doctrine  still  prevails  in  some  jurisdictions,  that  the  declarations  and  ad- 
missions must  be  strictly  contemporaneous  with  the  act ;  that  if  they 
were  not  made  until  the  act  in  controversy  was  completed,  although 
made  immediately  afterwards,  and  on  the  spot,  they  were  not  admissi- 
ble.84 This  would  undoubtedly  be  sound  wherever  their  admissibility 
depends  upon  the  rules  of  Agency, — if  they  must  be  authorized,  they 
must  then  constitute  a  part  of  the  authorized  act  in  order  to  be  them- 
selves authorized. 

Where,  however,  the  true  ground  for  the  admission  of  the  declara- 
tions is  that  they  are  made  spontaneously  and  under  the  influence  of 
the  main  event,  it  is  then  possible  that  the  influence  may  continue  al- 
though the  act  is  ended,  and  the  proper  view  should  be  to  treat  the  mere 
point  of  time  as  less  material,  and  to  look  rather  to  the  nature  of  the 

Norman  v.  Chicago,  etc.,  Ry.  Co.,  110  drews,   12  N.   D.   267;    Fredenthal  v. 

Iowa,  283.     "It  was  but  a  narrative  Brown,   52   Ore.   33;    Johnson  v.  Mc- 

of  a  past  transaction,"  said  the  court,  Lain    Investment    Co.,    79    Kan.    423. 

citing  Treadway  v.  Railroad  Co.,  40  131  Am.  St.  Rep.  302. 

Iowa,  526.  83  St.  Louis,  etc.,  Ry.  Co.  v.  Kelley, 

si  In   Holmes   v.   Washington  Real  61  Ark.  52,  quoting  Wharton's  Crim. 

Estate  Co.,   20  R.   I.   289,  it  was  ex-  Ev.  §  262. 

pressly  decided  that  statements  evi-  ^  See,  for  example,  Adams  v.  Han- 

dently  made  jocularly  and  so  under-  nibal,  etc.,  R.  Co.,  74  Mo.  553,  41  Am. 

stood  by  the  hearers  were  not  com-  Rep.     333;   Barker  v.  St.  Louis,  etc., 

petent  as  part  of  the  res  gestae.  Ry.  'Co.,  126  Mo.  143,  47  Am.  St.  Rep. 

82Weinkle    v.    Brunswick,   etc.,   R.  646,  26  L.  R.  A.  843;   Ruschenberg  v. 

Co.,  107  Ga.  367.     See  also,  Citizens'  Southern   Elec.  R.   Co.,   161   Mo.   70; 

St.  R.  Co.  v.  Howard,  102  Tenn.  474;  Koenig  v.  Union  Depot  Ry.  Co.,  173 

Ohio,  etc.,  Ry.  Co.  v.  Stein,  133  Ind.  Mo.  698;  Redmon  v.  Metropolitan  St. 

243,  19  L.  R.  A.  733;    Balding  v.  An-  Ry.  Co.,  185  Mo.  1,  105  Am.  St.  Rep. 

1373 


§  i?97] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


statements  and  the  circumstances  under  which  they  were  made.  Ac- 
cording to  this  view,  each  transaction  should  be  judged  by  its  own  pe- 
culiar facts,  without  conclusive  regard  to  a  fixed  interval  of  time,  and 
with  more  regard  to  the  question  whether  the  declarations  or  admissions 
seem  to  have  been  made,  not  with  deliberate  consideration,  but  voltyi- 
tarily  and  spontaneously,  under  the  immediate  influence  of  the  princi- 
pal transaction,  and  are  so  connected  with  it  as  to  characterize  or  ex- 
plain it.88 

All  the  cases,  however,  agree  that  if  the  admissions  were  made  so 
long  after  the  event  that  they  cannot  be  deemed  to  come  within  its  in- 
fluence, they  are  mere  narrations  of  a  past  event,  and  are  not  competent 
as  evidence. 

Most  of  the  cases  present  the  question  of  statements  made  after  the 
act ;  but  there  is  no  reason  why  statements  made  before,  if  made  under 
its  impending  influence,  should  not  be  admissible.88 

§  1797.  How  admissibility  determined. — The  subject  here 

considered  being  a  matter  of  evidence,  the  question  of  the  admissibility 
of  the  declarations  must,  like  the  question  of  the  admissibility  of  evi- 
dence generally,  be  determined  by  the  court.  It  has  sometimes  been 
said  that  the  admissibility  of  these  declarations  rests  in  the  discretion 
of  the  court ;  but  that  can  not  be  deemed  to  be  true  without  qualifica- 
tion. The  trial  court  must  of  course  determine  whether  the  circum- 
stances are  such  as  to  make  the  declarations  admissible, — as  it  must  in 


558;  Cleveland,  etc.,  R.  Co.  v.  Mara, 
26  Ohio  St.  185;  Tennis  v.  Consol. 
Rap.  Transit  Co.,  45  Kan.  503;  Dodge 
v.  Childs,  38  Kan.  526;  Balding  v. 
Andrews,  12  N.  D.  267. 

ss  See  People  v.  Vernon,  35  Cal.  49, 
95  Am.  Dec.  50;  Keyser  v.  Chicago 
&  G.  T.  Ry.  Co.,  66  Mich.  390,  [citing 
Scaggs  v.  State,  8  Sm.  &  Mar.  (Miss.) 
722;  Insurance  Co.  v.  Mosley,  8  Wall. 
(U.  S.)  397,  19  L.  Ed.  437;  Common- 
wealth v.  McPike,  3  Gush.  (Mass.) 
181,  50  Am.  Dec.  727;  Harriman  v. 
Stowe,  57  Mo.  93;  Crookham  v.  State, 
5  W.  Va.  51"0;  Boothe  v.  State,  4  Tex. 
App.  202;  Regina  v.  Abraham,  2 
Car.  &  K.  550;  Hanover  R.  Co.  v. 
Coyle,  55  Penn.  St.  402;  Brownell  v. 
Pacific  R.  Co.,  47  Mo.  239;  People  v. 
Vernon,  35  Cal.  49,  95  Am.  Dec.  50; 
Handy  v.  Johnson,  5  Md.  450;  Carter 
v.  Buchannon,  3  Ga.  513;  Mitchum 
v.  State,  11  Ga.  615;  Courtney  v. 


Baker,  2  Jones  &  Sp.  (N.  Y.)  529; 
O'Connor  v.  Chicago,  etc.,  .Ry.  Co., 
27  Minn.  166,  38  Am.  Rep.  288;  Ar- 
mil  v.  Chicago,  etc.,  R.  R.  Co.,  70 
Iowa,  130;  State  v.  Koran,  32  Minn. 
394,  50  Am.  Rep.  583;  Lund  v. 
Tyngsborough,  9  Cush.  (Mass.)  36, 
59  Am.  Dec.  159]. 

See  also,  Walters  v.  Spokane 
Intern.  Ry.  Co.,  58  Wash.  293; 
State  v.  McDaniel,  68  S.  Car.  304, 
102  Am.  St.  Rep.  661  (a  criminal 
case) ;  McMahon  v.  Chicago  City  Ry. 
Co.,  239  111.  334;  Denver  City  Ry. 
Co.  v.  Brumley,  51  Colo.  251;  An- 
derson v.  Great  Northern  Ry.  Co., 
15  Idaho,  513;  American  Mfg.  Co.  v. 
Bigelow,  110  C.  C.  A.  77,  188  Fed.  34; 
Champlin  v.  Pawcatuck  Val.  St.  Ry. 
Co.,  33  R.  I.  572. 

se  See  Northern  Tex.  Trac.   Co.   v. 
Caldwell,  44  Tex.  Civ.  App.  374. 


1374 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1 79$ 

the  case  of  dying  declarations,  confessions,  and  the  like ;  and  courts  of 
review  are  quite  reluctant  to  overthrow  the  conclusion  of  the  trial 
judge;  but  the  matter  is,  nevertheless,  controlled  by  legal  rules  and  is 
not  a  matter  of  mere  discretion.87 

The  admissibility  of  these  declarations  does  not  depend,  as  seems 
sometimes  to  be  thought,  upon  the  question  whether  the  declarant  is 
dead  or  otherwise  unable  to  testify. 

§  1798.  Illustrations  of  what  has  been  called  part  of  the  res  ges- 
tae — Inadmissible  declarations. — Attempts  to  give  illustrations  of 
the  actual  rulings  under  a  so-called  res  gestcs  theory  are  unsatisfactory, 
because  the  cases  have  sometimes  gone  upon  one  theory  and  sometimes 
upon  another.  The  following  have  been  selected  chiefly  with  reference 
to  the  element  of  time  involved,  though  it  is  obvious  that  there  must  be 
much  in  each  case  besides  the  mere  question  of  the  time  which  has 
elapsed. 

In  an  action  to  recover  damages  caused  by  the  derailment  of  a  train, 
statements  of  the  engineer  who  was  in  charge  of  the  engine  at  the  time 
of  the  accident,  made  six  months  or  more  afterwards,  were  held  to  be 
too  remote  to  constitute  a  part  of  the  res  gesta;88  so  an  admission  by 
the  general  agent  of  a  telegraph  company  of  its  liability  for  an  accident, 
alleged  to  have  been  caused  by  its  negligence,  two  months  after  the  ac- 
cident, has  been  held  to  be  not  admissible  ;89  so  in  an  action  against  a 
railway  company  to  recover  damages  for  the  misconduct  of  a  conduc- 
tor, statements  made  by  the  conductor  about  three  weeks  later  to  the 
affect  that  he  had  been  drinking  on  the  day  in  question,  were  held  in- 
admissible ;90  so  evidence  of  the  statement  of  a  railroad  roadmaster  that 
a  certain  employee,  through  whose  incompetence  an  accident  had  hap- 
pened, was  incompetent,  made  several  days  after  the  accident,  has  been 
held  to  be  inadmissible  ;81  so  the  admissions  made  by  the  engineer  of  an 
engine  which  had  killed  some  cattle,  made  while  he  was  still  on  the  en- 

ST  See  Pledger  v.  Chicago,  etc.,  R.  made   more   than   a   year   afterward 

Co.,  69  Neb.  456;  Walters  v.  Spokane  were  held  inadmissible. 

Intern.  Ry.  Co.,  58  Wash.  293;    Shel-  «9  Randall  v.  Northwestern  Tel.  Co., 

ton  v.  Southern  Ry.,  86  S.  Car.  98.  54  Wis.  140,  41  Am.  Rep.  17. 

ss  Colorado     Midland     Ry.     Co.     v.  »o  Louisville,   etc.,   Ry.   Co.   v.   Wil- 

McGarry,   41  Colo.   398.     In  Gardner  liamson  (Ky.),  96  S.  W.  1130;  Radel 

v.    Schenectady    Ry.    Co.,    113    N.    Y.  Co.  v.  Borches,  147  Ky.  506,  39  L.  R. 

App.    Div.    133,    the    statement    held  A.  (N.  S.)  227. 

inadmissible    was    made    four    years  »i  McDermott  v.  Hannibal,  etc.,  R. 

before.  Co.,    73    Mo.    516,    39    Am.    Rep.    526. 

In  Simms  v.  Forbes,  86  Miss.  Statements  were  held  inadmissible 
412,  statements  of  an  agent  that  when  made:  "a  few  days"  after- 
he  blamed  himself  for  the  accident  wards  (Robinson  v.  Fitchburg,  etc., 

1375 


§  1798] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


gine  where  it  had  been  thrown  from  the  track  by  the  accident,  but  made 
an  hour  after  the  accident,  were  held  to  be  incompetent.92  Upon  such 
cases  as  those  just  mentioned  there  would  probably  not  be  much  dispute 
under  any  theory.  As  the  time  grows  shorter,  the  conflict  becomes 
greater.  In  an  action  against  a  railroad  company  for  personal  injuries 
sustained  by  a  passenger,  evidence  of  the  declarations  of  the  conductor 
and  engineer  "a  few  minutes"  after  the  accident,  was  held  incompe- 
tent ;03  so  in  two  like  cases  evidence  of  similar  declarations  made,  in  one 

.-)?/,-— .anoii- 
R.  R.  Co.,  7  Gray   (Mass.),  92);   two      Co.   (Ky.),  92  S.  W.  571;   three  quar- 


and  a  half  days  afterward  (Packet 
Co.  v.  Clough,  20  Wall.  (U.  S.)  528, 
22  L.  Ed.  406);  four  or  five  days  af- 
ter (Paraffine  Oil  Co.  v.  Berry  (Tex. 
Civ.  App.),  93  S.  W.  1089);  several 
days  after  (Western  Union  Teleg. 
Co.  v.  Jackson,  95  Miss.  471);  the 
day  after  (Harris  v.  Carstens  Pack- 
ing Co.,  43  Wash.  647,  39  L.  R.  A. 
491;  Clancy  v.  Barker,  71  Neb.  83, 
115  Am.  St.  Rep.  559,  69  L.  R.  A. 
642,  8  Ann.  Cas.  682;  Maltby  v.  R. 
R.  Kirkland,  48  Fed.  760;  Cook  v. 
Stimson  Mill  Co.,  36  Wash.  36;  Rapp 
v.  Easton  Transit  Co.  (N.  J.),  72 
Atl.  38;  Jefferson  Fertilizer  Co.  v. 
Houston,  3  Ala.  App.  348);  the  next 
morning  (Wynnewood  v.  Cox,  31 
Okla.  563;  Havens  v.  Suburban  Ry. 
Co.,  26  R.  I.  48,  3  Ann.  Gas.  617; 
Caldwell  v.  Nichol,  97  Ark.  420); 
the  next  night  (Layzell  v.  Coal  Co., 
156  Mich.  268). 

82  Hawker  v.  Baltimore,  etc.,  R. 
Co.,  15  W.  Va.  628,  36  Am.  Rep.  825. 
So  statements  were  held  inadmis- 
sible when  made:  ten  hours  after  the 
accident,  Kyner  v.  Portland  Mining 
Co.,  106  C.  C.  A.  245,  184  Fed.  43; 
two  hours  after,  Dodge  v.  Childs,  38 
Kan.  526;  an  hour  or  two  after, 
Missouri  Pac.  Ry.  Co.  v.  Ivy,  71  Tex. 
409,  10  Am.  St.  Rep.  758,  1  L.  R.  A. 
500;  an  hour  after,  Norfolk  &  C.  R. 
Co.  v.  Suffolk  Lumber  Co.,  92  Va. 
413:  H.  &  St.  L.  R.  Co.  v.  Davis 
(Ky.),  106  S.  W.  304;  Cincinnati, 
etc.,  Ry.  v.  Martin,  146  Ky.  260; 
Balding  v.  Andrews,  12  N.  D.  267; 
half  an  hour  to  an  hour  after,  Mar- 
tin v.  South  Covington  &  C.  St.  Ry. 


ters  of  an  hour  after,  Henry  v. 
Seattle  Elec.  Co.,  55  Wash.  444;  half 
an  hour  after,  International,  etc.,  R, 
Co.  v.  Munn,  46  Tex.  Civ.  App.  276. 

So  in  a  number  of  cases  in  which 
the  time  is  not  precisely  stated  but 
was  evidently  a  considerable  time. 
Louisville  &  N.  R.  Co.  v.  Ellis'  Adm., 
97  Ky.  330;  The  Maurice,  135  Fed. 
516;  Moseley's  Adm'r  v.  Black  Dia- 
mond Coal  Co.  (Ky.),  109  S.  W.  306; 
Gould  v.  Aurora,  etc.,  Ry.,  141  111. 
App.  344. 

»3  Alabama,  etc.,  R.  R.  Co.  v.  Hawk, 
72  Ala.  112,  47  Am.  Rep.  403.  In  this 
case  the  court  lay  down  the  rule  that 
"Perfect  coincidence  of  time  between 
the  declaration  and  the  main  fact  is 
not  of  course  required.  It  is  enough 
that  the  two  are  substantially  con- 
temporaneous;" but  reach  the  con- 
clusion "that  the  declarations  of  the 
conductor  and  engineer  cannot,  un- 
der a  proper  application  of  this  prin- 
ciple, be  regarded  as  a  part  of  the 
res  gcstae  of  the  accident  resulting 
in  'injury  to  the  plaintiff.  The  time 
—  'a  few  minutes' — does  not  appear 
to  be  so  proximate  to  the  main  trans- 
action, nor  are  the  declarations  made 
otherwise  so  closely  connected  with 
it,  as  an  elucidating  circumstance,  as 
justly  to  authorize  the  conclusion 
that  they  are  not  merely  narrative 
of  a  past  occurrence,  which  at  the 
moment  was  finished  and  complete." 
Eight  minutes  later,  too  late.  Baker 
v.  St  Louis,  etc.,  R.  Co.,  126  Mo.  143, 
29  L.  R.  A.  843.  So  of  a  statement  by 
an  engineer  "some  minutes"  after  an 
accident.  Davis  v.  Louisville  H.  & 


CHAP.    Vj 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


case,94  ten  to  thirty  minutes,  and  in  the  other,88  five  minutes,  after  the 
accident,  was  held  inadmissible;  so  in  an  action  for  injuries  sustained 
by  a  passenger  from  the  overturning  of  a  stage  sleigh,  the  declarations 


St.  L.  Ry.  Co.  (Ky.),  97  S.  W.  1122. 
So  a  statement  made  two  or  three 
minutes  after.  Morse  v.  Consolidated 
Ry.  Co.,  81  Conn.  395;  or  one  made 
"a  few  seconds"  after,  Brauer  v.  New 
York,  etc.,  Ry.  Co.,  131  App.  Div.  682. 
See  also,  St  Louis,  etc.,  Ry.  Co.  v. 
Pope,  100  Ark.  269;  Blue  Ridge  Light 
Co.  v.  Price,  108  Va.  652. 

»*Vicksburg,  etc.,  R.  R.  v.  O'Brien, 
119  U.  S.  99,  30  L.  Ed.  290.  "It  was," 
said  the  court,  "in  its  essence,  the 
mere  narration  of  a  past  occurrence, 
not  a  part  of  the  res  gestae — simply 
an  assertion  or  representation,  in  the 
course  of  conversation,  as  to  a  matter 
not  then  pending,  and  in  respect  to 
which  his  authority  as  engineer  had 
been  fully  exerted.  It  is  not  to  be 
deemed  part  of  the  res  gestae  simply 
because  of  the  brief  period  interven- 
ing between  the  accident  and  the 
making  of  the  declaration.  The  fact 
remains  that  the  occurrence  had 
ended  when  the  declaration  in  ques- 
tion was  made,  and  the  engineer  was 
not  in  the  act  of  doing  anything  that 
could  possibly  affect  it.  If  his  decla- 
ration had  been  made  the  next  day 
after  the  accident,  it  would  scarcely 
be  claimed  that  it  was  admissible 
evidence  against  the  company.  And 
yet  the  circumstance  that  it  was 
made  between  ten  and  thirty  min- 
utes,— an  appreciable  period  of  time 
— after  the  accident,  cannot,  upon 
principle,  make  this  case  an  excep- 
tion to  the  general  rule.  If  the  con- 
trary view  should  be  maintained,  it 
would  follow  that  the  declarations  of 
the  engineer  if  favorable  to  the  com- 
pany, would  have  been  admissible  in 
its  behalf  as  part  of  the  res  gestae 
without  calling  him  as  a  witness, — 
a  proposition  that  will  find  no  sup- 
port in  the  law  of  evidence.  The 
cases  have  gone  far  enough  in  the 
admission  of  the  subsequent  decla- 
rations of  agents  as  evidence  against 

87  1377 


their  principals.  These  views  are 
fully  sustained  by  adjudications  in 
the  highest  courts  of  the  States," 
[citing  Luby  v.  Hudson  River  R.  R., 
17  N.  Y.  131;  Pennsylvania  R.  R.  Co. 
v.  Books,  57  Penn.  339,  98  Am.  Dec. 
229;  Dietrich  v.  Baltimore,  etc.,  R. 
R.,  58  Md.  347;  Lane  v.  Bryant,  9 
Gray  (Mass.),  245,  69  Am.  Dec.  282; 
Chicago,  etc.,  R.  R.  Co.  v.  Riddle,  60 
111.  534;  Virginia,  etc.,  R.  R.  Co.  v. 
Sayers,  26  Gratt.  (Va.)  328;  Chicago, 
etc.,  Ry.  Co.  v.  Fillmore,  57  111.  265; 
Michigan  Cent.  R.  R.  Co.  v.  Cole- 
man,  28  Mich.  440;  Mobile,  etc.,  R.  R. 
Co.  v.  Ashcraft,  48  Ala.  15;  Belief on- 
taine  Ry.  Co.  v.  Hunter,  33  Ind.  335, 

5  Am.  Rep.  201;  Adams  v.  Hannibal, 
etc.,  R.  R.   Co.,  74  Mo.  553,  41  Am. 
Rep.  333;    Kansas,  etc.,  R.  R.  Co.  v. 
Pointer,     9    Kan.     620;     Roberts    v. 
Burks,  Litt.    (Ky.)    Sel.  Cas.  411,  12 
Am.  Dec.  325;   Hawker  Y.  Baltimore 

6  Ohio  R.  R.  Co.,  15  W.  Va.  628,  36 
Am.    Rep.    825];    Waite,    C.    J.,    and 
Field,   Miller   and   Blatchford,   J.   J., 
dissented.      So    a    conductor's   state- 
ment  that   the  accident   was  caused 
by    his    negligence,    made    over    ten 
minutes  after  an  accident,  was  held 
inadmissible.    Chesapeake  &  Ohio  Ry. 
Co.  v.  Reeves   (Ky.),  11  S.  W.  464; 
so  a  statement  fifteen  minutes  after, 
Citizens'  St.  Ry.  Co.  v.  Howard,  102 
Tenn.  474;  so  a  conductor's  statement 
eight  to  ten  minutes  after,  Barker  v. 
St.  Louis,  etc.,  Ry.  Co.,  126  Mo.  143, 
47  Am.  St.  Rep.  646,  26  L.  R.  A.  843. 

SB  Durkee  v.  Central  Pacific  R.  R. 
Co.,  69  Cal.  533,  58  Am.  Rep.  562.  So 
a  statement  by  a  motorman  "seven 
or  eight  minutes"  after  the  collision 
was  held  incompetent.  Kimic  v.  San 
Jose-Los  Gatos  Ry.,  156  Cal.  379.  Also, 
Chicago  Union  Traction.  Co.  v.  Daly, 
129  111.  App.  519;  and  Tennis  v.  Con- 
solidated Rapid  Transit  Ry.  Co.,  45 
Kan.  503. 


THE  LAW  OF  AGENCY 


[BOOK    IV 


of  the  driver,  made  on  the  spot  and  immediately  after  the  accident  oc- 
curred, that  it  happened  through  his  carelessness,  were  held  inadmissi- 
ble;98 so  in  an  action  against  a  railroad  company  for  running  over  a 
man,  evidence  of  admissions  by  one  trainman  to  another  immediately 
after  the  accident,  was  declared  incompetent.97 

§  1799.  Illustrations — Admissible    declarations. — But    on 

the  other  hand  in  an  action  brought  against  a  railroad  company  for 
negligently  injuring  the  plaintiff,  declarations  made  by  the  engineer 
immediately  after  stopping  his  train  and  backing  up  to  the  place  of  the 
accident,  as  to  the  reason  why  he  did  not  stop  his  train  before  the  acci- 


So  where  the  statement  was 
"soon  after."  Willis  v.  Atlantic 
&  D.  R.  Co.,  120  N.  C.  508;  Little 
Rock  Traction  &  Electric  Co.  v.  Nel- 
son, 66  Ark.  494;  Weinkle  v.  Bruns- 
wick &  W.  R.  Co.,  107  Ga.  367;  Boone 
v.  Oakland  Transit  Co.,  139  Cal.  490; 
Lissak  v.  Crocker  Estate  Co.,  119  Cal. 
442.  So  a  statement  "just  after," 
St.  Louis  S.  Ry.  Co.  v.  Brisco,  42  Tex. 
Civ.  App.  321.  So  a  statement  "short- 
ly after,"  Harkins  v.  Queen  Ins.  Co. 
of  America,  106  N.  Y.  App.  Div.  170; 
and  Dobbins  v.  Little  Rock  &  E.  Co., 
79  Ark.  85,  9  Ann.  Cas.  84.  So  a 
statement  by  a  trainman  immediately 
after  stopping  the  train,  Memphis  & 
C.  R.  Co.  v.  Womack,  84  Ala.  149. 
So  engineer's  statement  at  the  next 
town,  Frye  v.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.,  200  Mo.  377,  8  L.  R.  A.  (N. 
S.)  1069. 

»6  Ryan  v.  Gilmer,  2  Mont.  517,  25 
Am.  Rep.  744.  The  declaration  of  a 
driver  of  a  street  car  made  as  he  was 
getting  off  the  car  immediately  after 
running  into  the  plaintiff,  as  to  the 
cause  of  the  accident,  held  inadmiss- 
ible in  Luby  v.  Hudson  River  R.  R. 
Co.,  17  N.  Y.  131.  So  the  declaration 
of  a  street  car  driver  immediately  af- 
ter an  accident  that  it  was  his  fault, 
held  inadmissible.  Williamson  v. 
Cambridge  R.  R.  Co.,  144  Mass.  148; 
and  to  same  effect  in  Lane  v.  Bryant, 
9  Gray  (Mass.),  245,  69  Am.  Dec.  282, 
where  Bigelow,  J.,  says:  "It  is  no 
more  competent  because  made  im- 
mediately after  the  accident  than  if 
made  a  week  or  a  month  afterwards." 


Statement  a  minute  after  accident 
held  inadmissible.  Lecklieder  v.  Chi- 
cago City  Ry.,  142  111.  App.  139. 

»7  Adams  v.  Hannibal  &  St.  Joseph 
R.  R.  Co.,  74  Mo.  553,  41  Am.  Rep. 
333;  also  Koenig  v.  Union  Depot  Ry. 
Co.,  173  Mo.  698;  Butler  v.  Manhattan 
Ry.  Co.,  143  N.  Y.  417.  42  Am.  St. 
Rep.  738,  26  L.  R.  A.  46;  St.  Louis  S. 
M.  &  S.  Ry.  Co.  v.  Kelley,  61  Ark.  52; 
Blackman  v.  West  Jersey  &  S.  R.  Co., 
68  N.  J.  L.  1. 

Impeachment  of  witness. — State- 
ments not  admissible  as  part  of  the 
res  gestae  may  sometimes  be  admit- 
ted for  the  purpose  of  impeaching  a 
witness  who  has  given  contradictory 
or  inconsistent  testimony';  but  in 
such  cases  the  effect  of  the  statement 
is  to  be  confined  to  the  impeachment 
merely  and  is  not  to  be  regarded  aa 
evidence  of  the  facts  stated.  Straight- 
Creek  Coal  Co.  v.  Haney  (Ky.),  87 
S.  W.  1114;  International,  etc.,  R.  Co. 
v.  Munn,  46  Tex.  Civ.  App.  276;  Louis- 
ville, etc.,  R.  Co.  v.  Davis  (Ky.),  106 
S.  W.  304;  Colorado  Midland  Ry.  Co. 
v.  McGarry,  41  Colo.  398;  Tennessee 
River  Transportation  Co.  v.  Kava- 
naugh,  101  Ala.  1;  Radel  v.  Borches, 
147  Ky.  506,  39  L.  R.  A.  (N.  S.)  227; 
Kimic  v.  San  Jose-Los  Gatos  Ry.,  156 
Cal.  379;  Aldridge  v.  Aetna  L.  Ins. 
Co.,  204  N.  Y.  83,  38  L.  R.  A.  (N.  S.) 
343;  Walsh  v.  Carter-Grume  Co.,  126 
N.  Y.  App.  Div.  229. 

Contra:  Simms  v.  Forbes,  86  Miss. 
412,  on  the  ground  that  the  impeach- 
ing statement  was  hearsay  and  in- 
competent. 

378 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1799 


dent,  were  not  only  held  to  be  competent,  but  similar  declarations  made 
by  the  engineer  when  he  arrived  at  his  destination  about  fifty  minutes 
later,  in  making  a  report  to  his  superior  officer,  were  also  admitted  ;98 
so  in  a  case  involving  the  liability  of  a  railroad  company  for  baggage 
lost  by  fire,  the  declarations  of  the  baggage  master  as  to  the  origin  of 
the  fire,  made  in  view  of  the  ruins  but  about  fourteen  hours  after  the 
fire,  were  admitted  ;09  so  in  a  case  where  the  accident  was  brought  about 
by  defective  flanges  on  the  wheels  of  the  cars,  the  declarations  of  a 
general  superintendent  of  the  railway  made  on  the  scene  of  the  wreck 
within  three  hours  after  it  occurred  were  admitted  ;*  in  the  case  of  a 
mine  accident,  statements  as  to  the  previous  unsafe  condition  of  the 
appliances,  made  by  a  foreman  on  the  ground  while  directing  repairs 
and  at  a  time  variously  estimated  as  from  "immediately"  to  "half  an 
hour"  afterwards  were  admitted  ;2  in  an  action  for  injury  caused  by  fire 
the  statements  of  the  servant  who  started  the  fire,  made  on  the  morning 
of  the  second  day  after,  but  while  the  fire  was  still  burning,  the  injury 
complained  of  being  still  incomplete  and  while  the  servant  was  on  the 
ground  attempting  to  extinguish  it  were  admitted  ;3  so  statements  made 
under  varying  circumstances,  fifteen  minutes,4  five  to  ten  minutes,5 
six  minutes,6  five  minutes,7  three  minutes,8  two  minutes  9  afterwards 


ssKeyser  v.  Chicago  &  G.  T.  Ry. 
Co.,  66  Mich.  390.  Both  theories  were 
confused  here. 

»9  Illinois  Cent.  R.  R.  Co.  v.  Tron- 
stine,  64  Miss.  834.  (Although  the 
court  speaks  of  res  gestae,  this  case 
could  properly  be  put  upon  the  other 
ground  mentioned  that  the  declara- 
tions were  made  by  one  whose  duty 
it  was  to  give  such  information.) 
Contra:  Michigan  Cent.  R.  R.  Co.  v. 
Carrow,  73  111.  348,  24  Am.  Rep.  248. 

i  Roberts  v.  Port  Blakely  Mill  Co., 
30  Wash.  25  (this  case  is  certainly 
doubtful  on  this  point).  See  also, 
Filkington  v.  Gulf  C.  &  S.  F.  Ry.  Co., 
70  Tex.  226. 

a  New  York  &  Colo.  Min.  Syndi- 
cate &  Co.  v.  Rogers,  11  Colo.  6,  7 
Am.  St.  Rep.  198.  But  the  court 
mentioned  several  other  grounds  up- 
on which  the  statement  might  be  ad- 
mitted and  seemed  not  to  be  entirely 
clear  as  to  the  true  one. 

8  Yazoo  &  Miss.  Valley  Ry.  Co.  v. 
Jones,  73  Miss.  229.  It  is  to  be  noted 
that  the  statement  was  made  while 


the  fire  was  still  raging  and  the  in- 
jury complained  of  still  incomplete. 
The  point  was  not  much  elaborated. 
To  the  same  effect:  see  Mobile  & 
Ohio  Ry.  Co.  v.  Stinson,  74  Miss. 
453;  and  Paraffine  Oil  Co.  v.  Berry 
(Tex.  Civ.  App.),  93  S.  W.  1089. 

4  Missouri  K.  &  T.  Ry.  Co.  v.  Vance 
(Tex.  Civ.  App.),  41  S.  W.  167.     See 
also,   City   of  Austin  v.  Nuchols,   42 
Tex.  Civ.   App.   5. 

5  Hupfer  v.  National  Distilling  Co., 
119  Wis.  417.    This  case  goes  wholly 
upon     the     theory     of     spontaneous 
declarations,   and   not   upon   that   of 
agency,  but  the  purpose  of  the  decla- 
rations  was   to   show   negligence   of 
the  declarant  as  defendant's  servant. 

«  San  Antonio,  etc.,  Ry.  Co.  v.  Gray, 
95  Tex.  424. 

T  Dewalt  v.  Houston,  E.  &  W.  T.  Ry. 
Co.,  22  Tex.  Civ.  App.  403. 

s  Wilson  v.  Southern  Pacific  Co.,  IS 
Utah,  352,  57  Am.  St.  Rep.  766,  35 
L.  R.  A.  611. 

»  Gulf  C.  &  S.  F.  Ry.  Co.  v.  Tullis, 
4  Tex.  Civ.  'App.  219;  Coll  v. 


1379 


§  i8oo] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


have  been  held  admissible ;  so,  in  a  number  of  cases,  declarations  made 
within  so  short  a  time  after  the  occurrence  as  properly  to  be  designated 
as  immediately  made  have  been  held  admissible.10 

§  1800.  When  principal  bound  by  agent's  representation  of  ex- 
trinsic facts  upon  which  authority  depends. — Where  an  agent's  au- 
thority to  act  in  a  given  case  depends  upon  the  existence  of  certain 
facts,  it  is  ordinarily  said  to  be  incumbent  upon  a  person  proposing  to 
deal  with  the  agent  to  ascertain  whether  those  facts  exist.11  But  where 
the  existence  of  those  facts  is  a  matter  necessarily  and  peculiarly  within 


Easton  Transit  Co.,  180  Pa.  618;  Ohio, 
etc.,  Ry.  Co.  v.  Stein,  133  Ind.  243,  19 
L.  R.  A.  733. 

i«  O'Connor  v.  Chicago,  etc.,  Ry. 
Co.,  27  Minn.  166,  38  Am.  Rep.  288; 
Hanover  R.  Co.  v.  Coyle,  55  Pa.  396; 
McLeod  v.  Ginther,  80  Ky.  399;  Lit- 
tle Rock,  etc.,  Co.  v.  Newman,  77 
Ark.  599;  Bass  v.  Chicago,  etc..  Ry. 
Co.,  42  Wis.  654,  24  Am.  Rep.  i37; 
Brownell  v.  Pacific  R.  R.  Co.,  47  Mo. 
239;  Toledo,  etc.,  Ry.  Co.  v.  Goddard, 

25  Ind.  185.     Where  a  boy  who  had 
driven  against   a   foot   passenger  on 
the   street   immediately   stopped   his 
horse   and    came   back   and   said   he 
did  not  mean  to,  Judge  Cooley  said: 
"It  was  as  much  a  part  of  the  res 
gestae  as   would    have    been    an  ex- 
clamation  at   the   very    instant    the 
plaintiff   was   struck."     Cleveland   V. 
Newsome,  45  Mich.  62. 

To  same  effect  are:  Little  Rock, 
etc.,  Ry.  Co.  v.  Leverett,  48  Ark.  333, 
8  Am.  St.  Rep.  230;  Pierce  v.  Van 
Dusen,  24  C.  C.  A.  280,  78  Fed.  693, 
69  L.  R.  A.  705;  Sample  v.  Consoli- 
dated Light  &  Ry.  Co.,  50  W. 
Va.  472,  57  L.  R.  A.  186;  Kansas 
City  Southern  Ry.  Co.  v.  Moles, 
58  C.  C.  A.  29,  121  Fed.  351; 
Quincy  Horse  Ry.  &  Carrying  Co. 
v.  Gnuse,  137  111.  264;  South  Coving- 
ton  C.  St.  Ry.  Co.  v.  Riegler'-s  Adm'r, 

26  Ky.  Law  Rep.  666,  82  S.  W.  382; 
Cincinnati,  etc.,  Ry.  Co.  v.  Evans,  129 
Ky.  152;    Louisville  Ry.  Co.  V.  John- 
Bon,  131  Ky.  277,  20  L.  R.  A.  (N.  S.) 
133;  Springfield  Consolidated  Ry.  Co. 


v.  Welsch,  155  111.  511;  Illinois  Cent. 
R.  Co.  v.  Cotter  (Ky.),  103  S.  W.  279; 
Zipperlan  v.  Southern  Pac.  Co.,  7  Cal. 
App.  206;  Alsever  v.  Minneapolis, 
etc.,  R.  Co.,  115  Iowa,  338,  56  L.  R.  A. 
748;  Ohio,  etc.,  Ry.  Co.  v.  Stein,  133 
Ind.  243,  19  L.  R.  A.  733;  United  Ry. 
Co.  v.  Cloman,  107  Md.  681. 

In  all  the  cases  cited  above  the  in- 
jury was  caused  by  the  alleged  negli- 
gent management  of  cars  or  trains 
and  the  statements  admitted  were 
made  while  the  person  injured  was 
present  and  still  upon  the  ground  or. 
under  the  car  or  wheels  where  he 
was  injured. 

So  statements  have  been  admitted 
where  made — "within  a  very  few 
minutes,"  Hermes  v.  Chicago  &  N. 
W.  Ry.  Co.,  80  Wis.  590;  engineer's 
statement  about  as  soon  as  he  stopped 
his  train,  Hooker  v.  Chicago,  Milwau- 
kee &  St.  Paul  Ry.  Co.,  76  Wis.  542; 
"at  a  very  brief  interval  thereafter," 
Gulf  C.  &  S.  F.  Ry.  Co.  v.  Pierce,  7  Tex. 
Civ.  App.  597;  as  soon  after  the  ac- 
cident as  the  injured  man  got  quiet, 
Young  v.  Seaboard  Air  Line  Ry.,  75 
S.  C.  190;  twenty-five  minutes  after 
but  while  trying  to  get  help,  Walters 
v.  Spokane  International  Ry.  Co.,  58 
Wash.  293. 

In  Omaha,  etc.,  Ry.  Co.  v.  Chollette, 
41  Neb.  578,  the  statements  were 
practically  contemporaneous  with  the 
event 

11  See  ante,  §  756.  The  Freeman  v. 
Buckingham,  18  How.  (U.  S.)  182,  15 
L.  Ed.  341. 


1380 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    l8oi 

the  agent's  knowledge,  the  question  has  arisen  whether  the  party  deal- 
ing with  him  in  good  faith  might  not  assume  that  giving  information 
upon  that  point  was  within  the  scope  of  his  authority,  and  rely  upon  the 
agent's  representation ;  and,  particularly,  whether,  if  the  agent  does  the 
act  which  could  only  be  properly  done  in  case  the  facts  do  exist,  the 
mere  doing  of  the  act,  under  such  circumstances,  may  not  properly  be 
regarded  as  such  a  representation  on  his  part  that  the  facts,  which  are 
thus  a  condition  precedent,  do  exist,  as  to  bind  his  principal.  This 
question  has  already  been  so  fully  considered  in  an  earlier  chapter  12 
that  only  a  brief  resume  of  it  need  be  given  here. 

The  question  has  been  considered  with  great  fulness  in  New  York, 
and  in  a  leading  case  in  that  State  13  it  is  said :  "It  is  a  settled  doctrine 
of  the  law  of  agency  in  this  State,  that  where  the  principal  has  clothed 
his  agent  with  power  to  do  an  act  upon  the  existence  of  some  extrinsic 
fact  necessarily  and  peculiarly  within  the  knowledge  of  the  agent,  and 
of  the  existence  of  which  the  act  of  executing  the  power  is  itself  a  rep- 
resentation, a  third  person  dealing  with  such  agent  in  entire  good  faith, 
pursuant  to  the  apparent  power,  may  rely  upon  the  representation,  and 
the  principal  is  estopped  from  denying  its  truth  to  his  prejudice. 
*  *  *  If  there  be  any  exception  to  the  rule  within  our  jurisdiction, 
it  arises  in  the  case  of  municipal  corporations,  whose  structure  and 
functions  are  sometimes  claimed  to  justify  a  more  restricted  liability."14 

It  is  to  be  observed  in  these  cases  that  the  question  here  is  not  as  to 
the  existence,  extent  or  nature  of  the  agent's  general  authority :  every 
one  knows  what  his  authority  is, — the  question  is  as  to  the  existence 
of  certain  extrinsic  conditions  or  events  upon  which  the  right  to  exer- 
cise that  authority  depends,  and  the  fact  of  their  existence  is  peculiarly 
and  necessarily  within  the  agent's  own  knowledge. 

§  1801.  Illustrations — Bills  of  lading — Warehouse  re- 
ceipts— Certified  checks. — In  accordance  with  this  rule,  it  was  there 
held  that  a  carrier  which  had  authorized  an  agent  to  issue  bills  of  lad- 
ing in  its  name,  upon  receipt  of  property  for  transportation,  is  liable 
upon  a  bill  of  lading  issued  by  such  agent  and  transferred  by  the  ship- 

12  See  ante,  §  759  et  seq.  R.  R.  Co.,  65  N.  Y.  Ill,  22  Am.  Rep. 

is  Bank   of   Batavia   v.   New  York,  603.]     See  also,  Van  Dolsen  v.  Board 

etc.,  R.  R.  Co.,  106  N.  Y.  195,  60  Am.  of  Education,  162  N.  Y.  446;  Bank  of 

Rep.  440,  35  Am.  L.  Reg.  573.     [Cit-  Monongahela  Valley   v.  Weston,   172 

ing  North  River  Bank  v.   Aymar,   3  N.  Y.  259. 

Hill  (N.  Y.),  262;  Griswold  v.  Haven,          «  As  to  this,  see  Town  of  Solon  v. 

25  N.  Y.  595,  82  Am.  Dec.  380;   New  Williamsburgh  Bank,  114  N.  Y.  122; 

York,  etc.,  R.  R.  Co.  v.  Schuyler,  34  Hoag  v.  Town  of  Greenwich,  133  N. 

N.  Y.  30;   Armour  v.  Michigan  Cent.  Y.  152. 

I38l 


§  i8oi] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


per  to  one  who,  on  the  faith  of  it,  had  discounted  a  draft  on  the  con- 
signee, although  in  fact  no  property  had  been  received  by  the  carrier.18 

Upon  this  particular  application  of  the  rule,  the  weight  of  authority 
is,  doubtless,  opposed,16  but  the  doctrine  of  the  New  York  court  seems 
most  consonant  with  reason  and  justice,  and  is  sustained  by  a  consider- 
able body  of  authority.17  It  is  also  adopted  in  the  Uniform  Bills  of 
Lading  Act.1* 

The  New  York  court  and  others  have  applied  the  same  doctrine  to 
warehouse  receipts,19  and  to  certificates  of  stock  issued  apparently 


«  Bank  of  Batavia  v.  New  York, 
etc.,  R.  Co.,  106  N.  Y.  195,  supra,  60 
Am.  Rep.  440. 

is  Grant  v.  Norway,  10  C.  B.  665. 
(See  also,  Cox  v.  Bruce,  18  Q.  B.  Div. 
147.  Compare  Montaignac  v.  Shitta, 
15  App.  Cas.  357);  Friedlander  v. 
Texas  &  Pac.  Ry.  Co.,  130  U.  S.  416, 
32  L.  Ed.  991;  Iron  Mt.  Ry.  Co.  v. 
Knight,  122  U.  S.  79,  30  L.  Ed.  1077; 
Pollard  v.  Vinton,  105  U.  S.  7,  26  L. 
Ed.  998;  The  Freeman  v.  Bucking- 
ham, 18  How.  (U.  S.)  182,  15  L.  Ed. 
341;  The  Lady  Franklin,  8  Wall.  (U. 
S.)  325,  19  L.  Ed.  455.  (See  also, 
Missouri  Pac.  Ry.  Co.  v.  McFadden, 
154  U.  S.  155,  38  L.  Ed.  944;  The 
Guiding  Star,  10  C.  C.  A.  454,  62  Fed. 
407;  Planters'  Fertilizer  Co.  v.  Elder, 
42  C.  C.  A.  130,  101  Fed.  1001;  Eccles 
v.  Louisville,  etc.,  R.  Co.,  198  Fed. 
898);  National  Bank  of  Commerce  v. 
Chicago,  etc.,  R.  Co.,  44  Minn.  224, 
20  Am.  St.  Rep.  566;  Williams  v. 
Wilmington,  etc.,  R.  Co.,  93  N.  Car. 
42,  53  Am.  Rep.  450;  Louisiana  Nat'l 
Bank  v.  Laveille,  52  Mo.  380;  Balti- 
more, etc.,  R.  Co.  v.  Wilkens,  44  Md. 
11,  22  Am.  Reo.  26  (immediately 
changed  by  statute;  Lazard  v.  Mer- 
chants' Transportation  Co.,  78  Md. 
1).  See  also,  Fellows  v.  Steamer 
Powell,  16  La.  Ann.  316,  79  Am.  Dec. 
581;  Hunt  v.  Miss.  Cent.  R.  Co.,  29  La. 
Ann.  446;  Sears  v.  Wingate,  3  Allen 
(Mass.),  103;  Dean  v.  King,  22  Ohio 
St.  118;  Lake  Shore,  etc.,  Ry.  Co.  v. 
Nat.  Live  Stock  Bank,  178  111.  506. 
i7  The  New  York  rule  is  approved 

1382 


b^yrt  li  lo  swuRVt  land  £  ^Ino 
in  Brooke  v.  New  York,  etc.,  R.  R. 
Co.,  108  Penn.  St.  529,  reported  also 
In  note  53  Am.  Rep.  453;  Sioux  City 
R.  R.  Co.  v.  First  Nat.  Bank,  10  Neb. 
556,  35  Am.  Rep.  488;  Wichita  Sav- 
ings Bank  v.  Atchison,  etc.,  Railroad 
Co.,  20  Kan.  519  (Semble). 

The  same  doctrine  was  applied  in 
Wisconsin  in  a  case  in  which  a  bank 
had  lands  acquired  in  the  payment 
of  debts  and  wished  to  sell  them: 
it  was  held  that  the  question  of 
which  lands  the  bank  had  so  acquired 
and  had  for  sale  was  a  fact  peculiarly 
within  the  knowledge  of  the  cashier, 
and  his  designation  of  the  lands  in 
engaging  a  broker  to  sell  them  bound 
the  bank.  Arnold  v.  National  Bank, 
126  Wis.  362,  3  L.  R.  A.  (N.  S.)  580. 

is  Paragraph  23. 

is  See  Bank  of  New  York  v.  Ameri- 
can Dock  &  Trust  Co.,  143  N.  Y.  559; 
Hanover  Nat.  Bank  v.  Am.  Dock  & 
Tr.  Co.,  148  N.  Y.  612,  51  Am.  St. 
Rep.  721;  Corn  Exchange  Bank  v. 
Am.  Dock  &  Tr.  Co.,  163  N.  Y.  332. 
But  not  when  issued  by  the  agent  to 


himself,  Bank  of  N.  Y.  v.  Am.  Dock 
&  Tr.  Co.,  supra;  Hanover  Nat.  Bank 
v.  Am.  Dock  &  Tr.  Co.,  supra.  (Com- 
pare Ruben  v.  Great  Fingall  Consoli- 
dated, [1906]  App.  Cas.  439)  unless 
his  principal  had  assented  to  or  ac- 
quiesced in  such  conduct.  Corn  Ex- 
change Bank  v.  Am.  Dock  &  Tr.  Co., 
supra.  The  New  York  rule  is  adopted 
in  South  Dakota.  Fletcher  v.  Great 
Western  Elevator  Co.,  12  S.  D.  643. 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


upon  the  surrender  of  previous  certificates,20  but  upon  this  point  the 
English  cases  are  opposed  as  in  the  case  of  the  bill  of  lading.21 

It  is  in  accordance  with  the  same  principle  that  a  bank  is  held  liable 
upon  a  check,  which  its  cashier  has  certified  as  good,  although  in  fact 
the  drawer  had  no  funds,  where  third  persons  have  in  good  faith  ac- 
quired rights  in  such  check  relying  upon  the  certificate.22 

On  the  other  hand,  in  Massachusetts,  where  an  agent  had  authority 
to  pledge  his  principal's  credit  so  that  at  any  time  not  more  than  a 
prescribed  amount  was  involved,  it  was  held  that  a  third  person  in  deal- 
ing with  the  agent  was  bound  to  find  out  how  much  the  indebtedness 
incurred  at  any  time  actually  was,  and  could  not  rely,  as  against  the 
principal,  upon  what  the  agent  said.23 


20  New  York,  etc.,  R.  Co.  v.  Schuy- 
ler,  34  N.  Y.  30;   Fifth  Ave.  Bank  v. 
Forty-second    St.   R.    Co.,   137    N.   Y. 
231,  33  Am.  St.  Rep.  712,  19  L.  R.  A. 
331;    American   Exch.   Nat.   Bank   v. 
Woodlawn  Cemetery,  120  N.  Y.  App. 
Div.  119;  Jarvis  v.  Manhattan  Beach 
Co.,  148  N.  Y.  652,  51  Am.  St.  Rep. 
727.     See  also,  Tome  v.  Parkersburg, 
etc.,  R.  Co.,  39  Md.  36,  17  Am.  Rep. 
540;  Kisterbock's  Appeal,  127  Pa.  601, 
14  Am.  St.  Rep.  868;   Allen  v.  South 
Boston  R.  Co.,  150  Mass.  200,  15  Am. 
St.  Rep.  185,  5  L.  R.  A.  716.    But  not 
where  the  agent  is  acting  for  him- 
self.    Moores  v.  Citizens'  Nat.  Bank, 
111  U.  S.  156,  28  L.  Ed.  385;  Farring- 
ton  v.  South  Boston  R.  Co.,  150  Mass. 
406,  15  Am.  St.  Rep.  222,  5  L.  R.  A. 
849.    See  also,  Ruben  v.  Great  Fingall 
Consolidated,  [1906]  App.  Cas.  439. 

21  Whitechurch  v.  Cavanagh,  [1902] 
App.  Cas.  117;   British  Mutual  Bank- 
ing Co.  v.  Charnwood  Forest  Ry.  Co., 
18  Q.  B.  Div.  714.    See  also,  Ruben  v. 
Great    Fingall    Consolidated,    [1906] 
App.   Cas.    439.     But   in   Hambro   v. 
Burnand,  [1904]  2  K.  B.  10,  the  court 
of   appeal,   distinguishing  the   above 
cases,  held  that  where  an  agent  had 
written  authority  to  issue  policies  of 
insurance,   a   policy   issued   by   him, 
conforming  to  the  terms  of  the  pow- 
er, was  binding  even  though  he  is- 
sued it  with  a  wrong  motive  and  in 
abuse  of  his  authority. 


Negotiable  instruments. — With  ref- 
erence to  strictly  negotiable  instru- 
ments, the  New  York  rule  as  laid 
down  in  North  River  Bank  v.  Aymer, 
3  Hill,  262,  is,  as  has  been  seen  (ante, 
§§  759,  760),  generally  followed.  In 
Louisville  Trust  Co.  v.  Louisville,  etc., 
R.  Co.,  22  C.  C.  A.  378,  75  Fed.  433, 
the  New  York  rule  was  adopted  to 
uphold  the  guaranty  of  corporate 
bonds  in  favor  of  bona  fide  purchas- 
ers as  against  the  objection  that  cor- 
porate regulations  had  not  been  com- 
plied with  in  its  execution.  See  as 
to  this  ante,  §  762. 

22  Hill    v.    Nation    Trust    Co.,    108 
Penn.  St.  1,  56  Am.  Rep.  189;    Mer- 
chants' Bank  v.  State  Bank,  10  Wall. 
(U.  S.)   604,  19  L.  Ed.  1008;   Espy  v. 
Bank  of  Cincinnati,  18  Wall.  (U.  S.) 
604;    Farmers',   etc.,   Bank   v.   Butch- 
ers', etc.,  Bank,  16  N.  Y.  125,  69  Am. 
Dec.  678;   Irving-  Bank  v.  Wetherald, 
36   N.  Y.  335;    Pope  v.   Bank  of  Al- 
bion,   59    Barb.    (N.   Y.)    226;    Union 
Trust  Co.  v.  Preston  Nat.  Bank,  136 
Mich.    460.      See    also,    Second    Nat. 
Bank   v.   Averell,   2   App.  Cas.   D.   C. 
470,  25  L.  R.  A.  761.     But  not  where 
he  certifies  his  own  check.     Lee  v. 
Smith,  84  Mb.  304,  54  Am.  Rep.  101; 
Claflin   v.  Farmers'   Bank,   25   N.   Y. 
293;    State  v.  Miller,  47  Oreg.  562,  6 
L.  R.  A.  (N.  S.)   365. 

23  Mussey     v.     Beecher,     3     Cush. 
(Mass.)     511.      See    also,    Baines    v. 


1383 


§§    1802,  1803]  THE  LAW   OF  AGENCY  [BOOK    IV 

III 

THE  EFFECT  UPON  THE  PRINCIPAL'S  RIGHTS  AND  OBLIGATIONS  OF 
NOTICE  TO  OR  KNOWLEDGE  IN  HIS  AGENT 

§  1802.  In  general. — The  question  frequently  arises  whether  the 
principal  may  be  affected  not  only  by  the  agent's  acts  and  contracts, 
but  also  by  the  knowledge  which  he  may  possess,  or  the  notice  which 
may  come  to  him,  respecting  the  subject  matter  of  the  agency,  and 
which  would  have  affected  the  principal  had  it  come  to  or  been  in  him 
while  he  was  acting  in  person.  The  question  has  arisen  in  a  great 
variety  of  forms,  but  the  answer  has  been  substantially  uniform,  and 
is  commonly  found  stated  in  the  language  of  the  following  section. 
Many  reasons  have  been  assigned,  but  they  are  all  predicated  upon  the 
injustice  which  would  result  if  the  principal  should  be  permitted  to  put 
forward  an  agent  to  transact  business  for  him  and  at  the  same  time 
escape  the  consequences  which  would  have  ensued  from  knowledge  of 
conditions  or  notice  of  the  rights  and  interests  of  others  had  the  princi- 
pal transacted  the  business  in  person.  "Policy  and  the  safety  of  the 
public,"  it  was  said  in  a  leading  case,24  "forbids  a  person  to  deny  knowl- 
edge while  he  is  so  dealing  as  to  keep  himself  ignorant,  or  so  that  he 
may  keep  himself  ignorant,  and  yet  all  the  while  let  his  agent  know, 
and  himself  perhaps  profit  by  that  knowledge.  In  such  a  case  it  would 
be  most  iniquitous  and  most  dangerous,  and  give  shelter  and  encourage- 
ment to  all  kinds  of  fraud,  were  the  law  not  to  consider  the  knowledge 
of  one  as  common  to  both,  whether  it  be  so  in  fact  or  not." 

Stating  this  conclusion,  first,  in  its  most  general  and  simple  form — 
§  1803.  General  rule — Notice  to  the  agent  is  notice  to  the  princi- 
pal.— It  is  the  general  rule,  settled  by  an  unbroken  current  of  au- 
thority, that  notice  to,  or  knowledge  of,  an  agent  while  acting  within 
the  scope  of  his  authority  and  in  reference  to  a  matter  over  which  his 
authority  extends,  .is  notice  to,  or  knowledge  of,  the  principal.26  This 

Ewing,  4  H.  &  C.  511,  L.  R.  1  Exch.  Nixon  v.  Hamilton,  2  Dr.  &  W.  364,  1 

320;    Lowell    Savings   Bank  v.   Win-  Ir.  Eq.  R.  46;    Toulmin  v.   Steere,  3 

Chester,  8  Allen  (Mass.),  109.  Mer.  210,  17  R.  R.  67;  In  re  Hennessy, 

24  Lord    Chancellor    Brougham,    in  2  Dr.  &  War.  555,  5  Ir.  Eq.  R.  259; 
Kennedy  v.  Green,  3  Myl.  &  K.  699.  Jennings  v.  Moore,  2  Vern.  609  (rati- 

25  In  re  Payne  &  Co.,  73  L.  J.  Ch.  fication);  Preston  v.  Tubbin,  1  Vern. 
849,  [1904]  2  Ch.  608,  91  .L.  T.  777,  11  286;  Espin  v.  Pemberton,  3  DeG.  &  J. 
Manson,   437;    Kennedy   v.    Green,    3  547,  28  L.  J.  Ch.  311;    Brotherton  v. 
Mylne  &  Keen,  699;   Dresser  v.  Nor-  Hatt,  2  Vern.  574;  Boursot  v.  Savage, 
wood,  17  C.  B.  (N.  S.)  466;   Le  Neve  35   L.   J.   Ch.    627,   L.   R.    2   Eq.   134; 
v.   Le   Neve,   Ambl.   436;    Sheldon   v.  Frail  v.  Ellis,  16  Beav.  350,  22  L.  J. 
Cox,  -2  Eden,  224;  Ashley  v.  Baillie,  2  Ch.   467;    Tweedale   v.   Tweedale,   23 
Ves.  368;   Maddox  v.  Maddox,  1  Ves.  Beav.  341;   Fuller  v.  Benett,  2  Hare, 
61;  Downesv.  Power,  2  Ball  &  B.  491;  394,  12  L.  J.  Ch.  355;    Atterbury  v. 

1384 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1803 


statement  of  it,  however,  is  wholly  tentative,  and  takes  no  account  of 
the  various  exceptions  to  it.    The  fuller  and  more  accurate  statement 


Wallis,  8  DeG.  M.  &  G.  454,  25  L.  J. 
Ch.  792;  Kettlewell  v.  Watson,  51  L. 
J.  Ch.  281,  21  Ch.  Div.  685,  46  L.  T. 
83;  Majoribanks  v.  Hovenden,  Dru. 
11,  6  Ir.  Eq.  R.  238;  Spaight  v.  Cowne, 
1  Hem.  &  M.  359;  Holland  v.  Hart,  40 
L.  J.  Ch.  701,  L.  R.  6  Ch.  678,  25  L. 
T.  191;  Dickerson  v.  Matheson,  50 
Fed.  73;  Chicago  St.  P.  M.  &  O.  Co. 
v.  Belliwith,  28  C.  C.  A.  358,  83  Fed. 
437;  Hoffmann  v.  Mayaud,  35  C.  C.  A. 
256,  S3  Fed.  171;  United  States  v. 
Smith,  181  Fed.  545;  Carter  v.  Gray, 
79  Ark.  273;  Union,  etc.,  Ins.  Co.  v. 
Robinson,  78  C.  C.  A.  268,  148  Fed. 
358,  8  L.  R.  A.  (N.  S.)  883;  Reed  v. 
Munn,  148  Fed.  737;  McCalmont  v. 
Lanning,  154  Fed.  353;  Brown  v. 
Cranberry  Iron  Co.,  72  Fed.  96,  18  C. 
C.  A.  444;  Alger  v.  Keith,  44  C.  C.  A. 
371,  105  Fed.  105;  Stanley  v. 
Schwalby,  162  U.  S.  255,  40  L.  Ed. 
960;  Armstrong  v.  Ashley,  204  U.  S. 
272,  51  L.  Ed.  482;  Russell  v.  Peavy, 
131  Ala.  563;  Kelly  v.  Burke,  132  Ala. 
235;  Lea  v.  Iron  Belt.  Merc.  Co.,  147 
Ala.  421,  119  Am.  St.  Rep.  93;  Trad- 
ers Ins.  Co.  v.  Letcher,  143  Ala.  400; 
Wheeler  v.  McGuire,  86  Ala.  398,  2  L. 
R.  A.  808;  Bessemer  Land  Co.  v.  Jen- 
kins, 111  Ala.  135,  56  Am.  St.  Rep.  26; 
Edson  &  Foulhe  Co.  v.  Winsell,  160 
Cal.  783;  Carter  v.  Grey,  79  Ark.  273; 
Allison  v.  Falconer,  75  Ark.  343; 
Skillern  v.  Baker,  82  Ark.  86,  118 
Am.  St.  Rep.  52,  12  Ann.  Gas.  243; 
Hunter  v.  Watson,  12  Cal.  363,  73  Am. 
Dec.  543;  Chapman  v.  Hughes,  134 
Cal.  641;  Pac.  Lumber  Co.  v.  Wilson, 
6  Cal.  App.  561;  Farmers,  etc., 
Bank  v.  Payne,  25  Conn.  444,  68 
Am.  Dec.  362;  Johnson  v.  Tribbey,  27 
App.  D.  C.  281;  Decree  22  App.  D.  C. 
368,  affirmed  Armstrong  v.  Ashley, 
204  U.  S.  272,  51  L.  Ed.  482;  New 
York,  etc.,  Ry.  v.  Russell,  83  Conn. 
581;  Saulsbury  v.  Wimberly,  60  Ga. 
78;  Thompson  v.  Overstreet,  80  Ga. 
767;  Githens  v.  Murray,  92  Ga.  748; 


Am.  St.  Rep.  241;  People's  Savings 
Bank  v.  Smith,  114  Ga.  185;  Collins 
v.  C^ews,  3  Ga.  App.  238;  Pursley  v. 
Stahley,  122  Ga.  362;  Burton  v. 
Perry,  146  111.  71;  Fischer  v.  Tuohy, 
186  111.  143;  Booker  v.  Booker,  208 
111.  529,  100  Am.  St.  Rep.  250;  Cowan 
v.  Curran,  216  111.  598;  Lowden  v. 
Wilson,  233  I1L  340;  Merchants  Nat 
Bank  v.  Nichols,  223  111.  41;  Sterling 
Bridge  Co.  v.  Baker,  75  111.  139;  Shep- 
pard  v.  Wood,  78  111.  App.  428; 
Mackay-Nisbit  Co.  v.  Kuhlman,  119 
111.  App.  144;  Shumacher  v.  Wolf,  125 
111.  App.  81;  Merchants  Nat.  Bank  v. 
Nichols  &  Shepherd,  123  111.  App.  430, 
affirmed  223  111.  41;  Marion  Mfg.  Co. 
v.  Harding,  155  Ind.  648;  Field  v. 
Campbell,  164  Ind.  389,  108  Am.  St. 
Rep.  301;  Miller  v.  Pfeiffer,  168  Ind. 
219;  Baldwin  v.  St.  Louis  K.  &  N.  W. 
Ry.  Co.,  75  Iowa,  297,  9  Am.  St.  Rep. 
479;  McMaken  v.  Niles,  91  Iowa,  628; 
Mason  v.  Simplot,  119  Iowa,  94; 
Campbell  v.  Park,  128  Iowa,  181; 
Ware  v.  Heiss,  133  Iowa,  285;  First 
Nat.  Bank  v.  Gunhus,  133  Iowa,  409. 
9  L.  R.  A.  (N.  S.)  471;  Sowler  v.  Day, 
58  Iowa,  252;  Condon  v.  Barnum 
(Iowa),  106  N.  W.  514;  Merritt  v. 
Huber,  137  Iowa,  135;  Van  Buren 
County  v.  Am.  Surety  Co.,  137  Iowa, 
490,  126  Am.  St.  Rep.  290;  Roach  v. 
Karr,  18  Kan.  529,  26  Am.  Rep.  788; 
Hardten  v.  State,  32  Kan.  637;  Bram- 
blett  v.  Henderson  (Ky.),  41  S.  W. 
575;  Day  v.  Exchange  Bank  of  Ken- 
tucky, 25  Ky.  Law  Rep.  1449,  78  S. 
W.  132;  Sebald  v.  Citizens  Bank 
(Ky.),  105  S.  W.  130;  Connolley  v. 
Beckett  (Ky.),  105  S.  W.  446;  Miller 
v.  Jones  (Ky.),  107  S.  W.  783;  Ger- 
man Ins.  Co.  v.  Goodfriend,  30  Ky. 
Law  Rep.  218,  97  S.  W.  1098;  Schwind 
v.  Boyce,  94  Md.  510;  Maryland  Trust 
Co.  v.  Nat.  Mec.  Bank,  102  Md.  608; 
Jaquith  v.  Davenport,  191  Mass.  415; 
Clark  v.  Roberts,  206  Mass.  235;  Rus- 
sell v.  Sweezey,  22  Mich.  235;  Sand- 


Strickland  v.  Vance,  99  Ga.  531,   59      ford  v.  Nyman,  23  Mich.  326;   Peoria 

1385 


§  i8o3] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


of  the  rule  is  reserved  for  a  later  section,28  after  the  subject  has  been 
more  completely  developed. 


Ins.  Co.  v.  Hall,  12  Mich.  202;  Taylor 
v.  Young,  56  Mich.  285;  Campau  v. 
Konan,  39  Mich.  362;  Thompson  v. 
Village  of  Mecosta,  141  Mich.  175; 
Brown  v.  Harris,  139  Mich.  372;  Geel 
v.  Goulden,  168  Mich.  413;  Union 
Central  Life  Insurance  Co.  v.  Smith, 
105  Mich.  353;  Tilleny  v.  Wolverton, 
50  Minn.  419;  St.  Paul  &  M.  Trust 
Co.  v.  Howell,  59  Minn.  295;  Jeffer- 
son v.  Leithauser,  60  Minn.  251;  Kel- 
ley  v.  Citizens  Mut  Ass'n,  96  Minn. 
477;  Robertson  Lumber  Co.  v.  Ander- 
son, 96  Minn..  527;  Lindgren  v.  Will- 
iam Bros.,  112  Minn.  186;  Reynolds 
v.  Ingersoll,  11  Smedes  &  M.  (Miss.) 
249,  49  Am.  Dec.  57;  Ross  v.  Houston, 
25  Miss.  591,  59  Am.  Dec.  231;  111. 
Cent.  R.  Co.  v.  Bryant,  70  Miss.  665; 
Equitable  Sureties  Co.  v.  Sheppard, 
78  Miss.  217;  Hedrick  v.  Beeler,  110 
Mo.  91;  Hickman  v.  Green,  123  Mo. 
165,  29  L.  R.  A.  39,  22  S.  W.  455, 
affirmed  27  S.  W.  440;  Priddy  v. 
MacKenzie,  205  Mo.  181;  King  v. 
Rowlett,  120  Mo.  App.  120;  Coombs 
v.  Barker,  31  Mont.  526:  Farmers 
&  Merchants  Ins.  Co.  v.  Wiard,  59 
Neb.  451;  Modern  Woodmen  of 
America  v.  Colman,  68  Neb.  660; 
Pringle  v.  Mod.  Woodmen  of  Ameri- 
ca, 76  Neb.  384;  Henry  v.  Omaha 
Packing  Co.,  81  Neb.  237;  Brook- 
house  v.  Union  Pub.  Co.,  73  N.  H.  368, 
111  Am.  St.  Rep.  623,  6  Ann.  Gas.  675, 
2  L.  R.  A.  (N.  S.)  993;  Warren  v. 
Hayes,  74  N.  H.  355;  Decree  (Ch. 
1905),  69  N.  J.  Eq.  580,  affirmed, 
Boice  v.  Conover,  71  N.  J.  Eq.  269; 
Vulcan  Detinning  Co.  v.  American 
Can  Co.,  70  N.  J.  Eq.  588;  Clement 
v.  Young-McShea  Amusement  Co.,  70 
N.  J.  Eq.  677,  118  Am.  St.  Rep.  747; 
Lockhart  v.  Washington  Gold  Min- 
ing Co.,  16  New  Mex.  223;  Weis- 
ser  v.  Denison,  10  N.  Y.  68,  61  Am. 
Dec.  731;  Consolidated  Fruit  Jar  Co. 
v.  Wisner,  103  N.  Y.  App.  Div.  453; 


Badger  v.  Cook,  117  N.  Y.  App.  Div. 
328;  Brooklyn  Distil.  Co.  v.  Standard 
Distil.  Co.,  120  N.  Y.  App.  Div.  237; 
Gregg  V.  Baldwin,  9  N.  D.  515;  Aet- 
na Indemnity  Co.  v.  Schroeder,  12  N. 
D.  110;  Barnes  v.  McClinton,  3  Pen. 
&  Watts  (Penn.),  67,  23  Am.  Dec.  62; 
Small  v.  Housman,  142  N.  Y.  App. 
Div.  760;  Jefferson  County  Bank  v. 
Dewey,  197  N.  Y.  14;  John  Monks  & 
Sons  v.  West  Street  Improvement 
Co.,  149  N.  Y.  App.  Div.  504;  Lam- 
bert v.  Jenkins,  112  Va.  376;  Cook 
v.  American  Tubing  Co.,  28  R.  I.  41, 
9  L.  R.  A.  (N.  S.)  193;  Salinas  v. 
Turner,  33  S.  C.  231;  American  Free- 
hold Land  Mortgage  Co.  of  London  v. 
Felder,  44  S.  C.  478;  Wardlaw  v. 
Troy  Oil  Mill,  74  S.  C.  368,  114  Am. 
St.  Rep.  1004;  Blowers  v.  Southern 
Ry.,  74  S.  C.  221;  Sparkman  v.  Sup. 
Council  American  Leg.  of  Honor,  57 
S.  C.  16;  Gibbes  Machinery  Co.  v. 
Roper,  77  S.  C.  39;  Lindquistv.  North- 
western,  etc.,  Co.,  22  S.  Dak.  298; 
Woodfolk  v.  Blount,  3  Hay.  (Tenn.) 
147,  9  Am.  Dec.  736;  Nashville,  etc., 
R.  R.  Co.  v.  Elliott,  1  Coldw.  (Tenn.) 
611,  78  Am.  Dec.  506;  U.  S.  v.  Schwal- 
by,  87  Tex.  604;  Grayson  County  Nat. 
Bank  v.  Hall  (Tex.  Civ.  App.),  91 
S.  W.  807;  Flynt  v.  Taylor  (Tex.  Civ. 
App.),  91  S.  W.  864;  Morrill  v.  Bos- 
ley,  40  Tex.  Civ.  App.  7;  Security 
Mut.  Life  Ins.  Co.  v.  Calvert  (Tex. 
Civ.  App.),  100  S.  W.  1033;  Lips- 
comb  v.  Houston  &  Texas,  etc.,  Ry., 
95  Tex.  5,  93  Am.  St.  Rep.  804,  55 
L.  R.  A.  869;  Foote  v.  Utah  Com- 
mercial &  Savings  Bank,  17  Utah, 
283;  Black  &  Sons  v.  Johnson,  65  W. 
Va.  518;  Backman  v.  Wright,  27  Vt. 
187,  65  Am.  Dec.  187;  Corliss  v. 
Smith,  53  Vt.  532;  Mack  Mfg. 
Co.  v.  Smoot,  102  Va.  724;  Fore- 
man v.  German  Alliance  Ins.  Co., 
104  Va.  694,  113  Am.  St.  Rep. 
1071,  3  L.  R.  A.  (N.  S.)  444; 


26  See  post,  §  1813. 
I386 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1804 


§    1804. 


Illustrations. — The  cases  in  which  this  rule  has 


been  applied  are  too  numerous  for  specific  statement,  but  the  following 
cases  will  serve  as  illustrations  of  the  application  of  the  rule.  Thus, 
where  an  agent  acts  for  his  principal  in  the  purchase  or  other  acqui- 
sition of  property  or  securities,  notice  to  the  agent  of  unrecorded 
deeds  27  or  mortgages,  or  of  liens  upon  28  or  equities  29  against  the  prop- 
erty, or  of  defects  or  infirmities  in  the  title,30  will  be  imputed  to  the 
principal.  So  where  an  agent  acts  for  his  principal  in  the  loaning  of 
money,  the  principal  will  be  affected  by  the  knowledge  of  the  agent  as 
to  who  the  real  borrower  is.31  The  same  rule  applies  where  an  agent 
authorized  to  purchase  notes  had  notice  that  they  were  "tainted  with 
usury ;" 32  where  an  agent  authorized  to  receive  money  had  notice  that 
it  was  being  taken  from  a  trust  fund;33  where  an  agent  buying  stock 
in  a  bank  had  notice  that  its  capital  was  impaired ; 3*  where  an  agent 
doing  business  with  a  firm  had  notice  of  the  withdrawal  of  a  partner  ;35 


Traders  &  Trucksters  Bank  v.  Black, 
108  Va.  59;  Lynch  v.  Kineth, 
36  Wash.  368,  104  Am.  St.  Rep.  958; 
Haynes  v.  Gay,  37  Wash.  230;  Allen 
v.  Treat,  48  Wash.  552;  Elliott  v. 
Knights  of  Modern  Mac.,  46  Wash. 
320,  13  L.  R.  A.  (N.  S.)  856;  Knott  v. 
Tidyman,  86  Wis.  164;  Peterson  v.  El- 
holm,  130  Wis.  1.  [This  list  does 
not  purport  to  be  complete.] 

Under  statutes. — Whether  notice 
to  an  agent  is  notice  to  his  princi- 
pal under  statutes  providing  for  no- 
tice, must  depend  upon  the  circum- 
stances and  the  statute.  In  many 
cases,  it  will  be  clear  that  a  personal 
notice  was  contemplated.  See  Street 
Lumber  Co.  v.  Sullivan,  201  Mass. 
484,  16  Ann.  Gas.  354. 

2?McMaken  v.  Niles,  91  Iowa,  628; 
Harrell  v.  Broocks,  52  Tex.  Civ.  App. 
334;  so  a  recorded  mortgage.  Field 
v.  Campbell,  164  Ind.  389,  108  Am.  St. 
Rep.  301. 

28Schwind  v.  Boyce,  94  Md.  510; 
Fischer  v.  Tuohy,  186  111.  143. 

29  Knott  v.  Tidyman,  86  Wis.  164; 
Morris  v.  Georgia  Loan  Co.,  109  Ga. 
12,  46  L.  R.  A.  506;  Henry  v.  Sneed, 
97  Mo.  407,  17  Am.  St.  Rep.  580;  Mul- 
lanphy  Sav.  Bank  v.  Schott,  135 
111.  655,  25  Am.  St.  Rep.  401; 
Johnston  Harvester  Co.  v.  Miller,  72 
Mich.  265,  16  Am.  St.  Rep.  536;  Hed- 

1387 


rick  v.  Beeler,  110  Mo.  91;  Coombs  v. 
Barker,  31  Mont.  526;  Huff  v.  Farwell, 
67  Iowa,  298;  Cassiday,  etc.,  Co.  v. 
Terry,  69  W.  Va.  572. 

so  Stanley  v.  Schwalby,  162  U.  S. 
255,  40  L.  Ed.  960;  Brown  v.  Cran- 
berry Iron  &  Coal  Co.,  18  C.  C.  A. 
444,  72  Fed.  96;  Bramblett  v.  Hen- 
derson (Ky.),  41  S.  W.  575;  Hick- 
man  v.  Green,  123  Mo.  165,  29  L.  R. 
A.  39;  so  insurance  agents'  notice  of 
incumbrances  on  the  property.  Farm- 
ers &  Mer.  Ins.  Co.  v.  Wiard,  59  Neb. 
451. 

31  American  Land  Mortgage  Co.  of 
London    v.    Felder,    44    S.    C.    478; 
Salinas    v.    Turner,    33    S.    C.    231; 
Strickland  v.   Vance,  99   Ga.   531,   59 
Am.  St.  Rep.  241;    Russell  v.  Peavy, 
131   Ala.   563;    so   knowledge   of  the 
cashier  of  a  bank  in  regard  to  bor- 
rower's   security.      Foote    v.    Utah, 
Com.  &  Sav.  Bank,  17  Utah,  283. 

32  Haynes   v.   Gay,   37   Wash.    230; 
Sheppard  v.  Wood,  78  111.  App.  428. 

33  Manson  v.  Simplot,  119  Iowa,  94; 
Chapman  v.  Hughes,  134  Cal.  641. 

3*  Day  v.  Exchange  Bank  of  Ken- 
tucky, 117  Ky.  357. 

ssGithens  v.  Murray,  92  Ga.  748; 
Straus  Gunst.  Co.  v.  Sparrow,  148  N. 
C.  309;  Jenkins  v.  Renfrew,  151  N. 
C.  323: 


§  i8o4] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


where  an  agent  authorized  to  sell  goods  had  notice  of  the  mental  in- 
capacity of  the  vendee  ;38  where  an  agent  making  a  sale  of  land  had  no- 
tice as  to  who  the  real  purchaser  was  ;ST  where  a  sales  agent  had  notice 
of  defects  in  machinery  sold  by  him  with  a  warranty  ;88  where  an  agent 
in  charge  of  a  lumber  yard  had  notice  of  the  dangerous  manner  in 
which  the  lumber  was  piled;89  where  a  leasing  agent  had  notice  that 
the  lessee  was  making  improvements;40  where  an  agent  in  whose  de- 
partment it  was  to  receive  such  notice  had  notice  of  the  assignment  of 
a  claim  ;41  where  an  agent  charged  with  the  duty  of  receiving  goods 
for  export  had  notice  that  the  exportation  of  the  particular  goods  was 
prohibited;*2  where  an  agent  charged  with  the  control  of  a  team  of 
horses  had  notice  that  they  were  in  the  habit  of  running  away j43  where 
a  coachman  having  charge  of  a  dog  had  notice  that  the  dog  was  vi- 
cious.4* So  knowledge  of  an  attorney,  present  and  acting  for  his  client, 
as  to  the  character  of  a  document  signed  by  his  client,  is  imputed  to  the 
client.*6  So  where  an  agent  had  sufficient  authority  to  institute  an  ac- 
tion based  on  his  own  knowledge,  the  principal  was  held  to  have  notice 
of  all  the  facts  under  which  the  agent  acted.46 


38  Kelly  v.  Burke,  132  Ala.  235;  or 
of  a  notice  not  to  sell  to  one  who 
was  an  habitual  drunkard.  Jackson 
Co.  v.  Schmid,  141  Mo.  App.  229. 

37  Tilleny  v.  Wolverton,  50  Minn. 
419. 

ss  Marion  Mfg.  Co.  v.  Harding,  155 
Ind.  648;  Buckeye  Saw  Co.  v.  Ruth- 
erford, 65  W.  Va.  395.  But  see,  Neal 
v.  Smith,  54  C.  C.  A.  226,  116  Fed.  20. 

so  Baldwin  v.  St  Louis  K.  &  N.  W. 
Ry.  Co.,  75  Iowa,  297,  9  Am.  St.  Rep. 
479. 

40  Jefferson  v.  Leithauser,  60  Minn. 
251. 

*i  Illinois  Cent.  Ry.  Co.  v.  Bryant, 
70  Miss.  665. 

42Dickerson  v.  Matheson,  50  Fed. 
73,  affirmed  6  C.  C.  A.  466,  57  Fed. 
524. 

43  Lynch  v.  Kineth,  36  Wash.  368, 
104    Am.    St.    Rep.    958;     Gropp    v. 
Great    Atlantic    Tea    Co.,  141    N.  Y. 
App.  Div.  372;  Henry  v.  Omaha  Pack- 
ing Co.,  81  Neb.  237. 

44  Baldwin  v.  Casella,  26  L.  T.  Rep. 
N.  S.  707.     Compare  Stiles  v.  Cardiff 
Steam  Nav.  Co.,  10  L.  T.  Rep.  N.  S. 

1388 


844,  33  L.  J.  Q.  B.  310.  See  also, 
Brice  v.  Bauer,  108  N.  Y.  428,  2  Am. 
St.  Rep.  454. 

4G  Chicago,  etc.,  Ry.  Co.  v.  Belli- 
with,  83  Fed.  437,  28  C.  C.  A.  358. 

46  Campau  v.  Konan,  39  Mich.  362. 

Knowledge  of  an  attorney  engaged 
in  collecting  a  claim  of  mortgage  not 
properly  recorded,  is  notice  to  his 
principal.  Littauer  v.  Houck,  92 
Mich.  162,  31  Am.  St.  Rep.  572. 

Where  defendant's  agent  to  con- 
tract for  the  delivery  of  flues  knew 
or  should  have  known  the  special 
purpose  for  which  the  flues  were 
purchased,  his  knowledge  is  the 
principal's  in  determining  liability 
for  special  damage  to  plaintiff  for 
breach  of  contract.  Neal  v.  Pender- 
Hyman  Hdwe.  Co.,  122  N.  Car.  104, 
65  Am.  St.  Rep.  697. 

Notice  of  a  defective  ceiling  to  an 
agent  to  collect  rent  and  make  re- 
pairs is  chargeable  to  the  principal 
In  an  action  of  damages  by  the  ten- 
ant. Bollard  v.  Roberts,  130  N.  Y. 
269,  14  L.  R.  A.  238. 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§ 


In  a  great  variety  of  cases,  too  numerous  to  be  enumerated  here,  no- 
tice to  or  knowledge  of  the  agent  acting  for  an  insurance  company  has 
been  imputed  to  his  principal.47 

§  1805.  The  theories  of  the  rule — a.  Identification. — Two  gen- 
eral theories  prevail  as  to  the  foundation  upon  which  this  rule  is  based, 
and  the  results  of  these  respective  theories  are  not  entirely  alike.  The 
first  finds  the  reason  of  the  rule  in  the  legal  identity  of  the  agent  with 
the  principal  during  the  continuance  of  the  agency — in  the  fact  that 
the  agent,  while  keeping  within  the  scope  of  his  authority,  is,  as  to  the 
matters  embraced  within  it,  for  the  time  being  the  principal  himself,  or, 
at  all  events,  the  alter  ego  of  the  principal — the  principal's  other  self. 
If  the  principal  had  acted  in  person,  he  would  or  would  not,  under  the 
same  circumstances,  have  received  the  notice  or  knowledge  in  person. 
In  legal  effect  the  situation  should  not  be  different  where  he  acts  by  his 
agent.  Whatever  notice  or  knowledge,  then,  reaches  the  agent  during 
this  time  and  under  these  circumstances,  in  law  reaches  the  principal, 
whether  it  does  so  in  fact  or  not.  It  is  thought  to  be  the  legitimate  and 
necessary  result  of  this  view,  therefore,  that  only  such  notice  or  knowl- 
edge as  comes  to  the  agent,  while  he  is  agent,  is  thus  binding  upon  the 
principal.4* 


4?  See  ante,  §§  1066-1073.  Creed 
v.  Sun  F.  Ins.  Co.,  101  Ala.  522,  23 
L.  R.  A.  177;  Phoenix  Ins.  Co.  v. 
Flemming,  65  Ark.  54,  39  L.  R.  A. 
789;  Home  Ins.  Co.  v.  Mendenhall, 
164  111.  458,  36  L.  R.  A.  374;  Hamil- 
ton v.  Dwelling  House  Ins.  Co.,  98 
Mich.  535,  22  L.  R.  A.  527;  Dailey  v. 
Preferred,  etc.,  Ass'n,  102  Mich.  289, 
26  L.  R.  A.  171;  Humphreys  v.  Na- 
tional Ben.  Ass'n,  139  Pa.  264,  11  L. 
R.  A.  564;  Bawden  v.  London,  etc., 
Ass'n  Co.,  F1892]  2  Q.  B.  534.  (This 
list  does  not  purport  to  be  complete.) 

48  "The  agent  stands  in  place  of 
the  principal,  and  notice  therefore  to 
the  agent  is  notice  to  the  principal; 
but  he  cannot  stand  in  the  place  of 
the  principal  until  the  relation  of 
principal  and  agent  is  constituted, 
and  as  to  all  the  information  which 
he  previously  acquired,  the  principal 
is  a  mere  stranger."  Sir  John  Leach 
in  Mountford  v.  Scott,  3  Madd.  34. 
"It  is  only  during  the  agency  that 
the  agent  represents  and  stands  in 


the  shoes  of  the  principal.  Notice 
to  him,  then,  is  notice  to  the  princi- 
pal. 'Notice  to  him  twenty-four  hours 
before  the  relation  commenced  is  no 
more  notice  than  twenty-four  hours 
after  it  has  ceased  would  be." 
Sharswood,  J.,  in  Houseman  v.  Gir- 
ard,  etc.,  Building  Ass'n,  81  Pa.  256. 
[But  in  Gunster  v.  Scranton,  etc., 
Co.,  181  Pa.  327,  59  Am.  St.  Rep.  650, 
the  rule  is  said  to  be  based  upon  the 
duty  to  communicate  the  informa- 
tion to  the  principal.] 

Somewhat  of  double  ground  was 
taken  by  the  Supreme  Court  of 
Michigan:  "The  reason  upon  which 
the  doctrine  of  notice  to  the  agent 
being  held  notice  to  the  principal 
rests,  is  that  the  agent  is  substituted 
in  the  place  of,  and  represents,  the 
principal  in,  the  particular  trans- 
action, and  therefore  while  acting  in 
such  matters  he  takes  the  place  of 
the  principal,  and  the  latter  is  bound 
by  the  agent's  act  in  the  light  of 
the  knowledge  then  possessed  by  the 


1389 


§  i8o6] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


A  theory  of  identification,  however,  which  shall  take  the  agent  as  it 
finds  him,  that  is,  with  his  then  existing  knowledge,  is  not  difficult  to 
imagine.  It  exists  in  other  fields.  If,  for  example,  I  buy  a  horse  and 
then  employ  the  former  owner  as  driver,  in  determining  my  liability  as 
his  master  to  third  persons  for  his  negligent  driving,  his  previous  knowl- 
edge of  the  habits  and  characteristics  of  the  horse  would  be  taken  into 
account;  in  determining  his  liability  to  me  for  negligent  use  of  the 
horse,  I  should  expect  to  take  advantage  of  the  same  knowledge ;  if  now 
I  should  authorize  him  as  my  agent  to  sell  the  horse,  why  should  not  the 
same  thing  be  true? 

§  1806.  b.  Conclusive  presumption  of  communication. — 

The  other  theory  is  based  upon  the  rule  that  it  is  the  duty  of  the  agent 
to  disclose  to  his  principal  all  notice  or  knowledge  which  the  agent 
may  possess  and  which  appears  to  be  necessary  for  the  principal's  pro- 
tection or  guidance.  This  duty  the  law  conclusively  presumes  the 
agent  to  have  performed,  and,  therefore,  imputes  to  the  principal  what- 
ever notice  or  knowledge  the  agent  then  possessed,  whether  he  in  fact 
disclosed  it  or  not.40  According  to  this  view  it  is  immaterial  when  the 
agent  obtained  the  information,  if  he  then  possessed  it. 


agent."  Marston,  C.  J.,  in  Advertiser 
&  Tribune  Co.  v.  Detroit,  43  Mich. 
116. 

In  Boursot  v.  Savage,  L.  R.  2  Eq. 
134,  Kindersley,  V.  C.,  said:  "It  is 
a  moot  question  upon  what  principle 
this  doctrine  rests.  It  has  been  held 
by  some  that  it  rests  on  this: — that 
the  probability  is  so  strong  that  the 
solicitor  would  tell  his  client  what 
he  knows  himself,  that  it  amounts  to 
an  irresistible  presumption  that  he 
did  tell  him;  and  so  you  must  pre- 
sume actual  knowledge  on  the  part 
of  the  client.  I  confess  my  own  im- 
pression is  that  the  principle  on 
which  the  doctrine  rests  is  this: 
that  my  solicitor  is  alter  ego;  he  is 
myself;  I  stand  in  precisely  the  same 
situation  as  he  does  in  the  trans- 
action, and  therefore  his  knowledge 
is  my  knowledge;  and  it  would  be  a 
monstrous  injustice  that  I  should 
have  the  advantage  of  what  he 
knows  without  the  disadvantage. 
But  whatever  be  the  principle  upon 


which  the  doctrine  rests,  the  doc- 
trine itself  is  unquestionable." 

49  "The  general  rule  that  a  princi- 
pal is  bound  by  the  knowledge  of 
his  agent  is  based  on  the  principle  of 
law,  that  it  is  the  agent's  duty  to 
communicate  to  his  principal  the 
knowledge  which  he  has  respecting 
the  subject-matter  of  negotiation, 
and  the  presumption  that  he  will  per- 
form that  duty."  Bradley,  J.,  in  The 
Distilled  Spirits,  11  Wall.  (U.  S.)  at 
p.  367,  20  L.  Ed.  167.  See  also, 
Irvine  v.  Grady,  85  Tex.  120. 

In  New  Jersey  a  somewhat  differ- 
ent theory  apparently  prevails  and 
the  principal  is  only  charged  with  no- 
tice where  he  would  have  acquired 
it  if  he  had  acted  in  person.  See 
Sooy  v.  State,  41  N.  J.  L.  394;  Wil- 
lard  v.  Denise,  50  N.  J.  Eq.  483,  26 
Atl.  29,  35  Am.  St.  Rep.  788;  Vulcan 
Detinning  Co.  v.  American  Can  Co., 
70  N.  J.  L.  588,  67  Atl.  339;  Lanning 
v.  Johnson,  75  N.  J.  L.  259,  69  Atl. 
490. 


1390 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1807,  l8o8 

It  is  obvious  that  this  is  rather  a  justification  of  the. rule  than  a  rea- 
son for  it.  A  rule  based  upon  the  performance  of  a  duty  which,  so  far  as 
the  point  here  involved  is  concerned  is  one  from  which  the  agent  can- 
not escape,  from  which  the  principal  can  not  release  him,  and  which 
the  law  conclusively  presumes  has  been  performed  whether  it  has  been 
in  fact  or  not,  seems  to  differ  little  from  a  purely  arbitrary  requirement. 

Its  real  justification  is  doubtless  found  in  the  conviction  that  it  can 
not  be  tolerated  that  an  agent  shall  act  in  a  transaction,  with  his  mind 
full  of  material  knowledge  respecting  it,  and  yet  the  principal  be  wholly 
unaffected  by  that  knowledge,  merely  because  the  agent  happened  to 
acquire  it  before  the  agency  began. 

The  courts  have  not,  however,  always  recognized  these  differences, 
nor  have  their  decisions  in  all  cases  been  consistent  with  the  theory 
adopted. 

§  1807.  I.  Notice  acquired  during  agency. — So  far  as  that  notice 
or  knowledge  which  is  acquired  during  the  agency  is  concerned,  the 
result  under  either  theory  is  obviously  the  same. 

Such  notice  or  knowledge  is  chargeable  to  the  principal  in  the  same 
manner,  and  with  the  same  effect,  as  though  it  had  been  communicated 
to  or  acquired  by  him  in  person. 

As  has  been  pointed  out,  it  is,  of  course,  entirely  immaterial  that  the 
agent  has  not  in  fact  communicated  his  information  to  the  principal. 
If  the. agent  fails  to  do  his  duty  in  this  respect,  and  the  principal  suffers 
injury  thereby,  he  has  his  remedy  against  the  agent. 

§  1808.  II.  Knowledge  acquired  prior  to  agency. — With  reference 
to  knowledge  acquired  before  the  agency  began,  however,  there  is  more 
difficulty,  and  the  two  theories  lead  to  different  results.  The  theory 
based  upon  the  legal  identity  of  the  parties,  as  has  been  seen,  limits  the 
application  of  the  rule  to  such  notice  or  knowledge  as  was  acquired  dur- 
ing the  agency.  This  was  at  first  adopted  by  the  English  courts,50  and 
has  since  been  followed  by  many  of  the  courts  in  the  United  States." 

.  ('    :/   or   .noVifloO 

BO  Preston  v.  Tubbin,  1  Vern.  287;          ""It  is  well  settled,"  said  Shars- 

Brotherton    v.    Hatt,    2    Vern.    574;  wood,    C.    J.,    "that   the   principal    is 

Fitzgerald   v.   Fauconberg,   Fitz   Gib-  only  to  be  affected  by  knowledge  ac- 

bon,  207;   Lowther  v.  Carlton,  2  Atk.  quired  in  the  course  of  the  business 

242;  Warrick  v.  Warrick,  3  Atk.  291;  in  which  the  agent  was  employed." 

Worsley  v.  Scarborough,  3  Atk.  392;  Houseman  v.  Girard,  etc.,  Ass'n,   81 

Le    Neve   v.    Le    Neve,    3    Atk.    648;  Pa.  256   [citing  Hood  v.  Fahnestock, 

Mountford  v.  Scott,  3  Madd.  34  s.  c.  8  Watts  (Pa.),  489,  44  Am.  Dec.  147; 

on    appeal,    1    Turn.    &    Russ.    274;  Bracken  v.  Miller,  4  Watts  &  Serg. 

Hiern  v.  Mill,  13  Ves.  Jr.  114.     See  (Pa.)     102;     Martin    v.    Jackson,    2 

also,    Taylor   v.   Yorkshire    Ins.    Co..  Casey    (27    Pa.),    504,    67    Am.    Dec. 

[1913]  1  Irish,  1.  489].      See   also,   Wetzel   v.   Linnard, 

1391 


§  1809] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


The  other  theory,  however,  based  upon  the  duty  of  the  agent  to  disclose 
to  his  principal  all  knowledge  and  information  actually  possessed  by  the 
agent  in  relation  to  the  subject-matter  of  the  agency,  no  matter  when 
acquired,  and  therefore  charging  the  principal  with  it,  has  since  been 
firmly  established  by  the  English  courts,52  and  has  been  adopted  by  the 
supreme  court  of  the  United  States,53  and  by  many  of  the  states.54 

§  1809.  Requirement  of  present  knowledge. — It  is  indis- 
pensable to  this  rule  imputing  to  the  principal  knowledge  which  the 
agent  acquired  before  the  creation  of  the  agency,  that  it  shall  still  be 
present  in  the  agent's  mind  when  he  becomes  charged  with  the  duty  of 


15  Pa.  Sup.  Ct.  Rep.  503;  Langen- 
heim  v.  Anschutz-Bradberry  Co.,  2 
Pa.  Sup.  Ct.  285;  Bangor,  etc.,  Ry. 
Co.  v.  American  Slate  Co.,  203  Pa.  6. 
See  also,  the  recent  case  declaring 
this  the  rule  in  Pennsylvania,  al- 
though it  is  held  otherwise  by  the 
United  States  supreme  court.  Satter- 
field  v.  Malone,  35  Fed.  Rep.  445,  1 
L.  R.  A.  35. 

To  the  same  effect  are:  Willis  v. 
Vallette,  4  Mete.  (Ky.)  186;  Howard 
Ins.  Co.  v.  Halsey,  8  N.  Y.  271,  59  Am. 
Dec.  478;  McCormick  v.  Wheeler,  36 
111.  114,  85  Am.  Dec.  388;  Mundine  v. 
Pitts,  14  Ala.  84;  Pepper  v.  George, 
51  Ala.  190;  McCormick  v.  Joseph,  83 
Ala.  401;  Wheeler  v.  McGuire,  86 
Ala.  398,  2  L.  R.  A.  808;  Goodbar  v. 
Daniel,  88  Ala.  583,  16  Am.  St.  Rep. 
76.  [But  see,  Lea  v.  Iron  Belt  Merc. 
Co.,  147  Ala. '421,  119  Am.  St.  Rep. 
93,  8  L.  R.  A.  (N.  S.)  279,  since 
overruled  in  Hall,  etc.,  Mach.  Co.  v. 
Haley  Furn.  Mfg.  Co.,  174  Ala.  190, 
56  South.  726];  Pritchett  v.  Sessions, 
10  Rich.  (S.  C.)  L.  293;  Weisser  v. 
Denison,  10  N.  Y.  68;  61  Am.  Dec. 
731;  Farmers,  etc.,  Bank  v.  Payne,  25 
Conn.  444,  68  Am.  Dec.  362;  Bank  of 
United  States  v.  Davis,  2  Hill  (N. 
Y.),  451;  Hayward  v.  National  Ins. 
Co.,  52  Mo.  181,  14  Am.  Rep.  400; 
Blumenthal  v.  Brainerd,  38  Vt.  402, 
91  Am.  Dec.  349;  Second  Nat.  Bank 
v.  Curren,  36  Iowa,  555;  Atchison, 
etc.,  R.  R.  Co.  v.  Benton,  42  Kan.  698; 
Kauffman  v.  Robey,  60  Tex.  308,  48 
Am.  Rep.  264;  Texas  Loan  Agency 
v.  Taylor,  88  Tex.  47;  Allen  v.  Gar- 


rison,   92    Tex.    546;     Teagarden    v. 

Lumber  Co.,  Tex.  ,  154  S.  W. 

973;    Meyers   V.    Gerhart,    54    Wash. 
657. 

82  Dresser  v.  Norwood,  17  Com. 
Bench  (N.  S.),  466;  Rolland  v.  Hart, 
L,  R.  6  Ch.  App.  678. 

53  The  Distilled  Spirits,  11  Wall. 
(U.  S.)  356,  20  L.  Ed.  167. 

"Schwind  v.  Boyce,  94  Md.  510; 
Trentor  v.  Pothen,  46  Minn.  298,  24 
Am.  St.  Rep.  225;  Hunter  v.  Watson, 
12  Cal.  363,  73  Am.  Dec.  543;  Bierce 
v.  Red  Bluff  Hotel,  31  Cal.  160;  Hart 
v.  Bank,  33  Vt.  252;  Whitten  v.  Jen- 
kins, 34  Ga.  297;  Day  v.  Wamsley, 
33  Ind.  145;  Cummings  v.  Harsa- 
brauch,  14  La.  Ann.  711;  Hovey  v. 
Blanchard,  13  N.  H.  145;  Bank  v. 
Campbell,  4  Hump.  (Tenn.)  394; 
Campau  v.  Konan,  39  Mich.  362; 
Chouteau  v.  Allen,  70  Mo.  290;  Leb- 
anon Savings  Bank  v.  Hollenbeck,  29 
Minn.  322;  Abell  v.  Howe,  43  Vt.  403; 
Yerger  v.  Barz,  56  Iowa,  77;  Fairfleld 
Savings  Bank  v.  Chase,  72  Me.  226, 
39  Am.  Rep.  319;  Suit  v.  Woodhall, 
113  Mass.  391;  Shafer  v.  Phoenix 
Ins.  Co.,  53  Wis.  361;  Brothers  v. 
Bank,  84  Wis.  381,  36  Am.  St.  Rep. 
932;  Wilson  v.  Minnesota,  etc.,  Ins. 
Ass'n,  36  Minn.  112,  1  Am.  St.  Rep. 
659;  Constant  v.  University  of  Ro- 
chester, 111  N.  Y.  604,  7  Am.  St.  Rep. 
769,  2  L.  R.  A.  734;  Gaspard  v.  Four- 
teenth St.  Store,  143  N.  Y.  App.  Div. 
402;  Snyder  v.  Partridge,  138  III. 
173,  32  Am.  St.  Rep.  130;  Wright 
v.  Hooker,  55  Tex.  Civ.  App.  47; 
Cabin  Branch  Min.  Co.  v.  Hutchison, 


1392 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    I809 


acting  with  reference  to  the  matter  to  which  the  knowledge  relates.55 
A  principal  may  be  affected  by  knowledge  which  he  himself  once  had, 
but  has  now  forgotten.  He  may  also  be  affected  by  knowledge  which 
his  agent  acquired  or  had  during  the  agency  and  under  such  circum- 
stances as  to  make  it  notice,  but  which  the  agent  has  since  forgotten.58 
But  he  cannot  be  affected  by  information  which  one  who  is  now  his 
agent  once  had,  but  had  forgotten  before  he  became  agent  and  before 

• 
112  Va.  37,  Ann.  Gas.  1912,  D.  93,  and      between  the  acts,  it  was  said  that  no 


the  many  other  cases  cited  in  the 
following  notes. 

ss  Lebanon  Savings  Bank  v.  Hol- 
lenbeck,  29  Minn.  322;  Dresser  v. 
Norwood,  17  C.  B.  (N,  S.)  466;  The 
Distilled  Spirits,  11  Wall.  (U.  S.) 
356,  20  L.  Ed.  167;  Fairfield  Savings 
Bank  v.  Chase,  72  Me.  226,  39  Am. 
Rep.  319. 

Knowledge  or  notice  will  not  bind 
if  it  does  not  appear  to  have  been 
retained.  Yerger  v.  Barz,  56  Iowa,  77. 
To  the  same  effect:  Brothers  v.  Bank 
of  Kaukauna,  84  Wis.  381,  36  Am. 
St.  Rep.  932;  Wilson  v.  Minn.  Farm- 
ers Ins.  Ass'n,  36  Minn.  112,  1  Am. 
St.  Rep.  659;  Gregg  v.  Baldwin,  9 
N.  D.  515. 

In  Constant  v.  University  of  Ro- 
chester, 111  N.  Y.  604,  7  Am.  St.  Rep. 
769,  2  L.  R.  A.  734,  where  an  agent 
who  acted  for  the  defendant  in  tak- 
ing a  mortgage,  the  agent,  being  an 
attorney  in  active  practice,  had 
eleven  months  before  acted  for  the 
plaintiffs  in  taking  a  mortgage  upon 
the  same  premises  which  was  not  re- 
corded, it  was  held  that  in  the  ab- 
sence of  clear  and  satisfactory  show- 
ing that  the  agent  remembered  the 
existence  of  the  plaintiffs'  mortgage 
when  he  acted  for  the  defendant,  no 
notice  of  the  existence  of  the  first 
mortgage  could  be  imputed  to  de- 
fendant. To  the  same  effect:  Slat- 
tery  v.  Schwannecke,  118  N.  Y.  543; 
Comey  v.  Harris,  133  N.  Y.  App.  Div. 
686. 

In  Equitable  Securities  Co.  v. 
Sheppard,  78  Miss.  217,  where  the 
same  sort  of  question  was  involved, 


court  could  assume,  in  the  absence 
of  clear  and  satisfactory  proof,  that 
the  first  act  was  present  to  the 
agent's  mind. 

In  Badger  v.  Cook,  117  N.  Y.  App. 
Div.  328,  where  a  person  had  acted 
as  agent  in  a  transaction  involving 
the  ownership  of  cattle,  and  it  ap- 
peared that  while  the  cattle  were 
still  calves  and  before  he  became 
agent  he  had  received  notice  of  cer- 
tain facts  respecting  their  owner- 
ship, it  was  held  that  this  notice 
could  not  be  imputed  to  his  princi- 
pal unless  it  was  shown  by  clear  and 
satisfactory  proof  that  he  actually 
remembered  it  at  the  time  of  the 
transaction  in  question. 

In  a  number  of  cases  information 
acquired  apparently  before  the  com- 
mencement of  the  agency  has  been 
held  to  be  binding  upon  the  princi- 
pal, no  question  being  raised  as  to 
whether  the  agent  ill  fact  remem- 
bered it  or  not;  but  they  were  all 
cases  wherein  the  events  constituted 
practically  one  continuous  transac- 
tion, and  there  was  probably  no 
room  for  question  that  the  agent  ac- 
tually remembered.  See  Henry  v. 
Omaha  Packing  Co.,  81  Neb.  237; 
Walker  v.  Grand  Rapids  Flouring 
Mill  Co.,  70  Wis.  92;  Brothers  v. 
Bank  of  Kaukauna,  84  Wis.  381,  36 
Am.  St.  Rep.  932;  White  v.  King,  53 
Ala.  162;  Dunklin  v.  Harvey,  56  Ala. 
177;  Wiley,  Banks  &  Co.  v.  Knight, 
27  Ala.  336;  Miller  v.  Jones  (Ky.), 
107  S.  W.  783. 

so  Cox  v.  Pearce,  112  N.  Y.  637,  3 
L.  R.  A.  563. 


but  more  than  six  years  had  elapsed 

88  1393 


§  i8io] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


there  were  any  facts  to  make  it  significant  or  any  duty  to  report  it  or 
remember  it  or  to  govern  one's  conduct  with  reference  to  it.  The 
agent's  recollection  must  be  not  simply  hazy  and  indefinite,  but  as  defi- 
nite and  precise  as  would  be  required  if  now  coming  to  the  agent  for 
the  first  time.57  It  must  also  be  present  to  his  mind  so  nearly  at  least 
in  relation  to  the  actual  transaction  which  it  affects  as  to  impose  upon 
the  agent  the  obvious  duty  to  communicate  it  in  reference  to  that  trans- 
action ;  it  is  sometimes  said  that  it  must  be  "present  to  his  mind  at  the 
very  time  of  the  transaction  in  question."  58  The  question  is  a  question 
of  fact,59  and  the  burden  of  proving  that  the  agent  had  such  recollec- 
tion is  held  to  be  upon  the  party  alleging  it,  and  not  upon  the  principal 
to  show  that  the  agent  did  not  have  it.60 

The  same  considerations  apply  to  the  case  in  which  the  agent  during 
the  agency  acquires  knowledge  respecting  a  matter  not  then  so  related 
to  his  authority  as  to  make  it  notice,  but  which,  it  is  alleged,  subse- 
quently became  notice  because,  with  the  information  still  in  mind,  he 
acts  as  agent  respecting  the  subject  matter  to  which  the  notice  relates. 

§  1810.  There  may,  however,  doubtless  be  cases  in  which 

the  information  was  received  so  immediately  before  the  transaction  as 


ST  See  Burton  v.  Perry,  146  Til.  71; 
Roderick  v.  McMeekin,  204  111.  625; 
Snyder  v.  Partridge,  138  111.  173,  32 
Am.  St.  Rep.  130. 

ss  This  is  the  language  of  Constant 
v.  University  of  Rochester,  111  N.  Y. 
604,  7  Am.  St.  Rep.  769,  2  L.  R.  A. 
734;  Slattery  v.  Schwannecke,  118  N. 
Y.  543. 

so  Gregg  v.  Baldwin,  9  N.  D.  515. 
That  the  agent  had  received  notice 
may  be  shown  by  circumstances  as 
well  as  by  direct  evidence.  Fore- 
man v.  German  Ins.  Ass'n,  104  Va. 
694,  113  Am.  St.  Rep.  1071,  3  L.  R. 
A.  (N.  S.)  444.  But  it  must  be  fol- 
lowed up  with  proof  that  it  was 
present  in  the  agent's  mind  at  the 
time  of  the  transaction  in  question. 
Brown  v.  Cranberry  Iron  Co.,  18 
C.  C.  A.  444,  72  Fed.  96. 

eo  Constant  v.  University  of  Ro- 
chester, 111  N.  Y.  604,  7  Am.  St.  Rep. 
769,  2  L.  R.  A.  734;  Denton  v.  On- 
tario Bank,  150  N.  Y.  126;  Equitable 
Securities  Co.  v.  Sheppard,  78  Miss. 
217;  Morrison  v.  Bausemer,  32  Gratt. 
(Va.)  225;  Johnson  v.  Nat.  Exch. 

1394 


Pank,  33  Gratt.  (Va.)  473;  Foreman 
v.  German  Ins.  Ass'n,  104  Va.  694, 
113  Am.  St.  Rep.  1071;  Brown  v. 
Cranberry  Iron  Co.,  18  C.  C.  A.  444, 
72  Fed.  96;  Red  River  Val.  Land  & 
Inv.  Co.  v.  Smith,  7  N.  D.  236. 

Not  only  is  the  burden  of  proof  up- 
on the  party  alleging  recollection,  but 
in  Constant  v.  University,  supra,  it  is 
said  that  the  burden  is  on  the  plaintiff 
to  prove  "clearly  and  beyond  question" 
that  the  agent  remembered;  that  the 
proof  must  be  "clear  and  satisfac- 
tory," and  that  language  is  repeated 
in  many  New  York  cases.  The  same 
language  is  used  in  Equitable  Secur- 
ities Co.  v.  Sheppard,  supra.  In  Mor- 
rison v.  Bausemer,  supra,  it  is  said 
that  there  must  be  "very  strong  evi- 
dence." 

In  Equitable  Securities  Co.  v. 
Sheppard,  supra,  the  court  goes  so 
far  as  to  say  that  it  "appears  that 
the  courts  will  presume  forgetfulness 
until  overcome  by  evidence  unless 
the  occurrence  was  so  recent  as  to 
make  it  incredible." 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  l8ll,  l8l2 

to  warrant  the  presumption  that  it  could  not  have  been  forgotten.  "It 
may  fall  to  be  considered,"  said  Lord  Eldon,  "whether  one  transaction 
might  not  follow  so  close  upon  the  other  as  to  render  it  impossible  to 
give  a  man  credit  for  having  forgotten  it.  I  should  be  unwilling  to 
go  so  far  as  to  say  that,  if  an  attorney  has  notice  of  a  transaction  in 
the  morning,  he  shall  be  held  in  a  court  of  equity  to  have  forgotten  it 
in  the  evening;  it  must  in  all  cases  depend  upon  the  circumstances."  ul 

§  1811.  This  theory,  however,  recognizes  certain  excep- 
tions which  are  clearly  founded  upon  and  consistent  with  it.  Thus  the 
agent  could  not  reasonably  be  expected  to  disclose  information  which, 
though  once  possessed  by  him,  had  been,  in  fact,  forgotten.  So  the  law 
would  not  compel  him  to  disclose  what  it  was  his  legal  duty  to  conceal. 
So  the  agent  could  not  be  deemed  to  have  disclosed  information  where, 
from  his  relations  to  the  subject-matter,  or  his  previous  conduct,  his 
agency  relation  was  practically  non  existent.  Subject  to  these  excep- 
tions, it  is  believed  that  this  theory  is  supported  by  the  better  reason 
and  by  a  clear  preponderance  of  authority. 

§  1812.  What  is  meant  by  notice  acquired  "during  the 

agency"  or  "prior  to  agency." — When  it  is  said  that  notice  received 
by  the  agent  "during  the  agency"  is  imputed  to  the  principal  it  is  neces- 
sary to  consider  when  the  agency  in  this  respect  is  to  be  deemed  to 
begin.  When  the  agency  relates  to  a  single  non-continuing  transaction 
it  would  be  clear  that  the  notice  to  be  imputed  to  the  principal  under 
this  rule  must  relate  to  that  transaction  and  come  to  the  agent  after 
he  has  undertaken  to  act  with  reference  to  it.  Where  the  agent  is  em- 
ployed for  a  continuing  period,  but  is  to  act  with  reference  to  a  series 
of  disconnected  and  unrelated  transactions,  the  notice  which  is  to  af- 
fect the  principal  with  reference  to  any  such  transactions  must  ordi- 

«i  In  Mountford  v.   Scott,   1  Turn,  that  "it  will  be  presumed   that  the 

&  Russ.  274.  agent   retains    the   knowledge   for   a 

In  Brothers  v.  Bank  of  Kaukauna,  reasonable  time."     By  this  it  is  as- 

84  Wis.  381,  36  Am.  St.  Rep.  932,  it  sumed  that  the  court  means  nothing 

is  said  "if  the  agent  acquires  his  in-  more  than  is  meant  by  the  quotation 

formation  as  recently  as  to  make  it  above  from  the  Wisconsin  court, 

incredible  that  he   should   have  for-  "Knowledge  acquired  not  only  dur- 

gotten  it,  his  principal  will  be  bound,  ing   the   continuance   of   his   agency, 

although   not   acquired   while   trans-  but   also   that   possessed   by   him   so 

acting  the  business  of  the  principal."  shortly  prior  to  his  employment  as 

To   same   effect:    see   McDonald   v.  necessarily  to  give  rise  to  the  infer- 

Fire   Ass'n   of   Phila.,   93   Wis.    348;  ence   that   it  remained   fixed   in   his 

Red  River  Val.   Land  &  Inv.   Co.  v.  memory    when    the    employment    be- 

Smith,  7  N.  D.  236.  gan,"  binds  the  principal.     Chouteau 

In    McClelland  v.   Saul,  113    Iowa,  v.  Allen,  70  Mo.  290. 
208,  86  Am.   St.  Rep.  370,  it  is  said 

1395 


§    1813]  THE  LAW  OF  AGENCY  [BOOK    IV 

narily,  to  be  deemed  to  be  notice  acquired  during  the  agency,  be  notice 
which  came  to  the  agent  after  he  had  undertaken  to  act  with  reference 
to  that  transaction.  "But  where  the  agency  is  continuous  and  con- 
cerned with  a  business  made  up  of  a  long  series  of  transactions  of  a 
like  nature,  of  the  same  general  character,  it  will,"  it  is  said  in  one 
case,62  "be  held  that  knowledge  acquired  as  agent  in  -that  business,  in 
any  one  or  more  of  the  transactions,  making  up  from  time  to  time  the 
whole  business  of  the  principal,  is  notice  to  the  agent  and  to  the  princi- 
pal, which  will  affect  the  latter  in  any  other  of  those  transactions  in 
which  that  agent  was  engaged,  in  which  that  knowledge  is  material." 
Some  consideration  of  the  latter  rule  is  necessary.  Suppose  an  agent 
is  employed  for  a  period  to  buy  cattle  for  his  principal.  While  so  em- 
ployed he  receives  information  concerning  the  cattle  of  A.  At  that 
time  it  is  not  his  duty  and  he  does  not  expect  then  or  ever  to  buy  the 
cattle  of  A,  for  his  principal,  and  he  does  not  know  and  has  no  reason 
to  believe  that  the  principal  then  or  ever  expects  to  buy  the  cattle  of  A, 
either  in  person  or  through  some  other  agent.63  If,  notwithstanding 
this,  the  principal  should,  either  in  person  or  through  some  other  agent, 
buy  the  cattle  of  A,  would  he  be  affected  with  notice  of  the  information 
which  his  agent  had  so  received?  It  is  assumed  that  he  would  not  be. 
If,  however,  the  purchase  of  A's  cattle  was  an  act  which  it  was  ex- 
pected this  agent  would  perform  and  which  he  afterwards  did  perform, 
the  notice  would  doubtless  bind  the  principal,  even  though  it  was  re- 
ceived before  the  agent  had  actually  entered  upon  the  negotiation  of 
that  particular  purchase.  And  so  even  though  the  agent,  as  first  sup- 
posed above,  had,  at  the  time  he  received  the  notice,  no  duty  or  expec- 
tation of  buying  the  cattle  of  A,  yet  if  he  afterwards  did  buy  them, 
with  the  information  still  in  mind,  the  notice  would' be  imputed,  in  those 
states  at  least  in  which  notice  is  imputed  if  actually  remembered,  though 
acquired  previously,  even  though  it  were  held  not  to  be  imputable  un- 
der the  rule  above  quoted,  as  notice  acquired  during  the  agency. 

§  1813.  The  resulting  rule. — After  this  much  of  consideration  it 
is,  perhaps,  now  desirable  and  possible  to  frame  a  rule  which  will  be 

62Holden  v.  New  York  &  Erie  notice  to  the  general  attorney  of  a 

Bank,  72  N.  Y.  286;  Cragie  v.  Had-  railroad  company  of  a  certain  claim 

ley,  99  N.  Y.  131,  52  Am.  Rep.  9;  given  while  no  suit  was  pending  in 

Brothers  v.  Bank  of  Kaukauna,  81  respect  to  it,  before  the  matter  had 

Wis.  381,  36  Am.  St.  Rep.  932;  Foote  been  referred  to  him  in  any  way,  and 

v.  Utah  Commercial  Bank,  17  Utah,  while  he  had  no  duty  in  respect  to 

it  or  any  reason  to  attach  import- 

es  Thus  in  Atchison,  etc.,  R.  Co.  v.  ance  to  it,  was  not  notice  to  the  com- 

Benton,  42  Kan.  698,  it  was  held  that  pany. 

1396 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§ 

fuller  and  more  accurate  than  the  general  statement  with  which  the 
discussion  began.  Stated  with  the  qualifications  which  have  been  thus 
suggested,  the  rule  deducible  from  these  authorities  may  be  said  to  be 
the  followng: 

The  law  imputes  to  the  principal,  and  charges  him  with,  all  notice 
or  knowledge  relating  to  the  subject-matter  of  the  agency  which  the 
agent  acquires  or  obtains  while  acting  as  such  agent  and  within  the 
scope  of  his  authority,  or,  according  to  the  weight  of  authority,  which 
he  may  previously  have  acquired,  and  which  he  then  had  in  mind,64  or 
which  he  had  acquired  so  recently  as  to  reasonably  warrant  the  assump- 
tion that  he  still  retained  it.85  Provided,  however,  that  such  notice  or 
knowledge  will  not  be  imputed :  (i)  Where  it  is  such  as  it  is  the  agent's 
duty  not  to  disclose;68  (2)  Where  the  agent's  relations  to  the  subject- 
matter  are  so  adverse  as  to  practically  destroy  the  relation  of  agency  ;6T 
and,  (3)  Where  the  person  claiming  the  benefit  of  the  notice,  or  those 
whom  he  represents,  colluded  with  the  agent  to  cheat  or  defraud  the 
principal.68 

This  rule  does  not  depend,  in  either  case,  upon  the  fact  that  the  agent 
has  disclosed  the  knowledge  or  information  to  his  principal ;  subject  to 
the  exceptions  named,  the  law  conclusively  presumes  that  he  has  done 
so,  and  charges  the  principal  accordingly.69 

The  rule  applies  as  well  in  the  case  of  a  servant  as  of  an  agent  if  the 
servant  is  really  the  master's  representative  in  the  matter  ;70  to  the  case 
of  an  undisclosed  principal  as  to  a  disclosed  one ;  n  and  to  the  case  of 
a  special  agent  as  well  as  to  that  of  a  general  one.72 

And  when  once  notice  has  attached,  the  fact  that  there  is  no  occasion 
to  act  upon  or  heed  it  until  after  the  agent  through  whom  it  was  ac- 
quired has  ceased  to  be  such  or  has  changed  his  position,  and  the  like, 
will  be  immaterial.73 

e*  See  ante,  §  1809.  137   Iowa,   135;    Martin  v.   Richards, 

es  See  ante,  §  1810.  155  Mass.   381;    Lingren  v.  Williams 

66  See  post,  §  1814.  Bros.  Mfg.  Co.,  112  Minn.  186;  Schaaf 

67  See  post,  §  1815.  v.  St.  Louis  Basket  Co.,  151  Mo.  App. 
es  See  post,  §  1826.  35.     Compare  §   1834,  post. 

SB  See     The     Distilled     Spirits,     11  71  Street   Lumber    Co.    v.    Sullivan, 

Wall.    (U.    S.)    367;    Dresser   v.    Nor-  201  Mass.  484,  16  Ann.  Gas.  354. 

wood,    17    C.    B.    (N.    S.)    466,    and  « Brown  v.  Peoples  Nat.  Bank,  170 

many  other  cases  cited  in  subsequent  Mich.  416,  40  L.  R.  A.    (N.   S.)    657. 

sections.     Of  course,  if  notice  which  "  Birmingham  Trust  Co.  v.  Louisi- 

would    not    be    imputed    is    actually  ana  Sav.  Bank,  99  Ala.  379,  20  L.  R. 

communicated,  it  is  effective.    Hicks  A.  600;   Bland  v.  Shreveport  Ry.  Co., 

v.  Southern  Ry.  Co.,  63   S.  Car.  559.  48  La.  Ann.   1057,   36  L.   R.   A.   114; 

TO  Higman  v.  Camody,  112  Ala.  267,  United   States  National  Bank  v.  For- 

57  Am.  St.  Rep.  33;  Merritt  v.  Huber,  stedt,  64  Neb.  855;   Loring  v.  Brodie, 

1397 


§  i8i4] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


Although  the  rule  of  notice  is  ordinarily  invoked  to  charge  the  prin- 
cipal, it  is  also  held  that  he  may  have  the  benefit  of  it  in  a  proper  case.74 

The  several  qualifications  upon  the  rule  must  now  receive  more  de- 
tailed consideration. 

§  1814.  The  first  exception — Privileged  communications. — The 
first  of  the  exceptions  referred  to  in  the  statement  of  the  rule,  namely, 
that  relating  to  knowledge  which  it  is  the  agent's  duty  to  some  other 
principal  not  to  disclose,  is  well  settled,  both  in  England  and  in  this 
country.  It  is  most  frequently  applied  to  the  case  of  attorneys  ™  and 


134  Mass.  453.  But  in  Great  Western 
Ry.  v.  Wheeler,  20  Mich.  419,  it  was 
held  that  notice  acquired  by  a  form- 
er agent  of  such  a  casual  and  non- 
continuous  fact  as  that  certain  ini- 
tials marked  upon  goods  received  for 
shipment  indicated  a  certain  con- 
signee would  not  be  imputed  to  the 
company  after  he  had  ceased  to  be 
agent. 

74  Haines  v.  Starkey,  82  Minn.  230 
(a  partnership  case  wherein  an  un- 
disclosed   principal    was    given    the 
benefit  of  his  agent's  knowledge  as 
to  the  existence  of  a  partnership); 
Harrison  v.  Legore,  109  Iowa,  618. 

75  Notice  to  attorney. — The  general 
question  of  notice  to  attorneys  will 
be  considered  in  the  chapter  devoted 
to  attorneys.     A  distinction  may  be 
made  between  the  attorney's  employ- 
ment as  a  lawyer  and  as  an  agent, 
though  the  distinction  is  not  always 
observed.     The  question  here  arises 
where  he  is  employed  as  an  agent-. 
It  is  held  in  many  cases  that  notice 
to  an  attorney,  while  engaged  in  the 
performance  of  the  business   of  his 
principal,  is  notice  to  the  principal. 
Price  v.  Carney,  75  Ala.  546;   Bierce 
v.  Red  Bluff  Hotel  Co.,  31  Cal.  ICC, 
Sweeney  v.   Pratt,   70  Conn.   274,   66 
Am.  St.  Rep.  101;  Brown  v.  Oattis,  55 
Ga.  416;    Hass  v.  Sternbach,  156  111. 
44;  Blake  v.  Clary,  83  Me.  154;  Shart- 
zer  v.  Mountain  Lake  Park  Ass'n,  86 
Md.    335;    Mayor   v.   Whittington,   78 
Md.  231;    Bates  v.  Johnson,  79  Minn. 
354;     Edwards    v.    Hillier,    70    Miss. 
803;    Bank  of  Commerce  v.  Hoeber, 


88  Mo.  37,  57  Am.  Rep.  359;  Peeplrs 
v.  Warren,  51  S.  C.  560;  Riordan  v. 
Britton,  69  Tex.  198,  5  Am.  St.  Rep. 
37;  Hyman  v.  Barmon,  6  Wash.  516; 
Rogers  v.  Palmer,  102  U.  S.  263,  26  L. 
Ed.  164. 

It  has,  however,  been  held  general- 
ly in  many  cases  that  knowledge  ac- 
quired by  an  attorney  while  acting 
for  one  client  will  not  affect  a  sub- 
sequent client.  Hood  v.  Fahnestock, 
8  Watts  (Pa.),  489,  34  Am.  Dec.  489; 
Willis  v.  Vallette,  4  Mete.  (Ky.)  186; 
McCormick  v.  Wheeler,  36  111.  114, 
85  Am.  Dec.  388;  Herrington  v.  Mc- 
Collum,  73  111.  476;  McCormick  v. 
Joseph,  83  Ala.  401;  Pepper  v. 
George,  51  Ala.  190;  Terrell  v.  Bank, 
12  Ala.  502;  Chapman  v.  Hughes,  134 
Cal.  641;  Wittenbrock  v.  Parker,  102 
Cal.  93,  41  Am.  St.  Rep.  172,  24  L.  R. 
A.  197;  Bierce  v.  Red  Bluff  Hotel  Co., 
31  Cal.  160;  Martin  v.  Jackson,  27 
Pa.  504,  67  Am.  Dec.  489;  Allen  v. 
McCalla,  25  Iowa,  464,  96  Am.  Dec. 
56;  Sante  Fe  R.  R.  v.  Benton,  42  Kan. 
698;  Haven  v.  Snow,  14  Pick.  (Mass.) 
28;  Lowther  v.  Carlton,  2  Atk.  242; 
Worsley  v.  Scarborough,  3  Id.  392; 
Warrick  v.  Warrick,  3  Id.  291;  Camp- 
bell v.  Benjamin,  69  111.  244;  Warner 
v.  Hall,  53  Mich.  371;  Fidelity  Trust 
Co.  v.  Baker,  60  N.  J.  Eq.  170;  Tuck- 
er v.  Tilton,  55  N.  H.  223;  Arrington 
v.  Arrington,  114  N.  C.  151;  Neilson 
v.  Weber,  107  Tenn.  161;  Denton  v. 
Ontario  Co.  Nat.  Bank,  150  N.  Y.  126; 
Akers  v.  Rowan,  33  S.  Car.  451,  10  L. 
R.  A.  705;  Steinmeyer  v.  Steinmeyer, 
55  S.  C.  9;  Meuley  v.  Zeigler,  23  Tex. 


I398 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§  i8is 


others,  upon  whom  rests  the  duty  of  maintaining  a  professional  secrecy. 
This  secrecy  the  law  will  not  permit,  much  less  require,  to  be  violated. 
As  is  well  said  by  Mr.  Justice  Bradley,  "When  it  is  not  the  agent's  duty 
to  communicate  such  knowledge,  when  it  would  be  unlawful  for  him  to 
do  so,  as,  for  example,  when  it  has  been  acquired  confidentially  as  at- 
torney for  a  former  client  in  a  prior  transaction,  the  reason  of  the  rule 
ceases,  and  in  such  a  case  an  agent  would  not  be  expected  to  do  that 
which  would  involve  the  betrayal  of  professional  confidence,  and  his 
principal  ought  not  to  be  bound  by  his  agent's  secret  and  confidential 
information."  7e 

§  1815.  The  second  exception — Agent  acting  adversely  to  prin- 
cipal.— The  rule  imputing  notice  is  usually  based,  as  has  been  seen, 
upon  the  theory  that  it  is  the  duty  of  the  agent  to  communicate  to  his 
principal  the  knowledge  possessed  by  him  relating  to  the  subject-matter 
of  the  agency,  material  to  the  principal's  protection  and  interests,  and 
the  presumption  that  he  has  performed  this  duty.  This  presumption, 
however,  it  is  said,  will  not  prevail  where  it  is  certainly  to  be  expected 
that  the  agent  will  not  perform  his  duty,  as  where  the  agent,  though 
nominally  acting  as  such,  is  in  reality  acting  in  his  own  or  another's  in- 


88;  Pacific  Mfg.  Co.  v.  Brown,  8 
,Wash.  347;  Melms  v.  Pabst  Brewing 
Co.,  93  Wis.  153,  57  Am.  St.  Rep.  899; 
Union  Nat.  Bank  v.  German  Ins.  Co , 
18  C.  C.  A.  203,  71  Fed.  473. 

JMany  of  these  cases  can  be  recon- 
ciled upon  the  ground  already  point- 
ed out,  namely,  that  the  theory  of 
legal  identification,  which  is  adopted 
in  several  states  as  the  foundation 
for  imputing  notice,  confines  the  ef- 
fect of  the  notice  to  the  time  when 
such  identification  exists,  namely, 
the  period  when  the  agent  is  actually 
representing  the  principal.  Other  of 
the  cases  seem  to  have  adopted  the 
rule,  without  much  consideration,  as 
one  peculiar  to  attorneys.  Still  oth- 
er of  them,  such  as  Wittenbrock  v. 
Parker,  supra,  may  be  distinguished 
upon  the  ground  that  there  was  110 
evidence  that  the  attorney  at  the 
time  actually  remembered  the  infor- 
mation; or,  like  Tucker  v.  Tiltoii, 
Fidelity  Trust  Co.  v.  Baker,  Arring- 
ton  v.  Arrington,  supra,  upon  the 
ground  that  the  notice  formerly  re- 


ceived had  no  real  relation  to  the 
service  which  he  was  now  called 
upon  to  perform.] 

And  feo  it  has  been  held  that 
knowledge  acquired  by  an  attorney 
while  acting  for  one  client  will  not 
affect  another  client  for  whom  he  is 
acting  in  another  matter  at  the  same 
time.  Ford  v.  French,  72  Mo.  250. 
But  if  notice  acquired  before  the 
agency  is  to  be  imputed  in  any  case, 
and  if  the  attorney  really  acts  not 
as  a  lawyer,  but  as  an  agent,  no  rea- 
son is  seen  why  he  should  stand  up- 
on a  different  ground  than  other 
agents,  and  the  better  rule  is  be- 
lieved to  be  that  in  either  case  such 
notice  binds  the  principal  unless  ac- 
quired under  such  circumstances  as 
to  make  it  privileged.  Abell  v.  Howe, 
43  Vt.  403;  Hunter  v.  Watson,  12 
Cal.  363,  73  Am.  Dec.  543;  Hart  v. 
Bank,  33  Vt.  252;  The  Distilled 
Spirits,  11  Wall.  (U.  S.)  at  p.  367,  20 
L.  Ed.  167. 

TO  The  Distilled  Spirits,  11  Wall. 
(U.  S.)  356,  20  L.  Ed.  167;  Melms  v. 


1399 


§ 


THE  LAW  OF  AGENCY 


[BOOK  iv 


terest,  and  adversely  to  that  of  his  principal."  Much  less  will  it  be  en- 
tertained where  the  agent  is  openly  and  avowedly  acting  for  himself 
and  not  as  agent.7*  In  such  cases  the  presumption  is  that  the  agent  will 
conceal  any  fact  which  might  be  detrimental  to  his  own  interests,  rather 
than  that  he  will  disclose  it. 


Pabst  Brewing  Co.,  93  Wis.  153,  57 
Am.  St.  Rep.  899;  Sebald  v.  Citizens 
Bank  (Ky.),  105  S.  W.  130. 

T>  Thus  in  a  leading  case  in  this 
country,  it  is  said:  "While  the 
knowledge  of  an  agent  is  ordinarily 
to  be  imputed  to  the  principal,  it 
would  appear  now  to  be  well  estab- 
lished that  there  is  an  exception  to 
the  construction  or  imputation  of 
notice  from  the  agent  to  the  princi- 
pal in  case  of  such  conduct  by  the 
agent  as  raises  a  clear  presumption 
that  he  would  not  communicate  thft 
fact  in  controversy,  as  where  tho 
communication  of  such  a  fact  would 
necessarily  prevent  the  consumma- 
tion of  a  fraudulent  scheme  which 
the  agent  was  engaged  in  perpetrat- 
ing." Devens,  J.,  in  Innerarity  v. 
Merchants'  National  Bank,  139  Mass. 
332,  52  Am.  Rep.  710  [citing  Ken- 
nedy v.  Green,  3  Myl.  &  Keene,  699; 
Cave  v.  Cave,  15  Ch.  Div.  639;  In  re 
European  Bank,  5  Ch.  Ap.  358;  In  re 
Marseilles  Extension  Ry.,  L.  R.  7  Ch. 
Ap.  161;  Atlantic  National  Bank  v. 
Harris,  118  Mass.  147;  Loring  v. 
Brodie,  134  Mass.  453.] 

This  rule,  however,  went  beyond 
the  needs  of  the  case  at  bar,  as  the 
agent  was  there  acting  openly  as  an 
adverse  party.  It  is  believed  to  be 
too  wide,  though  some  of  the  cases 
cited  do  seem  to  give  it  support. 
See  also,  Kennedy  v.  Green,  3  Myl. 
&  Keene,  699;  Dillaway  v.  Butler,  135 
Mass.  479;  Findley  v.  Cowles,  93 
Iowa,  389;  Shephard  &  Morse  Lumber 
Co.  v.  Eldridge,  171  Mass.  516,  68  Am. 
St.  Rep.  446,  41  L.  R.  A.  617;  Indian 
Head  Nat.  Bank  v.  Clark,  166  Mass. 
27;  United  Security  Co.  v.  Central 
Nat.  Bank,  185  Pa.  586;  Houghton  v. 
Todd,  58  Neb.  360. 

Obviously,  as  between  the  princl- 


pal  and  his  agent,  the  latter  cannot 
claim  that  the  principal  must  be 
deemed  to  have  constructive  notice 
of  the  agent's  fraudulent  acts  which 
the  agent  was  in  fact  diligently  con- 
cealing from  him.  Sankey  v.  Alex- 
ander, Ir.  Rep.  9  Eq.  259. 

In  American  Surety  Co.  v.  Pauly, 
170  U.  S.  133,  42  L.  Ed.  977,  supra, 
it  is  said:  "The  presumption  that 
the  agent  informed  his  principal  of 
that  which  his  duty  and  the  interests 
of  his  principal  required  him  to 
communicate  does  not  arise  where 
the  agent  acts  or  makes  declara 
tions  not  in  execution  of  any  duty 
that  he  owes  to  the  principal,  nor  I 
within  any  authority  possessed  by  / 
him,  but  to  subserve  simply  his  own 
personal  ends  or  tp_  commit  soniqj 
foaud  agamsttheprincipal.  In  such' 
cases  the  "priricTpaT^s^ot  bound  by 
the  acts  or  declarations  of  the  agent 
unless  it  be  proved  that  he  had  at 
the  time  actual  notice  of  them,  dr. 
having  received  notice  of  them, 
failed  to  disavow  what  was  assumed 
to  be  said  and  done  in  his  behalf." 
See  also,  Fidelity  &  Deposit  Co.  v. 
Courtney,  186  U.  S.  342,  362,  46  L. 
Ed.  1193. 

Agent   practicing   fraud    on    third  j 
person,   not   on   principal. — The   fact  *" 
that  the  agent  is  engaged  in  practic- 
ing a  fraud  not  on  his  principal  but 
upon  the  other  party  does  not,  it  is 
held,   defeat   the   rule   imputing  no- 
tice.    Lockhart  v.   Washington  Gold 
Min.  Co.,  16  N.  Mex.  223. 

78  Speaking  of  the  general  rule, 
in  Frenkel  v.  Hudson,  82  Ala.  158. 
60  Am.  Rep.  736,  Somerville,  J.,  says: 
"It  has  no  application,  however,  to  a 
case  where  the  agent  acts  for  him- 
self, in  his  own  interest,  and  ad- 
versely to  that  of  the  principal.  Hia 


1400 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1815 


The  case  most  frequently  arising  is  that  in  which  the  agent  is  secretly 
engaged  in  prosecuting  some  fraudulent  or  illegal  enterprise  the  suc- 
cess of  which  would  be  impaired  or  defeated  by  the  disclosure  to  his 
principal  of  the  notice  or  knowledge  now  sought  to  be  imputed.  The 
application  of  the  rule  is  not,  however,  confined  to  cases  of  such  actual 
fraud,  but  will  extend,  as  has  been  stated,  to  cases  in  which  the  agent  / 
is  temporarily  acting  on  his  own  account  and  adversely  to  his  principal.  * 

This  exception  has  been  applied  in  a  great  number  and  in  a  great 
variety  of  cases.79    In  many  of  them  it  seems  to  have  been  applied  quite 


adversary  character  and  antagonistic 
interests  take  him  out  of  the  opera- 
tion of  the  general  rule,  for  two  rea- 
sons: first,  that  he  will  very  likely, 
in  such  case,  act  for  himself,  rather 
than  for  his  principal;  and,  secondly, 
he  will  not  be  likely  to  communicate 
to  the  principal  a  fact  which  he  is 
interested  in  concealing.  It  would 
be  both  unjust  and  unreasonable  to 
impute  notice  by  mere  construction 
under  such  circumstances,  and  such 
is  the  established  rule  of  law  on  this 
subject."  [Citing  Terrell  v.  Branch 
Bank  of  Mobile,  12  Ala.  502;  Lucas 
v.  Bank  of  Darien,  2  Stew.  (Ala.) 
280;  Wickersham  v.  Chicago  Zinc 
Co.,  18  Kan.  481,  26  Am.  Rep.  784; 
Angell  &  Ames  on  Corp.,  §§  308, 
309;  Story  on  Agency,  §  140.]  See 
also,  La  Brie  v.  Cartwright,  55  Tex. 
Civ.  App.  144;  Commercial  Bank  v. 
Burgwyn,  110  N.  Car.  267,  17  L.  R. 
A.  (N.  S.  }326;  Johnston  v.  Short- 
ridge,  93  Mo.  227;  First  National 
Bank  v.  Briggs,  70  Vt.  594. 

79  Thus,  see  Whelan  v.  McCreary, 
64  Ala.  319;  Frenkel  v.  Hudson,  82 
Ala.  158,  60  Am.  Rep.  736;  Pursley 
v.  Stahley,  122  Ga.  362;  Seaverns  v. 
Presbyterian  Hospital,  173  111.  414, 
64  Am.  St.  Rep.  125;  Cowan  v.  Cur- 
ran,  216  111.  598;  Merchants  Nat. 
Bank  v.  Nichols  &  Co.,  223  111.  41, 
7  L.  R.  A.  (N.  S.)  752;  Metcalf  v. 
Draper,  98  111.  App.  399;  Hummel  v. 
Bank  of  Monroe,  75  Iowa,  689;  Se- 
bald  v.  Citizens  Bank  (Ky.),  105  S. 
W.  130;  Seixas  v.  Citizens  Bank,  38 
La.  Ann.  424;  Richardson  v.  Watson, 
51  La.  Ann.  1390;  Allen  v.  South 


Boston  Ry.,  150  Mass.  200,  15  Am.  St 
Rep.  185,  5  L.  R.  A.  716;  Corcoran  v. 
Snow  Cattle  Co.,  151  Mass.  74; 
Brown  v.  Harris,  139  Mich.  372; 
Fort  Dearborn  Bank  v.  Seymour,  71 
Minn.  81;  Keyser  v.  Hinkle,  127  Mo. 
App.  62;  Houghton  v.  Todd,  58  Neb. 
360;  Graham  v.  Orange  Co.  Bank, 
59  N.  J.  L.  225;  Camden  Safe  De- 
posit Co.  v.  Lord,  67  N.  J.  E.  489; 
Henry  v.  Allen,  151  N.  Y.  1,  36  L.  R. 
A.  658;  Benedict  v.  Arnoux,  154  N. 
Y.  715;  First  Nat.  Bank  v.  German 
Am.  Ins.  Co.  (N.  Dak.),  134  N. 
W.  873;  Gunster  v.  Scranton  Illumi- 
nating Co.,  181  Pa.  327,  59  Am.  St. 
Rep.  650;  Knobelock  v.  Germania 
Savings  Bank,  50  S.  Car.  259;  Cooper 
v.  Ford,  29  Tex.  Civ.  App.  253; 
Jungk  v.  Reed,  12  Utah,  196;  First 
Nat.  Bank  v.  Foote,  12  Utah,  157; 
Victor  Gold,  etc.,  Min.  Co.  v.  Bank, 
15  Utah,  391;  Traders,  etc.,  Bank  v. 
Black,  108  Va.  59;  Baker  v.  Berry 
Hill,  etc.,  Co.,  112  Va.  280:  In  re 
Plankinton  Bank,  87  Wis.  378;  Cole 
v.  Getzinger,  96  Wis.  559;  Rock 
Springs  Nat.  Bank  v.  Luman,  5  Wyo. 
159;  Thompson-Houston 'Co.  v.  Capi- 
tal Blec.  Co.,  12  C.  C.  A.  643,  65  Fed. 
341;  Investment  Co.  v.  Ganzer,  11  C. 
C.  A.  371,  63  Fed.  647;  Hudson  v. 
Randolph,  13  C.  C.  A.  402,  66  Fed. 
216;  Hart  v.  Bier,  74  Fed.  592;  Waite 
v.  Santa  Cruz,  89  Fed.  619;  Bank  of 
Overton  v.  Thompson,  56  C.  C.  A. 
554,  118  Fed.  798;  Union  Central  Life 
Ins.  Co.  v.  Robinson,  78  C.  C.  A.  268, 
148  Fed.  358,  8  L.  R.  A.  (N.  S.)  883; 
Reed  v.  Munn,  80  C.  C.  A.  215,  148 
Fed.  737;  American  Surety  Co.  V. 


1401 


§  i8i6] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


arbitrarily  and  without  much  consideration  of  the  reasons  involved. 
Many  conflicting  results  have  necessarily  ensued,  and  have  led  to  the 
necessity  of  a  more  careful  investigation  into  the  reason  and  scope  of 
this  exception. 

§  1816.  Reasons  for  the  exception. — The   reasons   given 

Ifor  the  exception  are  not  always  the  same.  That  most  commonly  given 
and  relied  upon  is  the  one  already  stated,  namely,  that  there  is,  from 
the  circumstances,  a  presumption  that  the  agent  will  not  perform  his 
duty.  Another  reason  which  has  been  suggested  is  that  inasmuch  as 
the  pretended  agent  is,  by  the  hypothesis,  really  acting  on  his  own  ac- 
count, he  does  not  receive  the  notice  as  agent  and  while  acting  within 
the  scope  of  his  authority.80  This  is,  of  course,  the  identification  the- 
ory. Another,  which  is  very  similar,  is  that  inasmuch  as  he  is  really 
acting  in  pursuance  of  a  fraudulent  design  and  committing  an  inde- 
pendent fraud,  his  whole  act,  including  the  notice,  is  beyond  the  scope 
of  his  employment  and  therefore  neither  the  act  nor  the  knowledge  re- 
lating to  it,  as  matter  of  law,  can  be  imputed  to  his  principal.81 


Pauly,  170  U.  S.  133,  42  L.  Ed.  977; 
Real  Estate  Trust  Co.  v.  Washington, 
etc.,  Ry.,  113  C.  C.  A.  124,  191  Fed. 
566;  Lilly  v.  Hamilton  Bank,  102  C. 
C.  A.  1,  178  Fed.  73;  Eccles  v.  Louis- 
ville, etc.,  R.  Co.,  198  Fed.  898.  [This 
list  does  not  purport  to  be  exhaust- 
ive.] 

so  Thus  in  In  re  Plankinton  Bank, 
87  Wis.  378,  it  is  said:  "Where  an 
officer  or  agent  of  the  corporation 
himself  deals  with  the  corporation, 
it  will  not  be  charged  with  notice  of 
the  information  which  he  possesses 
relating  to  the  transaction,  and  which 
he  does  not  disclose,  for  the  reason 
that  in  such  case  he  does  not  rep- 
resent the  corporation,  but  is  acting 
for  himself,  and  ceases,  pro  hoc  vice, 
to  act  as  an  agent  of  the  corporation. 
The  corporation,  in  such  case,  is  in 
reality  the  adverse  party,  and  the  of- 
ficer does  not  act  for  it  as  its  agent 
at  all." 

So  in  Pursley  v.  Stahley,  122  Ga. 
362,  it  is  said:  "But  when  the  agent 
departs  from  the  scope  of  the  agency, 
and  begins  to  act  for  himself  and  not 
for  the  principal;  when  his  private 
interest  is  allowed  to  outweigh  his 


duty  as  a  representative;  when  to 
communicate  the  information  would 
prevent  the  accomplishment  of  his 
fraudulent  scheme,  he  becomes  an  op- 
posite party,  not  an  agent.  The  rea- 
son for  the  rule  then  ceases.  Where, 
therefore,  the  agent  who  is  an  inter- 
mediary is  guilty  of  independent 
fraud  for  his  own  benefit,  the  law 
does  not  impute  to  the  principal  no- 
tice of  such  fraud." 

si  In  Allen  v.  South  Boston  Rail- 
road, 150  Mass.  200,  15  Am.  St.  Rep. 
185,  5  L.  R.  A.  716,  it 'was  said: 
"The  general  rule  is  that  notice  to 
an  agent,  while  acting  for  his  princi- 
pal, of  facts  affecting  the  character  of 
the  transaction,  is  constructive  notice 
to  the  principal.  There  is  an  exception 
to  this  rule  when  the  agent  is  en- 
gaged in  committing  an  independent 
fraudulent  act  on  his  own  account, 
and  the  facts  to  be  imputed  relate  to 
this  fraudulent  act.  It  is  sometimes 
said  that  it  cannot  be  presumed  that 
an  agent  will  communicate  to  his 
principal  acts  of  fraud  which  he  has 
committed  on  his  own  account  in 
transacting  the  business  of  his  prin- 
cipal, and  that  the  doctrine  of  im- 


1402 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRL)  PARTIES 


[§ 


§  1817. 


Further  of  these  reasons, — A  serious  difficulty  in 


the  way  of  the  adoption  of  the  reason  first  assigned  is  found  in  the  fact 
that  it  is  not  ordinarily  a  satisfactory  theory  for  exempting  the  princi- 
pal to  presume  that  his  agent  will  not  do,  or  has  not  done,  his  duty. 
That  suggestion  usually  and  properly  meets  with  very  little  favor  and 
it  is  certain  that  the  exception  cannot  be  sustained  upon  the  grounds 
usually  assigned  for  it.  A  more  satisfactory  reason  would  be  to  say, 
as  has  been  suggested,  that  the  assumed  agent  is  not  really  acting  as 
agent  at  all  and  therefore  the  general  rule  imputing  knowledge  has  no 
application.  Where  the  agent  is  openly  and  avowedly  acting  adversely 
or  otherwise  than  as  an  agent,  and  the  principal  or  some  other  agent 
is  representing  the  principal's  interests,  there  is  little  difficulty  in  reach- 
ing this  conclusion.82  And  even  where  he  is  not  openly  acting  ad- 


puted  knowledge  rests  upon  a  pre- 
sumption that  an  agent  will  com- 
municate to  his  principal  whatever 
he  knows  concerning  the  business  he 
is  engaged  in  transacting  as  agent. 
It  may  be  doubted  whether  the  rule 
and  the  exception  rest  on  any  such 
reasons.  It  has  been  suggested  that 
the  true  reason  for  the  exception  is 
that  an  independent  fraud  committed 
by  an  agent  on  his  own  account  is 
beyond  the  scope  of  his  employment, 
and  therefore  knowledge  of  it,  as 
matter  of  law,  cannot  be  imputed  to 
the  principal,  and  the  principal  can- 
not be  held  responsible  for  it.  On 
this  view,  such  a  fraud  bears  some 
analogy  to  a  tort  wilfully  committed 
by  a  servant  for  his  own  purposes, 
and  not  as  a  means  of  performing  the 
business  intrusted  to  him  by  his  mas- 
ter. Whatever  the  reason  may  be, 
the  exception  is  well  established." 

82  This  was  the  fact  in  the  leading 
case  of  Innerarity  v.  Merchants  Na- 
tional Bank,  139  Mass.  332,  52  Am. 
Rep.  710,  cited  above  (though  it  has 
been  overlooked  in  many  of  the  cases 
which  purport  to  follow  it).  There 
an  agent,  who  was  also  a  director  in 
the  bank,  undertook  to  pledge,  for  a 
loan  to  himself,  a  bill  of  lading  which 
really  belonged  to  his  principal.  He 
first  negotiated  the  loan  on  this  se- 
curity with  the  president  of  the  bank. 


Later,  when  the  board  of  directors 
met,  the  president  laid  this  loan,  with 
others,  before  the  board  for  approval. 
The  agent  was  present  at  this  meet- 
ing, though  the  case  says  it  does  not 
appear  what  part,  if  any,  he  took  in 
the  action  upon  this  loan.  The  board 
approved  the  loan.  It  was  held  that 
his  knowledge  was  not  imputable  to 
the  bank,  and  the  court  treated  him 
like  any  other  outsider  who  applied 
for  a  loan.  It  is  clear  that  he  was 
not  the  agent  through  whom  the 
bank  acted. 

The  same  is  true  of  Corcoran  v. 
Snow  Cattle  Co.,  151  Mass.  74;  Louisi- 
ana State  Bank  v.  Senecal,  13  La. 
525;  English- American  Loan  Co.  v. 
Hiers,  112  Ga.  823;  Traders  Bank  v. 
Black,  108  Va.  59;  In  re  Plankinton 
Bank,  87  Wis.  378. 

This  is  also  the  ground  upon  which 
Lilly  v.  Hamilton  Bank,  102  C.  C.  A. 
1,  178  Fed.  53,  29  L.  R.  A.  (N.  S.) 
558  is  to  be  based.  The  court  point 
out  that  the  two  agents,  through 
whom  notice  to  the  bank  might  have 
been  imputed,  "studiously  refrained 
from  acting  to  any  extent  whatever 
as  agents  of  the  bank,"  but  proposed 
to  deal  with  the  bank  and  left  other 
agents  of  the  bank  to  decide  whether 
the  proposal  should  be  accepted. 
Similar  are,  National  Bank  v.  Fen- 
ney,  9  S.  Dak.  550,  46  L.  R.  A.  732; 


M03 


§    l8l8]  THE  LAW  OF  AGENCY  [BOOK    IV 

versely  but  has  secretly  such  an  adverse  interest  that  he  would  not  be 
permitted  to  become  or  remain  an  agent  without  his  principal's  full  and 
intelligent  consent,  it  would  seem  that  the  same  result  should  ensue 
and  that  he  should  be  treated  as  practically  not  an  agent  of  the  prin- 
cipal whose  interests  he  is,  for  the  promotion  of  his  own  ends,  secretly 
betraying  or  ignoring.  If  this  be  done,  however,  what  is  the  result? 
Either  that  the  principal  was  in  that  transaction  not  represented  by  an 
agent  at  all  and  therefore,  so  far  as  it  depends  upon  agency,  there  was 
no  act  of  the  principal,  unless  the  principal  later  with  knowledge  elects 
to  stand  by  it;  or  that  the  assumed  agent  dealt  in  this  transaction  as 
an  independent  party,  giving  to  the  principal  the  same  rights  and  the 
same  obligations  which  he  would  have  if  he  were  dealing  with  any 
other  independent  party.  Where  the  principal  did  not,  in  fact,  know 
anything  about  the  transaction  at  the  time  and  the  whole  matter  was 
confined  to  the  hands  of  the  agent  alone,  the  latter  alternative  seems  too 
contrary  to  the  facts  to  be  accepted. 

§  1818.  If  it  be  said  that  there  was  no  act,  because  there 

was  no  agent,  then  any  contract  or  transfer  involved  in  it  must  be  of 
no  effect,  and  if  anything  has  come  to  the  principal's  possession  by  rea- 
son of  the  act,  it  must  be  surrendered  if  the  act  be  repudiated.83  Inas- 
much as  the  principal  may  consent  to  being  represented  by  an  interested 
agent,  and  may  do  so  after  the  act  as  well  as  before,  he  may  well,  if  he 

First    Nat.    Bank    v.    Babbidge,    160  cannot  be  fully  applicable  to  a  case 

Mass.  563;    Louisiana  State  Bank  v.  where  one  party,  having  knowledge 

Senecal,  13  La.  525;    Westfleld  Bank  of  the  invalidity  of  a  paper  of  which 

v.  Cornen,  37  N.  Y.  320,  93  Am.  Dec.  he  is  the  ostensible  owner,  discounts 

573.   See  also,  Knobelock  v.  Germania  it  in  a  bank  of  which  he  is  the  duly 

Savings  Bank,  50  S.  Car.  259;   Sproul  authorized  agent,  and  is  himself  the 

v.  Standard  Glass  Co.,  201  Pa.  103.  only  actor  for  the  bank  and  by  his 

83  in  Morris  v.  Georgia  Loan,  Sav-  act  enables  the  bank  to  collect  and 

ings  &  Banking  Co.,  109  Ga.  12,  46  L.  retain    the    proceeds    of   such    paper 

R.   A.   506,  the   cashier  of  the  bank  against  the  rights  of  the  true  owner, 

was  individually  interested  in  a  note  In  such  a  transaction  he  is  either  the 

which   he  knew  to   be   without  con-  agent   of   the   bank   to   discount   the 

sideration.     He  discounted  it  to  the  paper,   or   he   is  not.     If  he   is   not, 

bank,  and  the  bank  claims  now  to  be  then  the  discounting  was  illegal,  and 

a  bona  fide  holder,  without  notice  of  the  owner  is  entitled  to  it  or  its  pro- 

the     defense.     The     court,     however,  ceeds.    If  he  is  the  agent  of  the  bank, 

held  it  must  stand  charged  with  the  and  the  facts  insisted  on  here  existed, 

notice  of  the  cashier  if  it  ratified  his  his  action  would  be  a  fraud  upon  the 

act  and  claimed  to  own  the  note  so  rights   of   the   owner,   of   which   the 

discounted  by  it.     The  court  distin-  bank  cannot   take   advantage."     The 

guished     the     principle     recognized  court  then  adopts  the   excerpt  from 

where  an  officer  of  a  corporation  is  First  Nat.  Bank  v.  New  Milford,  36 

the   adverse   party,   and   said:    "But  Conn.    93,    quoted    in    the    following 

the  principle  involved  in  those  cases  note. 

1404 


•CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§  1818 


attempts  with  knowledge  to  obtain  or  retain  benefits  flowing  from  the 
act,  be  held  to  have  approved  it  with  all  its  incidents.84 


84  Thus   in   a   number   of   cases   in 
which  an  agent,  acting  for  both  par- 
ties and  being  in  default  to  one  of 
them,  has  secretly  abstracted   funds 
or  securities  from  the  other  to  make 
good    his    deficiency    to    the    former, 
it     has     been     held     that     the     one 
to   whom   they   have   been   so   trans- 
ferred cannot  keep  or  enforce  them, 
after      knowledge,      without      being 
chargeable  with  notice.     See  Bank  of 
New   Milford   v.   Town   of  New   Mil- 
ford,     36     Conn.     93.       (The     court 
said:   "He   [the  cashier]  as  agent  of 
the  bank  had  full  knowledge,  there- 
fore, of  the  fraud;  and  now  the  bank, 
if  they  ratify  his  contract  and  con- 
firm   his    agency,    must    accept    his 
knowledge  and  be  bound  by  it,  pre- 
cisely as  if  the  loan  had  been  made 
and  the  knowledge  had  by  the  board 
of  directors.")     Loring  v.  Brodie,  134 
Mass.   453;    Atlantic   Cotton  Mills  v. 
Indian  Orchard  Mills,  147  Mass.  268, 
9  Am.  St.  Rep.  698.     (The  court  said: 
"It  [the  plaintiff]  must  be  deemed  to 
have  known  what  he  knew;    and  it 
cannot  retain  the  benefit  of  his  act 
without   accepting   the   consequences 
of  his  knowledge.    The  plaintiff  can- 
not obtain  greater  rights  from  his  act 
than  if  it  did  the  thing  itself,  know- 
ing what  he  knew.")     Holden  v.  New 
York  &    Erie    Bank,    72    N.    Y.  286. 
(The  court  said:  "The  knowledge  of 
Ganson    [the   common   agent]    as  an 
individual   or   an   executor   was   not 
imputable    to    the    bank    merely    be- 
cause he  was  its   president,  but  be- 
cause when  it  acted  through  him  as 
president,  in  any  transaction  where 
that  knowledge  was  material  and  ap- 
plicable,  it  acted   through   an   agent 
who  at  that    very  time    had  knowl- 
edge of  facts  which  gave  a  character 
to   the   transaction  .    .    .  and   whose 
duty  it  was  to  make  that  knowledge 
known  to  his  principal."     And,  hav- 
ing such  knowledge,  it  was  the  bank's 
"duty    to    those    interested    in    that 


money  to  refuse  to  take  it  upon  de- 
posit   to    his    individual    account.") 
Fishkill    Savings    Institute    v.    Bost- 
wick,  19  Hun  (N.  Y.),  354;  Fouche  v. 
Merchants   Nat.   Bank,   110   Ga.   827. 
(The  court  said:  "We  do  not  see  how 
it   could   claim   the    advantages  and 
privileges     of    this    possession     and 
ownership  without  becoming  charge- 
able   with    notice    of    the    burdens 
it   had    likewise    assumed,    of   which 
it      had      knowledge,      through      its 
president,     when      it   thus     became 
the      owner      of      this      property.") 
Singleton    v.    Bank,    113     Ga.    527; 
First    National    Bank    of    Monmouth 
v.     Dunbar,     118     111.     625.        (The 
case  can  be  sustained  on  the  ground 
that  the  bank  acquired  no  right  to 
the  bonds  except  through  the  act  of 
its  cashier.     If  the  cashier  was  au- 
thorized to  receive  these  bonds,  his 
notice  is  its  notice.    If  he  was  not  so 
authorized,  the  bank  must  ratify  or 
repudiate  his   act.     If   it   repudiates 
it,  then  it  has  never  had  any  claim 
to  them;  if  it  ratifies  the  act,  it  must 
be    charged    with    all   knowledge   its 
agent  had.    The  case  also  comes  with- 
in  the  exception  to  the  general  ex- 
ception suggested   by  the   editors  of 
the   Case   Note   appended   to    Brook- 
house  v.  Union  Publishing  Co.,  2  L. 
R.  A.   (N.  S.)   993.) 

In  Warren  v.  Dixon,  74  N.  H.  355, 
the  plaintiff  had  been  defrauded  of 
land,  on  which  the  defendant  after- 
ward acquired,  in  good  faith  and  for 
value,  a  mortgage.  The  defendant 
sent  J.  B.  Dixon,  an  agent,  who  knew 
of  the  fraud  on  plaintiff,  to  collect 
the  mortgage.  The  agent  procured  a 
conveyance  of  the  land  to  defendant 
in  satisfaction  of  her  mortgage,  but, 
in  so  doing,  was  in  reality  acting  in 
the  interests  of  the  defendant's  mort- 
gagor. The  plaintiff  seeks  to  compel 
her  to  hold  the  legal  title  impressed 
with  notice  of  the  fraud  on  him.  The 
defendant  denies  the  agency  of  her 


1405 


§  i8i8] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


Of  course,  however,  if  the  principal  does  not  thus  take  with  notice, 
the  fact  that  he  may  afterwards  acquire  it  will  be  as  immaterial  here  as 
it  is  in  other  similar  cases. 


representative,  as  he  acted  for  the 
mortgagor,  and  she  apparently  claims 
nothing  by  the  deed  to  her,  but  falls 
back  on  her  mortgage  which  was  hon- 
estly acquired.  As  to  whether  she  is 
estopped  to  deny  his  agency  for  her, 
the  court  says:  "Although  the  plain- 
tiff cannot  maintain  this  action  by 
merely  showing  that  J.  B.  Dixon  was 
in  Mrs.  Dixon's  employ  when  the  con- 
veyance was  made,  she  cannot  set 
that  conveyance  up  to  defeat  the 
plaintiff's  right  to  redeem  the  prop- 
erty from  her.  The  reason  is,  not 
that  she  is  charged  with  J.  B.  Dix- 
on's knowledge,  but  because  a  person 
cannot  claim  the  benefit  of  so  much 
of  his  agent's  unauthorized  act  as  is 
beneficial  to  him  and  repudiate  the 
remainder.  If  he  accepts  any  bene- 
fit from  it  after  he  knows  and  appre- 
ciates what  his  agent  has  done,  he 
will  be  estopped  to  deny  that  the 
agent  was  acting  for  him.  In  other 
words,  such  conduct  constitutes  a 
ratification  of  the  agent's  act."  See 
also,  Morris  v.  Georgia  Loan  Co.,  109 
Ga.  12,  46  L.  R.  A.  506;  Brobston  v. 
Penniman,  97  Ga.  527. 

To  the  same  effect:  Curtis  v.  Stur- 
gis,  Jackson  &  Co.,  64  Mo.  App.  535; 
Smith  v.  Farrell,  66  Mo.  App.  8;  Wil- 
son v.  Pauly,  18  C.  C.  A.  475,  72  Fed. 
129.  See  also,  Black  Hills  Nat. 
Bank  v.  Kellogg,  4  S.  Dak.  312. 

It  is  not  to  be  denied  that  there  are 
cases  opposed  to  this  view.  Certain 
of  the  New  Jersey  cases,  for  exam- 
ple, can  not  be  reconciled  with  it, 
though  it  does  not  appear  that  the 
point  now  urged  against  them  was 
raised.  See  DeKay  v.  Hackensack 
Water  Co.,  38  N.  J.  Eq.  158;  Camdpn 
Safe  Deposit  Co.  v.  Lord,  67  N.  J.  Eq. 
489;  Barnes  v.  Trenton  Gas  L.  Co.,  27 
N.  J.  Eq.  33,  though  it  does  not  clear- 
ly appear  in  all  of  them  whether 
there  was  another  agent  acting  for 
the  principal  or  not.  Cole  v.  Getz- 
inger,  96  Wis.  559,  is  apparently  op- 

1406 


posed.  So  in  First  National  Bank  v. 
Foote,  12  Utah,  157,  where  it  is  said, 
"This  is  a  distinction  which  seems 
to  us  less  substantial  than  technical." 
Fort  Dearborn  Bank  v.  Seymour,  71 
Minn.  81,  admits  the  principle,  but 
denies  its  application  to  the  facts  at 
bar. 

In  Hummell  v.  Bank  of  Monroe,  75 
Iowa,  689,  one  A  was  cashier  of  the 
defendant  bank,  to  which  he  was  con- 
siderably indebted.  By  fraudulent 
representations  he  procured  from  the 
plaintiff  an  accommodation  note.  In 
violation  of  his  promise  to  the  plain- 
tiff he  negotiated  this  note  to  the  Des 
Moines  bank,  receiving  therefor  a 
draft,  which  he  cashed  at  his  own 
bank,  and  therewith  paid  his  in- 
debtedness and  received  non-nego- 
tiable cashier's  checks  for  the  resi- 
due. The  plaintiff  seeks  to  pur- 
sue the  entire  fund  into  defendant's 
hands,  on  the  ground  that  the 
notice  of  their  cashier  being  im» 
puted  to  it,  it  had  knowledge  of  the 
fraud  by  which  the  money  was  pro- 
cured. The  court  refused  to  charge 
it  with  such  notice  and  held  it  was 
only  liable  for  such  sum  as  remained 
to  A's  credit  when  the  bank  was  ac- 
tually-notified of  the  fraud.  It  was 
held  that  the  doctrine  of  ratification 
did  not  apply  to  the  case.  The  con- 
clusion in  this  case  cannot  be  sus- 
tained except  by  force  of  the  strict 
application  of  the  exception  to  the 
rule  of  notice  as  it  is  ordinarily  stat- 
ed. The  bank  acquired  the  drafts  in 
question  only  through  the  act  of  its 
cashier.  If  it  repudiated  that  act  it 
could  not  retain  the  draft.  It. would 
not  seem  that  the  bank  could  stand 
in  the  attitude  'of  a  purchaser  from 
the  cashier  as  an  independent  person 
because  he  did  not  deal  with  the 
bank  as  an  independent  person,  and 
the  bank  was  not  Represented  in  the 
transaction  by  any  other  agenL. 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1819 


§  1819.  But  there  may  also  be  cases  in  which,  because  no 

act  of  agency  resulted,  the  principal  would  be  entitled  to  stand  upon 
the  footing  of  a  transferee  from  the  agent,  or  from  the  other  principal 
whom  he  represented,  and  be  entitled  to  protection  to  the  same  extent 
as  any  purchaser  for  value  without  notice.  In  such  a  case,  there  be- 
ing really  no  agency  relation,  notice  could  not  be  imputed  upon  that 
ground,  and,  if  the  principal  had  no  notice  which  would  bind  him  other- 
wise, he  would  be  protected.85  This  result  would  not  seem  to  be  pos- 


ss  Thus,  in  a  number  of  cases  in 
which  the  same  person  was  ordinarily 
agent  for  each  party  but  in  the  given 
case  was  acting  as  an  outside  party 
:so  far  as  the  principal  in  question 
was  concerned,  it  has  been  held  that 
if  he  fraudulently  obtains  from  one 
principal  that  which  he  sells  or  trans- 
fers to  the  other  who  is  acting  for 
Jiimself,  the  latter  who  takes  in  good 
faith  and  for  value  cannot  be  charged 
with  what  the  agent  knew,  since  in 
this  transaction  he  was  not  agent  for 
the  latter. 

Thus  in  Thompson-Houston  Elec- 
tric Co.  v.  Capitol  Electric  Co.,  12  C. 
C.  A.  643,  65  Fed.  341,  it  appeared  that 
one  D.,  who  was  the  agent  of  Mrs.  R. 
to  loan  her  money  upon  securities 
and  who  had  received  money  from 
her  for  that  purpose,  which  it  was 
his  duty  to  account  to  her  for  from 
time  to  time,  was  also  the  secretary, 
treasurer  and  general  manager  ol  a 
certain  corporation.  He  owed  this 
corporation  upon  a  note,  and  the  note 
was  secured  by  a  deposit  with  the  cor- 
poration of  certain  bonds  which  be- 
longed to  D.  This  note  and  bonds 
were  in  his  custody  among  the  other 
papers  of  the  corporation.  In  order 
to  settle  his  account  with  Mrs.  R.  he 
induced  an  irresponsible  person  to 
give  him  a  note.  He  them  abstracted 
the  bonds  from  the  papers  of  the  cor- 
poration, attached  them  to  the  note 
BO  procured  as  though  they  had  been 
Civen  to  secure  it,  and  delivered  the 
note  and  the  bonds  to  Mrs.  R.  in 
Gettlement  of  his  account  with  her. 
Mrs.  R.  received  them  in  good  faith 
and  without  actual  notice  of  the  claim 


of  the  corporation  to  the  bonds.  In 
an  action  to  determine  the  title  to 
them,  it  was  contended  that  Mrs.  R. 
must  be  charged  with  the  knowledge 
which  D.  had  respecting  the  rights 
of  the  corporation,  and  that  therefore 
she  cowld  not  hold  the  bonds  as 
against  it.  It  was  held  that  his 
knowledge  would  not  be  imputed  to 
her,  and  the  exception  now  under 
discussion  to  the  general  rule  was 
relied  upon.  But  more  specifically 
the  court  said:  "When  he  abstracted 
the  bonds  he  was  not  taking  them  for 
Mrs.  R.;  he  was  taking  them  for 
himself,  so  that  he  might  use  them 
to  obtain  money  from  Mrs.  R.  He 
was  not  abstracting  them  for  the 
benefit  of  Mrs.  R.  any  more  than  for 
the  benefit  of  any  stranger  to  whom 
he  might  have  sold  them  for  value. 
In  delivering  these  bonds  to  Mrs.  R., 
D  was  actually  dealing  with  her  as  a 
purchaser  from  him  and  not  as  her 
agent."  And,  by  another  judge:  "In 
the  present  case  I  do  not  think  D. 
was  acting  as  agent  of  either  of  the 
supposed  principals,  but,  having  pos- 
session of  the  bonds  entrusted  to  him 
by  the  company,  made  the  manual 
abstraction  and  tradition  of  them 
which  brought  them  to  the  hands  of 
an  innocent  holder."  Atlantic  Cot- 
ton Mills  v.  Indian  Orchard  Mills,  147 
Mass.  268,  supra,  was  distinguished. 

To  same  effect:  Henry  v.  Allen,  151 
N.  Y.  1,  36  L.  R.  A.  658,  9  Am.  St. 
Rep.  698;  Allen  v.  South  Boston  Ry. 
Co.,  150  Mass.  200,  15  Am.  St.  Rep. 
1S5,  5  L.  R.  A.  716;  Clark  v.  Marshall, 
62  N.  H.  498. 


1407 


§    1820] 


THE  LAW  OF  AGENCY 


sible,  however,  in  cases  in  which  the  agent  was  the  sole  actor  on  both 
sides. 

§  jgao.  In  many  cases  the  matter  seems  to  resolve  itself 

into  the  familiar  but  always  difficult  question  of  which  of  two  innocent 
parties  should  bear  the  loss.  This  is  often  settled  by  the  application  of 
the  alleged  maxim  that  he  should  bear  it  by  whose  act  it  was  made  pos- 
sible.86 In  other  cases  the  only  solution  seems  to  be  to  leave  it  where 


se  This  is  the  ground  upon  which 
Real  Estate  Trust  Co.  v.  Washington, 
etc.,  Ry.  Co.,  113  C.  C.  A.  124, 
191  Fed.  566  (reversing  Washing- 
ton, etc.,  Ry.  Co.  v.  Real  Es- 
tate Trust  Co.,  177  Fed.  306)  is 
really  based.  Here  the  complain- 
ant had  left  in  the  possession  of 
two  of  its  officers  certain  uncancelled 
bonds  after  they  had  in  fact  become 
obsolete.  One  of  these  officers  pledged 
these  bonds  to  the  defendant  Held, 
that  defendant  was  to  be  protected. 
The  court  also  says  that  this  Is  one 
of  the  cases  in  which  notice  would 
not  be  imputed.  See  also,  Witten- 
brock  v.  Parker,  102  Cal.  93,  41  Am. 
St.  Rep.  172,  24  L.  R.  A.  197. 

In  Smith  v.  Boyd,  162  Mo.  146,  two 
separate  mortgages,  both  duly  re- 
corded, securing  notes,  were  outstand- 
ing upon  the  same  land.  The  second 
of  these  had  really  been  given  in  sub- 
stitution for  the  first,  and  with  the 
understanding  that  the  first  should 
be  cancelled  and  discharged.  This, 
however,  was  not  done,  but  the  holder 
transferred  the  second  note  and  mort- 
gage to '  Smith,  falsely  assuring  him 
that  it  was  a  first  note  and  mortgage. 
Smith  afterward  foreclosed  his  mort- 
gage and  bid  in  the  land,  not  yet  be- 
ing actually  apprised  of  the  existence 
of  the  first  mortgage,  although  it  was 
duly  recorded.  Later  proceedings 
were  instituted  to  foreclose  the  first 
mortgage,  and  Boyd  entered  into  ne- 
gotiations through  one  King  for  the 
purchase  of  the  land  at  or  after  the 
foreclosure  sale.  An  abstract  was 
procured,  which  showed  the  existence 
of  the  mortgage  to  Smith  and  its 
foreclosure,  but  Boyd  was  advised 


that  the  first  mortgage,  called  the 
Tyler  mortgage,  would  take  preced- 
ence over  the  title  held  by  Smith, 
and  he  entered  into  a  contract  with 
King,  by  which  he  agreed  to  take  the 
land  from  King,  either  upon  a  deed 
from  King  or  upon  the  deed  made  at 
the  foreclosure  sale,  and  King  bought 
the  property  at  the  foreclosure  sale 
and  had  the  deed  made  to  Boyd.  Boyd 
had  no  knowledge  of  the  fact  that  the 
mortgage  under  which  he  claimed  had 
really  been  satisfied  by  the  execution 
of  the  mortgage  under  which  Smith 
claimed  and  that  it  should  have  been 
discharged  of  record,  but  King  knew 
all  these  facts.  Smith  brought 
this  action  to  cancel  the  convey- 
ance to  Boyd,  claiming  that  King 
was  Boyd's  agent  in  the  purchase, 
and  that  King's  knowledge  would 
be  imputed  to  Boyd.  *  The  court 
held  that  even  if  King  could  be 
regarded  as  Boyd's  agent,  King'& 
knowledge  could  not  be  imputed  to 
Boyd,  as  he  was  acting  adversely. 
The  court  also  held  that  King  was 
not  really  an  agent,  but  a  seller,  and 
therefore  the  ordinary  rule  imputing 
the  agent's  knowledge  would  not  be 
implied,  and  finally  also  held  that  in- 
asmuch as  Smith  had  constructive 
knowledge  of  the  existence  of  the  first 
mortgage,  from  the  fact  of  its  being 
recorded,  and  did  nothing  for  a  con- 
siderable period  to  correct  the  record, 
and  inasmuch  as  Boyd  relied  upon 
the  record  priority  of  the  mortgage 
under  which  he  purchased,  Smith 
must  bear  the  loss,  even  though  act- 
ually as  innocent  as  Boyd,  upon  the 
principle  that  it  was  his  act  or  fail- 
ure to  act  that  had  made  the  loss 


1408 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD    PARTIES 


[§    1821 


it  has  fallen,  since  there  is  no  reason  or  justification  for  shifting  it  to 
the  other  party.87 

§  1821.  In  a  few  cases  it  has  been  said  that  the  principal 

could  not  be  held  because  he  really  had  not  participated  in  the  transac- 
tion,— that  he  had  at  most  been  a  mere  unconscious  party  or  a  mere 
conduit,  and  that  therefore  no  responsibility  could  be  attached  to  him.88 


possible.  In  re  Marseilles  Extens. 
Ry.  Co.,  L.  R.  7  Ch.  161,  belongs  to 
'this  class. 

87  in  Gunster,  Assignee  of  The 
Scranton  Bank  v.  The  Scranton  Il- 
luminating, etc.,  Co.,  181  Pa.  327,  59 
Am.  St.  Rep.  650,  one  Jessup  was  vice- 
president  of  the  plaintiff  bank,  and  its 
principal  manager,  and,  in  the  trans- 
action in  question,  its  sole  repre- 
sentative. He  was  also  treasurer  of 
the  defendant  corporation,  and  as 
such  treasurer  drew  the  notes  of  such 
company  to  the  bank,  which  the  bank 
discounted  and  gave  the  defendant 
company  credit  for  the  proceeds.  Jes- 
sup then,  by  check  of  the  company, 
drew  this  fund  from  the  bank  and 
appropriated  it  to  his  own  use.  The 
company  defends  in  a  suit  to  collect 
the  notes,  claiming  that  the  bank 
knew  of  the  fraudulent  inception  of 
them,  because  Jessup,  its  cashier, 
knew  of  it.  But  the  court  refused  to 
charge  the  bank  with  such  knowl- 
edge, and,  aftsr  discussing  that  ques- 
tion, says:  "But  we  do  not  regard 
knowledge  as  the  pivotal  point  of  the 
case.  Upon  that  point  both  parties 
would  stand  equal.  Both  might  by 
mere  inference  be  charged  with 
knowledge,  as  the  fraud  was  commit- 
ted by  an  agent  with  authority  to  act 
for  both,  but  in  fact  neither  had  or 
in  the  nature  of  things  could  have 
any  knowledge  at  all,  and  neither 
was  under  any  obligation  to  presume 
that  its  agent  would  be  guilty  of 
fraud.  The  real  question  is,  in  what 
capacity  did  Jessup  commit  the 
fraud?  And  it  is  clear  that  it  was  as 
treasurer  of  the  appellee.  It  was  as 
treasurer  he  presented  the  notes  for 
discount,  and  as  treasurer  he  drew 
the  checks  for  the  proceeda  Both 


acts  were  within  his  authority  as 
treasurer  and  would  have  been  lawful 
if  they  had  been  honest,  but  he  drew 
the  money  on  drafts  which  were  the 
property  of  the  company,  and  when 
he  embezzled  the  money  it  was  the 
money  of  the  company.  The  bank  had 
no  part  in  his  act,  and  gained  noth- 
ing by  it.  The  fraud  had  its  incep- 
tion and  its  consummation  in  acts 
done  in  his  capacity  of  treasurer  of 
the  defendant  company,  and  it  should 
bear  the  loss." 

In  Lyndon  Mill  Co.  v.  Lyndon  Lit- 
erary Institution,  63  Vt.  581,  25  Am. 
St.  Rep.  783,  the  court  says  that  the 
question  of  imputing  notice  "depends 
upon  the  circumstances  of  each  case." 
Innerarity  v.  Merchants  National 
Bank,  supra,  and  Fairfleld  Savings 
Bank  v.  Chase,  72  Me.  226,  39  Am. 
Rep.  319,  are  cited,  but  neither  is  an- 
alogous in  its  facts. 

ss  in  Bank  of  Overton  v.  Thompson, 
56  C.  C.  A.  554,  118  Fed.  798,  the  cash- 
ier of  the  bank,  one  Hardinger,  and 
the  complainant  were  jointly  inter- 
ested in  some  cattle.  The  cashier 
sold  them  and  received  therefor  from 
the  buyer  a  draft  and  somo  credit 
slips.  These  he  deposited  with  the 
bank  to  his  individual  credit,  and  af- 
terward checked  out  on  his  personal 
check  the  entire  amount,  using  it  all 
himself  and  making  no  settlement 
with  the  complainant.  In  all  the 
transactions  he  was  the  sole  repre- 
sentative of  the  bank,  no  other  per- 
son connected  therewith  having  any 
knowledge  of  the  complainant's  in- 
terest in  the  funds.  The  complainant 
seeks  to  hold  the  bank  as  construc- 
tive trustee,  alleging  that  it  knew, 
through  its  cashier,  when  it  received 
the  funds,  that  they  belonged  to  the 


89 


1409 


§    1822] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


§  1822.  The  true  exception. — For  the  reasons  that  have 

been  advanced,  it  is  believed  that  this  second  exception,  as  it  is  ordi- 
narily stated,  is  ill-founded  and  too  broad.  It  rests  properly  upon  the 
ground  that,  under  the  circumstances,  there  was  really  no  agency,  and 
not  upon  the  ground  that  the  law  presumes  that  the  agent  will  violate 
his  duty.  It  should  be  confined,  therefore,  to  the  cases  which  really 
fall  within  the  reason :  and  notice  should  be  imputed  wherever  there  is 
agency  or  ratification. 


complainant.  The  court  held  that  the 
bank  could  not  be  so  held,  but  seemed 
to  put  the  case  on  another  ground, 
wherein  the  question  of  notice  would 
not  arise,  commenting  in  the  follow- 
ing language:  "In  the  present  case, 
Hardinger,  for  his  own  purposes,  and 
without  the  knowledge  of  anyone  else 
connected  with  the  defendant  bank, 
deposited  the  proceeds  of  the  sale  of 
the  cattle,  as  his  own  money,  in  de- 
fendant bank,  and,  while  the  facts  re- 
mained wholly  unknown  to  anyone 
connected  with  the  bank  but  himself, 
by  his  own  act  he  withdrew  the  same 
money  from  the  bank.  As  depositor, 
both  in  making  and  withdrawing  the 
deposit,  his  interests  were  adversary 
to  the  bank.  If  he  was  engaged  in  de- 
frauding the  complainant,  the  pre- 
sumption is  that  he  would  not  dis- 
close to  the  bank  his  fraud,  or  com- 
plainant's interest  in  the  fund,  and 
the  evidence  of  the  actual  fact  corres- 
ponds to  this  presumption.  The  bank 
had  no  knowledge  of  any  interest  of 
complainant  in  the  fund,  and  was  un- 
der no  obligation  to  him.  The  com- 
plainant, by  authorizing  Hardinger  to 
sell  the  cattle,  authorized  him  to  re- 
ceive the  money  for  them  and  to  care 
for  it.  In  caring  for  it,  he  placed  it 
temporarily  in  defendant  bank,  but 
retained,  as  he  properly  might,  the 
control  over  it,  and  afterwards  re- 
sumed, as  he  had  a  right  to,  the  pos- 
session of  it.  If  it  was  a  trust  fund, 
Hardinger  was  the  complainant's 
trustee.  He  might  put  it  in  a  bank, 
and  remove  it  at  his  discretion  to  an- 
other bank,  or  put  it  in  his  pocket." 
In  Brookhouse  v.  Union  Publishing 


Co.,  93  N.  H.  368,  111  Am.  St.  Rep. 
623,  2  L.  R.  A.  (N.  S.)  993,  the  facts 
alleged  were  that  one  M  was  the 
guardian  of  the  plaintiff.  He  was  al- 
so the  treasurer  of  the  defendant  cor- 
poration, and  used  it  for  his  private 
banking  purposes,  depositing  money 
with  its  general  funds  and  crediting 
his  account,  and  charging  his  account 
as  he  withdrew  it.  He  withdrew  from 
his  guardian  bank  account  money,  for 
which  he  received  drafts  payable  to 
himself  as  guardian,  or  order.  These 
he  endorsed  and  directed  the  assist- 
ant treasurer  of  defendant  to  deposit 
to  his  credit.  For  his  personal  pur- 
poses he  afterward  checked  out  the 
money.  In  this  action  the  ward  seeks 
to  charge  the  defendant  with  notice 
of  the  fraudulent  character  of  the 
transaction.  The  court  held  that  the 
defendant  was  an  innocent  conduit, 
through  which  the  guardian  temporar- 
ily passed  the  money,  and  that  it 
could  not  be  charged  therefor.  The 
court  said:  "In  the  case  at  bar  the 
defendant  does  not  set  up  any  claim 
to  the  funds  in  dispute.  The  funds 
have  passed  beyond  its  reach  without 
being  of  any  advantage  to  it."  And 
again:  "The  defendant  was  not  real- 
ly the  principal  of  Moore  in  respect  to 
the  deposits  and  withdrawals  of  the 
plaintiff's  money  in  and  from  its  bank 
account;  it  was  his  agent.  The  trans- 
actions were  solely  on  his  account 
and  for  his  benefit.  The  defendant  re- 
ceived no  substantial  benefit  from 
them.  The  only  authority  conferred 
upon  Moore  by  it  which  he  used  was 
the  authority  to  use  its  bank  account 
for  his  private  purposes.  In  drawing 


I4IO 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1823-1825 

§  1823.  It  is  not  enough  to  prevent  the  application  of  the 

general  rule  that  an  agent  to  whom  notice  comes  which  would  other- 
wise be  imputed,  shall,  however  wickedly  or  fraudulently,  fail  to  com- 
municate it  to  his  principal.  An  innocent  third  person,  not  claiming 
through  the  agent's  act,  and  otherwise  entitled  to  the  benefit  of  notice, 
can  not  be  denied  it  merely  because  the  agent,  for  some  fraudulent  pur- 
pose of  his  own,  conceals  the  notice  from  his  principal.  The  rule  can 
only  apply  where  the  person  claiming  the  benefit  of  the  notice  is  a  party 
to  the  transaction  or  claims  through  the  agent's  act,  and  the  agent  must 
also  have  some  interest  or  motive  of  his  own,  adverse  to  his  principal's 
interests,  which  prompts  him  to  conceal  his  knowledge  and  which  prac- 
tically destroys  the  agency  relation.89 

§  1824.  Inasmuch  as  an  agent,  with  the  full  knowledge 

and  consent  of  his  principal,  may  also  act  for  himself  or  for  the  ad- 
verse party,  notice  acquired  by  the  agent  in  the  course  of  his  agency, 
though  while  he  was  also  acting  for  the  adverse  party  with  the  prin- 
cipal's knowledge  and  consent,  will  be  imputed  to  the  principal.90 

§  1825.  Applicability  of  exception  to  corporate  agents. — 

The  exception  to  the  general  rule  applies  ordinarily  to  the  agents  of 
corporations  as  well  as  of  natural  persons.  A  doubt,  however,  has  been 
suggested  "whether  this  exception  can  apply  to  directors,  presidents 
and  other  such  managing  officers  of  a  corporation,  through  whom  alone 
the  corporation  can  act ;"  01  but  this  distinction  has  not  been  generally 
approved,92  and  no  sound  reason  is  perceived  why  such  a  distinction 
should  be  made. 

A  different  distinction  has  also  been  suggested,  namely,  that  the  ex- 
ception in  question  will  not  apply  where  the  agent,  "though  he  acts 
for  himself  or  for  a  third  person,  is  the  sole  representative  of  the  cor- 

checks,  he  fulfilled  its  obligation  to  principal,  but  upon  the  other  party, 

himself.     He   was   really   acting   for  does  not,  it  is  held,  alter  the  general 

himself."  rule.     Lockhart  v.  Washington,  etc., 

89  Armstrong  v.  Ashley,  204  U.  S.  Min.  Co.,  16  N.  Mex.  223. 

272,  51  L.  Ed.  482;  Boursot  v.  Savage,  eo  pine  Mt.   Iron  Co.  v.  Bailey,   36 

L.  R.  2  Eq.  134.     Letters  which  come  C.  C.  A.  229,  94  Fed.  258. 

to  the  hands  of  the  agent  of  a  bank  »i  Pomeroy's  Equity  Jurisprudence, 

authorized  to  receive  them  must  be  §  675,  note.     Mr.  Pomeroy  refers  to 

deemed  to  be  received  by  the  bank,  Holden    v.  N.    Y.    &    Erie    Bank,  72 

even    though    the    agent    suppresses  N.  Y.   286,   and   First   Nat.   Bank  v. 

them  in  order  to  prevent  discovery  Town  of  New  Milford,  36  Conn.  93, 

of  irregularities   of  his  own.     First  [cited  in  §  1818,  supra]. 

Nat.   Bank  v.   Fourth   Nat.   Bank   of  f*2  See,  for  example,  Brookhouse  v. 

Louisville,  6  C.  C.  A.  183,  56  Fed.  967.  Union  Publishing  Co.,  73  N.  H.  368, 

The  fact  that  the  agent  is  engaged  in  111  Am.  St.  Rep.  623,  6  Ann.  Gas.  675, 

practicing  fraud,   not  upon  his  own  2  L.  R.  A.  (N.  S.)  993. 

1411 


§    1826]  THE  LAW  OF  AGENCY  [BOOK    IV 

poration  in  the  transaction  in  question."93  This  distinction,  however, 
like  the  preceding  one,  seems  not  to  get  to  the  root  of  the  matter.  It 
is,  of  course,  true  that  a  corporation  can  only  act  through  some  agent, 
and  where  it  acts  through  a  single  agent  knowledge  must  come  through 
him  if  it  conies  at  all.  But  it  seems  to  beg  the  question  to  say  that  it 
must  come  at  all,  and  especially  to  say  that  it  must  come  in  every  case 
in  which  the  corporation  is  represented  solely  by  the  agent  who  had  the 
knowledge.  Another  distinction,  though  well  settled,  namely,  that 
knowledge  will  not  be  imputed  where  the  principal  was  represented  by 
another  agent  in  the  transaction  in  question,04  seems  not  to  furnish  jus- 
tification for  the  distinction  thus  suggested. 

The  real  ground  upon  which  this  situation  rests  is  believed  to  be  that 
already  stated,  namely,  that  where  the  agent  is  the  sole  representative 
of  the  corporation,  the  corporation  can  not  claim  anything  except 


through  him  and  that  therefore  if  it  claims  through  him,  after  notice 
of  the  facts,  it  must  accept  his  agency  with  its  attendant  notice. 

§  1826.  The  third  exception — Collusion  of  party  claiming  benefit 
of  notice. — The  rule  which  imputes  to  the  principal  the  knowledge 
of  his  agent  is,  as  has  been  seen,  commonly  based  upon  the  legal  pre- 
sumption that  the  agent  has  done  his  duty  by  communicating  it  to  his 
principal, — a  presumption  which,  it  is  said,  is  demanded  by  a  sound 
public  policy  for  the  protection  of  those  who  deal  with  the  agent.  Ob- 
viously no  policy  requires  that  such  a  presumption  shall  be  made  for 
the  protection  of  a  person  who  has  conspired  with  the  agent  to  defraud 
the  principal  and  who  now  seeks  the  benefit  of  a  presumption  that  a 
duty  has  been  performed  which  he  himself  was  interested  in  having 
violated.  Thus  in  a  leading  case  in  New  York,  where  this  question 
was  involved,  the  court  said:  "If  a  person  colludes  with  an  agent  to 
cheat  the  principal,  the  latter  is  not  responsible  for  the  acts  or  knowl- 
edge of  the  agent.  The  rule  which  charges  the  principal  with  what  the 
agent  knows  is  for  the  protection  of  innocent  third  persons,  and  not 
those  who  use  the  agent  to  further  their  own  frauds  upon  the  princi- 
pal." 95 

»s  This  distinction  is  worked  out  »s  National  Life  Ins.  Co.  v.  Minch, 

with  much  care  and  fullness  of  cita-  53  N.  Y.  144.  See  also,  to  same  ef- 

tions  in  a  note  by  the  editors,  ap-  feet:  Morrill  v.  Bosley,  40  Tex.  Civ. 

pended  to  the  case  of  Brookhouse  v.  App.  7;  Elliott  v.  Maccabees,  46 

Union  Publishing  Co.,  in  2  L.  R.  A.  Wash.  320,  13  L.  R.  A.  (N.  S.)  856; 

(N.  S.)  993,  supra.  It  is  also  ap-  Traders,  etc.,  Bank  v.  Black,  108  Va. 

proved  in  the  late  case  of  Cook  v.  59;  Van  Buren  County  v.  American 

American  Tubing  &  Webbing  Co.,  28  Surety  Co.,  137  Iowa,  490,  126  Am.  St. 

R.  I.  41,  9  L.  R.  A.  (N.  S.)  193.  Rep.  290;  Hickman  v.  Green,  123  Mo. 

»*See  post,  §  1837.  165,  29  L.  R.  A.  39;   Cooper  v.  Ford, 

1412 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1827,  1828 

The  identification  theory  would  reach  a  similar  result  here  upon  the 
ground  that  the  collusion  destroyed  the  agency  and  with  it  the  founda- 
tion for  identification. 

§  1827.  Who  can  avail  himself  of  the  notice. — The  rule  respecting 
the  imputation  of  notice  is  usually  resorted  to  by  third  persons  seeking 
a  remedy  against  the  principal.  Ordinarily  they  are  persons  who  have 
dealt  with  the  principal  through  the  agent  in  question ;  but  it  is  not  es- 
sential that  they  shall  have  dealt  with  the  agent.  The  rule  respecting 
notice  may  apply  although  they  have  not  known  of  or  dealt  with  the 
agent,  if  they  have  had  dealings  with  the  principal,  or  with  some  other 
agent  of  his,  which  make  the  matter  of  notice  material  to  the  protection 
of  their  interests.90  As  has  been  seen,  however,  they  will  not  be  permit- 
ted to  avail  themselves  of  the  rule,  where  they  were  colluding  with  the 
agent  to  defraud  the  principal.97 

As  has  already  been  stated,  it  has  been  held  that  the  principal  him- 
self, in  his  dealings  with  third  persons,  may  avail  himself  of  the  rule, 
although  the  agent  has  not  in  fact  communicated  his  knowledge  to 
him.98 

The  agent  himself,  however,  in  his  relations  to  his  principal,  could 
rarely,  if  ever,  be  permitted  to  set  up,  as  constructive  notice  to  his  prin- 
cipal, information  which,  in  disregard  of  his  duty,  he  had  failed  to  com- 
municate to  the  principal.99 

§  1828.  What  notice  includes — Actual  and  constructive  notice. — 
The  notice  which  will  affect  the  principal  may  be  the  direct  and  un- 
equivocal information  of  the  fact,  or  it  may,  in  certain  cases,  be  infer- 
red from  the  existence  of  other  facts.  The  former  is  sometimes  termed 
actual  notice,  and  the  latter  constructive  notice.  The  distinction,  how- 
ever, is  not  of  any  great  practical  importance,  and  perhaps,  strictly,  the 
latter  is  to  be  deemed  as  much  actual  notice  as  the  former.  In  either 
event,  it  is  well  settled  that  the  principal  may  ordinarily  be  bound  by 

29   Tex.   Civ.   App.   253;    Benedict  v.  same  principle.    Ga.  Civ.  Code,  §  3028. 

Arnoux,  154  N.  Y.  715;  Brooklyn  Dis-  Socute   des    Mines   v.    Mackintosh,    5 

tilling  Co.   v.    Standard   Distilling  &  Utah,  568. 

Distributing  Co.,  120  N.  Y.  App.  Div.  »«  Armstrong  v.   Ashley,  204  U.   S. 

237;    Traber  v.   Hicks,   131   Mo.   180;  272,  51  L.  Ed.  482. 

Cowan  v.  Curran,  216  111.  598;   Ham-  ST  See  ante,  §  1826. 

burg-Bremen  Ins.  Co.  v.  Lewis,  4  App.  »« See    ante,    §    1813.      Haines    v. 

D.  C.  66;  Western  Mfg.  Co.  v.  Ganzer,  Starkey,   82   Minn.    230;    Harrison   v. 

11  C.  C.  A.  371,  63  Fed.  647;   Hudson  Legore,  109  Iowa,  618. 

v.  Randolph,  13  C.  C.  A.  402,  66  Fed.  ™  See  McDermott  v.  Hayes,  116  C. 

216.  C.   A.   553,  197   Fed.  129;    Sankey  v. 

The  Georgia  Civil  Code  declares  the  Alexander,  Ir.  Rep.  9  Eq.  259. 

1413 


§  1829] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


the  one  as  fully  as  by  the  other.1  The  rule  as  to  what  will  constitute 
constructive  notice  may  be  said  to  be  that  wherever  a  party  has  knowl- 
edge of  any  fact  sufficient  to  put  a  prudent  man  upon  an  inquiry  which, 
if  prosecuted  with  ordinary  diligence,  would  lead  to  actual  notice,  he 
will  be  charged  with  the  knowledge  which  might  have  been  acquired 
by  such  diligence.2  The  presumption  that  he  would  have  acquired  such 
knowledge  is  not,  however,  indisputable,  and  it  is  always  open  to  the 
party  to  show  that  he  used  such  diligence  without  avail.8 

Within  this  rule  constructive  notice  to  the  agent  which  would,  if  fol- 
lowed with  reasonable  diligence,  have  led  to  further  information,  would 
doubtless  charge  the  principal  with  notice  of  the  information  which 
might  have  been  so  obtained.* 

§  1829.  Whether  the  principal  can  be  charged  with  con- 
structive notice  by  reason  of  what  the  agent  knew,  but  which  would 
not  be  constructive  notice  to  the  agent,  would  seem  to  be  doubtful.5 
If,  for  example,  information  comes  to  an  agent  which  reasonably  seems 
to  him  immaterial,  but  which,  if  he  had  known  what  the  principal  knew, 
would  have  led  to  material  information,  can  it  be  said  that  the  princi- 
pal is  chargeable  with  the  latter  information?  If  he  had  acted  in  per- 


1  But  constructive  notice  alone  will 
not  suffice  where  actual  knowledge  is 
required,    e.    g.,    in   conspiracy,    etc., 
Benton  v.  Minneapolis  Tailoring  Co., 
73    Minn.    498;    Reisan    v.    Mott,    42 
Minn.  49,  18  Am.  St.  Rep.  489. 

2  Williamson    v.    Brown,    15    N.    Y. 
354;   Baker  v.  Bliss,  39  id.  70;   Cam- 
bridge Valley  Bank  v.  Delano,  48  id. 
326;    Hood  v.  Fahnestock,  1  Pa.  470, 
44  Am.  Dec.  147;    Chapman  v.  Glas- 
sell,  13  Ala.  50,  48  Am.  Dec.  41.     The 
mere  fact  that  there  was  opportunity 
to  learn  where  there  was  nothing  to 
suggest  any  necessity  or  occasion  to 
know,  is  not  enough.     Economy  Sav. 
Bank  v.  Gordon,  90  Md.  486,  48  L.  R. 
A.  63. 

s  Williamson  v.  Brown,  15  N.  Y.  354. 

*  Furry  v.  Ferguson,  105  Iowa,  231; 
Field  v.  Campbell,  164  Ind.  389,  108 
Am.  St.  Rep.  301;  Wiley  v.  Knight, 
27  Ala.  336;  Pepper  v.  George,  51  Ala. 
190;  Gallagher  v.  Equitable  Gas  L. 
Co.,  141  Cal.  699;  Wells  v.  McMahon, 
3  Wash.  Ter.  532. 

Where  the  agent  owes  a  duty  to 


investigate,  as  in  the  case  of  an 
agent  charged  with  the  master's  duty 
to  keep  premises,  etc.,  in  repair,  what 
he  would  have  learned  is  imputable. 
Johnson  v.  First  Nat.  Bank,  79  Wis. 
414,  24  Am.  St.  Rep.  722. 

5  In  Wittenbrock  v.  Parker,  102  Cal. 
93,  41  Am.  St.  Rep.  172,  24  L.  R.  A. 
197,  where  T  and  H  were  lawyers 
and  partners,  and  T  while  acting  for 
one  client  acquired  certain  informa- 
tion, it  was  held  that  this  would  not 
be  imputed  to  Y,  a  client  who  sub- 
sequently acted  with  H  respecting  the 
same  property,  both  Y  and  H  being 
actually  ignorant  of  what  T  knew. 
The  court  said  that  while,  for  the 
purposes  of  his  liability  as  a  member 
of  the  firm  of  T  and  H,  H  might  be 
charged  with  constructive  notice  of 
what  his  partner  T  knew,  Y,  the 
client  of  H,  was  not  to  be  charged 
with  constructive  knowledge  of  the 
same  matter  of  which  for  some  pur- 
poses H  had  thus  constructive  but  not 
actual  knowledge. 


1414 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1830,  183! 

son  he  would  be  chargeable.  But  if  the  duty  of  the  agent  to  communi- 
cate is  limited  to  the  communication  of  that  which,  from  his  standpoint, 
reasonably  seems  material  to  the  principal's  interests — as  must  cer- 
tainly be  the  case  if  the  duty  is  considered  from  the  standpoint  of  the 
principal  and  the  agent — and  if  the  obligation  of  the  principal  depends 
upon  the  presumption  that  the  agent  has  performed  his  duty,  the  knowl- 
edge imputed  to  the  principal  could  not  include  the  information  in  ques- 
tion. The  same  result  would  seem  to  flow  from  the  theory  of  the  legal 
identity  of  the  principal  and  agent,  unless  we  are  prepared  to  say  that 
that  theory  leads  to  the  conclusion  that  the  principal  knows  what  the 
agent  knows,  and  is  therefore  bound  by  the  results  of  an  investigation 
which  the  knowledge  of  two  facts  would  have  prompted,  although  as  a 
matter  of  fact  he  is  actually  ignorant  of  one  of  them. 

§  1830.  Agent  must  be  agent  of  person  to  whom  notice  is  to  be 
imputed. — It  would  seem  to  go  without  saying  that  notice  can  not 
be  imputed  under  the  rules  here  being  considered  unless  the  agent  who 
had  the  notice  or  knowledge  stood  in  that  relation  to  the  person  to 
whom  the  notice  is  sought  to  be  imputed.  If  he  was  the  agent  of  the 
other  party  only,  or  only  of  some  one  else  than  the  alleged  principal,  his 
notice  or  knowledge  cannot  be  imputed  to  the  person  in  question.8 

§  1831.  Rule  applies  only  to  notice  respecting  matters  within 
agent's  authority. — This  rule  which  imputes  to  the  principal  the 
knowledge  possessed  or  notice  received  by  the  agent  applies  only  to 
cases  where  the  knowledge  is  possessed  or  notice  received  by  an  agent 
within  the  scope  of  whose  authority  the  subject-matter  lies.  An  agent, 
may  be  put  forward  for  the  express  purpose  of  receiving  notice,  or  be 
referred  to  as  the  one  to  whom  notice  may  be  given,  and  in  such  a  case, 
of  course,  no  further  evidence  of  authority  to  receive  it  would  be  re- 
quired.7 An  agent  may  also  be  put  in  such  a  position  of  general 
authority,  in  such  a  managerial  or  directing  situation, — as  in  the 
case  of  the  chief  officer  of  a  corporation  or  of  an  individual,  that 
notice  to  him  will  be  notice  to  his  principal  because  it  must  be 
deemed  within  his  authority  to  receive  it,  even  though  he  never 
personally  acts  in  respect  of  the  matters  to  which  the  notice  re- 
lates.8 But^  in  other  cases,_notice  binds  the  principal  because  the 

«  See   Goodwynne   v.   Bellerby,   116  *  See  Hardin  Grain  Co.  v.  Chicago, 

Ga.  901;   International  Building  &  L.  etc.,  Ry.  Co.,  134  Mo.  App.  681. 

Ass'n     v.     Watson,     158     Ind.     508;  s  gee   Cragie   v.   Hadley,   99   N.   Y. 

Weightman  v.  Washington  Critic  Co.,  131,  52  Am.  Rep.  9  (the  president  of 

4   App.    Gas.   D.   C.   136    (mere   rela-  a  bank);    New   Hope   Bridge  Co.   v. 

tion     of     husband     and     wife     not  Phenix    Bank,  3    N.  Y.    156  (same); 

enough).  Mihills   Mfg.    Co.    v.   Camp,    49  Wis. 

1415 


[BOOK  iv 


receipt  of  it  can  be  deemed  to  be  an  incident  to  the  act  which  the 
agent  is  authorized  to  perform,  and  it  can  not  be  notice  unless 
it  is  such  an  incident.  In  other  words,  the  knowledge  or  notice 
must  come  to  an  agent  who  has  authority~~to  deal  in  reference  to 
those  matters  which  the  knowledge  or  notice  affects,  and  whose 
duty_it  therefore  is  to  communicate  it  to  his  principal.  The  fact 
that  some  other  agent,  employed  in  reference  to  different  and  distinct 
transacti6ns,  may  have  had  notice  or  knowledge  will  not  affect  the 
princ ipul.  ''^X*' 
130;  Port  Jervis  v.  First  National  the  latter  is  employed,  unless  the 


Bank,  96  N.  Y.  550  (president 
and  executive  head  of  bank);  Lea 
v.  Iron  Belt  Co.,  147  Ala.  421,  119 
Am.  St.  Rep.  93,  8  L.  R.  A.  (N.  S.) 
279  (president  and  chief  executive). 

But  the  divisions  of  function  be- 
tween the  officers  of  a  corporation 
may  be  so  narrow  that  notice  to  a 
president,  for  example,  of  some  mat- 
ter within  another  officer's  sphere, 
will  not  be  notice  to  the  corporation. 
Bank  v.  Craig,  6  Leigh  (Va.),  399. 

» Congar  v.  Chicago,  etc.,  Ry.  Co., 
24  Wis.  157,  1  Am.  Rep.  164;  Stewart 
v.  Sonneborn,  49  Ala.  178;  Cook  v. 
Anamosa,  66  Iowa,  427;  Russell  v. 
Cedar  Rapids  Ins.  Co.,  78  Iowa,  216, 
4  L.  R.  A.  538;  Tate  v.  Hyslop,  15 
Q.  B.  Div.  368;  Columbia  Paper 
Stock  Co.  v.  Fidelity  &  Casualty 
Co.,  104  Mo.  App.  157;  Trentor 
v.  Pothen,  46  Minn.  298,  24  Am.  St. 
Rep.  225;  Strauch  v.  May,  80  Minn. 
343;  Comey  v.  Harris,  133  N.  Y. 
App.  Div.  686;  Johnson  v.  Valido 
Marble  Co.,  64  Vt.  337;  Walker  v. 
Hannibal,  etc.,  R.  Co.,  121  Mo.  575, 
42  Am.  St.  Rep.  547,  24  L.  R.  A.  363; 
Missouri,  etc.,  Ry.  Co.  v.  Belcher,  88 
Tex.  549;  Topliff  v.  Shadwell,  68  Kan. 
317;  Fidelity  Trust  Co.  v.  Baker,  60 
N.  J.  Eq.  170;  Foote  v.  Getting,  195 
Mass.  55,  15  L.  R.  A.  (N.  SO  693. 

In  Warren  v.  Dixon,  74  N.  H.  355, 
the  court,  commenting  on  the  gen- 
eral rule,  said:  "That  rule  does  not 
charge  the  principal  with  his  agent's 
knowledge  of  facts  affecting  the  sub- 
ject matter  of  the  business  in  which 


agent,  in  fact,  acts  for  the  principal 
in  what  he  does  in  the  matter  in  re- 
spect to  which  it  is  sought  to  charge 
the  principal  with  his  knowledge. 
Henry  v.  Allen,  151  N.  Y.  1,  10,  36 
L.  R.  A.  658.  In  other  words,  the 
principal  is  not  charged  with  his 
agent's  knowledge  in  respect  to  a 
particular  transaction,  unless  the  lat- 
ter's  acts  in  respect  to  it  were  with- 
in the  scope  of  his  employment.  To 
illustrate:  If  a  person  employs  an 
agent  to  buy  property  and  the  latter, 
instead  of  buying,  sells  to  the  princi- 
pal property  procured  from  a  stranger 
by  fraud,  the  agent's  knowledge  of 
that  fraud  will  not  be  imputed  to  the 
principal  (Allen  v.  Railroad,  150 
Mass.  200,  206,  5  L.  R.  A.  716,  15  Am. 
St.  Rep.  185);  but,  if  the  agent  buys 
property  for  the  principal,  the  latter 
will  be  charged  with  the  agent's 
knowledge  of  any  defects  in  the  grant- 
or's title  (Hovey  v.  Blanchard,  13  N. 
H.  145,  149).  The  test,  therefore,  to 
determine  whether  an  agent's  knowl- 
edge is  to  be  imputed  to  his  princi- 
pal is  to  inquire  whether  or  not  the 
agent  was  acting  for  the  principal 
when  he  did  that  in  respect  to  which' 
it  is  sought  to  charge  the  principal 
with  his  knowledge.  Clark  v.  Marsh- 
all, 62  N.  H.  498,  500;  Brookhouse  v. 
Company,  73  N.  H.  368,  374,  111  Am. 
St.  Rep.  623,  6  Ann.  Cas.  675,  2  L. 
R.  A.  (N.  S.)  993;  Gunster  v.  Com- 
pany, 181  Pa.  327,  59  Am.  St.  Rep. 
650,  658,  note;  Akers  v.  Rowan,  36 
S.  C.  87,  10  L.  R.  A.  705,  706,  note." 


1416 


CHAP.    Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1831 


"This,"  says  Dixon,  C.  J.,   "seems  very  clear  when  we  consider 
the   reason   and   ground   upon   which   this   doctrine   of   constructive 


Where  the  principal  had  undertak- 
en through  an  agent  to  effect  insur- 
ance on  an  overdue  ship,  and  failed, 
that  agent  knowing  the  ship  was  lost 
but  not  communicating  the  fact  to 
any  one,  insurance  effected  by  the 
principal  through  another  agent  will 
not  be  avoided  on  the  ground  that  the 
first  agent's  knowledge  was  the 
knowledge  of  the  principal.  Black- 
burn Low  &  Co.  v.  Vigors,  12  App. 
Cases,  531. 

In  the  following  cases  notice  was 
not  imputed  because  the  matter  to 
which  the  knowledge  related  was  not 
within  the  agent's  authority.  King 
v.  Rowlett,  120  Mo.  App.  120  (an  ac- 
tion for  buying  corn  grown,  on  plain- 
tiff's land,  where  defendant's  serv- 
ant, hired  to  weigh  and  receive  the 
corn,  knew  where  it  was  grown); 
Cook  v.  Anamosa,  66  Iowa,  427  (ac- 
tion against  a  city,  where  the  mar- 
shal had  notice  of  the  defects  in  the 
sidewalk,  but  no  authority  to  repair 
it);  Arrington  v.  Arrington,  114  N. 
C.  151  (where  an  attorney,  employed 
to  examine  title,  knew  from  other 
sources  facts  affecting  title);  Trentor 
v.  Pothen,  46  Minn.  298,  24  Am.  St. 
Rep.  225  (same  effect);  (but  see  Al- 
lison v.  Falconer,  75  Ark.  343,  where 
notice  was  imputed  in  the  case  of  an 
attorney  to  examine  title  and  procure 
the  execution  of  the  proper  papers  to 
effect  the  conveyance);  Hickman  v. 
-7  Green,  123  Mo.  165,  29  L.  R.  A.  39 
(where  a  real  estate  firm  hired  "to 
effect  an  exchange,"  but  not  to  ex- 
amine title,  knew  of  an  unrecorded 
deed);  Mackay-Nisbet  Co.  v.  Kuhl- 
man,  119  111.  App.  144  (action  for 
goods  sold,  where,  in  a  social  con- 
versation before  the  sale,  defendant 
told  plaintiff's  salesman,  employed  in 
another  territory,  that  he  had  sold 
the  business);  Collins  &  Toole  v. 
Crews  (Ga.),  59  S.  E.  727  (a  similar 
case  involving  notice  of  bankruptcy) ; 
German  Ins.  Co.  v.  Goodfrlend,  97 


S.  W.  1098  (Ky.)  (notice  to  a  clerk 
in  plaintiff's  store  that  an  insurance 
company  would  not  renew  plaintiff's 
policy) ;  McCalmont  v.  Lanning,  154 
Fed.  353  (where  a  bank  president 
knew  from  his  official  position  in  an- 
other corporation,  of  the  fraudulent 
inception  of  a  note,  purchased  by  an- 
other officer  without  the  president's 
knowledge) ;  Stringfellow  v.  Brasel- 
ton,  54  Tex.  Civ.  App.  1  (where  a 
notary,  the  grantee's  agent  to  obtain 
the  signatures  in  a  deed,  knew  of  cir- 
cumstances of  a  wife's  joining  in  her 
husband's  deeds) ;  Lowden  v.  Wilson, 
233  111.  340  (where  an  agent  entrusted 
with  a  check  to  be  handed  over  when 
delivery  of  possession  of  property  was 
made  knew  of  an  adverse  claim); 
Tennent  v.  Union  Life  Ins.  Co.,  133 
Mo.  App.  345  (where  a  husband  au- 
thorized by  his  wife  to  pledge  Iris  in- 
surance policy  of  which  his  wife  was 
beneficiary,  knew  that  the  company 
subsequently  made  an  irregular  sale 
of  the  policy) ;  Pennoyer  v.  Willis, 
26  Ore.  1,  46  Am.  St.  Rep.  594  (where 
an  agent  to  care  for  but  not  invest 
funds  knew  of  a  defect  in  a  security 
offered  for  a  loan  of  the  funds); 
Strauch  v.  May,  80  Minn.  343  (where 
a  "cashier"  to  pay  as  the  principal  or- 
dered had  notice  of  an  assignment  of 
wages);  Atchison,  etc.,  R.  R.  Co.  v. 
Benton,  42  Kan.  698  (where,  before 
action  was  brought,  a  general  at- 
torney of  a  railroad  company  had 
notice  of  matters  connected  with  its 
land  department);  Day  v.  Exchange 
Bank,  117  Ky.  357  (deceit  for  mis- 
representations in  a  sale  of  bank 
stock,  where  the  question  was  on  the 
running  of  the  statute  of  limitations 
from  time  of  plaintiff's  purchase, 
plaintiff's  agent  appeared  to  have  had 
notice  in  subsequent  sales  of  the 
stock  to  third  persons  or  in  other 
transactions);  Davis  v.  Steeps,  87 
Wis.  472,  41  Am.  St.  Rep.  51,  23  L.  R. 
A.  818  (where  the  vendor  of  land, 


1417 


§  1832] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


notice  rests.  The  principal  is  chargeable  with  the  knowledge  of 
his  agent  because  the  agent  is  substituted  in  his  place  and  represents 
him  in  the  particular  transaction ;  and  it  would  seem  to  be  an  obvious 
perversion  of  the  doctrine,  and  lead  to  most  injurious  results,  if,  in  the 
same  transaction,  the  principal  were  likewise  to  be  charged  with  the 
knowledge  of  other  agents,  not  engaged  in  it  and  to  whom  he  had  del- 
egated no  authority  with  respect  to  it,  but  who  were  employed  by  him 
in  other  and  wholly  different  departments  of  his  business." 10  Whether 
the  rule  be  based  upon  the  ground  specified  by  the  learned  judge,  or 
upon  the  duty  of  the  agent  to  communicate,  the  result  is  the  same, — 
no  duty  of  communication  would  rest  upon  an  agent  where,  from  the 
nature  of  the  acts  to  be  performed  by  him,  the  knowledge  or  notice 
would  appear  to  have  no  relation  to  or  connection  with  those  acts. 

§  1832.  Notice  after  termination  of  authority  does  not  bind. — It 
follows  as  a  necessary  conclusion  from  the  principles  considered  that 
notice  to  an  agent,  after  his  authority  has  entirely  ceased,  or  after  his 
authority  to  represent  the  principal  in  respect  to  the  matters  to  which 
the  notice  relates  has  terminated,  is  not  ordinarily  notice  to  the  princi- 
pal.11 Under  neither  of  the  theories  discussed  could  such  notice  be 
imputed  to  the  principal. 


who,  though  not  the  vendee's  agent 
for  any  purpose  concerning  the  con- 
veyance, furnished  the  abstract  of 
title,  had  notice  of  a  judgment  lien); 
Boy.d  v.  Boyd,  128  Iowa,  699,  111  Am. 
St.  Rep.  215  (a  similar  case,  where 
the  knowledge  of  the  mortgagor's 
agent  who  prepared  the  abstract  was 
not  imputed  to  the  mortgagee) ;  Labbe 
v.  Corbett,  69  Tex.  503  (where,  under 
a  contract  to  deliver  sheep,  diseased 
animals' were  delivered,  and  vendee's 
servants  to  assist  in  driving  and  car- 
ing for  the  sheep  knew  this);  Storms 
v.  Mundy,  46  Tex.  Civ.  App.  88  (where 
an  agent  to  see  if  he  could  obtain  an 
increase  in  the  price  of  land,  but  not 
to  negotiate  or  make  the  sale,  ap- 
peared to  have  notice  of  fraud  con- 
nected with  the  sale);  Lewis  v. 
Equitable  Mortgage  Co.,  94  Ga.  572 
(knowledge  of  an  equity  in  land  by 
an  agent  to  inspect  merely);  Hock- 
field  v.  Southern  Ry.  Co.,  150  N.  C.  419, 
134  Am.  St.  Rep.  945  (where  notice 
of  arrival  of  goods  was  given  to  a 
transfer  company  in  the  habit  of  haul- 


ing goods  for  consignee,  but  not  told 
to  haul  the  goods  in  question);  but 
see,  Rothchild  v.  Northern  Pac.  Ry. 
Co.,  68  Wash.  527,  40  L.  R.  A.  (N.  S.) 
773  (where  the  transfer  company  was 
employed  to  receive  the  goods,  and 
notice  was  imputed).  See  also, 
Mims  v.  Brooks,  3  Ga.  App.  247. 

10  In  Congar  v.  Chicago,  etc.,  Ry.  Co., 
24  Wis.  157,  1  Am.  Rep.  164,  cited, 
supra. 

nBoardman  v.  Taylor,  66  Ga.  638; 
Great  Western  Ry.  v.  Wheeler,  20 
Mich.  419;  Irvine  v.  Grady,  85  Tex. 
120;  Traber  v.  Hicks,  131  Mo.  180; 
First  Nat.  Bank  of  Emmetsburg  v. 
Gunhus,  133  Iowa,  409,  9  L.  R.  A.  (N. 
S.)  471. 

Notice  to  former  agent  of  a  corpora- 
tion is  not  notice  to  the  corporation 
after  the  agent  has  severed  his  con- 
nection with  it.  Great  Western  Ry.  v. 
Wheeler,  supra. 

So  notice  to  an  agent  while  nego- 
tiating for  the  purchase  of  some  cat- 
tle is  not  notice  to  his  principal, 
where  the  agent's  negotiations  were 


1418 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1833,  1834 


The  case  of  an  agent  accredited  to  receive  notice  and  whose  author- 
ity had  been  terminated  without  the  knowledge  of  the  other  party 
would,  of  course,  stand  on  different  ground. 

§  1833.  Notice  must  be  of  some  material  matter. — The 

knowledge  or  notice  which  is  to  bind  the  principal  must  under  the  the- 
ory of  a  duty  to  disclose,  at  least,  be  of  some  matter  so  material  to  the 
transaction  as  to  make  it  the  agent's  duty  to  communicate  it  to  the  prin- 
cipal,12 and,  doubtless,  the  identification  theory  would  not  lead  to  prac- 
tically different  result.  It  must  also  come  from  such  an  apparently  au- 
thentic and  reliable  source  that  an  ordinarily  prudent  man  would  be 
required  to  give  heed  to  it.  But  neither  the  principal  nor  the  agent  is 
bound  to  regard  that  which  appears  to  be  mere  idle  and  baseless  rumor 
or  report.13  '  ^o 

§  1834.  Notice  must  come  to  someone  who  is  an  agent. — In'  or- 
der to  bind  the  principal,  the  notice  must  come  to  someone  who  stands 
in  the  attitude  of  an  agent  to  him — that  is  to  say,  someone 'Who  repre- 
sents him,  who  owes  him  some  duty,  to  whom  the  principal  looks  for 
protection  of  his  interests  in  the  field  in  question.14  Thus  notice  to  an 


broken  off  and  the  purchase  subse- 
quently consummated  by  the  princi- 
pal in  person.  Irvine  v.  Grady,  supra. 

Nor  does  the  fact  that  the  cashier 
of  the  plaintiff  bank  had  at  one  time 
been  a  stockholder  in  and  the  presi- 
dent of  the  defendant  bank,  and  his 
successor  had  never  been  elected, 
charge  the  plaintiff  with  knowledge 
of  the  character  of  a  transaction  car- 
ried on  by  defendant's  cashier.  First 
Nat.  Bank  v.  Gunhus,  supra. 

Notice  to  attorneys  after  termina- 
tion of  relation  does  not  bind  former 
client.  Chicago  Sugar  Ref.  Co.  v. 
Jackson  Brew.  Co.  (Tenn.  Ch.)  48  S. 
W.  275;  Beck  v.  Avondino,  20  Tex. 
Civ.  App.  330;  Pedlar  v.  Stroud,  116 
Cal.  461. 

12  Fairfield  Savings  Bank  v.  Chase, 
72  Me.  226,  39  Am.  Rep.  319. 

is  Thus  in  Stanley  v.  Schwalby,  162 
U.  S.  255,  it  is  said,  p.  276,  40  L.  Ed. 
960:  "In  order  to  charge  a  purchaser 
with  notice  of  a  prior  unrecorded  con- 
veyance, he  or  his  agent  must  either 
have  knowledge  of  the  conveyance, 
or,  at  least,  of  such  circumstances  as 
would,  by  the  exercise  of  ordinary 


diligence  and  judgment,  lead  to  that 
knowledge;  and  vague  rumor  or  sus- 
picion is  not  a  sufficient  foundation 
upon  which  to  charge  a  purchaser 
with  knowledge  of  a  title  in  a  third 
person." 

See  also  Kerns  v.  Swape,  2  Watts 
(Pa.)  75;  Mulliken  v.  Graham,  72  Pa. 
484;  Jaques  v.  Weeks,  7  Watts  (Pa.), 
261;  Pittman  v.  Sofley,  64  111.  155; 
Vance  v.  Hickman,  95  111.  App.  554. 

14  See,  for  example:  Booker  v. 
Booker,  208  111.  529,  100  Am.  St.  Rep. 
250;  Jummel  v.  Mann,  80  111.  App. 
288;  Doyle  v.  Teas,  4  Scammon 
(111.),  202;  Aetna  Indemnity  Co.  v. 
Schroeder,  12  N.  D.  110;  Columbia 
Paper  Stock  Co.  v.  Fidelity  &  Casu- 
alty Co.  (Mo.  App.),  78  S.  W.  320; 
Central  Coal  Co.  v.  George  S.  Good  & 
C6.,  120  Fed.  793,  57  C.  C.  A.  161; 
Wyllie  v.  Pollen,  3  De  Gex,  J.  &  S., 
596,  601. 

The  circumstances  of  a  mortgagor 
being  a  solicitor,  and  preparing  the 
mortgage  deed,  and  of  the  mortgagee 
employing  no  other  solicitor,  are  not 
sufficient  to  constitute  the  former  the 
solicitor  of  the -latter,  so  as  to  affect 


1419 


§    1834] 


THE 


AGENCY 


[BOOK  iv 


independent  contractor,  a  mere  bailee,  a  carrier,  a  postman,  and  the 
like,  would  not  ordinarily  be  imputed.  It  is  sometimes  said  that  notice 
to  a  mere  messenger  or  to  one  acting  merely  in  a  ministerial  capacity 
would  not  be  imputed.  If  the  theory  upon  which  notice  is  to  be  im- 
puted be  the  legal  identity  of  the  principal  with  the  agent,  then  the  per- 
son to  whom  the  notice  comes  must  be  such  a  person  and  acting  in 
such  a  capacity  that  it  may  fairly  be  said  that,  for  the  time  being,  he 
is  the  principal.  If  the  true  theory  be  that  the  agent  owes  a  duty  to 
communicate,  then  the  person  to  whom  the  notice  comes  must  be  such 
a  one  and  acting  in  such  a  capacity  that  it  may  fairly  be  said  that 
the  principal  looks  to  him  for  information  concerning  the  subject-mat- 
ter ;  that  he  is  the  person  to  whom  information  is  likely  to  come,  and 
whose  duty  it  would  be  to  communicate  it.  Such  a  rule  would  seem 
to  exclude  all  persons  having  merely  such  a  casual,  temporary,  me- 
chanical, non-discretionary  relation  to  the  subject-matter  that  they 
owe  no  duty  to  heed  or  report  the  information.16 

him  with  notice  of  an  incumbrance  chase,  it  was  held  that  the  vendor  in 

obtaining  and  making  over  the  quit 
claim  did  not  stand  as  an  agent  of 
the  vendee  so  as  to  charge  vendee 
with  notice  of  an  outstanding  unre- 
corded deed.  Riley  v.  Robinson,  128 
App.  Div.  178,  affirmed  without  opin- 
ion in  202  N.  Y.  531. 

is  In  Royle  Min.  Co.  v.  Fidelity 
etc.,  Co.,  161  Mo.  App.  185,  it  is  said 
that  the  rule  imputing  notice  does  not 
apply  "where  the  agent  is  acting  in  a 
merely  ministerial  capacity.  When 
so  acting,  the  agent  does  not  act  a$  a 
substitute  for  the  principal,  nor  is 
there  imposed  upon  the  agent  the 
duty  of  communicating  to  his  princi- 
pal the  knowledge  thus  acquired." 
To  the  same  effect  are:  Labbe  v.  Cor- 
bett,  69  Tex.  503;  Storms  v.  Mundy, 
46  Tex.  Civ.  App.  88. 

But  see  Conrad  v.  Graham,  54 
Wash.  641,  132  Am.  St.  Rep.  1137, 
where  notice  to  a  "messenger"  sent 
out  to  buy  a  certain  article  was  held 
to  be  notice  to  the  employer. 

In  Edson  &  Foulke  Co.  v.  Winsell, 
160  Cal.  783,  where  notice  to  a  ditch 
tender  of  the  third  person's  adverse 
claim  was  held  to  bind  the  principal. 
"It  matters  not  how  lowly  may  be  the 
position  of  the  agent  or  servant  of  a 


known  to  the  solicitor.  Espin  v. 
Pemberton,  3  De  G.  &  J.  547.  Notice 
to  a  sub-contractor  is  not  notice  to 
the  contractor.  Coal  &  Coke  Co.  v. 
Good  &  Co.,  supra.  One  employed  as 
a  messenger  and  not  a  negotiator  is 
not  an  agent  within  the  rule.  Doyle 
v.  Teas,  supra;  Booker  v.  Booker, 
supra. 

Where  a  surety  company  requests 
one  agent  of  a  concern  to  inform  an- 
other that  a  bond  is  required  from 
the  latter  and  he  does  so,  this  does 
not  make  the  first  agent  an  agent  in 
procuring  the  bond  so  that  knowledge 
which  he  may  have  had  of  the  other's 
conduct  was  imputable.  Aetna  In- 
demnity Co.  v.  Schroeder,  supra. 

A  trustee  under  a  deed  of  trust  is 
not  the  agent  of  the  holder  of  securi- 
ties. Jummel  v.  Mann,  80  111.  App. 
288.  Notice  to  an  officer  employed  to 
make  an  attachment  is  notice  to  the 
plaintiff.  But  notice  to  the  plaintiff's 
of  a  tax  title  required  the  vendor  to 
provide  a  quit  claim  deed  from  the 
last  regular  owner  of  record  before 
the  vendee  would  complete  the  pur- 
tachment,  would  not  be.  Tucker  v. 
Tilton,  55  N.  H.  223.  Where  a  vendee 
attorney,  who  sued  out  the  writ  of  at- 


1420 


CHAP.  Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1835-1837 

§  1835.  Ratification. — Although  the  one  who  acted  may 

not  have  been  an  agent,  or  an  agent  for  the  act  in  question,  at  the 
time  the  act  was  done,  responsibility  for  the  act  with  the  notice  af- 
fecting it  may  be  assumed  by  ratification  with  full  knowledge  of  the 
facts.  But  knowledge  of  the  facts  to  which  the  notice  relates  would 
usually  be  deemed  as  material  and  essential  to  be  known  as  any  others, 
and,  notwithstanding  an  occasional  utterance  to  the  contrary,  the  rules 
of  ratification  can  be  based  only  upon  actual  knowledge  and  not  merely 
upon  imputed  knowledge.16 

It  must  be  kept  in  mind,  however,  that  the  result  of  an  alleged  rati- 
fication without  knowledge  is  that  the  whole  act  fails,  and  not  that  it 
can  be  affirmed  as  to  all  the  beneficial  parts  and  rejected  as  to  the 
burden  of  the  notice.17 

It  is  also  to  be  observed  that,  though  one  may  not  have  had  knowl- 
edge at  the  outset,  to  insist  upon  retaining  or  enforcing  the  benefits, 
after  knowledge  of  the  means  by  which  they  were  obtained,  must  also 
often  count  as  a  ratification  with  knowledge. 

§  1836.  Releasing  agent  from  duty — Enlarging  it. — In  seeking  for 
a  duty  to  communicate,  reference  must  ordinarily  be  had  to  the  duty 
which  the  law  would  impose.  It  surely  cannot  be  true  that  the  prin- 
cipal can  save  himself  from  the  effects  of  notice  by  attempting  to  ex- 
onerate the  agent  from  a  duty  to  communicate  it,  whatever  might  be 
the  effect  of  such  exoneration  between  the  principal  and  the  agent 
themselves.  On  the  other  hand,  it  is  doubtless  true  that  the  princi- 
pal's obligations  might  be  enlarged  by  his  expressly  imposing  a  duty 
or  authority  to  receive  notice  greater  than  that  which  the  law  would 
otherwise  imply. 

§  1837.  Agent  of  two  principals. — Where  the  same  person  acts 
with  their  consent,  as  agent  of  two  or  more  principals,  all  interested  in 
the  same  subject-matter,  and  concerning  which  he  owes  a  duty  of  com- 
munication to  each,  notice  to  this  agent  must  doubtless  be  deemed  no- 
tice to  all  his  principals  in  accordance  with  the  ordinary  rules.18 

company   or    corporation;   If,    within  the   text   (though    not    always   made 

the  limits  of   his    assigned    duty,  he  clear  in  the  opinions),  that  cases  like 

has  notice,  or  is  charged  with  notice  the    following    are    to    be     upheld: 

of  a  particular  matter  or  thing,  apper-  Haas  v.  Sterabach,  156  111.  44;   Rus- 

taining  to  that  duty,  that  notice  is  no-  sell  v.  Peavy,  131  Ala.  563;  Singleton 

tice  to  his  principal."  v.  Bank  of  Monticello,  113  Ga.  527; 

ie  Thomson    v.    Central    Pass.    Ry.  Backman    v.  Wright,  27    Vt.    187,  65 

Co.,  80  N.  J.  L.  328;   Bohanon  v.  Bos-  Am.  Dec.  187. 
ton  &  Me.  R.  Co.,  70  N.  H.  526.  "  See  Sullivan  Co.  R.  Co',  v.  Con- 

"  It  is,  of  course,  upon  this  ground  necticut  Riv.  Lum.  Co.,  76  Conn.  464; 

and  that  of  the  following  clause  in  Consolidated  Ice  Mach.  Co.  v.  Keifer, 

1421 


§  i838] 


•l      THE  LAW  OF  AGENCY 


[BOOK  iv 


Where,  however,  the  same  person  happens  to  be  agent  of  two  princi- 
pals not  thus  interested,  notice  to  him  will  not  necessarily  be  notice 
to  both  principals.     To  make  it  so  there  must  be  some  duty  imposed 
upon  him  to  communicate  it  to  the  principal  sought  to  be  affected.19 

§  1838.  Where  an  agent  stands  in  such  a  relation  to  two 

principals  (who  have  not  knowingly  consented  to  his  double  employ- 
ment) that  his  present  duty  to  one  conflicts  with  his  present  duty  to 
the  other,  it  is  said  that  notice  which  he  has  with  reference  to  the  busi- 
ness of  one  principal  will  not  be  imputed  to  the  other.20 


134  111.  481,  23  Am.  St  R.  688;  Holden 
v.  New  York,  'etc.,  Bank/72  N.  Y.  286; 
Berry  v.  Rood,  168  Mo.  316;  Gale  v. 
Lewis,  9  Q.  B.  730. 

19  Where  one  person  is  an  officer  of 
two    companies,    it   was    held    In   re 
"Hampshire   Laiid   Co.,    [18961    2   Ch. 
.Div.   743,   that   knowledge   which   he 
has   acquired  as  officer  of  one  .com- 
pany will  not  be  imputed  to  the  other 
company  unless  he  has  some  duty  im- 
posed upon  him  to  communicate  his 
knowledge  to  the  company  sought  to 
be  affected  by   the   notice,    and  some 
duty  imposed  upon  him  by  that  com- 
pany to  receive  the  notice. 

..  This  holding  was  followed  In  In  re 
Fenwick,  [1902]  1  Ch.,  507;  In  re 
David  Payne  &  Co.,  [1904]  2  Ch.  608; 
"where  two  companies  have  the  same 
person  as  director,  and  enter  into 
dealings  with  each  other,  the  knowl- 
edge of  the  common  director  cannot 
He  attributed  to  either  company  in  a 
transaction  In  which  he  did  not  rep- 
resent it."  Martin  v.  South  Salem 
Land  Co.,  94  Va.  28;  Benton  v,  Ger- 
man Am.  Nat.  Bank,  122  Mo.  332. 

Where  there  is  a  common  agent 
whose  duty  It  would  be  on  one  side 
to  give  and  on  the  other  to  receive 
notice,  notice  to  him  will  be  imputed. 
Mason  v.  United  Press,  94  N.  Y.  App. 
Div.  617. 

20  In  Constant  v.  The  University  of 
Rochester,  111    N.    Y.  604,  7    Am.  St. 
Rep.  769,  2  L.  R.  A.  734,  an  agent  act- 
ing for  Constant  had  taken  a  mort- 
gage for-him  which  it  was  the  agent's 
duty   to   promptly   put   upon   record. 
Instead  of  recording  this  mortgage. 


' 

however,  he  left  it  In  his  safe, 
through  what  was  claimed  to  be  an 
oversight.  Some  months  later,  but 
while  this  mortgage  was  still  in  his 
safe,  and  while  he  owed  a  constant 
and  present  duty  to  have  it  recorded, 
he  acted  for  the  university  in  taking 
another  mortgage,  supposed  by  the 
university  to  be  a  first  mortgage  upon 
the  same  premises.  This  second  mort- 
gage was  also  left  with  the  agent  to 
be  recorded,  and  it  was  recorded.  For 
a  short  period,  therefore,  the  agent 
had  in  his  hands  two  unrecorded 
mortgages  and  owed  to  each  princi- 
pal the  duty  to  record  his  first  so  as 
to  secure  priority.  It  was  urged  that 
the  notice  which  the  agent  had  of  the 
first  mortgage,  though  unrecorded, 
should  be  imputed  to  the  university 
and  that  therefore  its  mortgage  was 
subordinate  to  the  first  one.  But  the 
court  said  that  it  could  not  be  im- 
puted, though  it  was  not  necessary  to 
decide  it. 

Compare  Rolland  v.  Hart,  L.  R.  6 
Ch.  678,  where  a  solicitor  induced  a 
client  to  loan  money  upon  a  mortgage 
on  certain  lands  and  soon  afterward 
induced  another  client  to  do  the 
same  without  advising  him  of  the 
first.  The  second  mortgage  was  first 
recorded.  Held,  subject  to  the  first. 
The  solicitor  does  not  appear  to  have 
expressly  undertaken  to  record  .either 
mortgage. 

In  Pursley  v.  Stahley,  122  Ga.  362, 
A,  an  illiterate  person,  owed  X,  who 
had  been  her  attorney,  $50.  At  his 
request  and  to  enable  him  to  get  the 
money,.  A  consented  to  give  a  note 


1422 


CHAP.  V]        '  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1839, 

If,  however,  anything  more  is  meant  by-  this  than  one  of  the  excep- 
tions already  considered,  it  is  believed  to  be  unfounded  and  not  to  be 
approved. 

§  1839.  Where  such  an  agent  attempts  dealings  between 

his  two  principals  (both  not  having  consented  thereto)  either  may,  in 
accordance  with  well  settled  rules,  repudiate  the  dealings.  If,  however, 
either  one,  instead  of  repudiating,  elects  to  affirm  the  transaction  and 
seeks  to  acquire  or  retain  a  benefit  from  it  after  knowledge  of  the  facts, 
he  must  take  the  benefit  subject  to  the  means  by  which  it  was  acquired. 
This  is  frequently  exemplified  in  the  cases  already  cited  in  which  such 
an  agent,  for  his  own  purposes,  abstracts  from  one  principal  and  at- 
tempts to  convey  to  the  other — neither  one  being  represented  by  any 
other  agent :  if  the  latter  principal  claims  the  benefit  of  the  act  he  must 
take  it  subject  to  his  agent's  knowledge.  If  A,  being  the  agent  of  X 
and  also  of  Y,  and  being  indebted  to  Y,  abstracts  bonds  from  X  and 
receives  them  for  Y  as  security  for  that  debt,  then,  though  when  he 
attempts  to  transfer  them  he  may  be  acting  as  agent  for  X,  yet  when 
he  attempts  to  receive  them  and  acquire  title  to  them  he  is  acting  as 
agent  for  Y.  Y  did  not  act  in  person,  no  one  else  than  A  acted  for 
him,  if  Y  has  obtained  any  title  he  obtained  it  through  A,  and  he  must 
be  charged  with  the  knowledge  his  agent  had  at  the  time. 

§  1840.  Two  agents  of  same  principal. — Where  two  or  more  per- 
sons are  jointly  acting  as  agents  for  one  principal,  with  reference  to 
the  same  subject-matter,  notice  to  any  one  of  them  would  be  ordinarily 
deemed  notice  to  the  principal  within  the  rules  already  considered.21 

for  that  amount.  X  fraudulently  held  that  this  would  not  be  imputed 
made  the  note  for  $500  and  A  signed  to  client  Y,  who  subsequently  acted 
ft.  The  note  was  made  payable  to  B,  with  B  respecting  the  same  subject 
who  had  money  to  lend  and  who  was  matter,  B  having  actually  no  notice 
also  a  client  of  X.  The  latter  ob-  of  what  A  knew.  In  Phoenix  Ins.  Co. . 
tained  the  money  on  the  note  from  B  v.  Flemming,  65  Ark.  54,  39  L.  R.  A. 
and  kept  it.  Held,  that  B  was  not  789,  67  Am.  St.  R.  900,  where  two 
chargeable  with  notice  of  the  fraud  partners  were  insurance  agents  and 
of  X.  The  court  said  that  X  was  one  of  them  issued  a  policy  contain- 
really  not  the  agent  of  either  A  or  B,  ing  a  provision  against  the  keeping 
but,  if  he  were  agent,  he  was  as  much  of  fire-works,  the  fact  that  the  other 
the  agent  of  A  as  of  B.  partner  later  happened  to  purchase 
21  Bank  of  United  States  v.  Davis,  fire  works  for  his  own  individual  use 
2  Hill  (N.  Y.),  451;  Brown  v.  at  the  store  does  not  charge  the  com- 
Oattis,  55  Ga.  416.  In  Witten-  pany  with  notice,  where  he  never 
brock  v.  Parker,  102  Cal.  93,  41  acted  with  reference  to  this  insnr- 
Am.  St.  Rep.  172,  24  L.  R.  A.  ance,  or  knew  that  this  policy  had 
197,  where  A  and.  B  were  lawyers  and  been  issued. 

partners,  and  A  acting  for  client  X          Suretyship  —  Imputing  knowledge 

acquired   certain   knowledge,   it   was  l>y  one   agent   of   default   of  another 

1423 


§  1841] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


But  where  the  agents  are  several,  and  only  one  acts,  the  knowledge  of 
the  others  who  did  not  act  would  not  ordinarily  be  imputed. 

Where  two  agents  are  successively  employed  to  accomplish  the  same 
object,  it  has  been  held  that  notice  to,  or  knowledge  by,  one  of  them 
only,  is  not  notice  to  the  principal,  where  the  one  to  whom  notice  is 
given  is  not  the  one  who  finally  accomplishes  the  object,  but  he  has 
ceased  to  act  before  that  time  and  he  did  not  impart  the  notice  or 
knowledge  to  his  principal.22 

This  rule,  however,  must  be  subject  to  the  qualification  that  if  the 
first  agent  were  such  an  one  that  notice  to  him  woud  be  at  once  deemed 
notice  to  his  principal,  the  fact  that  he  subsequently  ceased  to  act  would 
not  change  that  result. 

§  1841.  Notice  to  subagent  when  notice  to  principal. — The  ques- 
tion whether  notice  to  a  subagent  is  notice  to  the  principal  depends 
upon  considerations  already  stated.23  If  the  subagent  be  one  whom 
the  agent  was  expressly  or  impliedly  authorized  to  appoint,  he  is  to 
be  deemed  to  be  the  agent  of  the  principal,  and  notice  to  such  subagent 
would  be  notice  to  the  principal  as  in  the  case  of  other  agents.84  But 


agent  to  release  a  surety. — In  a  num- 
ber of  cases,  put  upon  varying 
grounds,  it  has  been  held  that  a 
surety  company  which  has  given  bond 
for  the  conduct  of  one  agent  is  not 
released  by  the  fact  that  other  agents 
of  the  same  principal  subsequently 
learn  that  the  agent  in  question  is 
violating  the  terms  of  the  bond  but 
do  not  report  it  to  the  principal. 
Fidelity  Co.  v.  Courtney,  186  U.  S. 
342,  46  L.  Ed.  1193;  Fidelity  Co.  v. 
Gate  City  Nat  Bank,  97  Ga.  634,  33 
L.  R.  A.  821,  54  Am.  St.  R.  440;  Pitts- 
burgh, etc.,  R.  Co.  v.  Shaeffer,  59  Pa. 
350. 

22  In  Blackburn  v.  Vigors,  17  Q.  B. 
Div.  553,  the  plaintiff  had  instructed 
a  broker  to  effect  for  him  a  reinsur- 
ance upon  an  over-due  ship.  While 
this  broker  was  acting  on  behalf  of 
the  plaintiff,  he  received  information 
of  a  material  fact  tending  to  show 
that  the  ship  was  lost.  He  did  not 
communicate  this  information  to  the 
plaintiff  and  failed  to  effect  the  insur- 
ance. Afterwards  the  plaintiff  em- 
ployed another  broker  who  obtained 
insurance  from  the  defendant  upon 


the  ship,  lost  or  not  lost.  Subsequent 
events  showed  that  the  ship  had  in 
fact  been  lost  some  time  before  the 
plaintiff  attempted  to  'effect  the  rein- 
surance, but  neither  the  plaintiff  nor 
the  broker  who  finally  obtained  the 
insurance  knew  of,  or  concealed  from 
defendant,  any  fact  tending  to  show 
that  the  ship  was  lost.  It  was  held 
by  the  Court  of  Appeal,  that  the 
knowledge  of  the  first  broker  must  be 
imputed  to  the  plaintiff  and  that  he 
could  not  recover  on  the  policy,  cit- 
ing Fitzherbert  v.  Mather,  1  T.  R.  12; 
Gladstone  v.  King,  1  M.  &  S.  35,  and 
Proudfoot  v.  Montefiore,  L.  R.  2  Q.  B. 
511. 

This  case  was,  however,  reversed 
by  the  House  of  Lords  in  12  App. 
Cases,  531.  Lord  Halsbury  said: 
"When  a  person  is  the  agent  to  know, 
his  knowledge  does  bind  the  princi- 
pal. But  in  this  case  I  think  the 
agency  of  the  broker  had  ceased  be- 
fore the  policy  sued  upon  was  ef- 
fected." 

23  Ante,  §§  332,  333. 

2*Merritt  v.  Huber,  137  Iowa,  135; 
Bates  v.  American  Mtg.  Co.,  37  S.  C. 


1424 


CHAP.    VJ  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


if  the  subagent  be  the  agent  of  the  agent  merely,  then  there  is  no  priv- 
ity between  him  and  the  principal,  and  his  knowledge  cannot  be  im- 
puted to  the  principal.25 

§  1842.  Notice  of  what  sort  of  facts  imputed — Agent's  own  de- 
fault.— The  notice  or  knowledge  which  is  to  be  imputed  to  the  prin- 
cipal is  ordinarily  that  of  extrinsic  facts  relating  to  the  subject  matter 
of  the  agency  as  distinguished  from  the  fact  that  the  agent  in  acting 
has  violated  his  duty  or  done  an  unauthorized  act.20  Such  acts  would 


88,  21  L.  R.  A.  340;  Carpenter  v.  Ger- 
man-Am. Ins.  Co.,  135  N.  Y.  298; 
Bergeron  v.  Pamlico  Ins.  &  B.  Co.,  Ill 
N.  C.  45;  Phoenix  Ins.  Co.  v.  Ward,  7 
Tex.  Civ.  App.  13;  Goode  v.  Georgia 
Home  Ins.  Co.,  92  Va.  392,  53  Am.  St. 
Rep.  817,  30  L.  R.  A.  842;  Arff  v. 
Star  Fire  Ins.  Co.,  125  N.  Y.  57,  21 
Am.  St.  Rep.  721,  10  L.  R.  A.  609. 

25  Hoover  v.  Wise,  91  U.  S.  308,  23 
L.   Ed.   392;    Boyd  v.  Vanderkemp,  1 
Barb.  Ch.    (N.  Y.)    273;    Waldman  v. 
North  British  Ins.  Co.,  91  Ala.  170,  24 
Am.  St.  Rep.  883. 

26  See  Shepard  &  Morse  Lumber  Co. 
v.  Eldridge,  171  Mass.  516,  68  Am.  St. 
Rep.  446,  41  L.  R.  A.  617.    In  Fidelity 
Co.  v.  Courtney,  186  U.  S.  342,  46  L. 
Ed.  1193,  it  is  said  that  the  rule  that 
knowledge  of  an  agent  is  in  law  the 
knowledge    of    his    principal,  "is  in- 
tended for  the  protection  of  the  other 
party  (actually  or  constructively)  to 
a  transaction  for  and  on  account  of 
the   principal   had   with   such   agent. 
In  the  very  nature  of  things,  such  a 
principle  does  not  obtain  in  favor  of 
a  surety  who  has  bonded  one  officer 
of  a  corporation,  so  as  to  relieve  him 
from  the  obligations  of  his  bond,  by 
imputing  to   the   corporation   knowl- 
edge  acquired    by   another   employee 
subsequent   to   the   execution   of   the 
bond  (and,  from  negligence  or  wrong- 
ful motives,  not  disclosed  to  the  cor- 
poration)   of  a  wrong  committed  by 
the   official   whose    faithful    perform- 
ance of  duty  was  guaranteed  by  the 
bond."   (  See  other  cases,  §  1840.) 

But  the  real  reason  in  this  case 
was  that  the  agent  who  had  the  no- 
tice owed  no  duty  to  report  it  as 


against  the  other  agent;  and,  with 
deference,  it  is  believed  that  the 
statement  above  quoted  is  too  wide. 

Agent's  knowledge  of  his  own  con- 
dition.— Whether  the  agent's  knowl- 
edge of  his  own  condition,  e.  g.,  that 
he  has,  or  has  been  exposed  to,  a  con- 
tagious disease,  can  be  imputed  to  his 
principal  so  as  to  make  him  liable  for 
its  communication  to  the  principal's 
patrons,  e.  g.,  passengers  dealing  with 
a  ticket  agent  who  is  infected,  is  dis- 
puted. It  was  denied  in  Long  v.  Chi- 
cago, etc.,  R.  Co.,  48  Kan.  28,  30  Am. 
St.  Rep.  271,  15  L.  R.  A.  319,  but  af- 
firmed in  Missouri,  etc.,  R.  Co.  v. 
Raney,  44  Tex.  Civ.  App.  517. 

Knowledge  by  agent  of  His  own 
forgeries — Duty  to  examine  the  prin- 
cipal's oanJc  vouchers.  —  Forgery  by 
an  agent  is  not  ordinarily  an  act  for 
which  the  principal  is  responsible. 
See  Weisser  v.  Denison,  10  N.  Y.  68, 
61  Am.  Dec.  731;  Hardy  v.  Chesa- 
peake Bank,  51  Md.  562,  34  Am.  Rep. 
325.  Whether  a  principal  owes  the 
bank  the  duty  to  examine  his  bank 
vouchers  with  a  view  to  the  detection 
of  a  possible  forgery,  is  a  question 
upon  which  the  authorities  are  not 
agreed.  That  there  is  no  such  duty, 
see  Weisser  v.  Denison,  10  N.  Y.  68, 
61  Am.  Dec.  731;  Welsh  v.  German 
American  Bank,  73  N.  Y.  424,  29  Am. 
Rep.  175;  Frank  v.  Chemical  Nat. 
Bank,  84  N.  Y.  209,  38  Am.  Rep.  501; 
Shipman  v.  Bank  of  N.  Y.,  126  N.  Y. 
318,  22  Am.  St.  Rep.  821,  12  L.  R.  A. 
791;  Manufacturing  Bank  v.  Barnes, 
65  111.  69,  16  Am.  Rep.  576.  But  com- 
pare Critten  v.  Chemical  Nat.  Bank, 
171  N.  Y.  219,  57  L.  R.  A.  529. 


90 


1425 


§  1843] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


ordinarily  be  done  under  such  circumstances  of  adverse  interest  that 
notice  of  them  would  be  non-imputable  under  the  second  exception  al- 
ready discussed  ;27  but  where  the  purpose  is  to  impute  them  and  then 
draw  an  inference  of  ratification  or  acquiescence,  the  attempt  is  met 
by  the  sound  rule  of  ratification  that  ratification  with  knowledge  must 
be  based  upon  actual  knowledge  and  will  not  be  predicated  upon  a 
mere  fiction  like  that  of  imputed  knowledge.?8 

§  1843.  These  rules  apply  to  corporations — Notice  to  officer  or 
agent. — These  rules  apply  with  particular  force  to  the  case  of  cor- 
porations. From  the  very  nature  of  the  case,  the  executive  functions 
of  a  corporation  can  only  be  exercised  through  the  medium  of  the  cor- 
porate agents  to  whom  and  through  whom  all  notice  to  the  corpora- 
tion must  come.  Notice  to  the  officers  and  agents  of  a  corporation 
therefore,  in  reference  to  those  matters  to  which  their  authority  re- 
lates, is,  in  general,  notice  to  the  corporation.29 


That  there  is  such  a  duty,  see  Dana 
v.  National  Bank,  132  Mass.  156; 
First  Nat  Bank  v.  Allen,  100  Ala. 
476,  46  Am.  St.  Rep.  80,  27  L.  R.  A. 
426;  Leather  Mfrs.  Nat.  Bank  v.  Mor- 
gan, 117  U.  S.  107,  29  L.  Ed.  819. 
Where  the  duty  is  held  to  exist  and 
the  principal  confides  the  perform- 
ance of  the  duty  to  an  agent  and  this 
agent  commits  the  forgery,  the  duty 
is  not  performed.  Many  of  the  cases 
say  that  in  this  instance  the  knowl- 
edge of  the  examining  agent  of  his 
own  forgery  is  imputed  to  the  prin- 
cipal. See  First  Nat.  Bank  v.  Allen, 
100  Ala.  476,  46  Am.  St.  Rep.  80,  27 
L.  R.  A.  426;  Dana  v.  National  Bank, 
132  Mass.  156;  First  Nat.  Bank  v. 
Richmond  Elec.  Co.,  106  Va.  347,  7 
L.  R.  A.  (N.  S.)  744.  But  it  would 
seem  that  the  question  of  notice  is 
not  material  in  these  cases,  which 
may  well  rest  on  the  non-perform- 
ance of  the  duty.  See  Myers  v. 
Southwestern  Nat.  Bank,  193  Pa.  1. 

27  Thus  in  American  Surety  Co.  v. 
Pauly,  170  U.  S.  133,  42  L.  Ed.  977, 
it  is  said:  "The  presumption  that 
the  agent  informed  his  principal  of 
that  which  his  duty  and  the  inter- 
ests of  his  principal  required  him  to 
communicate  does  not  arise  where 
the  agent  acts  or  makes  declarations 


not  in  execution  of  any  duty  that  he 
owes  to  the  principal,  nor  within 
any  authority  possessed  by  him,  but 
to  subserve  simply  his  own  personal 
ends  or  to  commit  some  fraud 
against  the  principal.  In  such  cases 
the  principal  is  not  bound  by  the 
acts  or  declarations  of  the  agent  un- 
less it  be  proved  that  he  had  at  the 
time  actual  notice  of  them,  or  having 
received  notice  of  them,  failed  to 
disavow  what  was  assumed  to  be 
said  and  done  in  his  behalf."  See 
also  Thomson  v.  Central  Pass.  Ry. 
Co.,  80  N.  J.  L.  328;  Brown  v.  Har- 
ris, 139  Mich.  372';  Traders  Bank  v. 
Black,  108  Va.  59;  Shepard  &  Morse 
Lumber  Co.  v.  Eldridge,  171  Mass. 
516,  68  Am.  St  Rep.  446,  41  L.  R.  A. 
617. 

28  See  ante,  §§  403,  407. 

There  is  language  in  United  States 
Fidelity  Co.  v.  Shirk,  20  Okla.  576, 
which  seems  contrary  and  from 
which  the  present  writer  is  con- 
strained to  dissent,  though  the  con- 
clusion can  probably  be  sustained 
upon  the  ground  that  the  company 
actually  knew  that  only  one  agent 
was  signing  the  bonds  (p.  579). 

2»  Holden  v.  New  York,  etc.,  Bank, 
72  N.  Y.  286;  Union  Bank  v.  Camp- 
bell, 4  Humph.  (Tenn.)  394;  Waynes- 


1426 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1844 


But  the  peculiar  characteristics  of  corporations  render  it  imperative 
that  this  rule  be  kept  within  its  proper  limits.  Not  every  person  who 
is  a  member  of  a  corporation,  or  who  is  connected  with  it,  is  its  agent. 
Nor  is  every  agent  to  be  deemed  to  be  an  agent  for  all  purposes.  The 
magnitude  of  their  business  and  the  extent  of  territory  over  which  their 
operations  extend  require,  in  the  case  of  many  corporations,  that  their 
business  be  divided  into  several  departments,  each  with  its  own  com- 
plement of  superior  and  inferior  agents,  and  that' agents  be  employed 
in  various  capacities,  at  different  points.  Attention/  then,  must  be 
given  to  the  questions  whether  the  assumed  agent  is,  in  reality,  the 
agent  of  the  corporation  in  the  given  transaction/and,  if  so,  does  the 
notice  or  knowledge  relate  toma'ttejg^TtHin1  the  scope  of  his  authority.  ^^ 
S*  §  1844.  — ——-~Wriat"  "officer  or  agent. — The  officer  oFlagent  of 
the  corporation  may  be  of  such  a  general,  managerial,  alter  ego,  sort 
that  notice  to  him  concerning  matters  in  which  the  corporation  is  inter-  c^ 
ested  niay  be  notice  to  it  nierely_J^yjrtjii^^  though _ 

such  cases  are  not  common. 

The  president  of  a  BanTT  or  other  corporation  for 'example,  is  not 
usually  per  ^  such  an  agent,  although  he  undoubtedly  may  be  made 
such.81  Usually  notice  to  him  is  notice  to  the  corporation,  as  in  the 
case  of  other  agents,  only  when  it  concerns  something  which  falls 
within  the  sphere  of  his  authority  or  concerning  which  he  acts  as  agent 
with  the  knowledge  in  his  mind.  Notice  or  knowledge  coming  to  him 
in  his  private  and  unofficial  capacity,  concerning  matters  in  which  he 
does  not  act  as  agent  of  the  corporation,  is  not  imputed  to  it.82  The 

ville  Nat.  Bank  v.  Irons,  8  Fed.  Rep.  officer  and  agent  and  the  sole  stock- 

1;    Hart  v.   Farmers',  etc.,  Bank,  33  holder  with  the  exception  of  one  per- 

Vt.  252;  Mihills  Mfg.  Co.  v.  Camp,  49  son  who  was  non-resident  and  inac- 

Wis.  130;   Webb  v.  Graniteville  Mfg.  tive.    Lea  v.  Iron  Belt  Merc.  Co.,  147 

Co.,  11  S.  C.   396,  32  Am.  Rep.  479;  Ala.  421,  119  Am.  St.  Rep.  93,  8  L.  R. 

Farmers',    etc.,    Bank    v.    Payne,    25  A.   (N.  S.)  279.    To  same  effect:  An- 

Conn.  444,  68  Am.  Dec.  362;    Wilson  derson    v.     Kinley,    90     Iowa,     554; 

v.    McCullough,  23    Pa.    440,    62  Am.  Huron    Printing   Co.   v.    Kittleson,    4 

Dec.  347;    Fairfleld  Savings  Bank  v.  S.  Dak.  520;    Steam  Stonecutter  Co. 

Chase,  72  Me.  226,  39  Am.  Rep.  319;  v.  Myers,  64  Mo.  App.  527. 
Maryland  Trust  Co.  v.  National  Me-         31  Thus  in  Cragie  v.  Hadley,  99  N. 

chanics  Bank,  102  Md.  608;  Petersen  Y.  131,  52  Am.  Rep.  9,  it  was  found 

v.  Elholm,  130  Wis.   1;    Scripture  v.  that  "the  entire  control  and  manage- 

Francistown  Soapstone  Co.,  50  N.  H.  ment  of    the    bank    was    in    fact  in- 

571;  Mechanics  Bank  v.  Schaumburg,  trusted  to  and  conducted  by  its  presi- 

38  Mo.  228.  dent." 

s«  This  is  said  to  be  necessarily  and          32  Peoples  Bank  v.  Exchange  Bank, 

particularly    true    where    the    agent  116  Ga.    820,  94    Am.    St.    Rep.    144; 

who  receives  the  notice  is  practically  Platt   v.    Birmingham    Axle    Co.,    41 

the  corporation  itself,  being  the  only  Conn.    255;    McCalmont   v.    Lanning, 

1427 


§    1845]  THE  LAW  OF  AGENCY  [BOOK   IV 

same  would  be  still  more  true  perhaps  of  the  vice-president.88  Cashiers 
of  banks  have  usually  a  wide  range  of  authority  respecting  financial 
transactions,  and  notice  to  them  in  transactions  in  which  they  act  is  im- 
puted to  the  bank.34  Where  the  cashier  is  made  the  chief  executive  of- 
ficer and  manager  of  the  bank,  his  authority  to  receive  notice  is  corre- 
spondingly increased.85 

Where  the  officer  or  agent  is  not  thus  one  to  whom  notice  may  be 
given  because  of  his  position,  it  must,  as  in  other  cases,  be  notice  or 
knowledge  of  one  who  is  agent  with  reference  to  the  subject  matter  to 
which  it  relates^jj^* 

§  1845.  Ordinary  exceptions  apply  here. — Regard  must 

also  be  had  to  the  exceptions  to  the  general  rules  which  have  been  pre- 
viously considered.  Thus,  where  an  officer  or  agent  of  the  corporation 
himself  deals  openly  as  a  party  in  interest,  with  the  corporation,  selling 
it  property,  borrowing  money  of  it,  discounting  notes  with  it,  and  the 
like,  the  corporation  will  not  be  charged  with  notice  of  the  informa- 
tion which  he  possesses  relating  to  the  transaction  and  which  he  does 
not  disclose.  In  such  a  case  the  assumed  agent  is  in  reality  the  adverse 
party,  and  cannot  be  treated  as  an  agent  at  all.  He  is  seeking  to  pro- 
mote and  protect  his  own  interests,  and  it  is  not  to  be  expected  that  he 
can  or  will  at  the  same  time  protect  and  advance  those  of  the  corpora- 
tion.37 The  same  rule  applies,  as  in  the  other  cases  already  discussed, 

84  C.  C.  A.  138,  154  Fed.  353;    Smith  34  See    Birmingham    Trust    Co.    v. 

v.    Carmack   (Tenn.    Ch.),  64    S.  W.  Louisiana    Nat.    Bank,  99    Ala.    379; 

372;    Mathis  v.  Pridham,  1  Tex.  Civ.  Loring    v.    Brodie,    134    Mass.    453; 

App.  58;   Curtice  v.  Crawford  County  Black  Hills  Nat.  Bank  v.  Kellogg,  4 

Bank,  110  Fed.  830.  S.  Dak.  312;   Niblack  v.  Cosier,  26  C. 

But  where  he  acts  for  the  corpora-  C.  A.  16,  80  Fed.  596;  Cooper  v.  Hill, 
tion  in  the  matter  with  the  knowl-  36  C.  C.  A.  402,  94  Fed.  582.                   ^ 
edge    in    his    mind    it    is    imputed.  ™  This  was  the  fact  in  Bank  v.  Pen- 
Louisville    Trust    Co.    v.    Louisville,  land,  101  Tenn.  445. 

etc.,  R.  Co.,  22  C.  C.  A.  378,  75  Fed.  36  McDermott  v.  Hayes,  116  C.  C.  A.    L- 

433;    Willard  v.  Denise,  50  N.  J.  Eq.  553,  197  Fed.  129. 

482,   35  Am.   St.   Rep.   788.     But  see  37  Wickersham  v.  Chicago  Zinc  Co., 

Lanning  v.  Johnson,  75  N.  J.  L.  259.  18  Kan.  481,  26  Am.  Rep.  784;    First 

^Very  wide   range    is    given    to  the  Nat.  Bank  of  Hightstown  v.  Christo- 

president  of  the  bank  to  receive  no-  pher,   40  N.   J.  L.  435,  29  Am.  Rep. 

tice  in  Port  Jervis  v.  First  National  262;    Innerarity   v.    Merchants'    Nat. 

Bank,  96  N.  Y.  550.  Bank,  139  Mass.  332,  52  Am.  Rep.  710; 

Knowledge  by  the  treasurer  of  the  Washington  Bank  v.  Lewis,  22  Pick, 

acts    of   the   president   was   imputed  (Mass.)  24;  Winchester  v.  Baltimore, 

in  Hotchkiss,  etc.,  Co.  v.  Union  Nat.  etc!,  R,  R.,  4  Md.  231;  Louisiana  State 

Bank,  15  C.  C.  A.  284,  68  Fed.  76.  Bank  v.  Senecal,  13  La.  525;   Seneca 

33  Aycock  Bros.  Lumber  Co.  v.  First  County  Bank  v.  Neass,  5  Den.  (N.  Y.) 

National  Bank,  54  Fla.  604;   Holm  v.  329;   National  Bank  of  Commerce  v. 

Atlas  Nat.  Bank,  28  C.  C.  A.  297,  84  Feeney,   9   S.   Dak.   550,   46   L.   R.   A. 

Fed.  119.  732;   Commercial  Bank  v.  Burgwyne, 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1847 


CHAP.    Vj 

where  the  corporate  agent,  though  not  acting  openly  as  the  adverse 
party,  is  secretly  engaged  in  furthering  some  fraudulent  scheme  ad- 
verse to  his  principal's  interest,  and  which  would  destroy  the  agency 
relation  between  them.38 

§  1847.  These   cases,   however,   are   to  be   distinguished 

from  those  in  which  the  agent,  for  some  purpose  of  his  own,  fraudu- 
lently assigns,  conveys  or  appropriates  to  the  use  of  his  principal  the 
property  of  another.  In  such  a  case,  if  the  principal  after  knowledge 
of  the  fraud  seeks  to  appropriate  and  retain  the  benefit  derived  from 
the  agent's  fraud,  he  will  ordinarily  be  held  to  have  ratified  the  act 
and  to  have  assumed  responsibility  for  the  means  through  which  it 
was  brought  about.  This  question  has  already  been  fully  considered 
in  a  preceding  section.39 


110  N.  C.  267,  17  L.  R.  A.  326;  Rob- 
erts v.  Hughes,  (Vt.)  83  Atl.  807; 
Lee  v.  Elliott,  113  Va.  618;  Arlington 
Brewing  Co.  v.  Bluethenthal,  36  App. 
Cas.  (D.  C.)  209,  Ann.  Gas.  1912,  C. 
294;  Whittle  v.  Vanderbilt  Mining 
Co.,  83  Fed.  48;  First  Nat  Bank  v. 

German  Am.  Ins.  Co., N.  Dak. , 

134  N.  W.  873;  Findley  v.  Cowles,  93 
Iowa,  389;  First  Nat  Bank  v.  Foote, 
12  Utah,  157;  American  'Nat.  Bank  v. 
Ritz,  70  W.  Va.  409,  40  L.  R.  A.  (N. 
S.)  156;  Merchants  Nat.  Bank  v.  Lov- 
ett,  114  Mo.  519,  35  Am.  St.  Rep.  770; 
Seaverns  v.  Presbyterian  Hospital, 
173  111.  414,  64  Am.  St  Rep.  125;  Dorr 
v.  Life  Ins.  Co.,  71  Minn.  38,  70  Am. 
St.  Rep.  309;  National  Bank  v. 
Feeney,  9  S.  Dak.  550,  46  L.  R.  A. 
732;  First  Nat.  Bank  v.  Tompkins,  6 
C.  C.  A.  237,  57  Fed.  20;  Third  Nat. 
Bank  v.  Harrison,  10  Fed.  243.  Thus 
where  the  general  superintendent  of 
a  corporation  conveyed  to  it,  with 
warranty,  lands  which  he  had  pur- 
chased in  his  own  interests  and 
which  were  subject  to  a  prior  lease, 
of  which  he  had  actual  knowl- 
edge, it  was  held  that  his  knowl- 
edge could  not  be  imputed  to 
the  corporation.  Wickersham  v.  Chi- 
cago Zinc  Co.,  18  Kan.  481,  26  Am. 
Rep.  784.  So  where  the  president  of 
a  corporation  conveyed  to  it  land 
subject  to  a  prior  equity  against  him- 
self, the  corporation  was  held  not 


chargeable  with  his  knowledge. 
Frenkel  v.  Hudson,  82  Ala.  158,  60 
Am.  Rep.  736. 

as  See  ante,  §  1815  et  seq. 

3»  See  ante,  §  1818,  note  84.  Thus 
if  the  cashier  or  other  officer  of  a 
bank  who  is  secretly  a  defaulter 
takes  or  uses  the  money  of  A  with- 
out authority  to  make  good  or  cover 
up  his  default,  the  bank,  if  it  seeks 
to  retain  the  money  after  notice  of 
the  fraud  will  be  held  charged  with 
the  cashier's  fraud  and  can  acquire 
no  title  against  A.  Atlantic  Cotton 
Mills  v.  Indian  Orchard  Mills,  147 
Mass.  268,  9  Am.  St  Rep.  698.  So  a 
bank  is  chargeable  with  notice  of 
facts  vitiating  the  title  to  securities 
obtained  by  the  collusion  of  its  teller 
with  an  officer  of  another  bank,  by 
certifying  as  "good"  the  check  of  an 
irresponsible  person  which  is  taken 
by  such  other  bank.  Atlantic  Bank 
v.  Merchants'  Bank,  10  Gray  (Mass.), 
532.  So  where  the  treasurer  of  a 
town,  being  also  cashier  of  a  bank, 
gave  a  note  as  treasurer  of  the  town 
to  raise  money  for  his  private  use, 
and  discounted  the  note  as  cashier, 
the  bank  was  held  charged  with 
knowledge  of  his  fraud.  First  Nat. 
Bank  of  New  Milford  v.  Town  of 
New  Milford,  36  Conn.  93.  So  where 
the  cashier  of  a  bank,  who  was  also 
treasurer  of  another  corporation,  de- 
posited securities  of  the  latter  to  ob- 


1429 


§    1848]  THE  LAW  OF  AGENCY  [BOOK   IV 

§  1848.  When  notice  must  be  acquired. — It  has  been  said 

in  many  cases  that  notice  to  an  officer  or  agent  of  a  corporation  will 
not  be  notice  to  the  corporation  unless  such  notice  was  received  while 
the  officer  or  agent  in  question  was  actually  acting  as  such ;  or,  to  put 
it  in  a-  different  form,  that  the  corporation  will  not  be  charged  with 
notice  which  comes  to  its  officer  or  agent  while  the  latter  was  acting 
in  his  private  or  individual  capacity.40  This  question  deserves  a  some- 
what closer  analysis  than  it  ordinarily  receives.  As  has  already  been 
pointed  out,  it  is  held  by  some  courts,  proceeding  upon  the  theory  of 
the  legal  identification  of  the  principal  with  his  agent,  that  notice  re- 
ceived prior  to  the  commencement  of  the  agency  is  not  to  be  imputed 
to  the  principal,  because  at  that  time  it  was  impossible  that  they 
should  be  identified.  Certain  of  the  cases  referred  to  can  be  dis- 
posed of  upon  this  ground,  and  are  entirely  consistent  with  it.  The 
same  statement,  however,  is  riot  infrequently  made  by  courts  which 
base  the  imputation  of  notice  upon  the  agent's  duty  to  communicate, 
and  these  are  the  cases  which  chiefly  require  consideration.  The  ex- 
planation here  is  simple  and  consistent.  If  information  comes  to  an 
agent  while  he  is  actually  acting  about  the  subject-matter  of  his 
agency,  and  the  information  relates  to  it,  such  information  is  imputa- 
ble  to  the  principal  under  either  rule.  This  is  notice  per  se,  and  if  is 
immaterial  whether  the  agent  heeds  it  or  forgets  it  or  not.  If,  howr 
ever,  the  information  comes  to  him  while  he  is  not  actually  engaged 
in  the  exercise  of  his  agency,  even  though  it  be  conceded  that  he  was 
agent  at  the  time,  the  question  whether  it  is  to  be  imputed  to  his  princi- 
pal will  depend  upon  a  variety  of  circumstances.  Under  the  second 

tain  a  loan  for  the  use  of  the  former  72  Me.  226,  39  Am.  Rep.  319;  General 

bank.    Fishkill  Savings  Inst  v.  Bost-  Ins.  Co.  v.  United  States  Ins.  Co.,  10 

wick,  19  Hun  (N.  Y.),  354.    See  also,  Md.  517,  69  Am.  Dec.  174;   Washing- 

Holden  v.  New  York,  etc.,  Bank,  72  ton  Bank  v.  Lewis,  22  Pick.  (Mass.) 

N.  Y.  286.    But  see  Hummell  v.  Bank  24;    First  Nat.  Bank  v.'  Christopher, 

of  Monroe,  75  Iowa,  689.  40  N.  J.  L.    435,   29    Am.    Rep.  262; 

*o  People's    Bank    of    Talbotton    v.  Casco  Nat.  Bank  v.  Clark,  139  N.  Y. 

Exchange    Bank    of    Macon,  116    Ga.  307,  36  Am.  St  Rep.   705;    Westfleld 

820,  94  Am.  St  Rep.  144;  The  Texas  Bank  v.  Cornen,  37  N.  Y.  320,  93  Am. 

Loan  Agency  v.  Taylor,  88  Tex.  47;  Dec.  573;    Bank  of  U.  S.  v.  Davis,  2 

Reid  v.  Bank  of  Mobile,  70  Ala.  199;  Hill  (N.  Y.),  451;   Bank  of  Pittsburg 

Brennan  v.   Emery,   etc.,  Dry  Goods  v.  Whitehead,  10  Watts  (Pa.),  397,  36 

Co.,  99   Fed.   971;    Grayson  Co.   Nat.  Am.  Dec.  186;   Kearney  Bank  v.  Fro- 

Bank  v.  Hall,  91  S.  W.  807  (Tex.  Civ.  man,  129  Mo.   427,   50  Am.   St.  Rep. 

App.);  Farmers,  etc.,  Bank  v.  Payne,  456;     Benton    v.    German    American 

25  Conn.  444,  68  Am.  Dec.  362;  Lyne  National  Bank,  122  Mo.  332;   Penfield 

v.  Bank  of  Ky.,  5  J.  J.  Marsh.  (Ky. )  Invest.    Co.    v.    Bruce,    132    Mo.    App. 

545;    Mercier  v.  Canonge,  8  La.  Ann.  257. 
37;  Fairfield  Savings  Bank  v.  Chase, 

1430 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1849 

theory,  the  question  at  once  arises,  was  it  his  duty  to  communicate  it  to 
his  principal  ?  This  will  depend  upon  two  considerations,  i.  Whether 
he  is  such  a  general,  managerial  officer  that  notice  to  him  is  notice 
to  the  corporation  merely  by  virtue  of  his  position ;  and  2.  Whether 
though  it  is  not  imputable  per  se,  it  becomes  notice  because  the 
agent  afterward  acts  with  reference  to  the  subject  matter  with  the 
knowledge  present  in  his  mind.  Suppose  an  agent,  who  regularly  and 
habitually  acts,  during  business  hours,  with  reference  to  a  certain  sub- 
ject, during  the  evening,  while  away  from  his  place  of  business  and  at 
his  home  or  in  some  social  gathering,  receives  in  his  "private  and  in- 
dividual capacity"  information  pertinent  and  material  to  the  subject 
upon  which  he  has  been  acting  during  the  day  and  upon  which  he  re- 
sumes action  at  the  opening  of  business  on  the  morrow,  with  this  in- 
formation actually  in  his  mind.  Would  it  be  contended,  under  either 
rule,  that  this  information  would  not  be  imputed  to  his  principal? 

§  1849.  Suppose  that  the  president  of  a  bank,  while  ab- 
sent from  the  bank  and  engaged  upon  his  private  affairs,  learns  some- 
thing concerning  X.  X  is  not  at  that  time  a  customer  of  the  bank, 
and,  so  far  as  the  president  knows,  neither  has  nor  contemplates  hav- 
ing any  business  relations  or  dealings  with  it.  Suppose,  however,  that 
the  next  day  X,  without  the  knowledge  of  the  president,  and  with  ref- 
erence to  matters  not  within  the  president's  authority,  has  dealings, 
with  the  bank  through  its  cashier  or  board  of  directors,  to  which  deal- 
ings the  information  received  by  the  president  would  be  material. 
Would  it  now  be  contended  that  such  information  would  be  imputed? 
Obviously  it  could  not  be,  because  it  did  not  come  to  an  agent  who 
had  any  authority  or  duty  with  reference  to  the  subject-matter  to 
which  it  related,  and  there  was  nothing  to  suggest  to  him  that  it  was 
a  matter  of  any  consequence  to  his  principal  or  to  impose  any  duty  to 
communicate  it.  The  result  would  not  have  been  different  if  the  im 
formation  had  come  to  the  president  while  he  was  sitting  in  his  office 
at- the  bank  and  actually  transacting  its  business,  if,  as  before,  there 
was  nothing  to  suggest  that  it  was  a  matter  in  which  he  or  the  bank 
had  any  interest.41  Suppose,  however,  that  though,  when  the  presi- 
dent received  this  information,  it  seemed  of  no  importance  to  the 
bank,  he  should  be  called  upon  next  day,  or  at  any  other  time  while 
the  information  was  actually  fresh  in  his  mind,  to  deal  with  X  for  the 
bank  with  reference  to  a  matter  to  which  the  information  was  material. 
Would  it  be  doubted  now  that  the  information  would  be  imputed  to  the 

«  See  Washington  Nat.  Bank  v.  Pierce,  6  Wash.  491,  36  Am.  St.  Re-p.  174. 

1431 


§§    1850,  1851]  THE  LAW  OF  AGENCY  [BOOK    IV 

bank?  Suppose  still  further,  in  the  latter  case,  that  because,  when 
he  received  it,  it  seemed  to  be  a  matter  of  no  interest  to  him  or  to  his 
principal,  the  president  paid  little  or  no  attention  to  it ;  or  that,  for  the 
same  reason,  it  soon  passed  from  his  mind,  and  later,  when  he  was 
unexpectedly  called  upon  to  act,  the  information  had  actually  been  for- 
gotten. Would  it  now  be  imputed  ?  It  is  assumed  that  it  would  not  be. 

§  1850.  The  question,  then,  in  all  these  cases,  would  seem 

to  be,  not  whether  the  information  was  received  by  the  agent  in  his 
private  or  individual  capacity,  but  whether  it  was  received  at  such 
time  and  under  such  circumstances  as  to  impose  upon  him  the  duty 
to  give  heed  to  it  or  whether  he  afterwards  acted  with  it  present  in 
his  mind.  In  the  former  case  it  is  notice  in  itself.  On  the  other  hand, 
notice  or  information  coming  to  an  agent  of  a  corporation  in  his  pri- 
vate and  individual  capacity  concerning  a  matter  as  to  which  he  had 
no  authority  or  duty  to  act,  or  as  to  which  he  never  did  in  fact  act, 
would  not  be  imputed  to  the  corporation,  even  though  the  corpora- 
tion, through  some  other  agent,  who  did  not  have  the  information, 
should  act  upon  the  subject-matter  to  which  it  related.  So  notice  com- 
ing to  an  agent,  even  while  acting  generally  in  the  execution  of  his 
agency,  but  which  had  no  such  present  relevancy  or  importance  as  to 
impose  a  duty  to  communicate  it,  would  not  be  imputed.42  But  if,  in 
any  of  these  cases,  the  agent  later  acted  as  such  upon  some  matter  to 
which  that  notice  was  relevant  and  with  the  knowledge  still  present 
in  his  mind,  it  would  then  be  notice. 

§  1851.  When  notice  to  director  is  notice  to  corporation. — 

The  question  frequently  arises  whether  notice  to  a  director  of  a  corpo- 
ration is  notice  to  the  corporation.  In  dealing  with  this  question,  re- 
gard must  be  had  to  the  scope  and  nature  of  the  director's  powers. 
The  directors  of  a  corporation  are  not  individually  its  agents  for  the 
transaction  of  its  ordinary  business,  which  is  usually  delegated  to  its 
executive  officers,  such  as  its  president,  secretary,  treasurer  and  the 
like.  Directors  are,  it  is  true,  possessed  of  extensive  powers  even  to 
the  extent  of  absolute  control  over  the  management  of  its  affairs,  but 
these  powers  reside  in  them  as  a  board  and  not  as  individuals,  and  only 
when  acting  as  a  board  in  their  collective  capacity  are  they  the  repre- 
sentatives of  the  corporation.  Notice  to  them  when  assembled  as  a 

«  See    McDennott    v.    Hayes,    116  ence  to  that  matter  with  the  informa- 

C.    C.    A.    553,    197    Fed.    129.      But  tion  still  in  his  mind,  it  would  then 

though  the  information  was  not  no-  be  imputed.     Pennoyer  v.  Willis,  26 

tice  when  acquired,  if  the  agent  is  Ore.  1,  46  Am.  St.  Rep.  594. 
later  called  upon  to  act  with  refer- 

1432 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§  1852 


board  would  undoubtedly  be  notice  to  the  corporation.43  So  notice 
to  an  individual  director  which  is  in  fact  communicated  to  the  board 
by  him  is  notice  to  the  corporation,  for  this  thus  becomes  notice  to  the 
board.44 

§  1852.  But  it  is  well  settled,  as  a  general  rule,  that  the 

mere  private  knowledge  of  one  or  more  individual  directors  concern- 
ing any  business  of  the  corporation  (as  to  which  such  director  has 
then  no  special  duty  or  authority  to  act,  or  upon  which  he  does  not 
subsequently  act  with  such  knowledge  in  his  mind,  and  which  he  does 
not  communicate  to  the  board)  is  not  to  be  imputed  to  the  corpora- 
tion.45 This  rule,  however,  is  subject  to  certain  exceptions  resting 
upon  obvious  principles.  Thus  it  has  been  said  that  notice  communi- 
cated to  a  director  officially  for  the  express  purpose  of  being  com- 
municated to  the  board  is  notice  to  the  board,  although  he  may  have 
failed  to  do  so,  as  it  is  clearly  his  duty  to  so  communicate  it  and  he 
ought  to  be  conclusively  presumed  to  have  done  his  duty.48  Whether 
this  is  true,  however,  may  perhaps  be  open  to  question. 


« First  National  Bank  of  Rights- 
town  v.  Christopher,  40  N.  J.  L.  435, 
29  Am.  Rep.  262;  Fulton  Bank  v. 
New  York,  etc.,  Canal  Co.,  4  Paige 
(N.  Y.),  127;  Toll  Bridge  Co.  v.  Bets- 
worth,  30  Conn.  380;  In  re  Marseilles, 
etc.,  Ry.  Co.,  7  Ch.  Ap.  161. 

44  Farmers,  etc.,  Bank  v.  Payne,  25 
Conn.  444,  68  Am.  Dec.  362;   Bank  of 
Pittsburgh    v.    Whitehead,    10   Watts 
(Pa.),  397,  36  Am.  Dec.  186. 

45  Ayers  v.  Green  Gold  Mining  Co., 
116   Cal.    333;    Lothian   v.   Wood,   55 
Cal.  159;  Murphy  v.  Gumaer,  12  Colo. 
App.     472;     Farmers,    etc.,    Bank   v. 
Payne,  25  Conn.  444,  68  Am.  Dec.  362; 
Farrel    Foundry    v.    Dart,    26    Conn. 
376;   Home  Bank  v.  Peoria  Ag'l  So- 
ciety, 206  111.  9,  99  Am.  St.  Rep.  132; 
Lyne  v.  Bank  of  Ky.,  5  J.  J.  Marsh. 
(Ky.)   545;    Louisiana  State  Bank  v. 
Senecal,     13     La.     525;      Mercier     v. 
Canonge,  8    La.    Ann.    37;     Fairfleld 
Savings  Bank  v.  Chase,  72  Me.  226, 
39  Am.  Rep.  319;  B.  &  O.  R.  R.  Co.  v. 
Canton  Co.,  70  Md.  405;    Winchester 
v.  Baltimore,  etc.,  R.  R.  Co.,  4  Md. 
231;     General     Ins.     Co.     v.     United 
States  Ins.  Co.,  10  Md.  517,  69  Am. 
Dec.   174;    United    States   Ins.   Co.   v. 
Shriver,  3  Md.    Ch.    381;     Sawyer  v. 


Pawners  Bank,  6  Allen  (Mass.),  201; 
Washington  Bank  v.  Lewis,  22  Pick. 
(Mass.)  24;  Kearney  Bank  v.  Fro- 
man,  129  Mo.  427,  50  Am.  St.  Rep. 
456;  Yello.w  Jacket  Silver  Min.  Co. 
v.  Stevenson,  5  Nev.  224;  First  Nat. 
Bank  of  Hightstown  v.  Christopher, 
40  N.  J.  L.  435,  29  Am.  Rep.  262; 
Casco  Nat.  Bank  v.  Clark,  139  N.  Y. 
307,  36  Am.  St.  Rep.  705;  Merchants 
Nat.  Bank  v.  Clark,  139  N.  Y.  314,  36 
Am.  St.  Rep.  710;  Westfleld  Bank  v. 
Cornen,  37  N.  Y.  320,  93  Am.  Dec. 
573;  Bank  of  U.  S.  v.  Davis,  2  Hill 
(N.  Y.),  451;  National  Bank  v.  Nor- 
ton, 1  Hill  (N.  Y.),  572;  Atlantic 
Bank  v.  Savery,  18  Hun,  36,  s.  c.  82 
N.  Y.  291;  Getman  v.  Second  National 
Bank,  23  Hun  (N.  Y.),  498;  La  Farge 
Fire  Ins.  Co.  v.  Bell,  22  Barb.  (N.  Y.) 
54;  Wilson  v.  McCullough,  23  Pa. 
440,  62  Am.  Dec.  347;  Bank  of  Pitts- 
burg  v.  Whitehead,  10  Watts  (Pa.), 
397,  36  Am.  Dec.  186;  Custer  v. 
Tompkins  Co.  Bank,  9  Pa.  27;  Ward- 
law  v.  Troy  Oil  Mill,  74  S.  C.  368,  114 
Am.  St.  Rep.  1004;  Continental  Nat. 
Bank  v.  McGeoch,  92  Wis.  286;  Law- 
rence v.  Holmes,  45  Fed.  357. 

46  United  States  Ins.  Co.  v.  Shriver, 
3  Md.  Ch.  381;   Boyd  v.  Chesapeake, 


1433 


§  1853] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


§  1853.  '  '  So  it  has  been  held  that  a  corporation  is  properly 
to  be  charged  with  information  possessed  by  an  individual  director, 
whether  disclosed  or  not,  if,  while  possessing  such  knowledge,  he  acts 
with  the  board  and  as  a  member  of  it,  upon  the  very  matter  to  which 
the  information  relates.47  In  such  a  case  there  is  the  strongest  possi- 
ble duty  resting  upon  the  director  to  communicate  his  information  to 
the  board,  and  it  may  well  be  presumed,  as  against  the  corporation, 
that  he  has  done  so.  But,  in  accordance  with  the  exception  which  has 
been  heretofore  noticed,  that  the  agent  will  not  be  presumed  to  com- 
municate information  hostile  to  his  own  interests,  it  has  been  held  that 
when  a  director  is  himself  dealing  as  the  other  party  with  the  corpo- 
ration, the  corporation  will  not  be  charged  with  notice  of  that  knowl- 
edge possessed  by  the  director  which  his  own  interest  impelled  him  to 
conceal,4*  even  though  he  is  present  but  does  not  act  with  the  board  in 


etc.,  Canal   Co.,  17    Md.    195,  79  Am. 
Dec.  646. 

See  also  the  case  of  Tryon  v.  White, 
etc.,  Co.,  62  Conn.  161,  20  L.  R.  A. 
291,  where  the  statement  of  a  director 
that  he  would  advise  the  board  about 
a  certain  matter — which  he  did  not 
do — was  held  admissible.  .Two  judges 
dissented. 

47  Beacon  Trust  Co.  v.  Souther,  183 
Mass.  413;  National  Security  Bank  v. 
Cushman,  121  Mass.  490;    Innerarity 
v.    Merchants'    National    Bank,    139 
Mass.    332,  52   Am.   Rep.  710;  Union 
Bank  v.  Campbell,  4  Humph.  (Tenn.) 
394;  Bank  of  United  States  v.  Davis, 
2  Hill  (N.  Y.),  451;   Clerk's  Savings 
Bank  v.  Thomas,  2  Mo.  App.  367. 

48  "A  bank  or  other  corporation  can 
act   only   through   agents,  and   it   Is 
generally  true,  that  if  a  director,  who 
has  knowledge  of  the  fraud  or  illegal- 
ity of  the  transaction,  acts  for  the 
bank,  as  in  discounting  a  note,  his 
act  is  that  of  the  bank  and  it  is  af- 
fected  by  his  knowledge.     National 
Security  Bank  v.  Cushman,  121  Mass. 
490.     But  this  principle  can  have  no 
application  where  the  director  of  the 
bank  is  the  party  himself  contracting 
with  it.    In  such  case  the  position  he 
assumes    conflicts    entirely    with  the 
idea  that  he  represents  the  interests 
of    the    bank.      To    hold    otherwise 


might  sanction  gross  frauds  by  im- 
puting to  the  bank  a  knowledge  those 
properly  representing  it  could  not 
have  possessed."  Devens,  J.,  in  Inne- 
rarity v.  Merchants'  National  Bank, 
139  Mass.  332,  52  Am.  Rep.  710.  In  this 
case  A  shipped  a  cargo  to  B  for  sale 
on  A's  account,  but  gave  B  a  bill  of 
lading  in  latter's  name.  B  was  a  di- 
rector in  defendant's  bank.  B  bor- 
rowed a  large  sum  of  money  of  the 
bank  and,  without  authority  of  A, 
pledged  the  bill  of  lading  as  security. 
B  met  (though  he  seems  not  to  have 
acted)  with  the  board  in  approving 
the  loan  but  gave  the  board  no  notice 
of  the  true  ownership  of  the  cargo, 
nor  did  the  bank  have  notice 
from  any  other  source.  In  an  action 
by  the  owner  of  the  cargo  it  was  held 
that  the  bank  could  not  be  charged 
with  knowledge  of  the  director's 
fraud. 

In  First  National  Bank  of  Hights- 
town  v.  Christopher,  40  N.  J.  L.  435, 
29  Am.  Rep.  262,  P,  a  member  of  a 
firm,  procured  at  a  bank  of  which  he 
was  a  director,  the  discount  of  a  note 
belonging  to  the  firm,  knowing  that 
the  note  had  been  obtained  by  fraud, 
but  not  disclosing  this  fact  to  the 
other  officers  of  the  bank.  The  bank 
sued  upon  the  note  and  were  allowed 
to  recover,  the  court  holding  that  the 


1434 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1854 


reference  to  it.49  A  director  may,  also,  either  by  custom,  acquiescence 
or  express  appointment,  be  charged  with  the  performance  of  certain 
corporate  duties,  in  respect  to  which  he  is  to  be  regarded  like  any  other 
agent  of  the  corporation,  and  notice  to  him  regarding  such  matters 
will  be  notice  to  the  corporation.50 

§  1854.  Notice  to  stockholder  not  notice  to  the  corpora- 
tion.— The  stockholders  of  a  corporation,  as  such,  are  in  no  sense 
the  agents  of  the  corporation.  They  may,  of  course,  be  invested,  like 
other  individuals,  with  representative  powers  by  the  corporation,  and 
would  in  that  event  be  treated  like  other  agents ;  but  their  mere  posi- 
tion as  stockholders  gives  them  no  such  authority.  Notice  to  one  or 
a  part  of  the  individual  stockholders  is,  therefore,  not  notice  to  the 
corporation  unless  actually  communicated  to  it.51 


knowledge  of  the  director  could  not 
be  imputed  to  the  bank.  [But  as  to 
this  case,  see  the  case  of  Lanning  v. 
Johnson,  75  N.  J.  L.  259.]  To  same 
effect:  Commercial  Bank  v.  Cunning- 
ham, 24  Pick.  (Mass.)  270,  35  Am. 
Dec.  322;  National  Security  Bank  v. 
Cushman,  121  Mass.  490;  Frost  v. 
Belmont,  6  Allen  (Mass.),  152.  See 
also,  Atlantic  Cotton  Mills  v.  Indian 
Orchard  Mills,  147  Mass.  268,  9  Am. 
St.  Rep.  698. 

In  Mayor,  etc.  v.  Tenth  Nat.  Bank, 
111  N.  Y.  446,  the  commissioners  for 
the  building  of  the  court  house  fraud- 
ulently raised  checks,  and  the  de- 
fendant paid  them.  Three  of  the 
•commissioners  were  directors  of  the 
bank,  but  did  not  act  for  the  bank 
in  this  matter,  Bliss,  its  president, 
representing  it  solely,  and  he  was 
innocent  of  the  fraud.  The  court  re- 
fused to  charge  the  bank  with  the 
knowledge  of  the  fraudulent  raising 
of  the  checks,  because  the  directors 
of  the  bank,  who  participated  in  the 
fraud,  had  such  knowledge.  English- 
American  Loan  Co.  v.  Hiers,  112  Ga. 
823;  Martin  v.  South  Salem  Land 
Co.,  94  Va.  28;  Hatch  v.  Ferguson,  15 
C.  C.  A.  201,  66  Fed.  668. 

4»  Innerarity  v.  Merchants'  Na- 
tional Bank,  139  Mass.  332,  52  Am. 
Rep.  710;  Custer  v.  Tompldns  County 
Bank,  9  Pa.  27;  Terrell  v.  Branch 
Bank  of  Mobile,  12  Ala.  502. 


United  States  Bank  v.  Davis,  2  Hill 
(N.  Y.),  451;  and  Union  Bank  v. 
Campbell,  4  Hump.  (Tenn.)  394,  are 
sometimes  thought  to  be  contra,  but 
there  the  director  acted  in  the  first 
case,  and  in  the  second  he  withdrew 
for  the  moment,  but  this  was  thought 
to  be  colorable.  These  cases  have 
been  criticised  and  denied.  See  In- 
nerarity v.  Merchants'  National 
Bank,  supra.  They  are  cited  with 
approval  in  Tagg  v.  Tennessee  Na- 
tional Bank,  9  Heisk.  (Tenn.)  479. 

50  Smith  v.  South  Royalton  Bank, 
32  Vt.  341,  76  Am.  Dec.  179. 

51  Pittsburgh  Bank  v.  Whitehead,  10 
Watts  (Penn.),  397,  36  Am.  Dec.  186; 
Union  Canal  v.  Loyd,  4  Watts  &  S. 
(Penn.)  393;  Custer  v.  Tompkins  Co. 
Bank,  9  Pa.  St.  27;  Wilson  v.  McCul- 
lough,  23  Pa.  440,  62  Am.  Dec.  347; 
Housatonic,  etc.,  Bank  v.   Martin,  1 
Mete.    (Mass.)    294;    Burt  v.  Batavia 
Mfg.   Co.,   86   111.   66;    Franklin  Min. 
Co.  v.  O'Brien,  22  Colo.  129,  55  Am. 
St.  Rep.  118;   Mercantile  Nat.  Bank 
v.  Parsons,  54  Minn.  56,  40  Am.  St. 
Rep.  299;  Seeger  Refrig.  Co.  v.  Amer- 
ican Car  Co.,  171  Fed.  416;  First  Nat. 
Bank  v.  Anderson,  28  S.  C.  143. 

See  also,  Pearsall  v.  Western  Union 
Tel.  Co.,  124  N.  Y.  256,  21  Am.  St. 
Rep.  662. 

Notice  to  promoter  is  not  usually 
notice  to  corporation.  Franklin  Min. 
Co.  v.  O'Brien,  supra. 


1435 


§§    l&55>  ^56]  THE  LAW   OF  AGENCY  [BOOK    IV 

But  there  are  many  cases  in  which  notice  to  all  of  the  stockholders 
must  be  deemed  notice  to  the  corporation.  Thus  where  all  the  per- 
sons who  organized  a  corporation  had  notice  of  a  defect  in  the  title  to 
property  acquired  by  the  corporation  through  them,  it  was  held  that 
the  corporation  must  be  deemed  to  be  affected  by  their  knowledge  or 
notice.52 


IV. 

THE  LIABILITY  OF  THE  PRINCIPAL  FOR  HIS  AGENT'S   TORTS  AND  CRIMES 

§  1855.  In  general. — The  question  of  the  liability  of  the  principal 
for  the  wrongful  acts  of  his  agent  may  present  itself  in  a  great  variety 
of  forms  and  may  involve  a  great  variety  of  considerations.  In  the 
first  place  with  reference  to  the  nature  of  the  act,  the  thing  'complained 
of  may  be  the  agent's  negligence ;  it  may  be  his  wanton,  wilful  or  ma- 
licious act;  it  may  be  an  act  of  fraud,  misrepresentation  or  deceit;  it 
may  be  an  act  prohibited  under  penalty ;  it  may  be  an  act  that  consti- 
tutes a  crime.  With  respect  to  the  circumstances  under  which  the  act 
was  done,  the  particular  act  may  have  been  specifically  directed  by 
the  principal;  it  may  be  the  direct  and  immediate  result  of  some  act 
specifically  directed  by  the  principal ;  it  may  be  an  act  expressly  for- 
bidden by  the  principal ;  it  may  have  been  an  act  which  the  principal 
feared  and  specifically  warned  against ;  it  may  have  been  an  act  wholly 
unforeseen  and  unanticipated  by  the  principal ;  it  may  have  been  an  act 
which  in  its  precise  form  could  not  fairly  have  been  anticipated  and 
was  not  reasonably  to  be  foreseen. 

With  respect  to  either  of  these  matters  this  enumeration  of  possibil- 
ities is  by  no  means  exhaustive. 

In  many  of  the  cases  in  which  the  questions  here  suggested  will 
arise,  the  relation  will  be  more  likely  to  be  that  of  master  and  servant 
than  that  of  principal  and  agent.  But  the  two  relations,  even  if  there 
be  a  clear  distinction  between  them,  are  here  so  much  alike  and  the 
rules  governing  them  are  in  general  so  similar  that  it  seems  entirely 
permissible  to  take  illustrations  from  either  field. 

§  1856.  Theories  of  liability. — In  dealing  with  the  question  of 
the  principal's  liability  in  these  cases,  the  question  may  perhaps  be  ap- 
propriately asked  at  the  outset,  why  should  a  principal  be  liable  for 

52  Simmons  Creek  Coal  Co.  v.  Hoffman  Steam  Coal  Co.  v.  Cumber- 

Doran,  142  U.  S.  417,  35  L.  Ed.  1063.  land  Coal  Co.,  16  Md.  456,  77  Am. 

See  also,  Carter  v.  Gray,  79  Ark.  Dec.  311.  See  also,  ante,  §  1844,  note 

273;  Deal  v.  Chase,  31  Mich.  490;  30. 

1436 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1856 

the  wrongful  acts  of  his  agent  at  all.  It  is,  in  general,  true  that  one 
man  answers  for  his  own  wrongful  acts  only  and  not  for  those  of  an- 
other. If  an  agent  or  servant  commits  a  wrongful  act,  why,  in  these 
days  when  every  man  is  sui  juris,  should  not  the  servant  or  agent  an- 
swer for  his  act  rather  than  his  principal  or  master.  A  great  variety 
of  answers  has  been  suggested  and  some  of  the  cases  may  not  be  dif- 
ficult to  deal  with.  If  the  act  be  one  which  was  specifically  and  immedi- 
ately directed  by  the  principal,  it  may  be  charged  to  him  as  being  really 
his  own  act,  the  servant  or  agent  intervening  merely  as  a  mechanical  in- 
strument. The  same  result  may  perhaps  be  reached  where  the  act, 
though  not  specifically  commanded,  is  the  direct,  immediate,  to  be  ex- 
pected, consequence  of  some  act  which  was  commanded.  Again  there 
are  many  cases  in  which  it  is  not  difficult  to  see  that  the  principal  or 
master  was  guilty  of  some  personal  default  or  negligence,  and  responsi- 
bility may  be  traced  to  him  on  that  ground.  Such  a  case  may  be  one 
where  the  principal  or  master  has  been  negligent  in  the  selection  or  re- 
tention of  the  servant  or  agent,  or  has  failed  to  use  proper  care  in  su- 
pervising the  act  or  in  guarding  against  danger.  But  suppose  the  act 
cannot  be  brought  under  either  of  these  heads,  and  that  the  principal 
or  master  is  not  himself  at  fault,  but  has  exercised  all  reasonable  care 
and  caution  in  the  selection  and  retention  of  his  servant  or  agent,  and 
in  supervising  and  controlling  the  work  to  be  done ;  and  suppose  further 
that  the  work  is  such  as  can  be  done  in  safety,  under  the  conditions 
which  the  principal  or  master  has  selected, — if  now  the  servant  or  agent 
injures  some  third  person  by  his  negligence  or  misconduct,  why  should 
the  principal  or  master,  who  is  not  himself  at  fault,  be  held  responsi- 
ble, instead  of  the  servant  or  agent  who  is  at  fault?  Many  answers 
to  this  question  have  been  proposed,  no  one  of  which  seems  entirely 
satisfactory.  Attempts  have  been  made  to  account  for  it  on  purely  his- 
torical grounds,  but  if  it  had  no  other  foundation  it  probably  should 
not  and  would  not  long  continue.  It  is  sometimes  said  that,  as  the  prin- 
cipal or  master  is  the  one  who  put  the  force  in  motion,  he  is  the  one 
who  should  answer  for  its  consequences ;  but  this  seems  to  put  the  em- 
ployment of  an  agent  or  servant  on  the  same  perilous  footing  as  the 
keeping  of  a  wild  beast  or  the  employment  of  unusually  dangerous 
forces.  It  is  sometimes  said  that  the  principal  or  master  is  the  one  who 
is  to  get  the  benefit,  and  therefore  he  should  take  the  burdens  also. 
But  it  is  not  true  in  the  ordinary  case  that  the  principal  or  master  is 
the  only  one  who  receives  the  benefit.  Being  employed  may  be  just  as 
great  a  benefit  to  the  servant  or  agent  and  may  be  just  as  much  his 
business  or  profession  in  life,  as  employing  him  may  be  beneficial  to 
the  principal  or  master  and  constitute  his  business  or  calling  in  life. 

1437 


§§    1857,  !858]  THE  LAW   OF  AGENCY  [BOOK    IV 

From  the  standpoint  of  society  at  large,  the  employment  of  each  may 
be  equally  beneficial.  It  is  sometimes  said  that  employers,  as  a  class,  ' 
are  more  likely  to  be  pecuniarily  able  to  respond  in  damages  than  em- 
ployees as  a  class,  and  therefore,  for  the  protection  of  third  persons,  a 
remedy  should  be  given  against  the  employer.  But  this  argument  is 
one  which  obviously  must  be  confined  within  very  narrow  limits.  Pe- 
cuniary ability  to  meet  it  is,  when  standing  alone,  a  not  very  just 
ground  for  imposing  a  liability.  Sympathy  for  the  unfortunate, — per- 
haps, in  some  degree,  prejudice  against  the  more  fortunate, — neither  of 
them  of  course  good  legal  reasons,  undoubtedly  often  enters  in. 

As  a  result,  however,  of  some  of  these  reasons,  perhaps  of  a  combi- 
nation of  all  of  them,  it  has  for  many  years  been  a  definitely  formu- 
lated principle  in  our  legal  system  that  the  principal  should  answer  for 
the  acts  of  his  agent,  and  the  master  respond  for  the  conduct  of  his 
servant,  in  a  great  variety  of  cases,  in  which  no  personal  misconduct 
or  default  on  the  part  of  the  principal  or  master  would  furnish  an  ade- 
quate explanation.  Moreover,  instead  of.  diminishing  with  the  pro- 
gress of  time,  the  tendency  everywhere  seems  to  be  to  enlarge  the  lia- 
bility of  the  principal  or  master,  either  by  judicial  decision  or  by  direct 
legislation. 

§  1857.  Accepting  as  a  fact  that  the  principal  or  master. 

may  be  held  liable,  in  many  cases,  for  the  misconduct  of  his  agent  or 
servant,  the  effort  must  be  to  determine  in  what  cases  the  liability  will . 
so  attach,  and  what  will  be  the  extent  of  the  liability.  For  this  pur- 
pose it  may  be  convenient  to  consider  the  liability  of  the  principal  or 
master,  first,  for  acts  expressly  directed  by  him;  second,  for  the  negli- 
gence of  his  servant  or  agent;  third,  for  the  wanton,  wilful  or  ma- 
licious acts  of  the  servant  or  agent;  fourth,  for  the  fraud,  misrepre- 
sentation or  deceit  of  the  servant  or  agent ;  fifth,  the  principal's  civil 
liability  for  the  penal  or  criminal  act  of  his  servant  or  agent ;  and  sixth, 
the  penal  or  criminal  liability  of  the  principal  or  master  for  the  penal 
or  criminal  act  of  his  servant  or  agent. 

Before  taking  up  these  questions,  however,  a  preliminary  question 
of  much  importance  must  be  considered, — namely  whether  the  relation 
of  principal  and  agent  or  master  and  servant  actually  exists. 

,  ,[•.,     .-,  vfj  •>i--nter>ni.-io •ifiqhnhij  oflf  lfjf!j  hip?  esmjJomo?  ?.t  il  <  -.a^cacfl 
1.  Did  Relation  of  Principal  and  Agent  or  of  Master  and  Servant  Exist. 

§  1858.  Necessity  for  existence  of  relation. — In  all  of  the  discus- 
sions of  this  question,  it  is  constantly  assumed,  and  it  is  always  a  con- 
dition precedent,  that  the  relation  of  principal  and  agent,  or  master 
and  servant,  shall  actually  exist.  That  this  is  so  seems  often  to  be 

1438 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1859 

easily  overlooked,  and  it  cannot  very  well  be  unduly  emphasized.  Two 
quotations  from  a  single  court,  out  of  many  similar  ones,  may  there- 
fore be  justified. 

"A  person,  either  natural  or  artificial,  is  not  liable  for  the  acts  or 
negligence  of  another,  unless  the  relation  of  master  and  servant  or 
principal  and  agent  exists  between  them."  B3 

"There  can  be  no  recovery  against  one  charged  with  negligence  upon 
the  principle  of  respondeat  superior,  unless  it  be  made  to  appear  that 
the  relation  of  master  and  servant  in  fact  existed,  whereby  the  negli- 
gent act  of  the  servant  was  legally  imputable  to  the  master."  5* 

The  relation  must  also  exist  at  the  time  in  question.  If  it  had  not 
yet  begun,  or  if  it  had  already  terminated,55  no  liability  can  ordinarily 
arise. 

§  1859.  When  relation  exists. — It  being  thus  true,  as  has  been 
pointed  out,  that  in  order  to  hold  one  man  responsible  for  the  torts  of 
another,  it  is. in  general  necessary  to  show  that  the  one  sought  to  be 
held  responsible  stood  in  the  relation  of  principal  or  master  of  the 
wrongdoer  with  respect  of  the  act  done,  it  becomes  material  to  dis- 
cover the  tests  by  which  the  existence  of  that  relation,  in  a  given  case, 
may  be  determined.  In  the  ordinary  case  the  matter  presents  no  es- 
sential difficulty.  He  is  the  principal  or  master  who  is  designated  as 
such  by  the  acts  of  employing  and  paying  compensation.  But,  as  has 
been  seen,  formal  employment  is  not  always  essential  to  the  existence 
of  the  relation ;  neither  is  payment  of  compensation.56  A  father,  for 

ss  Painter  v.  Mayor,  etc.,  of  Pitts-  servant  after  he  has  been  discharged, 

burg,  46  Pa.  213.  Johnson  v.  Martin,  11  La.  Ann.  27,  66 

s*Patton  v.  McDonald,  204  Pa.  517  Am.  Dec.  193. 

(at  p.  528).  See  also  Beard  v.  Lon-  56  A  person  is  responsible  as  mas- 
don  Omnibus  Co.,  [1900]  2  Q.  B.  530.  ter  for  the  negligence  of  another 

6»  That  there   is  no  liability  ordi-  whom   he   has  engaged  as  chauffeur 

narily  for  what  the  former  servant  of  his   automobile  and  whom   he   is 

or  agent  does  after  the  relation   is  teaching  to  run  it  and  to  whom  he 

terminated,  is  taken  for  granted  in  has    extended    the    use    of    it,    even 

Baston  v.  Hitchcock,   [1912]  1  K.  B.  though    such    chauffeur    is    still    em- 

535,  and  therefore  plaintiff  attempted  ployed  and   paid   by  some  one   else, 

to  establish  a  warranty  on  the  part  Irwin  v.  Judge,  81  Conn.  492. 
of    the    principal    that    his    agents          Where  a  man  was  allowed  to  take 

would  not,  after  the  termination  of  an  automobile  with  a  view  to  show- 

the  agency,  disclose  information  ac-  ing  it  to  a  possible  purchaser,  and, 

quired  during  the  agency.     The  at-  after  having  done  so  without  selling 

tempt  was  unsuccessful.  it,  to  keep  it  several   days  without 

As  to  persons  to  whom  the  master  further  authority,  during  which  time, 

is  not  obliged  to  give  notice  of  ter-  while  using  it  for  his  own  purposes, 

mination,  and  where  there  is  no  ele-  he   negligently   injured   the  plaintiff, 

ter  is  not  liable  for  the  acts  of  the  it   was  held  that  there  was  neither 

ment  of  estoppel  involved,  the  rnas-  such  a  relation  of  agency  or  of  mas- 

1439 


§  1859] 


THE  LAW   OF   AGENCY 


example,  may  make  his  child  his  servant  without  either  of  these  acts  ;57 
and  one  person  may,  expressly  or  tacitly,  so  far  accept  and  adopt  even 
the  voluntary  and  gratuitous  service  of  another  as  to  assume  responsi- 
bility, in  legal  contemplation,  for  his  acts.58 

It  is  not  essential,  moreover,  that  the  person  sought  to  be  held  as 
principal  or  master  shall,  in  person,  have  employed  or  authorized  the 
servant  or  agent.  He  may,  either  expressly  or  by  implication,  confide 
the  performance  of  this  act  to  an  agent,  or  he  may  subsequently  ratify 
what  some  one  without  authority  has  assumed  to  do  in  this  respect 
as  his  agent. 

It  is  also  not  indispensable  that  the  alleged  servant  or  agent  shall  ac- 
tually know  who  was  his  master  or  principal.  That  is  a  question  of 


ter  and  servant  as  would  make  the 
owner  liable.  Goodrich  v.  Musgrave 
Fence  &  Auto  Co.,  154  Iowa,  637. 

Range  of  choice  as  to  selection — 
Licensed  employee  —  Compulsory 
Pilots. — The  mere  fact  that  one  may 
employ  only  a  licensed  or  certified 
person  as  servant,  does  not  affect  the 
relation,  where  there  is  in  fact  a  sub- 
stantial range  of  choice  and  he  may 
exercise  over  the  employee  the  ordi- 
nary power  of  control.  Martin  v. 
Temperley,  4  Q.  B.  298. 

A  statute  requiring  the  employ- 
ment of  a  licensed  mine  foreman,  and 
which  the  court  construed  as  prac- 
tically taking  away  the  owner's  right 
of  control,  was  held  unconstitutional 
in  Durkin  v.  Kingston  Coal  Co.,  171 
Pa.  193,  50  Am.  St.  Rep.  801,  29  L.  R. 
A.  808. 

Not  followed  in  Fulton  v.  Wilming- 
ton Star  Min.  Co.,  66  C.  C.  A.  247,  133 
Fed.  193,  relying  on  other  cases  in 
Illinois. 

Where  the  owner  of  a  ship  must 
take  a  pilot,  to  be  chosen  arbitrarily, 
e.  g.,  the  one  who  first  offers  his  serv- 
ices, and  must  give  him  full  control 
of  the  vessel,  he  cannot  be  held,  at 
common  law,  for  his  default.  Rams- 
dell  Transp.  Co.  v.  Compagnie  Gen., 
182  U.  S.  406. 

57  In  Stowe  v.  Morris,  147  Ky.  386, 
39  L.  R.  A.  (N.  S.)  224,  it  was  held 


that  where  a  father  provided  an  au- 
tomobile for  family  use  and  allowed 
his  son  to  use  it  whenever  the  family 
pleasure  suggested,  the  son  in  taking 
it  out  and  using-  it  for  a  pleasure  ride 
of  himself,  his  sister  and  some  invited 
friends  must  be  deemed  to  be  using 
it  as  the  father's  servant.  Daily  v. 
Maxwell,  152  Mo.  App.  415,  and  Lash- 
brook  v.  Patten,  1  Duv.  (Ky.)  316, 
were  relied  upon.  Doran  v.  Thomsen, 
76  N.  J.  L.  754,  19  L.  R.  A.  (N.  S.) 
335;  McNeal  v.  McKain,  33  Okla.  449, 
41  L.  R.  A.  (N.  S.)  775,  reach  the  op- 
posite conclusion  on  much  the  same 
facts.  (See  also  Moon  v.  Mathews, 
227  Pa.  488,  136  Am.  St.  Rep.  902,  29 
L.  R.  A.  (N.  S.)  856;  Smith  v.  Jor- 
dan, 211  Mass.  269.) 

In  Brittingham  v.  Stadiem,  151  N. 
C.  299,  there  was  evidence  that  the 
defendant's  minor  son  was  prac- 
tically made  a  clerk  in  defendant's 
gun  shop  so  as  to  charge  the  father 
with  the  son's  negligence. 

ss  Thus,  in  Hill  v.  Morey,  26  Vt. 
178,  where  the  defendant  was  repair- 
ing a  fence  between  his  own  and  the 
the  plaintiff's  land  and  a  neighbor 
began  assisting  the  defendant,  with- 
out any  request,  but  merely  with  the 
instruction  from  the  latter  not  to  cut 
on  the  plaintiff's  land,  the  defendant 
was  held  liable  for  a  trespass  by  the 
neighbor  upon  the  plaintiff's  land. 


1440 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    i860 


law,  which  can  not  be  controlled  by  what  the  agent  or  servant  happened 
to  think  or  believe  about  it. 

§  1860.  Several  masters  of  one  servant — General  and  spe- 
cial master — Lending  servants — Adopting  servants  of  others. — It. is 
entirely  possible,  also,  that  two  different  persons  may  at  the  same  time 
severally  stand  in  the  attitude  of  principal  or  of  master  in  some  re- 
spect of  the  same  agent  or  servant,  with  reference  to  different  acts 
which  he  may  perform.  One  may  be  his  principal  as  to  one  act  or  class 
of  acts  and  the  other  his  principal  as  to  other  acts.50  One  may  be  what 
is  often  called  "the  general  master,"  while  the  other  may  be  "the  spe- 
cial master."  Thus  a  master  may,  with  the  consent  of  his  servant, 
lend  his  servant  to  another  in  such  a  way  that,  while  the  original  con- 
tract of  employment  may  still  continue  and  the  first  master  may  con- 
tinue to  pay  the  servant's  compensation,  the  servant  will,  nevertheless, 
become  so  far  the  servant  for  the  time  being  of  the  borrower  as  to 
make  the  latter  responsible  to  third  persons  for  injuries  caused  by  him 
during  the  performance  of  the  work  of  the  borrower.60 


59  The  question  in  such  a  case  must 
usually  be,  for  which  of  his  several 
masters  the  act  in  question  was  per- 
formed— to  whose  service  did  it  be- 
long— for  whom  was  he  acting  when 
he  performed  it? 

Thus  in  a  recent  case  a  deputy 
sheriff,  who  had  been  appointed  at 
the  request  of  a  railway  company  by 
whom  he  was  paid,  and  who  spent 
most  of  his  time  in  guarding  its  prop- 
erty, shot  a  person  under  circum- 
stances which  did  not  afford  justi- 
fication; it  was  held  as  a  matter  of 
fact  that  his  act  was  done  in  his  ca- 
pacity as  private  watchman  of  the 
railway  company  rather  than  in  his 
capacity  as  a  public  officer,  and  there- 
fore the  company  was  liable.  Texas, 
etc.,  R.  Co.  v.  Parsons,  102  Tex.  157, 
132  Am.  St.  Rep.  857. 

Many  other  cases  involving  the 
same  question  are  cited  in  the  notes 
to  §  1973,  post. 

eo  Where  the  principal  or  master, 
as  a  mere  matter  of  courtesy  or  ac- 
commodation, undertakes  to  do  some 
service  for  another  involving  the  em- 
ployment of  a  servant,  the  servant 
will  usually  remain  the  servant  of 
the  principal  or  master  who  so  un- 


dertakes. If  I  offer  to  send  a  guest 
home  in  my  carriage,  or  invite  him 
to  take  a  ride  in  it,  the  driver  will 
usually  remain  my  servant  in  so  do- 
ing. The  fact  that  the  guest  gave 
the  general  directions  or  chose  the 
route  would  usually  be  immaterial. 
See  Corliss  v.  Keown,  207  Mass.  149. 
If  I  send  my  servant  to  assist  a  guest 
or  a  friend,  the  servant,  In  so  doing, 
will  usually  remain  my  servant. 
Performing  the  act  of  courtesy  or 
friendship  in  such  a  case  is  clearly 
my  business.  On  the  other  hand, 
where  one  person  lends  his  servant 
to  another  to  be  used  by  the  latter  in 
the  performance  of  his  business  and 
under  his  direction  and  control, 
the  servant,  while  so  employed,  is 
usually  the  servant  of  the  lat- 
ter, even  though  the  former  may 
continue  to  pay  him.  (It  is,  of 
course,  necessary  that  the  servant 
shall,  expressly  or  impliedly,  consent 
to  the  arrangement  and  put  himself 
under  the  direction  of  the  borrower.) 
Delaware,  Lackawanna  &  Western 
R.  R.  v.  Hardy,  59  N.  J.  L.  35;  Hig- 
gins  v.  Western  Un.  Tel.  Co.,  156  N.  Y. 
75,  66  Am.  St.  Rep.  537;  Hasty  v. 
Sears,  157  Mass.  123,  34  Am.  St.  Rep. 


1441 


§  i860] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


Precisely  the  same  situation  may  result  where,  instead  of  simply 
lending  his  servant  to  another,  the  master,  with  the  servant's  consent, 
hires  him  for  a  period  to  another  person,  not  to  perform  any  service 
in  which  his  general  master  is  interested,  but  simply  to  perform  serv- 
ice for  the  latter  as  the  latter's  servant.61 

One  person  may,  moreover,  as  to  some  particular  act  or  service,  so 
far  adopt  as  his  own  servant  one  who  is  regularly  the  servant  of  an- 
other person,  as  to  make  himself  liable  for  the  conduct  of  such  servant 
in  the  performance  of  that  act  or  service.62 

-3flB   'J(li"   3d   VKfft   13fho   'Jill  "ililfw    " 

267;  Wood  v.  Cobb,  13  Allen  (Mass.), 
58;  Kimball  v.  Cushraan,  103  Mass. 
194,  4  Am.  Rep.  528;  Grace  &  Hyde 
Co.  v.  Probst,  208  111.  147;  Philadel- 
phia, etc.,  Coal  Co.  v.  Barrie,  102  C. 
C.  A.  618,  179  Fed.  50;  Parkhurst  v. 
Swift,  31  Ind.  App.  521;  McCarthy  v. 
McCabe,  131  N.  Y.  App.  Div.  396; 
Rourke  v.  White  Moss  Colliery  Co.,  L. 
R.  2  C.  P.  Div.  205;  Murray  v.  Currie, 
L.  R.  6  C.  P.  24  (but  compare 
Standard  Oil  Co.  v.  Anderson,  212 
U.  S.  215);  Donovan  v.  Laing,  [1893] 
1  Q.  B.  629  (but  compare  Union 
Steamship  Co.  v.  Claridge,  [1894] 
App.  Gas.  185,  where  the  general 
master  did  not  relinquish  control). 

See  also  Muldoon  v.  City  Fireproof- 
ing  Co.,  134  N.  Y.  App.  Div.  453;  An- 
derson v.  Boyer,  156  N.  Y.  93;  Calla- 
han  v.  Munson  S.  S.  Line,  141  App. 
Div.  791;  Western  Un.  Tel.  Co.  v. 
Rust,  55  Tex.  Civ.  App.  359. 

The  same  result  was  reached 
where,  though  the  defendant  did  not 
loan  his  servant,  the  latter,  without 
the  knowledge  or  consent  of  defend- 
ant, undertook  to  perform  a  service 


for  another  person  at  his  request, 
even  though  the  latter  was  then  to 
furnish  a  man  in  return  to  help  the 
servant  do  defendant's  work.  Casey 
v.  Davis,  etc.,  Co.,  138  N.  Y.  App.  Div. 
396;  affirmed  on  appeal  withdrawn, 
200  N.  Y.  554. 

See  also,  Conner  v.  Koch,  63  N.  Y. 
App.  Div.  257;  Wyllie  v.  Palmer,  137 
N.  Y.  248,  19  L.  R.  A.  285;  Consoli- 
dated Fire  Works  Co.  v.  Koehl,  190 
111.  145,  206  111.  283;  Harding  v.  St. 
Yards  Co.,  242  111. 


Louis     Stock 


444;  Perkins  v.  Stead,  23  L.  T.  Rep. 
433. 

«i  Coughlan  v.  Cambridge,  166 
Mass.  268;  Donovan  v.  Laing,  etc., 
Syndicate,  [1893]  1  Q.  B.  629;  Rourke 
v.  White  Moss  Colliery  Co.,  2  C. 
P.  Div.  205;  McDowell  v.  Rams- 
dell  Trans.  Co.,  78  Hun  (N.  Y.), 
228;  Philadelphia,  etc.,  Coal  Co. 
v.  Barrie,  102  C.  C.  A.  618,  179 
Fed.  50;  Byrne  v.  Kansas  City,  etc., 
R.  R.  Co.,  61  Fed.  605,  24  L.  R.  A. 
693;  Brown  v.  Smith,  86  Ga.  274,  22 
Am.  St.  Rep.  456;  Samuelian  v.  Amer- 
ican Tool  &  Machine  Co.,  168  Mass. 
12  (but  it  seems  fairly  questionable 
whether  the  result  reached  in  this 
case  can  be  sustained);  Cunningham 
v.  Syracuse  Imp.  Co.,  20  N.  Y.  App. 
Div.  171;  Koenitsky  v.  Matthews,  64 
N.  Y.  Misc.  167. 

Railroad  employees  hired  to  con- 
tractor. Hitte  v.  Republican  Valley 
R.  R.  Co.,  19  Neb.  620;  Miller  v.  Minn. 
&  N.  W.  R.  R,  Co.,  76  Iowa,  655,  14 
Am.  St.  Rep.  258;  Powell  v.  Const. 
Co.,  88  Tenn.  692,  17  Am.  St.  Rep.  925. 

But  compare  New  Orleans,  etc.,  R. 
R.  v.  Norwood,  62  Miss.  565,  52  Am. 
Rep.  191. 

62  See  cases  in  which  servants  hired 
and  paid  by  one  company  were  held 
servants  of  another  company  for 
which  they  also  acted.  Taylor  v. 
Western  Pacific  R.  R.  Co.,  45  Cal. 
323;  Denver,  etc.,  R.  R.  Co.  v.  Gustaf- 
son,  21  Colo.  393;  Buchanan  v.  Chi- 
cago, etc.,  Ry.,  75  Iowa,  393;  Mills  v. 
Railroad  Co.,  2  MacArthur  (Dist.  of 
Col.)  314;  Gulf,  etc.,  Ry.  Co.  v.  Shel- 
ton,  30  Tex.  Civ.  App.  72;  Union  Ry. 


1442 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§  1861 


§  1861. 


Servant   performing  his   own  master's   business 


under  direction  of  master's  employer. — On  the  other  hand,  the  per- 
son who  first  employed  the  servant  may  continue  to  be  his  master  and 
responsible  as  such,  even  though  the  service  of  that  master  is  to  be  per- 
formed by  that  servant  for  some  third  person  in  pursuance  of  the  mas- 
ter's undertaking  to  perform  it,  and  even  though  such  third  person  may 
have  the  right,  under  the  contract  with  the  master,  to  give  many  di- 
rections to  the  servant  respecting  the  time  or  the  place  or  the  manner 
in  which  he  shall  perform  his  master's  undertaking,  or  even  to  reject 
him  and  demand  another  in  his  place.63 


&  Transit  Co.  v.  Kallaher,  114  111. 
325;  Wabash,  etc.,  R.  Co.  v.  Peyton, 
106  111.  534,  46  Am.  Rep.  705.  See 
also  Gulf,  etc.,  Ry.  Co.  v.  Gaskill,  103 
Tex.  441;  Southern  Express  Co.  v. 
Brown,  67  Miss.  260,  19  Am.  St.  Rep. 
306.  Compare  Brady  v.  Chicago,  etc., 
Ry.  Co.,  114  Fed.  100,  57  L.  R.  A.  712; 
Chicago  Ry.  Co.  v.  Volk,  45  111.  175. 

«3  Where  the  general  master  under- 
takes to  perform  service  or  to  fur- 
nish a  servant  to  perform  service  in 
the  line  of  his  own  business  and  in 
the  exercise  of  his  own  calling,  the 
servant  remains  his,  and  he  remains 
liable  for  the  negligence  of  the  serv- 
ant while  performing  that  service, 
even  though  the  person  for  whom  it 
was  performed  has  the  right  to  direct 
when  it  shall  be  performed  or  where 
or,  in  general,  how.  The  typical 
cases  are  those  in  which  a  stable- 
keeper  or  a  team  owner  furnishes  a 
vehicle  and  driver,  or  a  team  and 
driver,  in  pursuance  of  the  request  of 
a  customer. 

In  Quarman  v.  Burnett,  6  M.  &  W. 
499,  two  ladies,  who  had  their  own 
carriage,  were  accustomed  to  hire 
horses  and  a  coachman  from  a  stable- 
keeper.  They  always  had  the  same 
driver,  and  had  a  suit  of  livery  made 
for  him,  which  he  wore  while  driving 
for  them.  They  handed  him  a  small 
gratuity  after  each  trip,  although  his 
regular  wages  came  from  the  stable- 
keeper.  Through  his  negligence  in 
leaving  the  horses  unattended  while 
he  went  into  their  house  to  leave  his 
hat  at  the  end  of  a  ride,  plaintiff  was 


injured.  Held,  that  the  relation  of 
master  and  servant  did  not  exist  be- 
tween the  ladies  and  the  coachman 
(distinguished  in  Jones  v.  Scullard, 
[1898  J  2  Q.  B.  565,  where  the  defend- 
ant owned  the  carriage,  horses  and 
harness,  but  hired  a  driver  from  the 
stable-keeper  and  furnished  him  with 
a  suit  of  livery,  and  such  driver  had 
driven  the  defendant  for  six  weeks 
continuously  just  preceding  the  in- 
jury to  plaintiff). 

See  also  Joslin  v.  Grand  Rapids 
Ice  Co.,  50  Mich.  516,  45  Am.  Rep.  54; 
Lewis  v.  Long  Island  R.  Co.,  162  N. 
Y.  52;  Little  v.  Hackett,  116  U.  S. 
366,  29  L.  Ed.  652;  Standard  Oil  Co. 
v.  Anderson,  212  U.  S.  215;  Morris 
v.  Trudo,  83  Vt.  44,  25  L.  R.  A.  (N.  S.) 
33;  Jones  v.  Liverpool,  14  Q.  B.  Div. 
890;  Genovesia  v.  Pelham  Co.,  130 
N.  Y.  App.  Div.  200;  Driscoll  v.  Towle, 
181  Mass.  416;  Harding  v.  St.  Louis 
Stock  Yards,  242  111.  444;  Ash  v.  Cen- 
tury Lumber  Co.,  153  Iowa,  523,  38 
L.  R.  A.  (N.  S.)  973;  Frerker  v. 
Nicholson,  41  Colo.  12,  14  Ann.  Gas. 
730,  13  L.  R.  A.  (N.  S.)  1122;  Kellogg 
v.  Church  Charity  Foundation,  203 
N.  Y.  191,  38  L.  R.  A.  (N.  S.)  481, 
Ann.  Cas.  1913,.  A.  883;  Higham  v. 
Waterman,  32  R.  I.  578;  Dewar  v. 
Tasker,  23  L.  T.  Rep.  259;  Quinn  v. 
Electric  Const.  Co.,  46  Fed.  506. 

For  negligence  in  the  care  of  the 
horses,  etc.,  the  general  master  is 
usually  liable.  Ames  v.  Jordan,  71 
Me.  540,  36  Am.  Rep.  352;  Huff  v. 
Ford,  126  Mass.  24,  30  Am.  Rep.  645, 
and  other  cases  cited  post,  note  65. 


T443 


§  l86i] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


As  has  already  been  pointed  out,  this  would  usually  be  true  also  \vherc 
the  service  to  be  rendered  to  the  third  person  was  being  rendered  in 


The  owner  of  a  taxi-cab  remains 
liable  for  the  negligence  of  its  driver, 
even  though  by  contract  that  particu- 
lar cab  has  been  set  aside  for  the 
exclusive  use  of  a  particular  cus- 
tomer. Irwin  v.  Waterloo  Taxi-cab 
Co.,  [1912]  3  K.  B.  588. 

Where  a  stable-keeper  lets  for  the 
afternoon  a  carriage,  team  and  driver 
to  another  stable  keeper,  who  sup- 
plied this  and  other  carriages  to  an 
undertaker  for  a  funeral,  the  first 
stable-keeper  is  liable  for  the  negli- 
gence of  the  driver  while  driving  in 
the  procession  (Hussey  v.  Franey, 
205  Mass.  413,  137  Am.  St.  Rep.  460), 
though  the  undertaker  would  be  lia- 
ble to  any  one  to  whom  he  had  in- 
curred a  contractual  obligation  of 
safe  carriage.  Radel  v.  Borches,  147 
Ky.  506,  39  L.  R.  A.  (N.  S.)  227. 

Although  the  servants  of  a  steve- 
dore in  unloading  a  ship  may  be  un- 
der the  general  directions  of  the  mas- 
ter, that  fact  does  not  make  the 
servant  of  the  master  and  the  serv- 
ants of  the  stevedore  fellow-servants. 
Cameron  v.  Nystrom,  [1893]  App. 
Cas.  308;  Union  Steamship  Co.  v. 
Claridge,  [1894]  App.  Cas.  185.  See 
also,  Winona  Technical  Institute  v. 
Stolte,  173  Ind.  39. 

A  passenger  in  a  stage  or  similar 
vehicle  does  not  become  responsible 
for  the  negligence  of  the  driver 
merely  by  giving  ordinary  sugges- 
tions to  the  driver  as  to  speed,  course, 
etc.  Richardson  v.  Van  Ness,  53 
Hun  (N.  Y.),  267. 

A  merchant  who  keeps  no  delivery 
wagons,  but  makes  a  contract  to  get 
the  work  done  by  an  express  man 
who  sends  his  own  teams,  vehicles 
and  drivers,  is  not  liable  for  the  neg- 
ligence of  the  drivers.  Moore  v. 
Stainton,  80  N.  Y.  App.  Div.  295,  aff'd, 
177  N.  Y.  581;  Waldock  v.  Winfield, 
[1901]  2  K.  B.  596;  Jahn  v.  Mc- 
Knight,  117  Ky.  655.  See  also,  Abra- 
ham v.  Bullock,  86  L.  T.  Rep.  796. 
Even  though  the  same  driver  is  al- 


uays  sent.  Catlin  v.  Peddie,  46  N. 
Y.  App.  Div.  596.  But  if  the  express- 
man surrenders  and  the  merchant  as- 
sumes the  complete  control  of  a 
driver  and  team  hired  from  the  ex- 
pressman, the  merchant  will  be  lia- 
ble for  the  negligence.  Howard  v. 
Ludwig,  117  N.  Y.  .507;  Diehl  v.  Rob- 
inson, 72  N.  Y.  App.  Div.  19;  Koenit- 
sky  v.  Matthews,  64  N.  Y.  Misc.  167. 

The  regular  assistants  at  a  bath 
house  are  the  servants  of  proprietor, 
even  though  they  get  their  entire  pay 
from  tips  given  by  patrons.  Gaines 
v.  Bard,  57  Ark.  615,  38  Am.  St.  Rep. 
266. 

Where  engines,  hoisting  apparatus, 
etc.,  are  hired  out  with  attendants 
to  do  particular  jobs,  the  attendants 
usually  remain  the  servants  of  their 
general  employer.  Standard  Oil  Co. 
v.  Anderson,  212  U.  S.  215;  Henry  v. 
Stanley  Hod  Elevator  Co.,  129  N.  Y. 
App.  Div.  613;  Mills  v.  Thomas  Ele- 
vator Co.,  54  id.  124;  Moran  v.  Carl- 
son, 95  id.  116;  Stewart  v.  California 
Improvement  Co.,  131  Cal.  125,  52  L. 
R.  A.  205;  Dewar  v.  Tasker,  23  L.  T. 
Rep.  259. 

See  also,  Wright  Engine  Works  v. 
Cement  Co.,  167  N.  Y.  440. 

A  servant  doing  the  master's  work 
upon  the  premises  of  the  master's 
patron  and  subject  to  the  general  di- 
rections of  the  latter  remains  the 
master's  servant.  McCullough  v. 
Shoneman,  105  Pa.  169,  51  Am.  Rep. 
194;  Stevens  v.  Armstrong,  6  N.  Y. 
435;  Currier  v.  Henderson,  85  Hun 
(N.  Y.),  300. 

See  also,  Hickey  v.  Merchants' 
Transportation  Co.,  152  Mass.  39. 

But  if  the  servant  on  such  an  oc- 
casion undertakes,  at  the  request  of 
the  occupant,  some  service  for  the 
latter  which  his  duty  to  his  master 
does  not  contemplate,  he  ceases  as 
to  such  act  to  be  the  servant  of  his 
general  master.  Atherton  v.  Kansas 
City  Coal  Co.,  106  Mo.  App.  591. 


1444 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTTEb 


[§  1861 


pursuance  of  the  general  master's  desire  (for  his  own  gratification)  to 
render  a  courtesy  or  friendly  service  to  the  other.64 

So  also,  although  the  work  to  be  done  may  be  generally  that  of  the 
master's  employer,  there  may  be  such  elements  of  the  master's  inter- 
est to  be  subserved  as  to  make  what  is  done  in  doing  so  the  act  of  the 
master's  servant.  Thus,  though  the  master  has  hired  to  another  his 
team  and  driver  or  his  engine  and  driver,  to  do  that  other's  work,  so 
as  to  make  him  generally  that  other's  servant,  yet  it  may  be  that  the 
master  has  such  an  interest  in  the  care  and  management  of  the  horses 
or  the  engine  in  the  meantime  as  to  make  what  the  servant  does  in  that 
particular  regard  the  act  of  the  first  or  general  master.  A  considera- 
ble number  of  cases  have  been  decided  upon  this  theory.85 

A  number  of  cases  seem  to  have  followed  these  although  the  driv- 
ing or  management  of  the  horses,  etc.,  had  nothing  to  do  with  the  in- 


G*  See  ante,  §  1860,  note  60. 

«5  Thus,  in  Delory  v.  Blodgett,  185 
Mass.  126,  102  Am.  St.  Rep.  328,  64 
L.  R.  A.  114,  it  is  said:  "The  circum- 
stances are  often  such,  that  while 
the  driver  is  the  servant  of  the  per- 
son to  whom  the  team  is  furnished 
in  reference  to  the  question  what  he 
shall  do  or  where  he  shall  go,  there 
is  an  implication  that,  as  to  the  par- 
ticulars of  the  management  of  the 
horses,  he  is  the  servant  of  his  gen- 
eral employer  in  whose  interest  and 
as  whose  representative  he  will  man- 
age and  direct,  within  reasonable 
limits,  such  matters  as  pertain  to  the 
health  and  safety  of  the  horses  and 
the  safety  of  the  vehicle.  In  these 
particulars,  for  the  preservation  of 
his  property,  it  will  be  presumed  that 
the  owner  of  the  team  retains  in  his 
driver  a  right  of  control.  This  is  the 
ground  of  the  decisions  in  Huff  v. 
Ford,  126  Mass.  24,  30  Am.  Rep.  645; 
Reagan  v.  Casey,  160  Mass.  374,  and 
Driscoll  v.  Towle,  181  Mass.  416. 

See  also,  Joslin  v.  Grand  Rapids 
Ice  Co.,  50  Mich.  516,  45  Am.  Rep.  54; 
Morris  v.  Trudo,  83  Vt.  44,  25  L.  R. 
A.  (N.  S.)  33;  Harding  v.  St.  Louis 
Stock  Yards,  242  111.  444;  Ash  v.  Cen- 
tury Lumber  Co.,  153  Iowa,  523,  38 
L.  R.  A.  (N.  S.)  973;  Wilbur  v.  For- 


gione  Co.,  109  Me.  521.  (These  cases 
are  cited  as  controlling  in  one  of  the 
opinions  in  Philadelphia,  etc.,  Coal 
Co.  v.  Barrie,  102  C.  C.  A.  618,  179 
Fed.  50,  but  in  this  case  the  driving 
had  nothing  to  do  with  the  injury. 
The  same  is  true  of  Higham  v. 
Waterman,  32  R.  I.  578.) 

Same  principle  was  applied  in  the 
case  of  an  automobile  let  with  its 
licensed  driver  for  a  certain  sum  for 
a  fixed  period,  here  two  days.  Shep- 
ard  v.  Jacobs,  204  Mass.  110,  134  Am. 
St.  Rep.  648,  26  L.  R.  A.  (N.  S.)  171. 
The  court  thought  the  case  was  dis- 
tinguishable from  cases  where  rail- 
road trains  and  large  machines 
have  been  let  with  men  to  work 
them,  such  as  Coughlan  v.  Cam- 
bridge, 166  Mass.  268;  Rourke  v. 
White  Moss  Colliery  Co.,  2  C.  P. 
Div.  205;  Murray  v.  Currie,  L. 
R.  6  C.  P.  24;  Byrne  v.  Kansas 
City  Ry.  Co.,  61  Fed.  605,  24  L.  R.  A. 
693.  (But  it  is  not  easy  to  see  what 
difference  size  makes  in  such  a  case.) 

See  also,  Stewart  v.  California  Im- 
provement Co.,  131  Cal.  125,  52  L.  R. 
A.  205;  Cain  v.  Nawn  Contr.  Co.,  202 
Mass.  237;  Bohan  v.  Metropolitan  Ex- 
press Co.,  122  N.  Y.  App.  Div.  590; 
Alaimo  v.  B.  J.  Marrin  Co.,  121  N.  Y. 
Supp.  563. 


1445 


§§    1862,  1863]  THE  LAW  OF   AGENCY  [l30OK    IV 

jury,  and  thus  apparently  disregarding  the  precise  ground  upon  which 
they  were  made  to  rest.68 

§  1862.  Furnishing  persons  to  be  employed  as  servants. — 

A  person  whose  occupation  it  is  to  furnish  to  another,  persons  whom 
the  latter  may  employ  in  his  business^  for  example,  a  messenger  com- 
pany or  an  employment  agency,  and  who  has  performed  his  undertak- 
ing when  he  has  supplied  the  requisite  number  of  reasonably  compe- 
tent employees,  is  not  the  master  of  those  employees  while  they  are 
performing  the  service  confided  to  them  by  the  person  to  whom  they 
were  so  furnished ;  but  that  person  is  their  master  and  responsible  for 
their  negligence.67 

§  1863.  Tests  for  determining  question. — Many  attempts 

have  been  made  to  prescribe  the  test  by  which  to  determine  which  of 
two  or  more  persons  shall  be  deemed  to  be  the  master  of  a  servant  in 
a  given  case,  some  of  which  are  far  from  satisfactory.  As  has  been 
pointed  out,  it  is  not  alone  enough,  in  many  cases,  to  determine  who 
originally  hired  the  servant  or  who  paid  him,  although  these  facts  are 
not  without  their  significance.  It  is  sometimes  said  that  the  person  who 
has  the  power  to  discharge  him  is  the  person  who  is  to  be  regarded  as 
his  master,  but  unless  care  be  taken  to  distinguish  between  discharge 
from  the  general  and  the  special  employment,  this  test,  though  often 
useful,  will  not  always  prove  satisfactory.  Thus,  for  example,  if  I 
obtain  a  carriage  with  horses  and  driver  from  the  keeper  of  a  livery- 
stable,  to  take  me  to  the  station,  I  may  discharge  the  driver  from  my 
service  by  sending  him  back  to  his  master  if  he  does  not  perform  the 
service  in  accordance  with  my  reasonable  requirements,  though  I  can- 
not discharge  him  from  the  employment  of  the  livery-stable  keeper. 
But  this  limited  power  of  discharge  would  certainly  not  make  him  my 
servant. 

Again,  it  is  often  said  that  the  power  of  control  is  the  test.  This 
test,  however,  like  the  other,  while  often  useful,  will  not  always  prove 

so  For    example,     see    Higham    v.  ing  and  delivering  the  goods  of  the 

Waterman,  32  R.  I.  578;  Philadelphia,  hirer." 

etc.  Coal  Co.  v.  Barrie,  102  C.  C.  A.  6-  Haskell  v.   Boston  District  Mes- 

618,  179  Fed.  50.    In  the  former  case,  senger  Co.,   190   Mass.   189,   112   Am. 

where  the  injury  was  caused  by  the  St.  Rep.  324,  5  Ann.  Gas.  796,  2  L.  R. 

negligent  piling  of  a  load  of  lumber  A.     (N.    S.)     1091;     Swackhamer    v. 

by  the  driver,  the  court,  referring  to  Johnson,  39  Ore.  383,  54  L.  R.  A.  625; 

Driscoll  v.  Towle,  181  Mass.  416,  said:  Murray  v.  Postal  Tel.  Co.,  210  Mass. 

"In  that  case  the  negligent  act  of  the  188,  Ann.  Cas.  1912,  C.  1183. 

driver  complained  of  was  the  manner  Same  rule  applied  to  a»  association 

of  driving  his  horse;   but  the  driver  organized     to     furnish     nurses     to 

equally  remains  the  teamer's  servant  patrons.    Hall  v.  Lees,  [1904]  2  K.  B. 

in  respect  to  the  manner  of  unload-  602. 

1446 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1864 

satisfactory  without  some  discrimination.  Thus,  as  in  the  illustration 
last  used,  a  person  who  obtains  from  the  keeper  of  a  livery  stable  a 
horse,  carriage  and  driver,  for  a  pleasure  drive,  undoubtedly  has  a  lim- 
ited power  of  control,  that  is  to  say,  he  may  give  reasonable  directions 
as  to  the  time  at  which  he  will  start  and  stop,  the  direction  in  which  he 
will  go,  whether  he  will  ride  rapidly  or  slowly  and  the  like ;  but  this 
power  of  control  would  not,  in  general,  make  the  person  riding  the 
master  of  the  driver  and  therefore  responsible  for  the  latter's  negli- 
gence while  driving  (unless  perhaps  where  the  injury  resulted  from 
the  servant's  doing,  at  the  direction  of  the  person  riding,  some  act 
which  the  latter  could  not  be  deemed,  in  view  of  his  contract  with  the 
livery-stable  keeper,  to  have  the  right  to  direct  the  driver  to  do,  as  the 
servant  of  the  livery-stable  keeper).  Any  right  of  control  which  the 
hirer  has  in  such  cases  is  by  virtue  of  his  contract  with  the  master,  and 
not  by  virtue  of  any  contract  which  the  hirer  has  with  the  servant.  The 
ultimate  and  responsible  control  is  with  the  stable-keeper,  who  must 
be  deemed  to  have  directed  his  servant  to  obey  the  reasonable  requests 
of  the  customer,  and  to  have  assumed  responsibility  for  what  his  serv- 
ant may  do  while  obeying  these  requests.  In  this  sense  the  power  of 
control  becomes  a  very  important  test. 

Aid  can  often  be  derived  from  seeking  to  ascertain  whose  business 
the  servant  was  engaged  in  performing  at  the  time  of  the  act  in  ques- 
tion. If  A  undertakes  to  loan  or  rent  or  otherwise  furnish  servants  to 
B  to  act  under  B's  control  doing  B's  business,  such  servants  while  so 
engaged  will  be  deemed  to  be  the  servants  of  B,  even  though  A  orig- 
inally hired  them  and  pays  them.  If,  on  the  other  hand,  A  agrees  to 
perform  certain  work  for  B,  and  to  furnish  servants  to  do  it,  as  A's 
undertaking  and  business,  they  will  be  A's  servants,  even  though  B 
may  have  the  right,  either  expressly  or  by  implication,  under  his  con- 
tract with  A,  to  give  directions  to  A's  servants  as  to  the  time  or  man- 
ner or  place  in  which  they  shall  perform  the  service,  and  this  would 
not  be  altered  by  the  fact  that  B  might  have  the  right,  under  his  con- 
tract with  A,  to  hire  or  discharge  servants  for  A,  or  to  pay  the  servants 
of  A  on  A's  account; 

§  1864.  Court  or  jury. — Whether  one  who  is  usually  and 

normally  the  servant  of  one  master  has  become  specially  and  tempo- 
rarily the  servant  of  another  so  as  to  charge  the  latter  only  with  his 
negligence,  is  ordinarily  a  question  of  fact.  If  under  the  circumstances 
only  one  inference  can  properly  be  drawn,  the  court  will  determine 
it  ;08  but  if  reasonable  men  may  fairly  come  to  different  conclusions  re- 

es  Decided  as  question  of  law.    Muldoon  v.  City  Pireprooflng  Co.,  134  N. 
Y.  App.  Div.  453. 

1447 


§    1865]  THE   LAW  OF   AGENCY 

specting  the  inference  to  be  drawn  from  the  facts,  the  case  will  be  one 
for  the  jury.69  The  court,  however,  should  carefully  instruct  the  jury 
as  to  the  principles  of  law  involved,  and  the  nature  of  their  duty  in 
the  matter,  and  not  leave  them  to  decide  the  question  according  to 
their  own  unguided  notions  of  what  may  be  just  or  convenient  under 
the  circumstances. 

§  1865.  Contractual  agreement  as  to  who  shall  be  principal. — The 
liabilities  resulting  from  the  relation  of  principal  and  agent  have  often 
led  to  attempts  on  the  part  of  organizations  which  deal  with  the  public 
through  an  army  of  representatives,  to  constitute  such  representatives 
the  agents  of  the  persons  with  whom  they  deal.  Insurance  companies, 
for  example,  often  require  the  applicant  to  sign  an  application  or  a 
policy  which,  in  express  terms,  stipulates  that  the  agent  negotiating 
the  policy  is  the  agent  of  the  applicant  for  the  purposes  of  that  policy. 
It  would  seem  clear,  as  a  matter  of  principle,  that  while  this  might 
operate  as  an  appointment  of  an  agent,  it  could  in  no  way  alter  the 
often  obvious  fact,  that  such  agent  is,  in  reality,  the  representative  of 
the  company.  Whether  the  representative  is  the  agent  of  the  insurance 
company  or  the  insured  should  be  determined,  in  each  instance,  in  view 
of  the  particular  facts.  By  whom  was  the  representative  appointed ; 
by  whom  paid;  to  whom  did  he  look  for  instructions;  whether  he  was 
furnished  with  blanks  or  other  office  paraphernalia  by  the  company, 
and  the  like,  have  all  been  pointed  out  as  significant  facts  in  determin- 
ing whether,  in  any  dealing  between  the  insurer  and  the  insured,  this 
representative  was  acting  for  the  interests  of  the  insured ;  or  whether 
he  and  the  company  were  acting  together,  on  the  one  side,  against  the 
insured,  on  the  other.70 

Such  has  been  the  attitude  of  the  courts  toward  the  transaction. 
The  learned  judge  in  an  early  Illinois  case  expressed  it  forcibly: 
"There  is  no  magic  power  residing  in  the  words  of  that  stipulation  to 
transmute  the  real  into  the  unreal.  A  device  of  words  cannot  be  im- 

«9  A  question  for  the  jury.     Grace  question  of  fact  whether  this  was  a 

&  Hyde  Co.  v.  Probst,   208  111.   147;  bona  flde  appointment,  or  a  subter- 

Harding   v.    St.   Louis    Stock   Yards,  fuge   to   evade-  the   usury   statutes). 

242    111.    444;    Minor   v.    Stevens,    65  Deitz  v.  Insurance  Co.,  31  W.  Va.  851, 

Wash.  423,  42  L.  R.  A.   (N.  S.)  1178.  13  Am.  St.  Rep.  909. 

TO  See    ante,    §§    301,    1071;    Conti-          In   Lumberman's   Mutual    Ins.   Co. 

nental    Ins.   Co.   v.   Pearce,   39   Kan.  v.  Bell,  166  111.  400,  57  Am.  St.  Rep. 

396,  7  Am.  St.  Rep.  557;    New  Eng-  140,  the  court  said:  "The  question  as 

land   Mtg.   Co.   v.   Gay,   33   Fed.    636  to  whose  agent  they  [the  parties  cov- 

( where    an    application    for    a    loan  ered  by  such  stipulation]  really  were 

denominated  the  agent  of  the  mort-  is  open  to  inquiry  and  may  be  shown 

gage   company  as  the   agent  of   the  by    parol    evidence,    notwithstanding 

borrower.     The  court  held  it  was  a  the  statement  in  the  policy." 

1448 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1866 


posed  upon  a  court  in  place  of  an  actuality  of  fact."  71    But,  of  course, 
the  stipulation  may  express  the  real  nature  of  the  situation.72 

§  1866.  Strangers  assisting  servants.; — The  question  not  infre- 
quently arises  as  to  the  liability  of  the  principal  or  master  for  the  acts 
of  a  stranger  who,  voluntarily,  or  upon  the  request  of  the  servant,  un- 
dertakes to  assist  the  latter  in  the  performance  of  his  service.73  In 
some  cases  liability  may  be  predicated  upon  the  non-performance  of 
some  duty,  incumbent  upon  the  principal  or  master  himself.74  But  in 


71  Sheldon,  J.(  in  Comm.  Ins.  Co.  v. 
Ives,  56  111.  402. 

The  above  quotation  was  adopted 
with  approval  in  Kansal  v.  Minn., 
etc.,  Ins.  Co.,  31  Minn.  17. 

The  same  position  has  generally 
been  taken  by  the  courts.  See  Con- 
tinental IAS.  Co.  v.  Pearce,  39  Kan. 
396,  7  Am.  St.  Rep.  557;  Sullivan  v. 
Phenix  Ins.  Co.,  34  Kan.  170;  Newark 
Ins.  Co.  v.  Sammons,  110  111.  166; 
Planters'  Ins.  Co.  v.  Myers,  55  Miss. 
479,  30  Am.  Rep.  521. 

To  similar  effect,  see  also  Colum- 
bia Ins.  Co.  v.  Cooper,  50  Pa.  331. 

In  Kister  v.  Lebanon  Ins.  Co.,  128 
Pa.  553,  15  Am.  St.  Rep.  696,  5  L.  R. 
A.  646,  the  court  construed  such  a 
stipulation  to  apply  only  to  other  per- 
sons than  the  regularly  acting  agents 
of  the  company,  but  intimated  that  if 
the  proper  construction  was  that  it 
applied  also  to  such  regularly  ap- 
pointed agents  they  would  give  ef- 
fect to  it.  Susquehanna  Ins.  Co.  v. 
Perrine,  7  Watts  &  S.  348,  was  such 
a  case,  and  the  court  held  the  agent 
to  be  the  agent  of  the  applicant. 

72  In  Dun  v.  City  Bank  of  Birming- 
ham, 58  Fed.  174,  23  L.  R.  A.  687,  the 
facts  were  that  the  Dun  Commercial 
Agency   had    offered   its   services   to 
subscribers,  as  intermediaries  for  the 
transmission  of  information  concern- 
ing    commercial     standings.       They 
represented,   in   their   contract   with 
the  subscriber,  that  this  information 
was  gathered  by  a  large  number  of 
co-respondents  in  different  parts  of 
the    country;     they    stipulated    that 
these   correspondents   were   the   sub- 
agents    of    the    subscriber,    and    ex- 


pressly exempted  themselves  from 
liability  for  the  misconduct  of  such 
correspondents.  The  court  held  that 
the  subscriber  must  be  held  to  know 
that  this  information  could  only  be 
gathered  through  such  sub-agents, 
and  that  he  must  be  held  to  have  im- 
pliedly,  as  well  as  expressly,  author- 
ized their  appointment  by  the  com- 
mercial agency,  and  that  the  contract 
would  be  given  effect  to  in  this  re- 
spect. 

73  in  this  connection  the  writer 
begs  leave  to  refer  to  an  article  writ- 
ten by  him  some  years  ago  and  pub- 
lished in  3  Michigan  Law  Review, 
198. 

7*  In  this  field,  there  may  be  many 
cases  in  which  he  may  be  held  liable 
because  the  primary  fault  was  his 
own,  even  though  the  wrongful  act 
of  a  stranger  may  have  contributed 
to  cause  the  injury.  Thus,  without 
attempting  to  be  exhaustive,  he  may 
be  liable — 

(a)  For     dangerous     or     noisome 
practices  which  go  on  upon  his  prem- 
ises with  his  express  or  implied  con- 
sent, whether  the  technical  relation 
of  master  and  servant  exists  between 
him  and  those  upon  his  premises,  or 
not.     Beaulieu  v.  Finglam,  2  H.  IV., 
18,  p.  6;    1  Beven  on  Negligence,  p. 
481,  et  seg. 

(b)  If  he  causes  dangerous  work 
to  be  done  without  taking  reasonable 
precautions      against     injury     even 
through  the   intermeddling  of  third 
persons.     Illidge  v.  Goodwin,  5  C.  & 
P.  190. 

(c)  If  he   leaves  dangerous   agen- 
cies    without    guarding     reasonably 


1449 


§  1866J 


THE   LAW   OF  AGENCY 


[BOOK  jv 


order  to  make  the  master  liable,  under  the  doctrine  of  respondeat  su- 
perior, it  is  necessary  to  show  that  the  act  complained  of  was  done  by 
the  master's  servant,  or  by  some  one  whom  the  servant  was  author- 
ized to  employ,  or  that  the  injury  complained  of  was,  under  the  doc- 
trines governing  legal  cause,  the  consequence  of  some  act  or  omission 
on  the  part  of  the  master's  servant. 

It  is  the  general  rule,  as  has  been  more  fully  seen  in  an  earlier  chap- 
ter,75 that  an  agent  has  ordinarily  no  implied  authority  to  delegate  the 
performance  of  his  duties  to  a  subagent  or  to  employ  other  agents  on 
his  principal's  account.  The  same  rule  applies  also  to  a  servant.  An 
agent,  however,  may  be  given  authority  to  employ  agents  or  servants 
for  his  principal,  and  the  same  thing  is  true  respecting  a  servant.7" 
This  authority  to  employ  sub-agents  or  sub-servants  may  be  expressly 
conferred  or  it  may,  in  many  cases,  as  has  been  already  seen,  arise 
by  implication  from  the  circumstances  of  the  case  or  the  conditions  un- 
der which  the  service  is  to  be  performed.77  What  these  cases  are  as 
respects  the  employment  of  sub-agents,  has  already  been  fully  consid- 
ered.78 With  respect  to  the  employment  of  sub-servants,  the  range  of 
implication  must  necessarily  be  much  narrower,  since  the  servant  him- 


against  their  being  put  in  motion 
even  by  a  stranger  or  wrongdoer. 
Salisbury  v.  Erie  R.  Co.,  66  N.  J.  L. 
233,  88  Am.  St.  Rep.  480,  55  N.  J.  L. 
578;  Smith  v.  Railroad  Co.,  46  N.  J. 
L.  7;  Southern  Pac.  R.  Co.  v.  Laf- 
ferty,  57  Fed.  536;  Fredericks  v. 
North  Cent.  Ry.  Co.,  157  Pa.  103,  22 
L.  R.  A.  306. 

(d)  If  he  owes  the  performance  of 
a  positive  duty  and  entrusts  the  per- 
formance of  it  to  a  servant  who,  in- 
stead of  performing  it  himself, 
wrongfully  relies  upon  some  other 
person  to  perform  it.  Leavenworth 
Elec.  R.  Co.  v.  Cusick,  60  Kan.  590, 
72  Am.  St.  Rep.  374;  Lakin  v.  Ore- 
gon Pac.  Co.,  15  Ore.  220. 

Under  (a)  above  may  probably  be 
included  the  case  of  Althorf  v.  Wolfe, 
22  N.  Y.  355.  In  this  case  the  owner 
of  a  house  directed  a  general  servant 
to  go  onto  the  roof  and  throw  off  the 
snow  and  ice.  The  servant  asked  a 
friend,  as  a  matter  of  accommoda- 
tion, to  assist  him.  While  so  engaged, 
a  passer-by  was  struck  and  killed  by 
a  piece  of  ice,  apparently  thrown  by 


the  friend  of  the  servant.  Wright, 
J.,  held  that  the  master  was  liable 
on  two  grounds:  first,  that  the  serv- 
ant had  implied  authority  to  employ 
an  assistant;  and  second,  that  the  de- 
fendant, as  the  owner  of  the  prem- 
ises, was  responsible  for  what  went 
on  there,  whether  done  by  a  servant, 
or  others  admitted  to  the  premises 
with  the  tacit  consent  of  the  mem- 
bers of  the  household.  The  latter 
ground  was  adopted  by  Denio,  J.,  who 
concurred  in  the  opinion. 

Followed  in  Ellefson  v.  Singer,  132 
App.  Div.  89;  Wellman  v.  Miner,  19 
N.  Y.  Misc.  644;  Wooding  v.  Thorn, 
148  N.  Y.  App.  Div.  21. 

7G  See  ante,  §§  304,  334,  et  seg. 

76  Bucki  v.  Cone,  25  Fla.  1,  25. 

77  Jackson  v.  Telegraph  Co.,  139  N. 
Car.  347,  70  L.  R.  A.  738. 

78  See  ante,  §  314  et  seq. 

The  authority  of  agents  or  servants 
to  employ  other  servants  has  also 
been  considered,  ante,  including 
cases  of  alleged  necessity  or  emer- 
gency. 


1450 


CHAP.    Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1867 

self  is  ordinarily  clothed  with  but  little  discretion,  and  acts  usually  in 
a  mechanical  or  ministerial  capacity. 

Even  though  the  employment  of  a  sub-agent  or  sub-servant  has  not 
been  thus  expressly  or  impliedly  authorized,  it  may  subsequently,  with 
knowledge,  be  so  ratified  or  acquiesced  in,  as  to  put  it  on  the  footing 
of  an  authorized  employment.79 

When,  within  these  rules,  the  employment  of  the  sub-servant  or 
agent  can  be  deemed  authorized,  there  is  no  difficulty  in  imposing  upon 
the  principal  or  master  the  responsibility  for  the  acts  of  such  a  substi- 
tute, in  cases  in  which  he  would  be  liable  for  the  acts  of  any  other  serv- 
ant or  agent. 

§  1867.  Even  although  it  cannot  be  held  that  there  was 

express  or  implied  authority  for  the  delegation  of  the  service  within 
the  rules  of  the  preceding  section,  there  may  undoubtedly  be  cases  in 
which  the  act  in  question  is  rightfully  to  be  deemed  to  be  the  act  of  the 
servant,  and  therefore  imposing  liability  upon  *he  master,  notwith- 
standing that  the  physical  act  of  some  third  person,  volunteering  or 
requested  to  give  aid  to  the  servant/has  actually  intervened.  Where 
the  servant  himself  is  actually  in  control,  supplying  the  will  and  the  mo- 
tive, the  act  may  be  regarded  as  the  act  of  the  servant  himself, — and 
if  negligent,  as  his  negligence, — even  though  the  servant  has  exer- 
cised or  permitted  to  be  exercised,  the  physical  act  of  a  third  person, 
instead  of  some  other  instrumentality  or  appliance  which  might  other- 
wise have  been  available  and  permissible.80  Where  the  act  which  the 

TO  Thus,  see  Haluptzok  v.  Great  and  friend  carelessly  threw  ice  on  a 

Northern  Ry.  Co.,  55  Minn.  446,  26  passer-by,  followed  in  Ellefson  v. 

L.  R.  A.  739;  Wuhtrecht  v.  Fasnacht,  Singer,  132  N.  Y.  App.  Div.  89;  Wood- 

17  La.  Ann.  166;  Tennessee  Coal  Co.  ing  v.  Thorn,  148  id.  21;  Wellman  v. 

v.  Hayes,  97  Ala.  201;  Weinacker  Ice  Miner,  19  N.  Y.  Misc.  644);  Bamberg 

Co.  v.  Ott,  163  Ala.  230;  Wellman  v.  v.  International  Ry.  Co.,  53  N.  Y. 

Miner,  19  N.  Y.  Misc.  644;  Gleason  v.  Misc.  403  (like  Booth  v.  Mister, 

Anisdell,  9  Daly  (N.  Y.),  393;  Baker  supra);  Appel  v.  Eaton,  97  Mo.  App. 

v.  Metropolitan  St.  Ry.  Co.,  142  Mo.  428  (servant  asked  friend  to  move  an 

App.  354.  elevator  which  was  in  his  way,  and 

»o  The  chief  cases  involving  this  in  doing  so  friend  injured  plaintiff) ; 

point  are  the  following:  Booth  v.  James  v.  Muehlebach,  34  Mo.  App. 

Mister,  7  C.  &  P.  66  (driver  of  a  cart  512  (servant  asked  friend  to  help 

permitted  a  friend  to  drive,  and  the  him  readjust  his  load  and  in  doing 

latter  drove  negligently);  Simons  v.  so  friend  injured  plaintiff);  Hill  v. 

Monier,  29  Barb.  (N.  Y.)  419  (serv-  Sheehen,  20  N.  Y.  Supp.  529  (servant 

ant  clearing  -land  and  burning  brush  let  a  friend  drive  horse  entrusted  to 

had  his  boy  helping  him,  and  the  lat-  servant  for  delivery  to  a  patron) ; 

ter  set  the  fire);  Althorf  v.  Wolfe,  Hollidge  v.  Duncan,  199  Mass.  121,  17 

22  N.  Y.  355  (servant  asked  friend  to  L.  R.  A.  (N.  S.)  982  (servant  asked  a 

help  him  clear  snow  and  ice  off  roof,  by-stander  to  assist  him  in  repairing 

I4SI 


§§    1868,  1869]  THE  LAW   OF  AGENCY  [BOOK    IV 

servant  thus  causes  or  directs  is  in  itself  negligent,  there  could  ordina- 
rily be  little  doubt  of  the  liability ;  but  even  whore  the  fault  lies  rather 
in  the  manner  in  which  the  person  so  used  has  done  the  act,  the  liabil- 
ity may  attach.81 

The  limits  of  this  doctrine  must  be  narrow :  it  can  probably  be  applied 
only  when  the  servant  is  actually  directing  and  controlling  the  act,  and 
so  personally  and  immediately  in  charge  that  the  act  of  the  third  per- 
son may  fairly  be  regarded  as  the  act  of  the  servant. 

The  main  act  itself  must  also,  in  any  event,  be  an  act  within  the 
scope  of  the  servant's  employment. 

§  1868.  And  finally,  even  though  the  act  cannot  be  deemed 

to  be  the  servant's  act,  within  the  doctrine  of  the  preceding  section, 
there  may  be  cases  in  which  the  wrongful  act  of  the  servant  in  permit- 
ting the  third  person  to  participate  at  all,  may  be  deemed  to  be  the  prox- 
imate cause  of  the  injury  complained  of,  and  liability  be  imposed  upon 
the  master  on  that  ground.82  This  question,  however,  is  not  germane 
to  the  particular  subject  now  under  consideration. 

§  1869.  Unless,  therefore,  the  case  can  be  brought  within 

some  one  of  the  principles  stated  in  the  preceding  sections,  no  ground 
is  apparent  upon  which  to  base  a  liability  of  the  master  for  the  de- 
fault or  neglect  of  a  stranger  who  undertakes  to  assist  his  servant,  and 

his     cart,     and     by-stander     injured  defendant  was  held  because  its  agent 

plaintiff);   Tuller   v.    Talbot,    23    111.  permitted    a    stranger    to     use     its 

357,  76    Am.    Dec.    695   (stage    coach  lines    and    equipment,    and    he    sent 

driver  becoming  ill  asked  a  passenger  false    messages.      In    Lakin    v.    Ore- 

to  drive);   Harris  v.  Fiat  Motors,  23  gon,    etc.,    R.    Co.,  15    Ore.  220,    the 

L.   T.    Rep.    504   (servant   delivering  injury  was  caused  by  the  negligence 

automobile    asked    friend    to    drive  of  a  learner  permitted  to  handle  an 

while    he    made  some    adjustments).  engine.     In   Carson   v.   Leathers,   57 

See  also,   Geiss  v.   Taxicab   Co.,   120  Miss.  650,  the  injury  was  caused  by 

Minn.  368,  45  L.  R.  A.  (N.  S.)  382.  the    negligence    of    a    friend    of  the 

si  Dimmitt  v.  Hannibal,  etc.,  R.  Co.,  clerk  of  a  steamboat  who  permitted 

40  Mo.  App.  654.  his  friend  to  put  off  and  take  on  pas- 

82  Thus  in  Leavenworth  Elec.  R,  sengers.  See  also  Seller  v.  Levy,  68 
Co.  v.  Cusick,  60  Kan.  590,  72  Am.  St.  N.  Y.  Misc.  182;  Williams  v.  Koeh- 
Rep.  374,  company  was  held  because  ler,  41  N.  Y.  App.  Div.  426. 
street  car  conductor  left  car  in  In  Setterstrom  v.  Brainard,  etc., 
charge  of  a  friend  while  he  went  in-  Ry.  Co.,  89  Minn.  262,  it  was  held 
side  to  collect  fares  and  the  friend  that  it  was  a  question  for  the  jury 
started  the  car  too  quickly.  In  En-  whether  the  servant's  abandonment 
glehart  v.  Farrant,  [1897]  1  Q.  B.  of  his  post,  and  putting  some  one  else 
240,  master  was  held  where  driver  of  in,  was  negligence  and  the  proximate 
his  delivery  wagon,  in  disobedience  to  cause  of  the  injury.  To  the  same  ef- 
instructions,  left  it  in  charge  of  the  feet  is  Vallender  v.  Victorian  Rail- 
delivery  boy,  and  he  carelessly  man-  ways  Commissioners,  22  Victorian  L. 
aged  it.  In  Bank  of  California  v.  R.  141,  18  Australian  I*  Times,  39. 
Western  Union  Tel.  Co.,  52  Cal.  280, 


CHAP.    V] 


LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


there  is  a  considerable  number  of  cases,  perhaps  not  always  distinguish- 
able, in  which  the  master  has  been  held  not  responsible.  The  most 
important  of  these  cases  are  collected  in  the  note.83 

§  1870.  Independent  contractors. — If  the  test  of  the  existence  of 
the  relation  of  master  and  servant  be  found  in  the  fact  that  the 
servant  is  one  who  is  engaged  in  executing  the  master's  business 
under  his  control,  then  that  relation  does  not  exist  where  the  per- 
son who  is  doing  the  work,  though  he  may  be  doing  it  at  the  request 
and  for  the  ultimate  benefit  of  another,  is,  nevertheless,  doing  it  as  his 
own  business  and  under  his  own  control.  A  person  so  situated  may  in 
a  wide,  though  not  in  the  ordinary,  sense  be  an  agent — an  instrumen- 
tality— but  he  is  not  a  servant.  Such  is  ordinarily  the  attitude  of  .the 
person  commonly  designated  an  "independent  contractor."  An  inde- 
pendent contractor  is  one  who  carries  on  an  independent  business,8* 


ss  In  the  following  cases  the  mas- 
ter was  held  not  liable  for  the  negli- 
gence of  the  substitute  employed  by 
the  servant.  Mangan  v.  Foley,  33 
Mo.  App.  250  (driver  of  a  coal  wagon 
got  a  friend  to  haul  a  load  or  two  for 
him);  Long  v.  Richmond,  68  N.  Y. 
App.  Div.  466,  affirmed,  175  N.  Y.  495 
(servant,  in  violation  of  express  in- 
structions, permitted  a  friend  to  ride 
a  horse  which  the  servant  was  di- 
rected to  deliver);  (see  this  case  dis- 
tinguished in  Bamberg  v.  Interna- 
tional Ry.  Co.,  53  Misc.  403);  Hills  v. 
Strong,  132  111.  App.  174  (the  driver 
of  wagon  asked  a  friend  to  perform 
his  duties  for  an  hour  or  more  while 
the  driver  attended  a  hearing  in  po- 
lice court);  Taylor  v.  Baltimore,  etc., 
R.  Co.,  108  Va.  817  (conductor  of  a 
freight  train  requested  a  by-stander 
to  assist  in  the  unloading  of  freight, 
as  "his  men  were  out  of  place"); 
Board  of  Trade  Bldg.  v.  Cralle,  109 
Va.  246,  132  Am.  St.  Rep.  917,  22  L. 
R.  A.  (N.  S.)  297  ("hall-boy"  em- 
ployed by  defendant,  with  no  author- 
ity to  operate  elevators  or  to  hire 
operators,  requested  another  boy  to 
run  the  elevator);  Cooper  v.  Lowery, 
4  Ga.  App.  120  (a  servant  employed 
to  deliver  guano  from  a  factory  hired 
a  boy  to  help  him);  White  v.  Levi, 
137  Ga.  269,  is  to  the  same  effect, 


where  a  servant  sent  to  get  an  auto- 
mobile directed  a  young  boy  to  drive 
it  and  while  he  was  doing  so  the 
plaintiff  was  injured. 

8*  In  the  case  of  ordinary  me- 
chanics, performing  simple  work,  it 
is  often  very  difficult  to  decide 
whether  they  are  to  be  regarded  as 
independent  contractors  or  as  mere 
servants.  Holding  that  they  are  the 
latter,  see  Sadler  v.  Henlock,  4  E.  & 
B.  570;  Brackett  v.  Lubke,  4  Allen 
(Mass.),  138,  81  Am.  Dec.  694;  But- 
ton v.  Amesbury  Bank,  181  Mass. 
154;  Dickson  v.  Hollister,  123  Pa.  421, 
10  Am.  St.  R.  533;  Waters  v.  Pioneer 
Fuel  Co.,  52  Minn.  474,  38  Am.  St. 
Rep.  564;  Rait  v.  New  England,  etc., 
Co.,  66  Minn.  76;  Corrigan  v.  El- 
singer,  81  Minn.  42. 

Contra:  Hexamer  v.  Webb,  101  N. 
Y.  377,  54  Am.  Rep.  703;  McCarthy  v. 
Portland,  71  Me.  318,  36  Am.  Rep. 
320;  Smith  v.  Belshaw,  89  Cal.  427. 

A  licensed  expressman  who  under- 
took to  deliver  defendant's  goods  at 
so  much  a  week,  being  at  liberty  to 
do  it  in  person  or  through  a  servant, 
and  furnishing  his  own  team  and 
wagon,  is  an  independent  contractor 
and  not  a  servant,  although  he  had 
defendant's  sign  furnished  by  de- 
fendant upon  the  wagon.  Burns  v. 
Michigan  Paint  Co.,  152  Mich.  613, 


T453 


§  i8;i] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


in  the  course  of  which  he  undertakes  to  accomplish  some  result  or  do 
some  piece  of  work,  for  another,  being  left  at  liberty  in  general  to 
choose  his  own  means  and  methods,  and  being  responsible  to  his  em- 
ployer only  for  the  results  which  he  has  undertaken  to  bring  about.85 
Being  left  at  liberty  in  general  to  choose  his  own  means  and  agencies 
and  not  being  subject  to  the  control  of  the  employer  as  to  the  manner 
in  which  the  work  is  to  be  done,  he  is  not  the  servant  of  the  employer, 
nor  are  his  servants  the  servants  of  the  employer ;  and  the  employer  is 
not  responsible  to  third  persons  for  injuries  to  them  which  result  from 
the  manner  in  which  the  work  is  performed  by  the  contractor  or  his 
servants.  For  such  injuries,  committed  either  by  himself  or  his  serv- 
ants, the  independent  contractor  must  answer. 


§  1871. 


The  fact  that  the  work  is  to  be  done  in  accord- 


1 


ance  with  plans  and  specifications  prescribed  by  the  employer,  is  not, 
of  itself,  such  a  reservation  of  control  as  to  change  the  result,  so  far  as 
liability  for  the  manner  of  execution  is  concerned.86  Neither  does  the 


16  L.  R.  A.  (N.  S.)  816.  But  com- 
pare Glover  v.  Richardson,  64  Wash. 
403,  where  a  verdict  against  the  em- 
ployer under  almost  identical  facts 
was  sustained,  except  that  there  was, 
however,  a  somewhat  larger  measure 
of  control. 

In  Higham  v.  Waterman,  32  R.  I. 
578,  a  substantially  similar  result 
was  reached  under  facts  much  the 
same  (there  was  no  sign  on  the 
wagon  and  the  work  was  occasional), 
though  it  was  not  put  on  the  same 
ground. 

85  Caldwell  v.  Atlantic,  etc.,  Ry.  Co., 
161  Ala.  395;  Hedge  v.  Williams,  131 
Cal.  455,  82  Am.  St.  Rep.  366;  Pot- 
H>rff  v.  Fidelity  Coal  Min.  Co.,  86 
Kan.  774;  Ballard  v.  Lee,  131  Ky. 
412;  Messmer  v.  Bell,  133  Ky.  19,  19 
Ann.  Gas.  1;  Madisonville,  etc.,  R.  Co. 

v.  Owen, Ky.  ,  143  S.  W.  421; 

Keyes  v.  Second  Baptist  Church,  99 
Me.  308;  Forsyth  v.  Hooper,  11  Allen 
(Mass.),  419;  Pearl  v.  West  End  St. 
Ry.,  176  Mass.  177,  79  Am.  St.  Rep. 
302,  49  L.  R.  A.  826;  Waters  v.  Pio- 
neer Fuel  Co.,  52  Minn.  474,  38  Am. 
St.  Rep.  564;  Gayle  v.  Mo.  Car,  etc., 
Co.,  177  Mo.  427;  Crenshaw  v.  Ull- 
man,  113  Mo.  633;  Reisman  v.  Public 
Service  Corporation,  82  N.  J.  L.  464, 


38  L.  R.  A.  (N.  S.)  922;  Midgette  v. 
Branning  Mfg.  Co.,  150  N.  C.  333; 
Smith  v.  Simmons,  103  Pa.  32,  49 
Am.  Rep.  113;  Cockran  v.  Rice,  26  S. 
Dak.  393;'  Powell  v.  Virginia  Constr. 
Co.,  88  Tenn.  692,  17  Am.  St.  Rep. 
925;  McHarge  v.  Newcomer,  117 
Tenn.  595,  9  L.  R.  A.  (N.  S.)  298; 
Norfolk,  etc.,  R.  Co.  v.  Stevens,  97 
Va.  631,  46  L.  R.  A.  367;  Richmond 
v.  Sitterding,  101  Va.  354,  99  Am.  St. 
Rep.  879,  65  L.  R.  A.  445;  Knicely  v. 
West  Va.,  etc.,  R.  Co.,  64  W.  Va.  278, 
17  L.  R.  A.  (N.  S.)  370;  Jenkins  v. 
Montgomery,  69  W.  Va.  795;  Smith  v. 
Milwaukee  Bldrs.,  etc.,  Exchange,  91 
Wis.  360,  51  Am.  St.  Rep.  912,  30  L. 
R.  A.  504. 

(This  list,  of  course,  does  not  pur- 
port to  be  complete.) 

se  Crenshaw  v.  Ullman,  113  Mo. 
633;  Hughes  v.  Cinn.,  etc.,  R.  Co.,  39 
Ohio  St.,  461. 

The  fact  that  the  work  is  to  be 
done  "to  the  satisfaction"  of  the  em- 
ployer does  not  of  itself  alter  the 
rule.  Eldred  v.  Mackie,  178  Mass.  1 ; 
Powell  v.  Virginia  Construction  Co., 
88  Tenn.  692,  17  Am.  St.  Rep.  925; 
Smith  v.  Milwaukee  Builders'  Ex- 
change, 91  Wis.  360,  51  Am.  St.  Rep. 
912,  30  L.  R.  A.  504;  nor  does  the 


1454 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§ 


fact  that  the  employer  reserves  the  right,  either  in  person  or  by  agent, 
to  oversee  and  inspect  the  work  during  its  progress  for  the  purpose  of 
assuring  himself  that  the  contract  is  being  performed.87  Nor  does  the 
employer's  right  reserved  to  reject  improper  materials88  or  to  insist 
upon  the  contractor's  discharging  unfit  servants  whom  he  may  have 
employed,89  or  to  terminate  the  contract  and  let  the  work  to  some  one 
else  if  not  properly  performed.80  These  are  but  means  which  the  em- 
ployer reserves  for  the  purpose  of  assuring  himself  that  the  desired 
end  will  be  accomplished.  Where,  however,  the  employer  goes  further 
than  this,  and  reserves  to  himself  the  right  to  control  the  actual  per- 
formance of  the  work,  the  relation  of  master  and  servant  will  result.91 

tion  lies  outside  the  domain  of  this 
work.) 

88  Fitzpatrick  v.  Chicago,  etc.,  R. 
Co.,  31  111.  App.  649;  Uppington  v. 
New  York,  165  N.  Y.  222,  53  L.  R.  A. 
550.  Rigby,  J.,  arguendo,  in  Har- 
daker  v.  Idle  Dist  Council,  [1896]  1 
Q.  B.  335,  at  p.  353. 

ssReedie  v.  London,  etc.,  Ry.  Co., 
4  Ex.  254;  Callan  v.  Bull,  113  Cal. 
593;  Good  v.  Johnson,  38  Colo.  440, 
8  L.  R.  A.  (N.  S.)  896;  Norwalk  Gas- 
light Co.  v.  Norwalk,  63  Conn.  495; 
Elumb  v.  Kansas  City,  84  Mo.  112,  54 
Am.  Rep.  87;  Uppington  v.  New  York, 
165  N.  Y.  222,  53  L.  R.  A.  550;  Cuff  v. 
Newark,  etc.,  R.  Co.,  35  N.  J.  L.  17, 
10  Am.  Rep.  205;  Rogers  v.  Florence, 
etc.,  Co.,  31  S.  Car.  378. 

But  see  Cooper  v.  Seattle,  16  Wash. 
462. 

oo  Solberg  v.  Schlosser,  20  N.  Dak. 
307,  30  L.  R.  A.  (N.  S.)  1111. 

»i  This,  for  example,  was  held  in 
Linnehan  v.  Rollins,  137  Mass.  123, 
50  Am.  Rep.  287,  where  the  contract 
was  as  follows:  "All  of  said  work  to 
be  done  carefully,  and  under  the  di- 
rection and  subject  to  the  approval 
of  the  trustees."  It  is  doubtful  if 
this  case  can  be  reconciled  with  some 
of  the  cases  cited  above.  The  same 
thing  may  perhaps  be  said  of  Cooper 
v.  Seattle,  supra.  See  also  Derr  Con- 
struction Co.  v.  Gelruth,  29  Okla. 
538,  where  very  complete  control  was 
reserved.  Also  Holliday  v.  National 
Telephone  Co.,  [1899]  2  Q.  B.  392. 


fact  that  the  contract  provides  that 
the  work  shall  be  done  under  the  in- 
structions or  directions  of  the  em- 
ployer or  his  agent,  where  it  is  clear 
that  the  control  reserved  is  simply 
to  insure  the  proper  performance  of 
the  contract.  Harding  v.  Boston,  163 
Mass.  14;  Norwalk  Co.  v.  Norwalk,  63 
Conn.  495;  Foster  v.  Chicago,  96  111. 
App.  4  (affirmed  197  111.  264);  Frassi 
v.  McDonald,  122  Cal.  400;  Ridge- 
way  v.  Downing,  109  Ga.  591. 

ST  See  St.  Louis  R.  Co.  v.  Knott,  54 
Ark.  424;  Green  v.  Soule,  145  Cal. 
96;  Harrison  v.  Kiser,  79  Ga.  588; 
Boyd  v.  Chicago,  etc.,  R.  Co.,  217  111. 
332,  108  Am.  St.  Rep.  253;  Bellamy 
v.  Ames  Co.,  140  Ky.  98;  Eaton  v. 
European,  etc.,  R.  Co.,  59  Me.  520,  8 
Am.  Rep.  430;  Dane  v.  Cochrane 
Chemical  Co.,  164  Mass.  453;  Larsen 
v.  Home  Telephone  Co.,  164  Mich. 
295;  McKinley  v.  Chicago,  etc.,  R.  Co., 
40  Mo.  App.  449;  Omaha  Bridge,  etc., 
R.  Co.  v.  Hagadine,  5  Neb.  Unof.  418; 
Uppington  v.  New  York,  165  N.  Y. 
222,  53  L.  R.  A.  550;  Denny  v.  Bur- 
lington, 155  N.  C.  33;  Hughes  v. 
Cinn.,  etc.,  R.  Co.,  39  Ohio  St.  461; 
Miller  v.  Merritt,  211  Pa.  127,  Bibb 
v.  Norfolk  &  W.  R.  Co.,  87  Va.  711; 
Smith  v.  Milwaukee  Bldrs.,  etc.,  Ex- 
change, 91  Wis.  360,  51  Am.  St.  Rep. 
912,  30  L.  R.  A.  504;  Salliotte  v.  King 
Bridge  Co.,  58  C.  C.  A.  466,  122  Fed. 
378,  65  L.  R.  A.  620. 

(These  lists  of  cases  do  not  pur- 
port to  be  exhaustive,  as  this  ques- 


H55 


.-§    l8/2j  THE  LAW  OF  AGENCY  [BOOK    IV 

There  are  a  number  of  cases  in  which  an  employer  may  be  liable,  not- 
withstanding the  employment  of  an  independent  contractor,  for  injur- 
ies resulting  from  the  nature  of  the  work  itself,  or  from  the  circum- 
stances under  which  it  was  performed,  but  these  will  be"  the  subject  of 
later  consideration. 

The  method  of  payment  is  not  without  significance,  but  is  by  no 
means  the  test.  Ordinarily  the  independent  contractor  is  paid  by  the 
job,  that  is,  a  fixed  sum  for  accomplishing  a  certain  result,  but  he  may 
be  paid  in  accordance  with  some  unit  of  measurement,92  and  the  fact 
that  he  is  paid  by  the  day,  week  or  month,  is  not  of  itself  enough  to 
destroy  his  standing  as  an  independent  contractor;?3 

The  elaborate  treatment  of  the  relation  of  the  independent  contractor 
is  not  within  the  scope  of  this  work. 

§  1872.  Subagents. — The  question  of  the  liability  of  the  principal, 
for  the  acts  of  a  subagent,  has  already  been  considered.  It  has  been 
seen  that,  where  there  was  an  express  or  implied  consent  to  the  appoint- 
ment of  the  subagent  as  the  agent  of  the  principal,  or  if  his  appoint- 
ment as  such  was  justified  by  usage  or  necessity,  there  arises  such  a 
privity  between  the  subagent  and  the  principal,  as  renders  the  latter  li- 
able for  the  acts  of  the  subagent  in  the  same  manner  and  to  the  same 
extent  as  in  the  case  of  any  other  agent.9*  Where  no  such  privity  ex- 
ists,— where  the  agent  stands  in  the  attitude  of  an  independent  con- 
tractor,— the  principal  is  liable  only  in  those  cases  in  which  he  would 
be  liable  for  the  acts  of  the  servants  or  agents  of  any  other  independ- 
ent contractor.95 

J8  .ntA  801  .SEC 

»z  Mayhew  v.  Sullivan  Min.  Co.,  76  »4  See  ante,  §  332,  California  Bank 

Me.   100;    Fink  v.  Missouri   Furnace  v.  Western  Un.  Tel.  Co.,  52  Cal.  289; 

Co.,  82    Mo.    276,  52    Am.    Rep.  376;  Louisville,  etc.,  R.  R.  Co.  v.  Blair,  4 

Knowlton  v.  Hoit,  67  N.  H.  155;  Fer-  Baxt.   (Tenn.)   407;   Banks  v.  South- 

guson  v.   Hubbell,   97  N.  Y.  507,   49  ern  Express  Co.,   73   S.  C.   211;    Mc- 

Am.  Rep.  544;    Butler  v.  Townsend,  Kinnon   v.   Vollmar,    75   Wis.   82,   17 

126  N.  Y.  105.  Am.  St.  Rep.  178,  6  L.  R.  A.  121;  Nel- 

as  Geer  v.   Darrow,   61   Conn.   220;  son  v.  Title  &  Trust  Co.,  52  Wash. 

Wadsworth  Rowland  Co.  v.  Foster,  50  258    (a    case    standing    on    doubtful 

111.  App.  513,  affirmed  in  168  111.  514;  ground). 

Morgan    v.    Smith,    159    Mass.    570;  on  See  post,  §§  1917-1920.   Principal 

Hexamer  v.  Webb,  101  N.  Y.  377,  54  is  not  liable  for  acts  of  a  subagent 

Am.   Rep.  703;    Morgan  v.  Bowman,  who  is  subject  to  the  control  of  the 

22   Mo.    538;    Emmerson   v.    Fay,    94  agent  only.     Lindsay  v.  Singer  Mfg. 

Va.  60;  Teller  v.  Bay  &  River  Dredg-  Co.,  4  Mo.  App.  570. 

ing  Co.,  151   Cal.   209,   12  Ann.  Gas.  One  who   would  ordinarily  be  re- 

779,  12  L.  R.  A.   (N.  S.)   267;    Harri-  garded  as  an  independent  contractor 

son  v.  Collins,  86    Pa.    153,    27  Am.  and  liable  for  the  acts  of  a  person 

Rep.   699;    Corbin  v.  America   Mills,  selected  by  him,  as  being  his  agent, 

27  Conn.  274,  71  Am.  Dec!  63.  may,  by    the    terms   of   the   employ- 

1456 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1 873,  1 874 

2.  Liability  for  Acts  Expressly  Directed. 

§  1873.  Principal  liable  for  acts  expressly  directed. — For  injuries 
which  occur  to  third  persons  as  the  natural,  direct  and  proximate  re- 
sult of  an  act  which  the  principal  has  expressly  directed  or  authorized 
his  agent  to  do,  the  principal  is  clearly  and  unquestionably  liable.  Such 
results  are  the  direct  outgrowth  of  the  deliberate  intention  of  the  prin- 
cipal, and  he  is  as  much  to  be  charged  with  the  responsibility  as  if  he 
.had  performed  the  act  in  person.96  This  same  principle  is  frequently 
Applied  to  the  case  of  independent  contractors,  and  while  the  principal 
is  not,  as  will  be  seen,97  responsible  for  the  acts  of  the  contractor  under 
many  circumstances,  yet  wherever  he  has  authorized  or  directed  the 
doing  of  an  act  even  by  an  independent  contractor  which  is  in  itself  a 
source  of  injury,  or  which  from  its  very  nature  is  reasonably  certain 
to  cause  injury  to  third  persons  unless  precautions  are  taken  which  are 
in  fact  not  taken,  the  principal  may  properly  be  held  responsible.98 

3.  Liability  for  Negligent  Act  of  Servant  or  Agent. 

§  1874.  Liable  for  agent's  negligent  act  in  course  of  employment. 
— But  the  principal  is  not  responsible  for  the  .results  of  his  own  in- 
tentional acts  alone.  He  is  liable  also  to  third  persons  for  injuries  sus- 
tained by  them  on  account  of  the  negligence  of  an  agent  or  servant — 
not  standing  in  the  relation  of  independent  contractor — in  the  perform- 
ance of  his  undertaking.99  In  determining  the  principal's  liability  for 

ment,  be  made  an  agent  authorized  enckel,  50  Mo.  104,  11  Am.  Rep.  405; 

to  employ  such  person  as  a  subagent  Wilton    v.     Middlesex    R.    Co.,     107 

for  the  employer  and  therefore  not  Mass.  108,  9  Am.  Rep.  11;  Pidkens  v. 

liable  for  the  acts  of  such  subagent.  Diecker,  21  Ohio  St.  212,  8  Am.  Rep. 

Dun  v.  City  Nat.  Bank,  7  C.  C.  A.  152,  55;    Jackson  v.   Second  Ave.  R.  Co., 

58  Fed.  174,  23  L.  R.  A.  687.  47     N.    Y.    274,    7    Am.    Rep.    448; 
98  State  v.   Smith,   78   Me.   260,   57  Goddard  v.  Grand  Trunk  Ry.  Co.,  57 

Am.  Rep.  802;    Scott  v.  Shepherd,  2  Me.  202,   2  Am.  Rep.  39;    Passenger 

W.  Blackstone,  892;   Guille  v.  Swan,  R.    Co.    v.    Young,  21   Ohio    St.    518, 

19  Johns.    (N.  Y.)   382,  10  Am.  Dec.  8  Am.  Rep.  78;   Bryant  v.  Rich,  106 

234;  Eaton  v.  European,  etc.,  Ry.  Co.,  Mass.  180,  8  Am.  Rep.  311;   Chicago, 

59  Me.  520;  Bacheller  v.  Pinkham,  68  etc.,   R.   v.   Dickson,   63   111.    151,    14 
Me.  255.  Am.  Rep.  114;  Evans  v.  Davidson,  53 

»7  See  post,  §  1917.  Md.  245,  36  Am.  Rep.  400;  Noblesville, 

»»  See  post,  §§  1917-1920.  etc.,  R.  R.  Co.  v.  Gause,  76  Ind.  142, 

9»  The  following  are  a  few  of  the  40  Am.  Rep.  224;  Quinn  v.  Power,  87 

exceedingly     numerous     cases     upon  N.  Y.  535,  41  Am.  Rep.  392;    Mulve- 

this  point:  Cosgrove  v.  Ogden,  49  N.  hill  v.  Bates,  31  Minn.  364,  47  Am. 

Y.  255,  10    Am.    Rep.    361;    Smith    v.  Rep.  796;   Stone  v.  Hills,  45  Conn.  44, 

Webster,  23    Mich.    298;     Higgins  v.  29  Am.  Rep.  635;  Chicago,  etc.,  R.  Co. 

Watervliet  Turnpike  Co.,  46  N.  Y.  23,  v.  Flexman,  103  111.  546,  42  Am.  Rep. 

7  Am.    Rep.    293;    Garretzen    v.  Du-  33;  Chandler  v.  Gloyd,  217  Mo.  394; 

92  1457 


§  1875]  THE  LAW  OF  AGENCY  [BOOK  iv 

the  agent's  negligence,  the  important  inquiry  is,  not  whether  the  agent 
was  authorized  to  do  or  omit  to  do  the  act,  the  doing  or  not  doing  of 
which  constitutes  the  negligence  complained  of,  or  whether  the  act 
was  done  or  omitted  in  violation  of  the  principal's  instructions ;  but 
whether  the  act  was  clone  or  omitted  by  the  agent  in  the  course  of  the 
employment  and  while  he  was  engaged  in  the  business  of  his  principal.1 
In  endeavoring  to  state  a  rule  for  such  cases,  it  was  said  by  a  learned 
judge,  "In  most  cases  where  the  master  has  been  held  liable  for  the 
negligence  of  his  servant,  not  only  was  there  an  absence  of  author- 
ity to  commit  the  wrong,  but  it  was  committed  in  violation  of  the  duty 
which  the  servant  owed  the  master.  The  principal  is  bound  by  a  con- 
tract made  in  his  name  by  an  agent,  only  when  the  agent  has  actual  or 
apparent  authority  to  make  it ;  but  the  liability  of  a  master  for  the 
tort  of  his  servant  does  not  depend  primarily  upon  the  possession  of  an 
authority  to  commit  it.  The  question  is  not  solved  by  comparing  the 
act  with  the  authority.  It  is  sufficient  to  make  the  master  responsible 
civilitcr,  if  the  wrongful  act  of  the  servant  was  committed  in  the  busi- 
ness of  the  master,  and  within  the  scope  of  his  employment,  and  this, 
although  the  servant,  in  doing  it,  departed  from  the  instructions  of  his 
master.  This  rule  is  founded  upon  public  policy  and  convenience. 
Every  person  is  bound  to  use  due  care  in  the  conduct  of  his  business. 
If  the  business  is  committed  to  an  agent  or  servant,  the  obligation  is 
not  changed.  The  omission  of  such  care  is  the  omission  of  the  princi- 
pal, and  for  injury  resulting  therefrom  to  others,  the  principal  is  justly 
held  liable.  If  he  employs  incompetent  or  untrustworthy  agents,  it  is 
his  fault ;  and  whether  the  injury  to  third  persons  is  caused  by  the  neg- 
ligence or  positive  misfeasance  of  the  agent,  the  maxim  respondeat 
superior  applies,  provided,  only,  that  the  agent  was  acting  at  the  time 
for  the  principal  and  within  the  scope  of  the  business  entrusted  to 
him."  2 

§  1875.  Liability  dependent  upon  agency. — Nevertheless,  the  lia- 
bility of  the  master  in  these  cases  is  based  upon  the  general  principles 
of  agency,  and  can  not  otherwise  exist.3  It  is  simply  another  aspect 
of  the  question  of  authority,  with  its  incidents,  which  was  discussed  in 

Thomas  v.  Armitage,  111  Minn.  238;  a  in  Byrne  v.  Londonderry  Tram- 
Gresh  v.  Wanamaker,  221  Pa.  28;  way  Co.,  Irish  Rep.,  [1902]  2  K.  B. 
Crabb  v.  Wilkins,  59  Wash.  302;  457,  Fitzgibbon,  L.  J.,  uses  this  Ian- 
Jacksonville  Ice  Co.  v.  Moses,  guage:  "An  employer  is  liable  for  an 

Tex.  Civ.   App.  ,  134   S.   W.   379;  act  done  by  a  servant  in  the  course 

Rexroth  v.  Holloway,  45  Ind.  App.  36.  of  his  service,  or  in  the  scope  of  his 

1  Cosgrove  v.  Ogden,  supra.  employment,    upon    the    ground    of 

2  Andrews,  J.,  in  Higgins  v.  Water-  agency   only;    in   other   words,   upon 
vliet  Turnpike  Co.,  supra.  the  ground  that  the  act  of  the  serv- 

H58 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    l8/6 

a  preceding  section.  There  is  no  rule  of  public  policy  or  convenience 
that  a  master  shall  be  liable  for  all  the  acts  or  defaults  of  his  servants. 
For  what  acts  or  defaults  is  he  liable  ?  For  those  and  those  only  for 
which  he  can  in  some  way  fairly  be  deemed  to  be  responsible.  He  di- 
rected the  doing  of  a  given  act :  that  very  act  was  negligently  done,  but 
it  is  within  the  ordinary  range  of  human  experience  that  that  may  hap- 
pen. He  directed  the  doing  of  a  given  act :  the  servant  did  also  some 
other  act  which  was  a  natural  incident  or  attribute  of  the  main  act  or  a 
natural  and  proximate  consequence  of  it;  to  do  that  additional  act  at 
all  was  negligence,  or  it  was  negligently  done.  This  also  is  within  the 
ordinary  range  of  human  conduct.  It  is  possible  therefore  in  these 
cases  to  see  some  direct  relation  between  the  authority  and  the  act  com- 
plained of — to  trace  some  natural  and  direct  causal  connection  between 
the  authority  and  the  act. 

This  relation  or  connection,  moreover,  must  be  a  direct  and  proxi- 
mate and  also  a  logical  and  causal  one.  It  is  not  enough  that  the  au- 
thority or  employment  merely  furnished  an  occasion  or  opportunity  for 
the  servant  to  do  the  wrongful  act,  or  that  it  was  done  during  the 
time  or  at  the  place  of  the  service ;  it  must  have  been  an  incident  to, 
an  attribute  of,  or  a  result  causally  flowing  from,  the  authority  or  serv 
ice.  Otherwise  the  act  is  the  act  of  the  servant  alone. 

§  1876.  Rules  stated. — The  court  in  Kentucky,4"  in  endeavoring 
to  state  the  principles,  used  the  following  language  which  has  been 
approved  in  other  cases.  "The  master  is  liable  only  for  the  authorized 

f  Jqg.^r^pfi  hqftttftttfn&hfKbii0  J^  jarf|F£a$iv>riUifjs >»«-,#,  bpfcfc1*? 

aiyb  is  the  act  of  the  master.    The  lia-  *  In  Robards  v.  Bannon  Sewer  Pipe 

bility  of  the  master  must  rest  upon  Co.,  130    Ky.    380,  132    Am.    St.  Rep. 

authority,    and    upon    'authority    in  394,  18  L.  R.  A.   (N.  S.)  923. 

fact.'     'Apparent  authority'  is  nuga-  A  briefer  statement  by  the  supreme 

tory  in  law  if  'apparent'  means  ficti-  court    of    Connecticut    in    Stone    v. 

tious  or  non-existing.     The  only  dis-  Hills,  45  Conn.  44,  29  Am.  Rep.  635, 

tinction    which     I    can    understand  has  been  often  quoted:   "For  all  acts 

between  'authority  in  fact'  and  'ap-  done  by  a  servant  in  obedience  to  the 

parent  authority'    derived   from   the  express   orders   or  directions   of  the 

scope  of  a  servant's  employment,  is  master,  or    in    the    execution    of  the 

that  the  one  is  derived  from  express  master's  business  within  the  scope  of 

instructions,    and    that   the    other    is  the  employment,  and  for  acts  in  any 

the  authority  which  is  shown  to  be  sense   warranted    by   the   express   or 

conferred  on  the  servant  by  the  na-  implied     authority     conferred     upon 

ture  of  his  service."  him,   considering  the   nature   of  the 

See  also  good  discussions  in  Morier  services    required,    the    instructions 

v.  St.    Paul,  etc.,  Ry.    Co.,  31    Minn.  given,   and  the  circumstances  under 

351,  47  Am.  Rep.  793;    Slater  v.  Ad-  which  the  act  is  done,  the  master  is 

vance  Thresher  Co.,  97  Minn.  305,  5  responsible;    for  acts  which  are  not 

L.  R.  A.  (N.  S.)  598.  within  these  conditions  the  servant 

alone  Is  responsible." 

1459 


§    I877J  THE  LAW   OF  AGENCY  [BOOK    IV 

acts  of  the  servant,  and  the  root  of  his  liability  for  the  servant's  acts 
is  his  consent,  express  or  implied,  thereto.  When  the  master  is  to  be 
considered  as  having  authorized  the  wrongful  act  of  the  servant,  so  as 
to  make  him  liable  for  his  misconduct,  is  the  point  of  difficulty.  Where 
authority  is  conferred  to  act  for  another  without  special  limitation,  it 
carries  with  it  by  implication  authority  to  do  all  things  necessary  to  its- 
execution;  and  when  it  involves  the  exercise  of  the  discretion  of  the 
servant,  or  the  use  of  force  towards  or  against  another,  the  use  of  such 
discretion  or  force  is  a  part  of  the  thing  authorized,  and,  when  exer- 
cised, becomes,  as  to  third  persons,  the  discretion  and  act  of  the  mas- 
ter, and  this  although  the  servant  departed  from  the  private  instruc- 
tions of  the  master,  provided  he  was  engaged  at  the  time  in  doing  his 
master's  business,  and  was  acting  within  the  general  scope  of  his  em- 
ployment. It  is  not  the  test  of  the  master's  liability  for  the  wrongful 
act  of  the  servant  from  which  injury  to  a  third  person  has  resulted  that 
he  expressly  authorized  the  particular  act  and  conduct  which  occa- 
sioned it.  In  most  cases  where  the  master  has  been  held  liable  for 
the  negligent  or  tortious  act  of  the  servant,  the  servant  acted,  not  only 
without  express  authority  to  do  the  wrong,  but  in  violation  of  his  duty 
to  the  master.  It  is  in  general  sufficient  to  make  the  master  responsible 
that  he  gave  to  the  servant  an  authority  or  made  it  his  duty  to  act  in- 
respect  to  the  business  in  which  he  was  engaged  when  the  wrong  was 
committed,  and  that  the  act  complained  of  was  done  in  the  course  of 
his  employment.  The  master  in  that  case  will  be  deemed  to  have  con- 
sented to  and  authorized  the  act  of  the  servant,  and  he  will  not  be  ex- 
cused from  liability,  although  the  servant  abused  his  authority,  or  was 
reckless  in  the  performance  of  his  duty,  or  inflicted  an  unnecessary  in- 
jury in  executing  his  master's  orders."8 

§  1877.  It  is  occasionally  said  that  the  law  will  not  in 

these  cases  "undertake  to  make  any  nice  distinctions,  fixing  with  pre- 
cision the  line  that  separates  the  act  of  the  servant  from  the  act  of  the 
individual.  When  there  is  doubt,  it  will  be  resolved  against  the  master, 
upon  the  ground  that  he  set  in  motion  the  servant  who  committed  the 
wrong."  6  But  certainly  the  mere  difficulty  of  making  a  distinction 
which  justice  and  the  rules  of  law  approve,  is  no  excuse  for  not  at- 
tempting it ;  and  the  liability  of  innocent  masters  for  the  acts  of  their 
servants,  which  has  already  been  carried  far  beyond  the  limits  fixed  by 
natural  justice,  ought  not  to  be  still  further  extended  merely  because 
it  may  be  difficult  to  draw  the  line. 

s  See,  for  example,  Weatherford,  6  Robards  v.  Bannon  Sewer  Pipe 
etc.,  Ry.  Co.  v.  Crutcher,  —  Tex.  Civ.  Co.,  supra;  Weatherford,  etc.,  Ry.  Co. 
App.  — ,  141  S.  W.  137.  v.  Crutcher,  supra. 

1460 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1878-1880 

§  1878.  Forms  of  negligence. — The  negligence  complained  of  may 
take  on  a  variety  of  forms.  There  may  be  negligence  in  the  doing  of 
the  very  act  or  thing  authorized.  There  may  be  negligence  in  the 
choice  of  means  selected  for  the  doing  of  the  act,  where  a  choice  is  per- 
missible. There  may  be  negligence,  not  in  the  choice,  but  in  the  ex- 
ecution of  a  permissible  means,  or  in  the  execution  or  performance 
of  an  act  incidental  to  the  service.  Any  one  of  these  may  be  negligence 
while  acting  within  the  course  of  the  employment. 

There  may  also  be  an  intelligent — not  negligent — choice  of  a  wrong 
means,  made  intentionally — but  not  wilfully  or  maliciously  in  the  sense 
hereinafter  discussed, — for  which  also  the  principal  or  master  may  be 
liable  if  the  making  of  such  a  choice  was  within  the  course  of  the  em- 
ployment. These  latter  cases  will  be  considered  in  another  place. 

§  1879.  What  meant  by  course  of  employment. — Since  no 

act  can  be  completely  isolated  from  its  surroundings,  since  every  act 
must  have  its  penumbra  of  incident  and  attribute,  it  is  essential  that 
some  term  shall  be  found  which  shall  include,  not  merely  the  act  it- 
self, but  this  train  of  attendant  circumstances.  For  the  lack  of  a  bet- 
ter term  it  is  said  that  in  order  to  charge  the  master  with  the  servant's 
negligence,  the  servant  must  be  acting  "in  the  course  of  his  undertak- 
ing" or  "within  the  course  of  his  employment."  This  term  "course 
of  his  employment,"  like  the  corresponding  term  "the  scope  of  the  au- 
thority" in  cases  of  agency,  and  "the  scope  of  the  business"  in  cases  of 
partnership,  is  one  not  capable  of  precise  definition  although  many  at- 
tempts have  been  made  to  define  it.  It  is  largely  a  question  of  fact 
and  its  determination  may  vary  in  each  case  in  view  of  the  particular 
circumstances.  The  utmost  that  can  ordinarily  be  said  is  that  a  serv- 
ant is  acting  within  the  course  of  his  employment  when  he  is  engaged 
in  doing,  for  his  master,  either  the  act  consciously  and  specifically  di- 
rected or  any.  act  which  can  fairly  and  reasonably  be  deemed  to  be  an 
ordinary  and  natural  incident  or  attribute  of  that  act  or  a  natural,  di- 
rect and  logical  result  of  it.  If  in  doing  such  an  act,  the  servant  acts 
negligently,  that  is  negligence  wihin  the  course  of  the  employment. 

§  1880.  Not  merely  a  question  of  time  or  place. — As  has  already 
been  pointed  out,  the  question  of  what  acts  can  be  deemed  to  be  done 
\vithin  the  course  of  the  employment  is  not  merely  a  question  of  time 
or  place.  Not  every  act  which  an  agent  or  servant  may  do  while  he 
is  in  the  place  appointed  for  the  service,  or  during  the  time  in  which 
he  is  engaged  in  the  performance,  can  be  deemed  to  be  within  the 
course  of  the  employment,  or  within  the  scope  of  the  authority.  The 
test  lies  deeper  than  that ;  it  inheres  in  the  relation  which  the  act  done 

1461 


§§  1881-1883]  THE  LAW  OF  AGENCY  [BOOK  iv 

bears  to  the  employment.  The  act  cannot  be  deemed  to  be  within  the 
course  of  the  employment,  unless,  upon  looking  at  it,  it  can  fairly  be 
said  to  be  a  natural,  not  disconnected  and  not  extraordinary  part  or  in- 
cident of  the  service  contemplated.  A  servant  who,  while  driving  his 
master's  team  upon  the  master's  business  and  holding  the  reins  in  one 
hand,  amuses  himself  by  striking  people,  within  reach,  with  the  whip 
which  he  holds  in  the  other  hand,  does  so  while  he  is  acting  generally 
for  his  master  and  while  he  is  in  the  place  in  which  his  service  requires 
him  to  be,  but  his  act  in  striking  people  with  the  whip  is  not  within  the 
course  of  his  employment,  and  his  master  is  not  liable  for  it. 

§  1 88 1.  Master's  prohibition  or  warning  not  conclusive. — The 
fact  that  the  master  may  have  anticipated  the  possibility  of  the  partic- 
ular act  or  omission  now  charged  as  negligence  and  expressly  forbid- 
den it  or  warned  against  it,  while  it  may  show  whether  the  master 
deemed  it  within  the  scope  of  the  servant's  employment,  will,  as  has 
been  seen,  not  exonerate  the  master  if  the  act  be  done  in  violation  of 
his  precautions,  provided  it  be  in  fact  found  to  be  within  the  scope  of 
the  employment.  In  this  respect  the  prohibitions  stand  upon  the  foot- 
ing of  mere  instructions.  The  master  directs  the  act  but  instructs  the 
servant  as  to  the  manner  of  doing  it.  He  may  be  liable  for  the  act  di- 
rected or  for  negligence  in  performing  the  act  directed,  even  though  the 
instructions  as  to  methods  are  ignored. 

Where,  however,  the  whole  act  or  business — the  so-called  main  act — 
is  forbidden  so  that  the  servant  is  not  servant  as  to  that,  this  distinc- 
tion would  not  apply. 

§  1882.  Intention  to  benefit  the  master  not  the  test. — The  fact 
that  the  act  in  question  was  done  by  the  servant  with  a  view  to  promot- 
ing the  master's  interest  is  often  significant  but  by  no  means  conclu- 
sive. For  while  an  act  not  done  for  the  purpose  of  promoting  the  mas- 
ter's interest  can  rarely  be  within  the  course  of  the  employment,  not 
every  act  which  is  so  done  can  be  deemed,  on  that  account  alone,  to  be 
within  it.  The  relation  of  the  means  to  the  end,  and  the  question  of 
the  ordinary  or  extraordinary  nature  of  the  act  would  be  more  ma- 
terial. It  would  be  easier,  for  example,  to  deem  the  act  of  a  servant 
within  the  scope  of  his  employment,  who,  for  the  purpose  of  furthering 
his  master's  business,  should  obstruct  the  passage  of  a  competitor's 
vehicle  or  spaak  disparagingly  of  his  goods,  than  it  would  be  if  the 
servant,  with  a  like  motive,  should  kidnap  or  assassinate  the  competitor 
or  set  fire  to  his  warehouse. 

§  1883.  Principal's  ignorance  or  good  faith  will  not  exonerate 
him. — So,  too,  it  is  immaterial  that  the  act  was  committed  without 

1462 


CHAP.  V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1884,  1885 

the  principal's  knowledge,  or  that  it  was  the  result  of  the  agent's  mis- 
apprehension or  misapplication  of  his  principal's  instructions,  and  was 
an  act  which  the  principal  never  intended  should  be  done ;  if  in  fact  it 
was  done  by  the  agent  in  the  course  of  his  employment,  and  not  in  the 
willful  departure  from  it,  the  principal  is  liable.7  It  is  often  imma- 
terial also  that  the  agent  acted  under  a  misapprehension  as  to  the  facts, 
or  that  he  misjudged,  or  came  to  an  erroneous  conclusion  regarding, 
the  facts.  If  the  principal  puts  the  agent  into  a  situation  where  his  duty 
requires  him  to  determine  the  facts  and  act  upon  them,  the  principal 
must  be  held  responsible  to  those  who  may  suffer  injury  from  the  er- 
roneous judgment  of  the  agent.8 

It  is  immaterial  also  that  the  principal  took  pains  to  employ  only  a 
competent  and  careful  agent.  While  such  an  agent  is  less  likely  to  be 
guilty  of  negligence,  still  if  he  is  negligent  in  the  course  of  his  employ- 
ment the  principal  must  answer  for  it.9 

§  1884.  Ordinary  and  natural  attributes  in  the  light  of  the  event. 
— The  question  of  what  are  ordinary  and  natural  attributes  or  in- 
cidents of  an  act  is,  like  the  others  just  considered,  not  always  one 
which  can  be  determined  by  any  hard  and  fast  formula.  The  test  of 
what  might  have  been  foreseen,  or  what  ought  to  have  been  expected, 
is  often  helpful ;  and  yet  events  often  seem  natural  enough  after  they 
have  happened  which  had  not  been  anticipated  before.  It  certainly 
is  not  necessary  that  the  precise  act  should  have  been  foreseen.  One 
is  responsible  for  the  ordinary,  natural  and  proximate  consequences  of 
his  acts  even  though  he  did  not  in  fact  anticipate  them. 

§  1885.  The  question  of  apparent  powers, — The  doctrine  of  ap- 
parent powers,  which,  as  has  been  seen,  plays  so  important  a  part  in 
determining  an  agent's  authority  in  contractual  cases,  is  much  less  im- 
portant in  this  field.10  Third  persons  may  readily  be  induced  by  ap- 
pearances of  authority  to  enter  into  business  dealings  with  an  agent, 
but  the  cases  must  be  much  fewer  in  which  a  person  is  induced  by  any 
appearance  of  authority  in  a  servant  to  become  the  victim  of  the  serv- 
ant's negligence  or  misconduct.  There  may  be  such  cases,  however, 
as  for  example  where  persons  are  led  by  the  appearance  of  authority  to 

7  Chicago  City  Ry.  Co.  v.  McMahon,  »  Tombari  v.  Connors,  85  Conn.  231, 

103  111.  485,  42  Am.  Rep.  29,  and  cases  39  L.    R.    A.    (N.    S.)    274,    where    a 

in  note  1,  p.  564.  druggist  was  held  liable  for  the  neg- 

s  Higgins    v.    Watervliet   Turnpike  ligence  of  his  clerk  who  was  a  regis- 

Co.,  46  N.  Y.  23,  7  Am.  Rep.  293,  and  tered  pharmacist, 

cases  in  note  1,  p.  564.  10  McGrath   v.   Michaels,   80   N.   Y. 

App.  Div.  458. 

1463 


§§    l886-l888]  THE  LAW  OF   AGENCY  [BOOK    IV 

obey  directions,  follow  instructions,  omit  precautions,  and  the  like,  and 
as  a  consequence  are  subjected  to  danger  and  suffer  injury.11 

§  1886.  Illegal  or  unlawful  acts. — It  is  not  infrequently  said  that 
a  principal  is  not  liable  for  the  unlawful  or  illegal  acts  of  his  agent; 
but  stated  so  broadly  as  this  the  proposition  cannot  be  maintained.  It 
is,  of  course,  true  that  the  principal  does  not  ordinarily  contemplate  or 
authorize  the  doing  of  unlawful  or  illegal  acts.  But  there  are  never- 
theless many  cases  in  which  he  will  be  responsible  for  them.  Many 
cases,  for  example,  will  be  found  in  this  chapter  in  which  the  principal 
has  been  held  liable  for  the  trespass,  conversion,  assault,  assault  and 
battery,  false  imprisonment,  malicious  prosecution,  and  the  like,  com- 
mitted by  his  agent;  for  acts  in  violation  of  penal  statutes;  and  even 
for  acts  which,  from  the  standpoint  of  the  public,  may  be  punished  as 
crimes.  The  crucial  question  here  as  elsewhere  is  not  merely  the  nature 
of  the  act,  but  the  circumstances  and  conditions  under  which  it  was 
committed. 

§  1887.  Application  of  rules. — As  has  been  pointed  out  in  many 
cases,  it  is  much  easier  to  agree  upon  a  statement  of  the  rules  which  are 
to  govern  in  cases  of  this  sort  than  it  is  to  agree  upon  the  application 
of  them.  Like  many  other  similar  questions  in  Agency,  this  is  largely 
a  question  of  fact  or  of  inferences  to  be  drawn  from  facts,  and  about 
such  matters  reasonable  men  attempting  to  apply  the  same  rule  may 
often  reasonably  differ.  So  much  depends  upon  the  nature  of  the  em- 
ployment, the  course  of  business,  the  habits  of  men,  the  conduct  of  the 
parties,  and  the  other  circumstances  of  the  case,  that  absolutely  certain 
and  definite  results,  upon  which  everyone  will  agree,  can  often  not  be 
expected. 

Illustrations  of  results  reached  under  varying  circumstances  may  be 
helpful,  though  it  is  constantly  to  be  kept  in  mind  that  it  is  rarely  the 
fact  that  two  cases  will  present  precisely  the  same  circumstances. 

§  1888.  Illustrations. — To  begin  with  very  simple  cases,  if  the 
master  confides  to  his  servant  the  driving  and  management  of  his  team, 
his  street  car,  his  motor  vehicle,  and  the  like,  the  ordinary  acts  which' 
the  servant  does,  while  he  is  engaged  in  using  these  things  about  the 
master's  business,  respecting  speed,  direction,  care  in  control,  starting, 
stopping,  and  the  like,  are  clearly  within  the  course  of  the  employment, 
and  for  the  consequences  of  the  servant's  negligence  in  these  matters 
the  master  must  ordinarily  respond.  Driving  negligently,  starting  or 
stopping  too  quickly,  leaving  his  team  unhitched  or  his  vehicle  un- 

11  See  Camp  v.  Hall,  39  Fla.  535. 
1464 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1889 

guarded, — these  and  many  other  similar  acts  too  numerous  to  be  men- 
tioned furnish  a  familiar  and  prolific  source  of  liability.12 

So  in  a  great  variety  of  cases,  also  too  numerous  to  detail,  masters 
have  been  held  liable  for  the  negligence  of  their  servants,  to  whom  has 
been  committed  the  use  or  control  of  water,18  fire,  and  other  similar 
forces  and  agencies. 

It  must  constantly  be  borne  in  mind,  however,  that  the  liability  in 
these  cases  is  not  based  upon  the  mere  fact  that  the  master  has  con- 
fided the  use  of  the  team,  vehicle,  etc.,  to  the  servant, — except  in  cases 
of  dangerous  instrumentalities,  neglect  in  the  selection  of  the  servant, 
and  the  like, — but  upon  the  fact  that  it  is  negligently  used  about  the 
master's  business.13a 

§  1889.  Further  illustrations. — So  where  an  animal  had  been  run 
over  by  one  of  defendant's  trains  and  thrown  into  a  cattle  guard  from 
whence  it  must  be  removed  before  other  trains  could  pass,  and  defend- 
ant's servants,  whose  duty  it  was  to  remove  obstructions  from  the 
track,  hauled  the  body  out  of  the  cattle  guard  and  left  it  lying,  a  short 
distance  away,  in  and  at  the  side  of  a  public  highway  where  plaintiff's 

horse  took  fright  at  it  and  ran  away,  causing  injury,  it  was  held  that 

' 

12  Master  liable  for  negligence  of  person  in  peril,  and  he  is  injured  in 

servant   in   leaving  team   unhitched.  attempting    to    save    himself    there- 

Karstendiek  v.  Jackson  Brewing  Co.,  from,  though  he  is  not  struck  by  the 

123  La.  346;    Hayes  v.  Wilklns,  194  horses  or  wagon.    Sandy  v.  Swift,  15& 

Mass.  223,  120  Am.  St.  Rep.  549,  9  L.  Fed.  271. 

R.  A.   (N.  S.)   1033;   Riordan  v.  Gas  "See  Steele  v.  May,  135  Ala.  483 

Consumers'  Ass'n,   4   Cal.  App.   639;  (hotel  proprietor  held  liable  for  neg- 

Hull.  v.   Thomson  Transfer  Co.,   135  ligence    of    bell-boy    sent    for    by    a 

Mo.   App.   119;    Damonte   v.   Patton,  guest  to  get  a  bath  in  readiness  for 

118  La.  530,  118  Am.  St  Rep.  384,  10  him  and  who  went  away  leaving  the 

Ann.  Gas.  862,  8  L.  R.  A.  (N.  S.)  209;  water    running);    Simonton    v.    Lor- 

Corona  Coal  &  I.  Co.  v.  White,  158  ing,  68  Me.  164,  28  Am.  Rep.  29;  Kil- 

Ala.   627,   20  L.   R.   A.    (N.  S.)    958;  lion  v.  Power,  51  Pa.  429,  91  Am.  Dec. 

Swift    &    Co.  v.    Murphy,  45    Tex.  C.  127. 

App.  497;  Pierce  v.  Conners,  20  Colo.  13a  See  Storey  v.  Ashton,  L.  R.  4 

178,  46  Am.  St.  Rep.  279;   Moulton  v.  Q.  B.  476,  disapproving  of  Sleath  v. 

Aldrich,  28  Kan.  300;   Westerfleld  v.  Wilson,   9    C.   &   P.   607.     For   fuller 

Levis  Bros.,  43  La.  Ann.  63;  Zambelli  statements   of  these  cases,  see  post, 

v.  Johnson  &  Son  Co.,  115  La.  483;  note  40,  §  1899.     See  also,  Slater  v. 

Manthey  v.  Rauenbuehler,  71   N.  Y.  Advance  Thresher  Co.,  97  Minn.  305, 

App.  Div.  173;   'Morris  v.  Kohler,  41  5  L.  R.  A.   (N.  S.)   58;    and  the  nu- 

N.  Y.  42;   Turner  v.  Page,  186  Mass.  merous  cases  cited  in  notes  45  and 

600.  46,  post,  §§  1902,  1903.    See  also,  post, 

Master  is  liable  where  the  reckless  §§  1945-1950. 
driving  of  his  servant  puts  a  third 

1465 

H    °  !C> 


§  1890] 


THE   LAW   OF   AGENCY 


[COOK    IV 


this  disposition  of  it,  though  it  may  have  been  an  improper  one,  was 
within  the  course  of  their  employment,  and  the  railroad  company  was 
liable.1* 

So  where  defendant  had  sold  plaintiff  a  coal  stove  and  agreed  to 
"set  it  up"  in  plaintiff's  house  and  sent  his  servants  to  do  so ;  and  the 
servants,  in  connecting  it  with  plaintiff's  chimney,  discovered  that  the 
chimney  was  so  full  of  debris  that  there  could  be  no  draft,  and  prom- 
ised to  clear  out  the  debris  but  failed  to  do  so ;  and  as  a  result,  when  the 
stove  was  put  to  use,  there  was  injury  from  escaping  coal  gas,  it  was 
held  that  there  was  at  least  evidence  from  which  the  jury  might  find 
the  defendant  responsible.15 

§  1890.  Further  illustrations. — So  where  a  farm  laborer,  at  work 
with  others  in  his  employer's  corn-field,  voluntarily  undertook  to  drive 
out  some  trespassing  cattle,  and,  in  so  doing,  carelessly  struck  one  of 
them  on  the  head  with  a  stone  and  killed  it,  it  was  held  that  driving  out 
the  cattle  was  within  the  scope  of  his  employment,  and  that  the  em- 
ployer was  liable ; 16  and  where  the  keeper  of  a  toll-gate,  who  had 


i*  Baxter  v.  Chicago,  etc.,  R.  Co., 
87  Iowa,  488.  See  also  Tinker  v.  New 
York,  etc.,  R.  Co.,  71  Hun  (N.  Y.), 
431;  Hawks  v.  Locke,  139  Mass.  205, 
52  Am.  Rep.  702;  Riegler  v.  Tribune 
Ass'n,  40  N.  Y.  App.  Div.  324,  167 
N.  Y.  542;  Price  v.  Simon,  62  N.  J. 
L.  153;  Ridge  v.  Transfer  Co.,  56  Mo. 
App.  133;  Holmes  v.  Tenn.  Coal,  etc., 
R.  Co.,  49  La.  Ann.  1465;  Hyman  v. 
Tilton,  208  Pa.  641;  Brennan  v.  Mer- 
chant &  Co.,  205  Pa.  258;  Gross  v. 
Pa.,  etc.,  R.  Co.,  16  N.  Y.  Supp.  616. 

is  Crandall  v.  Boutell,  95  Minn.  114, 
5  Ann.  Gas.  122.  The  court  in  this 
case  certainly  lays  down  a  very 
broad  rule  as  to  the  master's  liabil- 
ity, seeming  to  qualify  it  only  by  the 
requirement  that  the  act  shall  have 
been  done  by  the  servant  "within  the 
line  of  his  duty." 

is  Evans  v.  Davidson,  53  Md.  245, 
36  Am.  Rep.  400.  It  would  seem  that 
the  conclusion  in  this  case,  if  it  be 
sound,  must  be  put  upon  some  such 
reasoning  as  this:  the  servant  was 
authorized  to  drive  out  the  trespass- 
ing cattle;  throwing  sticks  or  small 
missiles  at  such  cattle  is  not  an  un- 
usual method  of  expediting  the  ex- 


pulsion; therefore  the  use  of  some 
such  missile  may  be  within  the 
course  of  the  employment.  If  then 
the  servant  in  his  haste  or  his  zeal 
negligently  picks  up  and  throws  a 
little  heavier  missile  than  was  appro- 
priate or  throws  it  with  more  force 
than  was  appropriate,  this  is  negli- 
gence within  the  course  of  the  em- 
ployment, for  which  the  master  must 
answer.  On  the  other  hand,  in  Cant- 
rell  v.  Colwell,  40  Tenn.  (3  Head) 
471,  where  the  circumstances  were 
much  the  same,  except  that  the  serv- 
ant may  have  become  angry  because 
the  animal  was  not  easily  driven  out, 
the  court  held  the  master  not  liable. 
In  Swabey  v.  Palmer,  Peters  (Pr. 
Edw.  Isl.),  202,  the  court  says:  "Sup- 
pose a  master  orders  his  servant  to 
drive  stray  cattle  off  his  field,  and  in 
doing  so  he  maims  or  injures  them 
with  a  pitchfork,  or  other  improper 
instrument,  it  is  laid  down  the  mas- 
ter would  be  liable,"  citing  Reeves 
Domes.  Rel.  517  (though  Reeves  says 
nothing  about  the  pitchfork).  In 
Swabey  v.  Palmer,  a  master  who  had 
instructed  his  servant  "to  shoot 
every  dog  that  comes  to  the  barns, 


1466 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1891 

charge  of  the  gate  at  all  hours,  but  was  not  required  to  collect  toll 
after  nine  o'clock  in  the  evening,  negligently  let  the  beam  of  the  gate 
down  upon  the  plaintiff  who  was  attempting  to  pass  after  that  hour 
and  injured  her,  it  was  held  that  the  keeper  was  still  acting  in  the 
course  of  his  employment,  and  that  his  employer  was  liable;17  so  a 
teamster  engaged  in  delivering  coal  for  his  employer,  a  coal  dealer,  is 
unquestionably  acting  within  the  scope  of  his  employment  in  removing 
an  iron  plate  in  a  sidewalk  covering  the  coal  cellar  into  which  he  is  to 
put  the  coal,  and  if  he  negligently  leaves  the  open  hole  unguarded,  his 
employer  is  liable  for  an  injury  to  one  who  thereby  falls  into  it;18  so 
where  the  pilot  of  a  ferry-boat  went  out  of  his  usual  course  to  accom- 
modate a  passenger  who  was  carried  gratuitously,  and  in  so  doing  neg- 
ligently collided  with  a  canal  boat  and  killed  the  plaintiff's  intestate, 
it  was  held  that  he  was  acting  within  the  course  of  his  employment, 
and  that  his  principal  was  liable.19 

§  1891.  Further  illustrations. — So  where  a  teamster  employed  by 
a  flour  merchant  to  deliver  goods,  having  started  out  with  a  wagon  load 
for  different  customers,  left  by  the  road  side  several  bags  of  bran, 
while  he  went  up  a  side  road  to  deliver  some  flour,  intending  to  take 
up  the  bran  on  his  return, — his  object  being  to  lighten  his  load,  and 
thus  finish  the  delivery  sooner  so  as  to  get  time  to  attend  to  some  busi- 
ness of  his  own, — and  the  bran  frightened  a  passing  horse  and  caused 
injury,  it  was  held  that  the  flour  merchant  was  responsible.20  The 
court  said :  "He  left  the  bags  to  expedite  delivery.  Did  it  make  the 
business  his  own  because  he  dispatched  it  more  speedily  than  it  would 
naturally  have  been  done?  He  was  sent  by  the  defendant  to  deliver 
the  flour  and  bran.  Did  he  do  anything  else  than  deliver  them?  His 
whole  object  in  leaving  the  bran  by  the  side  of  the  road  was  to  gain 
time.  Suppose  he  had  driven  the  horse  with  such  speed  as  amounted 
to  carelessness  in  order  to  gain  time,  and  had  injured  a  person  by  so 
doing;  would  he  be  transacting  his  own  business  while  driving  so 
rapidly,  so  that  the  defendant  would  not  be  liable?  Suppose  he  had 

unattended  by  any  person,  at  night  L.  Rep.  579.     See  also,  King  v.  Herb, 

or    early    morning"  was    held    liable  18  Ohio  Cir.  Rep.  41. 
though  the  servant  shot  the  dog  be-          And    the    same    was    held    where 

tween  11  and  12  a.  m.  plumbers  left  a  trap  door  in  the  bath- 

17  Noblesville,  etc.,  Co.  v.  Gause,  76  room  open.     Pomerene  v.  White,  70 

Tnd.  142,  40  Am.  Rep.  224.  Neb.  171. 

is  Whiteley  v.  Pepper,  2  Q.  B.  Div.          i»  Quinn  v.  Power.  87  N:  Y.  535,  41 

276;    Todd    v.  Havlin,    72    Mo.    App.  Am.  Rep.  392. 

565;   Ray  v.  Jones  &  Adams  Co.,  92          20  Phelon  v.  Stiles,  43  Conn.  426. 
Minn.  101;  Minns  v.  Omemee,  2  Ont. 

1467 


§§    1892,  1893]  THE  LAW  OF  AGENCY  [BOOK    IV 

left  the  bran  out  of  consideration  for  his  horse,  and  the  same  result 
had  followed ;  would  the  defendant  be  excused  ?" 

§  1892.  Forbidden  acts. — As  has  been  pointed  out,  the 

fact  that  the  master  had  expressly  forbidden  the  particular  act,  or  not 
to  do  it  at  a  particular  time,  is  not  conclusive  if  it  be  an  act  which 
would  otherwise  be  within  the  scope  of  the  employment. 

Thus  where  a  railway  engineer,  who  was  running  his  train  at  a  time 
when  he  had  been  expressly  forbidden  to  do  so,  collided  with  a  special 
train  containing  the  plaintiff  and  thereby  caused  him  serious  injury,  it 
was  held  that  the  disobedience  of  the  engineer  constituted  no  defense 
to  an  action  against  the  company  ;21  and  where  the  agent  of  a  lumber 
dealer,  in  order  to  promote  his  convenience  in  handling  it,  caused  lum- 
ber to  be  piled  in  a  place  where  his  principal  had  instructed  him  not 
to  have  it  piled,  and  the  lumber,  being  negligently  piled,  fell  upon  and 
injured  the  plaintiff,  the  principal  was  held  liable;22  and  where  a  sales- 
man in  a  gun-store  who  had  been  expressly  instructed  not  to  load  guns 
in  the  store,  loaded  one  for  the  purpose  of  demonstrating  it  to  a  cus- 
tomer who  refused  to  buy  unless  this  was  done,  and  in  doing  so  the 
gun  was  carelessly  discharged  and  shot  the  plaintiff,  it  was  held  that 
the  principal  was  responsible  ;23  and  where  a  master  sent  his  servant  to 
take  personal  property  from  the  dwelling  house  of  another,  under  cir- 
cumstances indicating  that  the  attempt  was  not  unlikely  to  be  resisted, 
and  expressly  charged  the  servant  not  to  use  violence  or  get  into  per- 
sonal difficulty,  it  was  held  that  the  master  was  liable  for  an  assault 
committed  by  his  servant  in  violation  of  these  instructions  while  en- 
deavoring to  take  the  property  from  the  house.24  So  although  a  street 
car  conductor  may  have  been  instructed  not  to  carry  passengers  with- 
out payment  of  fare,  yet  if  he  negligently  injures  one  whom  he  invited 
to  ride  free,  the  company  has  been  held  to  be  liable.25 

§  1893.  Where  the  defendant  sent  his  servants  to  make 

repairs  on  a  sewer  with  which  a  water-pipe  connected,  and  one  of  the 
servants  called  defendant's  attention  to  the  condition  of  the  water-pipe 
but  was  told  not  to  meddle  with  it  as  it  had  no  connection  with  the 
work  the  servants  were  doing,  and  yet  this  servant  during  the  absence 
of  the  master,  apparently  believing,  though  erroneously,  that  the  pipe 

21  Philadelphia  &  Reading  R.  Co.          21  McClung   v.   Dearborne,   134   Pa. 
v.  Derby,  14  How.   (55  U.  S.)  468,  14       396,  19  Am.  St.  Rep.  708,  8  L.  R.  A. 
L.  Ed.  502.  204.    To  same  effect:  Barden  v.  Felch, 

22  Cosgrove  v.  Ogden,  49  N.  Y.  255,       109  Mass.  154. 

10  Am.  Rep.  361.  25  Wilton  v.  Middlesex  R.  Co.,  107 

23  Garretzen   v.    Duenckel,    50    Mo.      Mass.  108,  9  Am.  Rep.  11. 
104,  11  Am.  Rep.  405.  But  compare  post,  §  . 

1468 


'CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1894 

had  some  connection  with  the  difficulty,  opened  the  pipe  and  thereby 
flooded  the  plaintiff's  premises  with  water,  it  was  held  that  if  the  pipe 
was  opened,  not  as  a  mere  matter  of  curiosity  but  for  the  purpose  of 
aiding  in  removing  the  difficulties  in  the  sewer,  and  honestly  believing 
it  was  a  proper  thing  to  do  to  accomplish  the  end  they  were  sent  there 
"to  accomplish,  the  act  would  be  within  the  scope  of  the  employment 
and  the  master  would  be  liable,  notwithstanding  that  he  had  forbid- 
den the  doing  of  the  act.26 

Many  other  cases  to  the  same  effect  will  be  found  cited  in  the  notes.27 

§  1894.  Act  of  servant  having  large  degree  of  discretion. 

— -The  fact  that  the  agent  or  servant  is  given  quite  large  descretion  or 
control  as  to  the  means  or  methods  to  be  employed,  or  that  he.  acts  in 
•some  degree  for  himself,  does  not  of  itself  determine  that  his  acts  are 
not  within  the  scope  of  his  employment.  Thus  where  the  defendant, 
who  was  the  owner  of  a  horse  and  express  wagon,  entrusted  them  to 
a  driver  with  general  authority  to  secure  such  business  as  he  could, 
make  his  own  contracts  and  to  drive,  wherever  it  might  be  necessary 
to  go  in  order  to  receive  or  deliver  articles  which  he  might  be  employed 
to  transport,  and  the  driver,  after  taking  a  trunk  for  a  patron,  on  the 
way  back  and  while  bringing  a  load  for  himself  which  he  afterwards 
sold,  negligently  injured  the  plaintiff,  it  was  held  that  the  fact  that  the 
driver  was  carrying  his  own  property  was  immaterial  and  that,  while 
the  defendant  might  require  the  driver  to  account  to  him  for  the  value 
of  the  time  occupied,  he  was  none  the  less  liable  to  the  plaintiff:28  so 

28  Cox  Shoe  Mfg.  Co.  v.  Gorsllne,  63  said:   "It  Is  nearer  the  line  of  non- 

N.  Y.  App.  DiV.  517.  liability   and    is    perhaps   difficult   to 

27  Postal  Tel.  Co.  v.  Brantley,  107  distinguish  from  the  case  of  Morier 
Ala.  683;  Turner  v.  North  Beach,  etc.,  v.  St.  Paul,  etc.,  Ry.  Co.,  31  Minn.  351, 
H.  Co.,  34  Cal.  594;    Toledo,  etc.,  R.  47   Am.  Rep.  793,"  referred  to  in  a 
€o.  v.  Harmon,  47   111.   298,   95   Am.  later  section. 

Dec.  489;  Healy  v.  Johnson,  127  Iowa,  Mulvehill  v.  Bates  was  followed  in 

221;  Fitzsimmons  v.  Milwaukee,  etc.,  Rudd  v.  P"ox,  112  Minn.  477,  wherein 

R.    Co.,    98    Mich.    257;     French    v.  the   agent   of  an   automobile   livery  - 

Cresswell,  13  Ore.  418;    Harriman  v.  man,  being  placed  in  charge  of  a  ma- 

Pittsburg  R.  Co.,  45  Ohio  St.  11,  4  Am.  chine  to  secure  business  for  his  mas- 

St.  Rep.  507;   Houston  &  T.  R.  Co.  v.  ter,  went  to  supper  at  a  place  forbid- 

Bulger  (Tex.),  80  S.  W.  557;   Harris  den  by  the  master,  and  in  returning 

v.  Louisville,  etc.,  R.  Co.,  35  Fed.  116;  to  the  business  section  of  the  city,  in- 

Reid  Auto  Co.  v.  Gorsczya,  —  Tex.  jured  the  plaintiff.     The  court  held 

Civ.  App.  — ,  144  S.  W.  688;  Burnett  that  the  master  was  liable  because  the 

v.  Oechener,  92  Tex.  588,  71  Am.  St.  servant's  employment  placed  him  in 

Rep.  880.  charge  of  the  machine  to  seek  cus- 

28  Mulvehill  v.  Bates,  31  Minn.  364,  torn  on  the  business  streets  generally. 
47  Am.  Rep.  796.  Mulvehill  v.  Bates  must  certainly 

Of  this  case,  the  court  in  Slater  v.      be  regarded  as  an  extreme  case;  and 
Advance  Thresher  Co.,  97  Minn.  305,      so  far  as  Rudd  v.  Fox  is  based  upon 

1469 


§  i89S] 


THE  LAW   OF   AGENCY 


[BOOK  jv 


whore  the  defendant,  the  proprietor  of  a  cab,  entrusted  it  to  a  driver 
with  general  authority  to  seek  business  at  such  places  and  in  such  man- 
ner as  he  pleased,  the  driver  guaranteeing  the  proprietor  a  fixed  sum 
per  day,  and  the  driver,  while  returning  the  cab  one  evening,  went  a 
little  out  of  his  way  for  a  purpose  of  his  own,  and  while  so  doing  neg- 
ligently injured  the  plaintiff,  it  was  held  that  the  relation  of  master  and 
servant  existed  between  the  proprietor  and  the  driver,  that  the  driver 
was  acting  within  the  scope  of  his  employment,  and  that  the  proprietor 
was  liable  ;29  and  so  where  a  traveling  salesman,  who  had  no  particular 
instructions  as  to  the  route  he  should  pursue  or  as  to  the  mode  of  travel 
he  should  adopt,  while  traveling  under  his  employment,  hired  a  team 
and  carriage  to  go  from  one  town  to  another,  and,  while  engaged  in 
the  management  of  the  team,  negligently  permitted  it  to  run  away  and 
cause  injury,  his  employers  were  held  liable.30 

§  1895.  Servant  combining  his  own  business  with  that  of 

master. — Neither  does  the  fact  that  the  servant  is  combining  his 
own  business  to  some  extent  with  that  of  the  master  necessarily  re- 
lieve the  master.  The  question  is  still  whether  he  was,  at  the  time  of 
the  injury,  really  engaged  upon  his  master's  business  or  his  own.31  The 
cases  upon  the  distinction  between  a  mere  detour  and  a  departure  fur- 
nish many  illustrations. 


the  mere  fact  disclosed  in  the  state- 
ment that  "In  any  event,  Barnett 
[the  driver]  had  possession  of  the 
machine  by  virtue  of  his  employ- 
ment," it  is  opposed  to  the  weight  of 
modern  authority.  See  post,  §  1945 
et  seq. 

2»Venables  v.  Smith,  2  Q.  B.  Div. 
279.  The  question  of  the  relation  ex- 
isting between  the  parties  was  de- 
cided in  view  of  a  special  statute 
making  the  proprietor  liable,  but  the 
question  of  the  scope  of  the  employ- 
ment was  decided  upon  common  law 
principles.  See  also  King  v.  London 
Improved  Cab  Co.,  23  Q.  B.  Div.  281; 
Keen  v.  Henry,  [1894]  1  Q.  B.  292; 
Gates  v.  Bill,  [1902]  2  K.  B.  38. 

In  Singer  Mfg.  Co.  v.  Rahn,  132  U. 
S.  518,  33  L.  Ed.  440,  the  company  had 
entered  into  a  written  contract  with 
one  C  under  which  he  was  to  sell  its 
sewing  machines  on  commission.  The 
company  agreed  to  furnish  a  wagon, 
and  he  agreed  to  furnish  a  horse  and 
harness,  "to  be  used  exclusively  in 


canvassing  for  the  sale  of  said  ma- 
chines and  the  general  prosecution  of 
said  business;"  "to  give  his  exclusive 
time  and  best  energies  to  said  busi- 
ness, and  to  pay  all  expenses  attend- 
ing same;"  "to  employ  himself  under 
the  direction"  of  the  company  and  un- 
der such  rules  and  instructions  as  it 
or  its  manager  should  prescribe. 
Held,  that  he  was  a  servant  of  the 
company  and  the  company  was  re- 
sponsible to  a  third  person  injured 
by  his  negligence  in  driving  the 
horse. 

soPickens  v.  Diecker,  21  Ohio  St 
212,  8  Am.  Rep.  55. 

si  In  Patten  y.  Rea,  2  Com.  B.  (N. 
S.)  606,  the  defendant  was  a  horse 
dealer.  One  Taylor  was  his  manager, 
and  had  a  horse  and  gig,  his  own 
property,  which  he  was  in  the  habit 
of  using  while  on  the  defendant's 
business.  On  one  occasion  he  started 
in  his  conveyance  to  see  his  doctor 
about  personal  business,  and  told  de- 
fendant he  was  going  to  see  one 


1470 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1896 


§  1896.  Servant  using  master's  vehicle,  implement,  etc., 

upon  servant's  business — Facilitating  master's  business. — Except 
where  some  liability  can  be  based  upon  the  inherently  dangerous  char- 
acter of  the  instrumentality  used,  so  that  the  master  can  be  charged  as 
a  practical  insurer,  the  master  is  not  liable  merely  because  the  injury 
was  occasioned  by  the  fact  that  the  servant  was  using  the  master's 
vehicle,  implement,  and  the  like.  If  it  was  used  without  the  master's 
permission,  on  the  servant's  business,  the  master  clearly  is  not  liable. 
If  it  be  used  on  the  servant's  business,  with  the  master's  consent,  the 
master  is  not  ordinarily  liable.  To  make  the  master  liable,  ordinarily, 
it  must  be  used  on  the  master's  business. 

The  mere  fact  that  the  master's  business  is  to  be  remotely  promoted 
by  the  use,  is  not  enough  to  make  the  master  liable.  Where,  however, 
his  business  is  being  so  directly  facilitated  that  the  business  can  fairly 
be  called  the  master's,  the  rule  may  be  different.  In  a  recent  case  32 
in  which  the  servant  did  injury  by  the  careless  management  of  his  mas- 


Smith  about  paying  for  a  horse  that 
Smith  had  purchased  of  H^fpndant; 
and  he  purposed  to  do  both  errands. 
Before  he  arrived  at  the  house  of 
the  doctor,  and  before  he  had  started 
on  his  way  to  see  Smith,  he  negli- 
gently ran  into  and  injured  plain- 
tiff. The  court  held  he  was  suffi- 
ciently within  the  scope  of  his  em- 
ployment to  hold  the  master  liable 
for  his  negligent  act. 

In  Corper  Brewing  Co.  v.  Hug- 
gins,  96  111.  App.  144,  it  appeared 
that  an  employee  of  defendant  brew- 
ery, hired  to  solicit  customers,  and 
using  his  own  horse  and  buggy,  was 
not  acting  within  the  scope  of  his 
authority,  when  he  injured  the  plain- 
tiff during  a  "day  off,"  even  although 
he  was  driving  home  after  perform- 
ing an  errand  for  defendant  at  the 
request  of  defendant's  bookkeeper, 
namely  the  purchase  of  revenue 
stamps,  and  had  the  stamps  in  his 
pocket. 

32  Sina  v.  Carlson,  120  Minn.  283, 
139  N.  W.  601.  The  court  cited  East 
St.  Louis,  etc.,  R.  Co.  v.  Reames,  173 
111.  582;  Reilly  v.  Hannibal,  etc.,  Ry. 
Co.,  94  Mo.  600;  Steffen  v.  McNaugh- 
ton,  142  Wis.  49,  19  Ann.  Cas.  1227, 
26  L.  R.  A.  (N.  S.)  382;  Gillshannon 


v.  Stony  Brook,  etc.,  R.  Co.,  10  Gush. 
(Mass.)  228;  Ewald  v.  Chicago,  etc., 
Ry.  Co.,  70  Wis.  428,  5  Am.  St.  Rep. 
178;  Mulvehill  v.  Bates,  31  Minn. 
364,  47  Am.  Rep.  796;  Morier  v.  St. 
Paul,  etc.,  R.  Co.,  31  Minn.  351,  47 
Am.  Rep.  793. 

The  only  ones  of  these  cases  which 
furnish  the  rule  much  support  are 
the  first  two,  which  were  cases  in 
which  railroad  employees,  with  the 
tacit  consent  of  the  railway  officials, 
used  engines  to  ride  upon  in  going 
back  and  forth  to  their  meals.  In 
the  Illinois  case  the  court  said  .that 
"the  evidence  justified  the  inference 
that  this  service  of  the  engine  was 
furnished  to  the  laborers  by  an  un- 
derstanding between  them  and  de- 
fendant." In  the  Missouri  case  the 
court  said  there  was  evidence  for  the 
jury  whether  the  use  was  acquiesced 
in  by  the  company,  and  whether,  in 
so  using  it,  the  employees  were  en- 
gaged in  the  business  of  the  com 
pany.  Steffen  v.  McNaughton  is  onlj 
indirectly  applicable.  Gillshannon  v. 
Stony  Brook,  etc.,  R.  Co.,  involved 
the  question  of  the  liability  of  the 
master  to  the  servant,  not  to  third 
persons. 


1471 


§  1897]  THE  LAW  °F  AGENCY  [BOOK  iv 

ter's  team  which  he  was  driving  upon  an  errand  primarily  of  his  own 
while  at  the  same  time  he  was  performing  a  service  for  the  master, 
the  court  said,  "He  was  using  his  employer's  team  for  a  purpose  con- 
sented to  by  his  employer,  and  in  order  to  facilitate  the  performance 
of  an  errand  of  his  own  which  he  was  permitted  to  take  time  to  per- 
form. In  so  facilitating  his  own  business,  he  was  in  fact  facilitating 
his  employer's  business  as  well,  and  the  purpose  was  not  a  private  one, 
in  which  his  employer  had  no  interest.  The  rule  is  that,  if  within  the 
course  of  his  employment,  an  employee  is  permitted  to  use  his  employ- 
er's vehicle  to  facilitate  the  performance  of  necessary  errands  of  his 
own,  he  is  still  an  employee  while  so  doing,  and  the  principle  of  re- 
spondeat  -superior  applies."  This,  however,  is  believed  to  be  somewhat 
too  widely  stated.  The  servant  must  be  upon  the  master's  business,  or 
the  use  of  the  vehicle,  implement,  etc.,  must  be  in  some  way  incident  to 
the  service,  or  the  liability  must  be  based  upon  the  dangerous  character 
of  the  thing  used.  The  cases  cited  for  the  rule  do  not  go  further  than 
this. 

§  1897.  Servant  under  immediate  direction  of  patron  of 

master. — 'It  is  likewise  immaterial,  as  has  been  already  seen,88  that 
the  agent  or  servant  is  acting  temporarily  for,  or  under  the  immediate 
direction  of,  another  person,  if  he  be  still  employed  in  and  about  his 
principal's  business.  Thus  where  the  owners  of  a  carriage  were  in  the 
habit  of  frequently  hiring  a  team  and  driver  for  it  from  the  same  per- 
son, and,  upon  one  of  these  occasions,  the  driver  by  his  negligence 
caused  injury  to  a  third  person,  it  was  held  that  the  driver,  though  sub- 
ject to  the  general  directions  of  the  owners  of  the  carriage  as  to  the 
course  to  be  pursued,  etc.,  was  still  engaged  in  the  business  of  his  mas- 
ter, and  that  the  latter  was  liable.  And  it  was  further  held  to  make  no 
difference  that  the  owners  of  the  carriage  had  always  been  driven  by 
the  same  driver,  he  being  the  only  regular  coachman  in  the  employ  of 
the  owners  of  the  horses ;  or  that  the  owners  of  the  carriage  had  always 
paid  him  a  fixed  sum  for  each  drive :  or  that  they  provided  him  with 
a  livery  which  he  left  at  their  house  at  the  end  of  each  drive,  and  that 
the  injury  in  question  was  occasioned  by  his  leaving  the  horses  while 
so  depositing  the  livery  where  he  was  accustomed  to  leave  it.84  In 

ss  See  ante,   §   1861.  mzed  and  followed  to  be  questioned 

s*  Quarman  v.  Burnett,  6  Meea.  &  now."     Joslin   v.   Grand   Rapids   Ice 

Wels.  499.    Of  this  case  Judge  Cooley  Co.,  50  Mich.  516,  45  Am.  Rep.  54.   To 

says  that  it  is  one  which,  "whether  the   same    point:    Fenton    v.   Dublin 

correctly    decided    or   not,   has   been  Steam  Packet  Co.,  8  Ad.  &  El.  853; 

too    often    and    too   generally   recog  Dalyell  v.  Tyrer,  El.  Bl.  &  El.  899; 

1472 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1898 

this  case  Baron  Parke  said :  "Upon  the  principle  that  qui  facit  per  al~ 
ium  facit  per  se,  the  master  is  responsible  for  the  acts  of  his  servant; 
and  that  person  is  undoubtedly  liable  who  stood  in  the  relation  of  mas- 
ter to  the  wrong-doer, — he  who  selected  him  as  his  servant,  from  the 
knowledge  of,  or  belief  in,  his  skill  and  care,  and  who  could  remove 
him  for  misconduct,  and  whose  orders  he  was  bound  to  receive  and 
obey."  That  person  was  the  owner  of  the  horses,  and  not  any  one  at 
whose  service  the  horses  and  driver  were  temporarily  placed.  And  it 
is  immaterial  to  the  application  of  the  principle,  that  the  hirer  of  the 
team  selected,  or  asked  expressly  for,  a  particular  driver.85'  - ~  .*•• 

§  1898.  Master  not  liable  for  negligence  not  in  course  of  employ- 
ment.— But  as  has  been  already  pointed  out,  a  principal  or  master 
is  not  liable  for  the  acts  of  his  agent  or  servant  not  within  the  course 
of  his  employment.  If  the  agent  or  servant,  therefore,  steps  outside  of 
his  employment  to  do  some  act  for  himself,  not  connected  with  his  prin- 
cipal's business,  the  latter  will  not  be  liable  for  the  agent's  negligence 
while  so  engaged.  Beyond  the  scope  of  his  employment,  the  agent  or 
servant  is  as  much  a  stranger  to  his  principal  as  though  he  were  a  third 
person.36 

In  determining  whether  a  particular  act  was  done  in  the  course  of 
the  agent's  employment,  it  is  proper  to  inquire  whether  the  agent  was 
at  the  time  serving  his  principal.  If  the  act  was  done  while  the  agent 
or  servant  was  at  liberty  from  the  service,  and  was  pursuing  his  own 
ends  exclusively,  the  principal  is  not  liable.37  If  the  servant  or  agent 

j£  oJ>  ot .-fo:9VwJcjrrr>  ton. ai  -orf  tfoiriv/  ^nifiJ 

Rapson   v.   Cubitt,  9   Mees.  &  Wels.          Many  other  cases  are  cited,  ante, 
709;   Hobbit  v.  London,  etc.,  Ry.  Co.,      §  1861. 
4  Exch.  254.  se  Butler  v.  Basing,  2  C.  &  P.  613; 

Weyant  v.  Railroad  Co.,  3  Duer  Lamb  v.  Palk,  9  Id.  629;  Joel  v.  Mor- 
(N.  Y.),  360;  Blake  v.  Ferris,  5  N.  Y.  ison,  6  Id.  501;  Storey  v.  Ashton,  L. 
48,  55  Am.  Dec.  304.  R.  4  Q.  B.  479;  Croft  v.  Alison,  4  B. 

Many  other  cases  are  cited,  ante,  &  Aid.  590;  Marsh  v.  South  Carolina 
§  1861.  R.  Co.,  56  Ga.  274;  Richmond  Turn- 

SB  Quarman  v.  Burnett,  supra;  pike  Co.  v.  Vanderbilt,  1  Hill  (N.  Y.), 
Holmes  v.  Union,  2  Com.  Bench  (N.  480;  Isaacs  v.  Third  Ave.  R.  Co.,  47, 
S.)  790;  Joslin  v.  Grand  Rapids  Ice  N.  Y.  122,  7  Am.  Rep.  418;  Wilson  v. 
Co.,  supra.  In  this  case  S  was  in  the  Peverly,  2  N.  H.  548;  Chicago,  etc., 
regular  employ  of  the  defendant.  On  Ry.  Co.  v.  Bayfield,  37  Mich.  205; 
the  day  the  injury  occurred  C  hired  Maddox  v.  Brown,  71  Me.  432,  36  Am. 
of  defendant  one  of  its  teams  to  as-  Rep.  336;  Stone  v.  Hills,  45  Conn.  44, 
sist  him  in  his  work,  and  requested  29  Am.  Rep.  635;  Morier  v.  St.  Paul, 
that  S  be  sent  as  driver.  While  S  etc.,  Ry.  Co.,  31  Minn.  351,  47  Am. 
was  driving  the  team  in  the  business  Rep.  793;  Mott  v.  Consumers'  Ice  Co., 
of  C  the  injury  occurred,  but  it  was  73  N.  Y.  543. 

held  that  defendant  was  liable.  37  Butler  v.  Basing,  2  C.  &  P.  613, 

and  cases,  supra. 

93  1473 


§  1899]  TIIK  LAW  OF  AGENCY  [BOOK  rv 

was  at  the  time  acting  for  himself  and  as  his  own  master  pro  tempore, 
the  principal  is  not  liable.38  If  the  servant  or  agent  step  aside  from  the 
principal's  business,  for  however  short  a  time,  to  do  some  act  of  his 
own,  not  connected  with  the  principal's  business, — "if,"  to  use  the 
classic  expression  of  Baron  Parke,  "he  was  going  on  a  frolic  of  his 
own,  without  being  at  all  on  his  master's  business" — the  relation  of 
principal  and  agent  or  of  master  and  servant,  is,  as  to  that  act,  sus- 
pended.39 

§  1899.  Departure  from  service — Detour. — In  an  early  case,  much 
cited,  in  which  it  appeared  that  the  defendant's  teamster,  having  finished 
his  day's  work,  had  returned  to  the  defendant's  premises  for  the  pur- 
pose of  putting  up  his  horse  as  was  his  duty,  but,  instead  of  doing  so, 
drove  off  again  on  business  of  his  own,  and,  in  returning,  injured  the 
plaintiff,  Maule,  J.,  said:  "At  the  time  of  the  accident  the  servant  was 
not  going  a  roundabout  way  to  the  stable,  and,  as  one  of  the  cases  ex- 
presses it,  making  a  detour.  He  was  not  engaged  in  the  business  of 
his  employer.  But  in  violation  of  his  duty,  so  far  from  doing  what  he 
was  employed  to  do,  he  did  something  totally  inconsistent  with  his 
duty,  a  thing  having  no  connection  whatever  with  his  employer's  serv- 
ice. The  servant  only  is  liable  and  not  the  employer.  All  the  cases  are 
reconcilable  with  that.  The  master  is  liable  even  though  the  servant, 
in  the  performance  of  his  duty,  is  guilty  of  a  deviation  or  failure  to 
perform  it  in  the  strictest  and  most  convenient  manner.  But  where  the 
servant,  instead  of  doing  that  which  he  is  employed  to  do,  does  some- 
thing which  he  is  not  employed  to  do  at  all,  the  master  cannot  be  said 
to  do  it  by  his  servant,  and  therefore  is  not  responsible  for  the  negli- 
gence of  the  servant  in  doing  it."  40 

.»> 

,V[(if;H-    Y     ;i? 

88  Bard  v.  Yohn,  26  Pa.  St.  482,  and  Erskine,  J.,  said  in  his  charge  to  the 

cases,  supra.  jury:  "But  whenever  the  master  has 

39  Joel  v.  Morison,  6  C.  &  P.  501,  intrusted  the  servant  with  the  con- 
and  cases,  supra.  trol  of  the  carriage,  it  is  no  answer 

40  Mitchell  v.  Crasweller,  13  Com.  that  the  servant  acted  improperly  in 
Bench,  237.     So  in  Storey  v.  Ashton,  the  management  of  it.     ...     The 
L.  R.  4  Q.  B.  476,  the  defendant  in-  master  in  such  a  case  will  be  liable, 
trusted   his  servant   with   his   horse  and  the  ground  is,  that  he  has  put  it 
and  cart  for  the  day,  and  when  his  in  the  servant's  power  to  mismanage 
work  was  ended  and  it  was  his  duty  the  carriage  ty  intrusting  Mm  with 
to  drive  home,  the  servant  for  a  pur-  it."     But  this  reason  of  Erskine,  J., 
pose  of  his  own  and  without  express  was  disapproved  in  Storey  v.  Ashton, 
or  implied  authority  from  his  mas-  supra.     In  that  case  Cockburn,  C.  J., 
ter,  drove  in  an  entirely  different  di-  said:  "I  think  the  judgment  of  Maule 
rection   and   by   his   carelessness   in-  and    Cresswell,    JJ.,    in    Mitchell  v. 
jured  the  plaintiff.     The  court  held  Crassweller,    (supra)    expresses    the 
the  master  not  liable.  true  view  of  the  law,   and  the  one 

In  Sleath  v.  Wilson,  9  C.  &  P.  607,       which  we    ought    to    abide    by;   and 

1474 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD   PARTIES 


[§    19°° 


Distinction  between  a  mere  detour  and  a  depar- 
ture.— It  is,  in  many  cases,  difficult  to  determine  whether  what  the 
servant  has  done  was  an  entire  departure  from  his  master's  business  or 
only  a  roundabout  way  of  doing  it.  For  it  is  entirely  settled  that 
where  the  servant,  while  pursuing  his  master's  business,  goes  a  longer 
way  round  than  he  needed  to  go  or  than  he  was  directed  to  go,  the  mas- 
ter will  be  liable.  This  is  clearly  so,  of  course,  if  the  deviation  was  a 
merely  negligent  or  heedless  one.  But  it  is  also  true  although  the  devia- 
tion was  intentional  and  made  to  enable  the  servant  to  accomplish  some 
incidental  purpose  of  his  own,  if,  notwithstanding  this,  his  main  end 
and  purpose  was  still  the  performance  of  his  master's  business.  If,  for 
example,  the  master  directs  his  servant  to  drive  his  team  from  A  to  B, 
to  which  place  there  are  two  direct  roads,  X  and  Y,  expecting  or  even 
expressly  directing  that  the  servant  will  go  by  the  X  road,  and  the 
servant  takes  the  Y  road  by  mistake  or  inadvertence,  that  is  merely 
negligence  in  the  course  of  the  employment.  But  even  though  the  serv- 
ant goes  by  the  Y  road  in  order  that,  while  on  his  way,  he  may,  inci- 
dentally, see  a  friend  or  do  some  small  affair  of  his  own,  the  choice  of 
the  Y  road  is  held  to  be  a  deviation  from  the  master's  directions  but 
not  a  departure  from  the  master's  business.41 


that  we  cannot  adopt  the  view  of 
Erskine,  J.,  in  Sleath  v.  Wilson,  that 
it  is  because  the  master  has  intrusted 
the  servant  with  the  control  of  the 
horses  and  cart  that  the  master  is 
responsible.  The  true  rule  is  that 
.the  master  is  only  responsible  so 
long  as  the  servant  can  be  said  to  be 
doing  the  act,  in  the  doing  of  which 
he  is  guilty  of  negligence,  in  the 
course  of  his  employment  as  servant. 
I  am  very  far  from  saying,  if  the 
servant  when  going  on  his  master's 
business  took  a  somewhat  longer 
road,  that  owing  to  this  deviation  he 
would  cease  to  be  in  the  employment 
of  the  master  so  as  to  divest  the  lat- 
ter of  all  liability;  in  such  cases  it 
is  a  question  of  degree  as  to  how  far 
the  deviation  could*  be  considered  a 
separate  journey.  Such  a  considera- 
tion is  not  applicable  to  the  present 
case,  because  here  the  carman  started 
on  an  entirely  new  and  independent 
journey,  which  had  nothing  at  all  to 
do  with  his  employment.  It  is  true 
that  in  Mitchell  v.  Crassweller  the 


servant  had  got  nearly,  if  not  quite, 
home,  while  in  the  present  case,  the 
carman  was  a  quarter  of  a  mile  from 
home;  but  still  he  started  on  what 
may  be  considered  a  new  journey  en- 
tirely for  his  own  business,  as  dis- 
tinct from  that  of  his  master;  and  it 
would  be  going  too  far  to  say  that 
under  such  circumstances  the  master 
was  liable." 

A  not  dissimilar  case  is  Reaume  v. 
Newcomb,  124  Mich.  137,  where  the 
servant's  duty  was  to  return  the 
horse  he  used  in  delivering  to  a  liv- 
ery stable,  and  there  his  duty  ended. 
After  so  doing,  at  the  instance  of  the 
liveryman,  he  rode  the  horse  for  ex- 
ercise and  injured  plaintiff.  The 
master  was  held  not  liable. 

41  Ritchie  v.  Waller,  63  Conn.  155, 
38  Am.  St.  Rep.  361,  27  L.  R.  A.  161; 
Loomis  v.  Hollister,  75  Conn.  718; 
Williams  v.  Koehler,  41  N.  Y.  App. 
Div.  426;  Lovejoy  v.  Campbell,  16  S. 
Dak.  231;  Krzikowsky  v.  Sperring, 
107  111.  App.  493;  and  other  cases 
cited  in  the  following  section. 


1475 


§    IpOl]  THE  LAW  OF  AGENCY  [BOOK    IV 


On  the  other  hand,  if  in  such  a  case  the  servant  does  not  take  any 
road  to  B,  but  starts  off  in  an  entirely  different  direction  for  some  pur- 
pose of  his  own,  there  is  a  clear  departure.  He  is  not  performing  the 
master's  business  at  all,  though  he  may  have  an  intention  to  resume  it 
later.42  And  even  though  he  starts  toward  B,  he  may  on  the  way  make 
such  a  departure  from  the  journey  for  some  purpose  of  his  own  as  to 
suspend  the  performance  of  the  master's  business  during  such  depar- 
ture.4* 

§  1901.  -  Illustrations.  —  The  situation  in  the  first  class  of 
cases  is  well  illustrated  by  a  recent  case  in  Connecticut.4*  There  the 
defendant,  a  farmer,  had  employed  a  servant  to  make  regular  trips 
with  the  defendant's  team  to  a  neighboring  town  in  order  to  obtain 
fertilizer  for  the  farm.  On  the  first  trip,  the  defendant  went  with  the 
driver  and  showed  him  the  most  direct  route,  though  he  did  not  spe- 
cifically instruct  him  to  follow  any  particular  route.  On  the  occasion 
in  question,  the  driver,  having  obtained  a  load,  started  by  a  round 
about  route  in  order  that  on  the  way  home  he  might  stop  at  a  shoe- 
shop  on  an  errand  of  his  own.  This  shop  was  on  the  main  road  home, 
but  somewhat  further  away  from  the  farm  than  the  point  at  which 
the  driver  would  have  entered  the  main  road  had  he  gone  by  the  usual 
route.  Leaving  his  horses  unhitched  (and  headed  homeward)  he  went 
into  the  shoe-shop,  and  while  he  was  there  the  horses  started  forward 
and  injured  the  plaintiff.  It  is  held  that  this  was  a  case  of  mere  de- 

42  Mitchell  Y.  Crassweller,  13  Com.  route  two    blocks   to    visit   a  friend, 
B.    237;    Fleischner    v.    Durgin,    207  and  while  so  engaged,  left  the  team, 
Mass.  435,  20  Ann.  Cas.  1291,  33  L.  R.  unattended  and  unhitched);  in  Love- 
A.   (N.  S.)  79.  joy  v.  Campbell,  16  S.  D.  231  (where 

43  McCarthy  v.  Timmins,  178  Mass.      the  defendant's  servant  employed  in 
378,  86  Am.  St.  Rep.  490.  hauling  water  to  a  thresher  engine, 

44  Ritchie  v.  Waller,  63  Conn.  155,      stopped  at  a  store  at  the  request  of 
38  Am.  St.  Rep.  361,  27  L.  R.  A.  161.        another    servant    of   defendant,    and 

A  similar  conclusion  was  reached  hitched  his    team    to  an    ornamental 

In  Loomis  v.  Hollister,  75  Conn.  718  tree     which     was     ruined     by     the 

(where  the  driver  of  defendant's  ice-  horses)  ;    in   Weber   v.   Lockman,   66 

wagon,  In  returning  from  the  morn-  Neb.  469,  60  L.  R.  A.  313  (where  de- 

ing  delivery  of  ice,  left  the  regular  fendant's  son,  returning  with  defend- 

route  in  order  to  go  to  the  post-office  ant's  horses  from  an  errand  for  de- 

for  his   personal   mail.     He   left  his  fendant,  deviated  a  mile  or  so  to  visit 

team  unattended  in  front  of  the  post  a   friend,  which*  delayed    him    until 

office,  and  they  ran  away  and  injured  after  dark,  when  the  horses  became 

plaintiff)  ;  in  Williams  v.  Koehler,  41  unmanageable    and    did    the    injury 

N.  Y.  App.   Div.   426  (where  the   de-  complained   of).     See   also   Chicago, 

fendant's  teamster,  who  had  made  a  etc.,  Bottling  Co.  v.  McGinnis,  86  111. 

delivery  of  beer  and  was  returning  App.  38;  Jones  v.  Weigand,  134  N.  Y. 

to  the  brewery  with  a  wagon-load  of  App.  Div.  644. 
empty  kegs,  deviated  from  the  direct 

1476 


CHAP.  V]          LIABILITY  OF   PRINCIPAL  TO  THIRD  PARTIES       [§§  IQO2,  1903 


tour,  and  that  the  servant,  when  he  left  the  horses  untied  was  acting 
within  the  course  of  his  employment. 

§  1902.  The  case  of  a  clear  departure  may  be  illustrated 

by  a  familiar  English  case.45  There  the  defendant's  teamster,  having 
delivered  his  load,  had  come  to  the  master's  shop  to  obtain  the  keys  to 
the  stable  and  it  was  then  his  duty  to  drive  from  the  shop  to  the  stable 
which  was  in  a  neighboring  street  not  far  distant.  Instead  of  doing 
so,  at  the  request  of  a  fellow  servant  who  was  ill,  he  started  off  in  an- 
other direction  to  carry  the  fellow-servant  part  of  the  way  to  his  home. 
Before  doing  so,  the  driver  endeavored  to  obtain  the  defendant's  per- 
mission but,  not  finding  him,  declared  "he  would  chance  it."  On  his 
way  back  to  the  stable,  he  negligently  ran  over  the  plaintiff  and  caused 
the  injury  for  which  the  action  was  brought.  It  was  held  that  the 
master  was  not  liable.  One  of  the  judges  said :  "At  the  time  of  the  ac- 
cident he,  [the  servant]  was  not  going  a  roundabout  way  to  the  stable 
or,  as  one  of  the  cases  expresses  it,  making  a  detour.  He  was  not  en- 
gaged in  the  business  of  his  employers." 

§  1903.  A  case  in  which  the  departure  was  not  at  the  out- 
set so  radical  was  recently  before  the  supreme  judicial  court  of  Mas- 
sachusetts.46 There  the  defendant's  teamster  was  directed  by  the  de- 


is  Mitchell  v.  Crassweller,  13  C.  B. 
237.  A  truck-driver,  having  finished 
his  master's  business  and  being  di- 
rected to  put  up  his  team  and  while 
on  his  way  to  the  barn  for  that  pur- 
pose, was  met  by  another  of  the  de- 
fendant's servants,  at  whose  request 
and  for  whose  accommodation  he 
went  to  deliver  a  trunk.  On  the  way 
out  he  negligently  ran  over  the 
plaintiff.  Held,  that  he  was  not  then 
engaged  in  the  master's  business  and 
the  master  was  therefore  not  liable. 
Cavanagh  v.  Dinsmore,  12  Hun  (N. 
Y.),  465.  Same  effect:  Sheridan  v. 
Charlick,  4  Daly  (N.  Y.),  338. 

46  McCarthy  v.  Timmins,  178  Mass. 
378,  86  Am.  St.  Rep.  490.  So  where 
a.  servant  was  directed  by  his  master 
to  drive  an  automobile  to  a  certain 
point,  and  on  the  road  had  turned 
and  retraced  his  course  in  order  to 
carry  a  friend,  and  later,  while  pro- 
ceeding again  toward  his  former 
destination  but  before  reaching  the 
point  where  he  turned  back,  he  negli- 
gently injured  the  plaintiff,  it  was 


held  a  complete  departure  from  the 
employment,  and  the  master  was  held 
not  liable.  Patterson  v.  Kates,  152 
Fed.  481. 

The  same  result  was  reached  where 
a  chauffeur,  sent  with  authority  to 
take  his  master's  automobile  to  the 
post-office,  thence  to  the  express  of- 
fice, and  then  back  to  the  master's 
house,  started  from  the  post-office  on 
an  errand  for  a  fellow  servant,  away 
from  the  road  to  the  express  office, 
or  the  master's  home,  without  the 
master's  knowledge  or  consent,  and 
while  so  doing  caused  the  injuries  to 
the  plaintiff.  Northrup  v.  Rpbinson, 
33  R.  I.  496;  where  the  defendant's 
chauffeur  was  employed  to  take  his 
master's  car  to  the  garage  and  leave 
It  for  the  night,  but  instead  he  took 
it  to  the  garage  and  then  on  beyond 
for  his  own  purposes,  and  the  plain- 
tiff was  injured  while  the  chauffeur 
was  bringing  the  car  back  again  to 
the  garage.  Colwell  v.  Aetna  Bottle 
&  Stopper  Co.,  33  R.  I.  531;  where  a 
chauffeur,  instructed  to  get  his  supper 


1477 


§    1903]  THE  LAW  OF  AGENCY  [BOOK    IV 

fendant's  foreman  to  take  his  team  from  the  defendant's  hack-stand 
on  Dartmouth  street  in  the  city  of  Boston  to  the  defendant's  stables 
in  Allston,  distant  about  a  mile  and  a  half  westerly.  His  team  was 
then  facing  north,  and  the  shortest  and  most  direct  route  was  to  go 
north  on  Dartmouth  street  to  Commonwealth  avenue  and  then  westerly 
on  Commonwealth  avenue.  Instead  of  doing  so  he  turned  his  team 
about,  drove  southerly  on  Dartmouth  street  to  Boylston  street  and 
then  turned  westerly  on  Boylston  street.  Boylston  street  runs  parallel 
to  Commonwealth  avenue  and  he  could  have  gone  to  the  stables  by 
following  Boylston  street  into  Massachusetts  avenue  and  then  going 
northerly  along  that  avenue.  When  he  got  to  Massachusetts  avenue, 
however,  instead  of  going  northerly  in  the  direction  of  the  stable,  he 
turned  southerly  and  went  to  Dundee  street  where  he  left  his  horses 
unhitched  and  unattended  and  went  into  a  saloon  to  get  a  drink.  While 
he  was  in  the  saloon  the  horses  ran  away  and  caused  the  injury  for 
which  this  action  was  brought.  The  driver  testified  in  substance  that 
when  he  turned  his  horses  about  on  Dartmouth  street  his  purpose  was 
to  go  and  get  the  drink  before  he  took  the  horses  to  the  stable.  The 
court  held  the  defendant  not  liable.  The  driver,  said  the  court,  was 
"directed  to  go  to  the  stables,  and  there  can  be  no  doubt  that  so  long 
as  he  drove  the  team  with  that  end  in  view,  and  for  that  purpose  and 
for  no  other  purpose,  he  was  engaged  in  his  master's  business,  even  if  he 
made  a  detour  contrary  to  the  direction  of  his  master.  We  are  not 
disposed  to  lay  much  stress  upon  the  fact  that  he  went  down  Boylston 
street  rather  than  Commonwealth  avenue,  but  when  he  reached  Massa- 
chusetts avenue  it  is  plain  that  his  only  purpose  in  turning  southward 
instead  of  northward,  and  going  758  feet  to  Dundee  street,  was  not 
only  to  deviate  from  the  regular  way  of  reaching  the  stable  but  was 
for  a  purpose  of  his  own,  namely,  to  get  a  drink.  He  was  upon  no 
errand  of  his  master,  and  this  journey  was  not  for  the  purpose  of  get- 
ting to  the  stables  even  by  a  circuitous  route." 

."A)  -cuH  Sf  .MOMialiiG    .v   ri;s,6ttBV,fi£P 

and  be  at  a  certain  place  with  the  au-  mobile  to  go  home  to  dinner  and  on 

tomobile  at  a  given  time,  upon  eating  the  way  injured  the  plaintiff.    Steffen 

supper,  went  in  the  automobile  to  see  v.  McNaughton,  142  Wis.  49,  19  Ann. 

a  friend  in  an  opposite  direction  from  Cas.  1227,  26  L.  R.  A.  (N.  S.)  382;  and 

the  place  appointed,  and  on  his  way  where  after  completing  his  route,  the 

back  to  the   place   appointed   he   in-  defendant's     driver     became     intoxi- 

jured     the     plaintiff.       Danforth     v.  cated,  and  while  driving  out  of  his 

Fisher,  75  N.  H.  Ill,  139  Am.  St.  Rep.  homeward     course     negligently     ran 

670,  21  L.  R.  A.   (N.  S.)  93;  where  a  down  the  plaintiff.  Wills  v.  The  Belle 

chauffeur,      without      his      master's  Ewart  Ice  Co.,  12  Ontario  L.  R.  526. 
knowledge  or  consent,  took  the  auto- 

_ 
1470 


CHAP.  V]          LIABILITY  OF   PRINCIPAL  TO  THIRD  PARTIES       [§§  IQO4,  1905 

§  1904.  In  a  case  in  Connecticut  it  appeared  that  the  de- 
fendants ordered  their  teamster  to  deliver  a  load  of  paper  to  T.  On 
reaching  T's,  he  requested  the  teamster  to  carry  the  paper  four  and  a 
half  miles  further  on  to  Hartford  and,  at  the  railway  station  there,  to 
get  some  freight  for  T  and  bring  it  to  him.  The  teamster  consented, 
and  while  getting  the  freight  his  team,  which  he  had  left  unhitched  at 
the  station,  ran  away  and  injured  plaintiff's  property.  The  court  held 
that  when  the  teamster  accepted  instructions  from  T  and  became  a  car- 
rier of  merchandise  for  him  to  and  from  a  railway  station  in  an  ad- 
joining town,  he  temporarily  threw  off  his  employers'  authority,  aban- 
doned their  business  and  left  their  service,  and  that  the  defendants 
were  therefore  not  -liable.47 

§  1905.  Resumption  of  service  after  departure. — Suppos- 
ing that  the  servant  has  deviated  or  departed  from  his  employment,  but 
that  he  ultimately  takes  it  up  again,  the  question  arises,  at  what  point 
is  the  master's  service  resumed?  In  the  case  of  Ritchie  v.  Waller,48 
above  referred  to,  it  was  held  that  the  servant  by  going  a  longer  way 
around,  in  order  incidentally  to  visit  a  shop  on  business  of  his  own,  had 
not  so  far  departed  from  the  service  as  to  relieve  the  master  from  the 
servant's  negligence  in  leaving  the  team  unhitched  while  he  went  into 
the  shop.  The  injury  here  resulted  from  the  careless  use  of  the  mas- 
ter's team  which  he  was  using  upon  the  master's  business.  Suppose, 
however,  when  the  servant  left  the  team  to  go  into  the  shop  on  his  own 
business,  he  had  negligently  run  against  a  person  and  injured  him : 
would  the  master  be  liable  for  that  injury?  It  is  assumed  that  he 
would  not  be.  But  supposing  that  the  servant,  having  finished  his 
business  in  the  shop,  starts  to  return  to  the  team  to  continue  his  mas- 
ter's business  and  on  his  way  out  and  before  he  reaches  the  wagon, 
negligently  runs  against  a  person  and  injures  him,  would  the  master 
be  liable  for  that  injury?  It  might  have  been  supposed  that  that  ques- 

*?  Stone  v.  Hills,  45  Conn.  44,  29  hack  owner,  employed  a  person  as 
Am.  Rep.  635.  In  Lamb  v.  Palk,  9  C.  day  driver.  The  driver  used  the 
&  P.  629,  where  a  servant  driving  hack  at  night  without  the  master's 
his  master's  horse  got  off  the  car-  knowledge  or  consent.  It  was  held 
riage  and  took  hold  of  a  horse  stand-  that  the  master  could  not  be  held  re- 
ing  before  a  van  and  caused  the  van  sponsible  for  an  omission  on  the  part 
to  move  so  as  to  make  room  for  the  of  the  driver  to  comply  with  the 
carriage  to  pass,  whereby  a  packing  terms  of  a  city  ordinance  during  the 
case  fell  from  the  van  and  broke  the  time  of  such  unauthorized  use  of  the 
thills  of  plaintiff's  gig,  it  was  held  hack. 

that  the  master  was  not  liable  for  the          «  63  Conn.  155,  38  Am.  St.  Rep.  361, 

injury.    In  Campbell  v.  City  of  Provi-  27  L.  R.  A.  161.     (See  ante,  §  1901.) 

dence,  9  R.  I.  262,  the  defendant,  a 

'.  •  ;   ;  ;••.•;. ui3 

r479 


§    1906]  THE  LAW  OF  AGENCY 


[BOOK  iv 


tion  also  would  be  answered  in  the  negative,  but  it  was  in  fact  an- 
swered in  the  affirmative  in  a  substantially  identical  case  before  the 
Court  of  Civil  Appeals  of  Texas.49 

§  1906. In  a  recent  case  in  Mississippi 50  it  appeared  that 

a  railway  company  had  in  its  employment  a  man,  whose  duty  it  was 
to  operate  a  pumping  station  about  a  mile  out  of  the  village  in  which 
he  lived.  To  enable  him  to  go  back  and  forth  to  the  pumping  station, 


40  Missouri,  etc.,  R.  Co.  v.  Edwards 
(Tex.  Civ.  App.),  67  S.  W.  891.  The 
facts  were  that  a  railroad  brakeman 
had  left  his  place  of  duty  and  gone 
across  the  tracks  to  a  restaurant;  in 
returning  to  board  his  train,  which 
was  just  leaving,  he  carelessly  ran 
into  plaintiff  and  knocked  him  under 
the  train.  The  court  said:  "Whether 
or  not  the  brakeman  was  in  the  dis- 
charge of  his  duties  when  he  knocked 
appellee  under  the  train  was  more  a 
question  of  law  than  one  of  fact.  His 
place  of  duty  was  on  the  opposite 
side  of  the  train,  but  the  evidence  of 
appellee  tended  to  show  that  he  had 
gone  to  a  saloon  or  restaurant  on  the 
side  of  the  train  where  the  accident 
occurred,  and  was  hurriedly  return- 
ing to  board  the  train,  then  just  mov- 
ing away,  when  he  ran  against  appel- 
lee. While  he  may  not  have  been  on 
his  master's  business  in  stepping 
aside  to  the  saloon  or  restaurant,  we 
think  it  must  be  held  that  he  was 
when  he  ran  over  appellee  in  the  ef- 
fort to  resume  his  accustomed  place 
of  service." 

Chief  Justice  Whitfield,  of  the  su- 
preme court  of  Mississippi  (though 
in  a  dissenting  opinion),  says  of  this 
case,  in  Barmore  v.  Vicksburg,  etc., 
Tly.  Co.,  85  Miss.  426,  3  Ann.  Cas.  594, 
70  L.  R.  A.  627,  at  page  469  of  the 
official  report:  "The  case  is  not  rea- 
soned out  and  not  a  single  authority 
is  cited,  and  it  is  the  judgment  of  an 
inferior  tribunal.  It  may  be  barely 
possible  to  sustain  the  case  on  the 
theory  that  the  servant  was  in  the 
service  of  the  master  in  attending  to 
his  business  about  the  car,  and  had 
simply  deviated  from  that  service  in 
going  into  the  saloon  or  restaurant  to" 


get,  it  may  be,  some  necessary  meal. 
If  this  is  not  the  true  explanation  of 
the  case,  then  I  do  not  hesitate  to 
say  that  the  decision  is  unsound." 

In  Moore  v.  •  Manchester  Liners, 
Ltd.,  [1910]  App.  Cas.  498,  an  action 
under  an  employer's  liability  act,  the 
court  was  equally  divided  on  the 
question  of  whether  or  not  the  de- 
ceased met  his  death  while  acting 
within  the  course  of  his  employment. 
The  facts  were  that  deceased,  who 
was  a  sailor  in  defendant's  employ, 
had,  with  the  master's  knowledge, 
gone  ashore  to  buy  articles  for  his 
own  personal  use,  and  on  his  return, 
while  attempting  to  board  the  ship, 
he  slipped  from  the  ladder  and  fell 
into  the  sea. 

Where  defendant's  chauffeur,  hav- 
ing taken  his  master  to  the  theatre, 
was  instructed  to  be  at  the  theatre 
at  a  certain  hour,  and  then,  with  the 
knowledge  and  without  the  objection 
of  his  master,  went  on  an  errand  of 
his  own  and  on  his  way  back  to  the 
theatre  negligently  injured  the 
plaintiff,  Held,  that  the  master  was 
liable.  McKiernan  v.  Lehmaier,  85 
Conn.  111. 

so  Barmore  v.  Vicksburg,  etc.,  Ry. 
Co.,  85  Miss.  426,  3  Ann.  Cas.  594,  70 
L.  R.  A.  627. 

In  Fleischner  v.  Durgin,  207  Mass. 
435,  20  Ann.  Cas.  1291,  33  L.  R.  A.  (N. 
S.)  79,  a  servant  driving  an  automo- 
bile had  made  a  clear  departure  but 
had  turned  about  and  was  going  back 
to  do  the  errand  which  he  was  orig- 
inally directed  to  do.  He  had  gone 
but  a  little  way  on  the  backward 
trip  when  he  negligently  injured  the 
plaintiff.  It  was  held  that  the  mas- 
ter was  not  liable.  There  was  no 


1480 


CHAP.    Vj  LIABILITY  OF   PRINCIPAL  TO  TfLIRD   PARTIES 


[§    1906 


the  company  furnished  him  a  railway  tricycle.  Part  of  his  duty  was  to 
maintain  a  fire  in  the  engine  which  ran  the  pump,  and  he  was  author- 
ized to  use  his  tricycle  in  picking  up  chips  along  the  track  with  which 
to  start  a  fire.  On  the  day  in  question,  he  had  left  the  village  on  his 
tricycle  and  gone  to  the  pumping  station.  He  needed  to  start  a  fire, 
and  not  finding  any  chips  in  the  immediate  vicinity,  he  mounted  his 
tricycle  and  rode  on  beyond  the  pumping  station  to  a  point  where  the 


discussion  of  this  particular  point. 
To  the  same  effect:  Colwell  v.  Aetna 
Bottle  Co.,  33  R.  I.  531;  Danforth  v. 
Fisher,  75  N.  H.  Ill,  139  Am.  St.  Rep. 
670,  21  L.  R.  A.  (N.  S.)  93;  Reynolds 
,v.  Buck,  127  Iowa,  601;  Riley  v. 
Roach,  168  Mich.  294,  37  L.  R.  A.  (NT. 
S.)  834. 

The  very  recent  case  of  Symington 

v.  Sipes, Md. ,  88  Atl.  134,  also 

holds  the  master  not  liable,  though 
it  is  not  quite  clear  from  the  facts 
whether  the  servant,  a  chauffeur  who 
on  his  homeward  journey  from  an  au- 
thorized trip  had  gone  off  on  "a  frolic 
of  his  own"  with  his  master's  auto- 
mobile, had,  at  the  time  of  the  in- 
jury, finished  his  frolic  or  not.  See 
also,  Northrup  v.  Robinson,  33  R.  I. 
496,  held  to  be  ruled  by  Colwell  v. 
Aetna  Bottle  Co.,  supra. 

In  Merritt  v.  Hepenstal,  25  Can. 
Sup.  Ct.  150,  the  servant  of  the  de- 
fendant was  delivering  parcels.  Hav- 
ing delivered  all  but  one,  he  stopped 
at  his  home  for  supper,  and  then  pro- 
ceeded to  deliver  the  last  parcel. 
While  driving  on  this  errand,  he  neg- 
ligently injured  the  plaintiff.  The 
court  refused  to  yield  to  the  conten- 
tion that  the  servant,  having  left  his 
employment  to  eat  his  supper,  could 
not  resume  it  without  returning  to 
the  point  where  he  delivered  the  last 
parcel  before  supper  and  starting 
from  that  point  to  make  his  last  de- 
livery, and  held  that  the  servant  had 
resumed  his  employment  when  the 
injury  was  done  the  plaintiff. 

In  Geraty  v.  Nat'l  Ice  Co.,  16  N.  Y. 
App.  Div.  174,  the  driver  of  defend- 
ant's ice  wagon  had  deviated  slightly 
from  the  direct  route  to  get  his 

1481 


breakfast.  He  then  started  to  his 
original  destination,  where  the  ice 
was  to  be  delivered,  and  while  going 
there,  injured  the  plaintiff.  The 
court  held  that  as  soon  as  the  driver 
started,  after  having  eaten  his  break- 
fast, to  deliver  the  ice,  he  resumed 
the  service  of  the  defendant,  without 
regard  to  what  effect  the  deviation 
might  have  had  before  he  resumed 
the  service  of  his  master. 

Geraty  v.  National  Ice  Co.,  supra, 
was  affirmed  by  the  court  of  appeals, 
160  N.  Y.  658,  but  no  opinion  was 
written. 

In  Jones  v.  Weigand,  134  N.  Y.  App. 
Div.  644,  the  driver  of  a  coach  who, 
while  returning  to  the  stable  after 
attendance  at  a  funeral,  had  gone  out 
of  his  way  to  call  upon  a  friend,  was 
said  to  have  resumed  his  service  as 
soon  as  he  returned  to  the  coach  and 
started  again  for  the  stable.  Will- 
iams v.  Koehler,  41  N.  Y.  App.  Div. 
426,  was  much  relied  upon,  and  Mc- 
Carthy v.  Timmins,  178  Mass.  378, 
referred  to  In  a  preceding  section, 
was  thought  to  be  distinguishable. 

The  case  of  O'Reilly  v.  McCall,  Irish 
Rep.  [1910]  2  K.  B.  42,  is  interesting 
but  not  very  conclusive,  owing  to  the 
manner  in  which  the  questions  arose 
and  were  considered.  The  House  of 
Lords  was  evidently  of  the  opinion 
that  the  jury  might  find  that  the 
driver  was  in  the  service,  even 
though  he  testified  that  he  was  on 
an  errand  of  his  own.  Here  he  was 
driving  a  motor  car  back  towards 
home,  but  apparently  had  not.  yet 
reached  the  point  from  which  he  had 
originally  diverged. 


§    1907]  THE  LAW  OF  AGENCY  [BOOK    IV 

company  had  recently  been  building  a  bridge  and  where  he  knew  chips 
were  to  be  found.  On  reaching  the  bridge,  but  before  he  had  begun 
to  gather  chips,  and  apparently  before  he  had  dismounted  from  his 
tricycle,  he  was  accosted  by  a  person  who  said  he  was  ill  and  who  asked 
the  employee  to  take  him  upon  his  tricycle  and  carry  him  to  a  town 
about  three  miles  further  on.  The  employee  assented  and  carried  him 
to  the  town  in  question,  going,  as  will  be  observed,  in  the  direction 
away  from  his  home  and  beyond  the  pumping  station  and  the  bridge 
where  the  chips  lay.  Having  left  the  sick  man  at  his  destination,  he 
started  back  upon  his  tricycle  toward  the  chips  and  the  pumping  sta- 
tion and  his  home,  apparently  intending  when  he  got  back  to  the  point 
where  the  chips  lay  to  gather  some  chips  and  then  go  back  and  start 
his  fire.  Before  reaching  the  point,  however,  at  which  the  chips  lay, 
he  carelessly  ran  with  his  tricycle  against  the  plaintiff  and  caused  the 
injury  for  which  an  action  was  brought  against  the  railway  company. 
If  the  injury  had  been  caused  while  the  servant  was  first  on  his  way 
to  gather  the  chips  or  if,  having  gathered  them,  it  had  occurred  while 
he  was  on  his  way  back  to  the  pumping  station,  there  probably  would 
have  been  no  question  that  it  had  occurred  while  the  servant  was  act- 
ing in  the  scope  of  his  employment.  But  suppose  the  injury  had  oc- 
curred while  the  servant,  having  temporarily  abandoned  his  purpose  of 
gathering  the  chips,  and  having  passed  the  point  where  they  lay,  was 
carrying  the  sick  man  on  the  tricycle  to  his  destination.  Would  the 
master  have  been  liable  as  for  an  act  done  within  the  scope  of  his  em- 
ployment? It  is  assumed  that  he  would  not  be.  Is  then,  the  servant 
acting  within  the  scope  of  his  employment  while,  after  leaving  the  sick 
man,  he  is  on  his  way  back  to  the  point  at  which  the  gathering  of  the 
chips  could  be  entered  upon  but  before  he  had  in  fact  reached  that 
point?  The  majority  of  the  court  in  Mississippi  held  that  he  had  re- 
sumed his  employment  when,  having  left  the  sick  man,  he  started  upon 
the  return  journey  and  that  therefore  the  master  was  liable.  Chief 
Justice  Whitfield  dissented,  holding  that  the  service  would  not  be  re- 
sumed until  the  servant  returned  to  the  point  at  which  he  intended  to 

,,       ,,       ,  . 
gather  the  chips. 

§  1907. Comments  on  these  views. — It  will  be  noticed  in 

this  case  that  the  act  of  the  servant,  in  undertaking  to  carry  the  sick 
man  to  his  destination,  was  a  departure  from  the  master's  business. 
The  outward  trip,  from  which  the  servant  was  returning  when  the  in- 
jury was  caused,  had  no  connection  with  the  master's  business  and  in 
this  respect  the  case  is  distinguishable  from  those  in  which  the  outward 
trip  was  upon  the  master's  business,  and  the  deviation  occurred  while 

1482 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1908, 

he  was  returning.  Where  the  outward  trip  is  authorized,  the  return 
trip  also  will  usually  be  contemplated  and  authorized.  The  conclusion 
reached  by  Chief  Justice  Whitfield  seems  to  be  sound.  It  seems  un- 
sound to  say  that,  though  the  outward  journey  be  a  clear  departure, 
the  servant  immediately  resumes,  the  service  the  moment  he  starts  to 
return.  A  servant  is  not  in  the  service  merely  because  he  is  going  to- 
ward the  place  of  service  any  more  than  he  is  when  going  away  from 
it.  If  the  master  permits  the  servant  to  take,  or  the  servant  without 
permission  takes,  the  master's  vehicle  for  use  by  the  servant  in  going  to 
or  from  his  work,  the  master  is  not  thereby  necessarily  made  liable  for 
the  servant's  negligence  in  its  use  while  so  employed.51 

§  1908.  —  It  has  *  been  suggested  in  some  cases  that,  if  it 

would  be  the  servant's  duty  by  virtue  of  the  general  nature  of  his  em- 
ployment to  take  back  the  horse  or  vehicle  or  other  article  if  he  had 
found  it  at  a  place  to  which  it  had  strayed  or  had  been  wrongfully 
taken  by  another  person,  or  even  if  it  had  gotten  to  that  place  by  the 
servant's  own  negligence,  it  is  equally  his  duty  and  within  the  scope  of 
his  employment  where  he  himself  has  wrongfully  and  intentionally 
taken  it  to  that  point.  While  there  doubtless  may  be  cases  in  which 
such  a  rule  would  be  applicable,  as  a  general  principle  it  must  certainly 
be  deemed  to  be  questionable.  It  amounts  to  saying  that  the  servant 
by  his  wrongful  and  intentional  act,  outside  the  course  of  his  employ- 
ment, can  create  an  emergency,  the  escape  or  return  from  which  im- 
mediately becomes  an  act  within  the  scope  of  the  employment. 

If  it  be  said  that  the  act  of  the  servant  in  taking  the  horse,  vehicle, 
etc.,  was  a  conversion  by  him,  or  an  assumption  of  possession  by  him, 
as  an  individual,  but  that,  when  he  starts  to  return,  he  restores  the  ar- 
ticle to  his  master  or  resumes  possession  for  him,  it  may  be  replied  that 
this  seems  to  beg  the  question.  By  what  authority  does  he  here  accept 
back  the  article  for  his  master?  By  what  authority  does  he,  here  and 
now,  in  these  unusual  and  unexpected  circumstances,  resume  posses- 
sion for  his  master?  No  such  authority  can  be  presumed  or  implied 
from  any  facts  attending  the  original  appointment. 

§  1909.  Other  acts  not  within  course  of  employment. — 

Where  the  section  men  employed  upon  a  railroad,  during  the  noon 
hour  when  they  had  quit  work  built  a  fire  by  the  side  of  the  track  to 
warm  their  coffee,  negligently  leaving  it  unextinguished  when  they  re- 
sumed their  work,  and  the  fire  spread  to  an  adjoining  field,  it  was  held 
that  the  railway  company  was  not  responsible.52 

5i  See  ante,  §  1896.  St.    Louis,  etc.,  Ry.    Co.  v.    Ford,  65 

"Morier  v.  St.  Paul,  etc.,  Ry.  Co.,       Ark.  96,  the  servants  of  the  defend 

31  Minn.  351,  47  Am.  Rep.  793.     In      ant  railroad  kindled  a  fire  to  warm 

1483 


§  1909] 


THE  LAW  OF  AGENCY 


I  ROOK    IV 


It  would  be  different,  of  course,  if  the  use  of  fire  were  incident  to  the 
employment.158  And  even  though  there  might  not  be  liability  for  the 
starting  of  the  fire,  there  might  be  where  it  was  the  duty  of  the  same 
servants  to  extinguish  such  a  fire  by  whomsoever  started.5* 


their  coffee  during  the  noon  hour. 
The  fire  spread  and  damaged  plain- 
tiff. The  defendant  contended  that 
the  kindling  of  the  fire  under  such 
circumstances  was  not  within  the 
scope  of  the  servant's  employment. 
The  court  said  that  even  admitting 
that  contention,  the  defendant  would 
be  liable  for  negligently  permitting 
the  fire  to  spread,  without  regard  to 
who  started  it.  In  Williams  v.  Jones, 
3  H.  &  C.  256,  [swfe  nom,  Woodman 
v.  Joiner,  10  Jur.  (N.  S.)  852],  3  H. 
&  C.  602,  11  Jur.  (N.  S.)  843,  the 
plaintiff  permitted  the  defendant  to 
use  his  shed  temporarily  as  a  carpen- 
ter shop,  and  the  defendant's  work- 
man in  lighting  his  pipe  while  at 
work  set  the  shed  on  fire;  held  (Mel- 
lor  and  Blackburn,  JJ.,  dissenting), 
that  the  defendant  was  not  liable. 
Blackburn,  J.,  called  it  "a  nice  and 
puzzling  question."  In  the  one  case, 
cooking  dinners  and  in  the  other 
lighting  and  smoking  pipes,  was  no 
part  of  the  servant's  duties.  See  also, 
Wilson  v.  Peverly,  2  N.  H.  548.  In 
Aycrigg  v.  New  York,  etc.,  R.  Co.,  30 
N.  J.  L.  460,  it  appeared  that  the  cap- 
tain of  a  ferry  boat  which  was  lying 
at  the  wharf,  saw  a  barge  on  fire  in 
the  river,  and  without  any  orders  so 
to  do,  went  out  into  the  river  and  at- 
tempted to  tow  the  burning  barge  up 
stream.  In  doing  this  the  barge  was 
brought  against  another  boat  to 
which  the  fire  was  communicated  and 
it  was  injured.  It  was  held  that  go- 
ing to  the  aid  of  the  burning  barge 
was  outside  of  the  scope  of  the  duty 
of  the  captain  of  the  ferry  boat,  and 
that  his  employers  were  not  liable; 

Much  like  the  Morier  case,  supra, 
is  April  v.  Pretorius,  [1906]  Trans- 
vaal L.  R.  824  (herd-boy  built  a  fire 
to  cook  game  he  had  caught).  Much 
like  Williams  v.  Jones,  supra,  is 
Heard  v.  Flannagan,  10  Viet.  L.  R. 
(L.)  1  (servant  put  down  his  pipe 


near  a  stack).  Where  the  servant 
was  sent  to  cut  and  pile  stalks  but 
then,  without  any  authority  or  direc- 
tion, set  fire  to  them  and  the  fire 
spread,  the  master  was  held  not  lia- 
ble. Marlowe  v.  Bland,  154  N.  Car. 
140 

In  Eaton  v.  Lancaster,  79  Me.  477, 
It  was  held  competent  for  the  jury 
to  find  a"  stable  keeper  liable  for  the 
consequences  of  a  fire  upon  the  prem- 
ises apparently  caused  by  the  fact 
that  the  night  foreman  permitted 
three  men,  somewhat  intoxicated  and 
known  to  be  smokers,  to  go  into  the 
hay  loft  to  sleep  in  violation  of  the 
defendant's  regulations.  Williams  v. 
Jones,  supra,  was  thought  to  be  dis- 
tinguishable. 

53  Johnson  v.  Barber,  10  111.  425,  50 
Am.  Dec.  416.  Defendant  was  held 
liable  where  he  ordered  a  servant  to 
destroy  rabbits,  and  the  servant,  as 
was  customary,  set  fires  to  burn 
them  out,  which  fires  spread  to  plain- 
tiff's land.  MacKenzie  v.  The  Trus- 
tees, etc.,  Co.,  22  Austr.  L.  T.  142. 
Also,  where  defendant  ordered  his 
janitor  to  burn  waste  paper  in  the 
furnace,  but  the  janitor  burned  the 
paper  in  a  vacant  lot  where  the 
plaintiff  was  injured.  McDermott  v. 
Consolidated  Ice  Co.,  44  Pa.  Sup.  Ct 
445. 

Where  defendant's  servants,  who 
were  plowing  a  field,  set  fire  to  ac- 
cumulated weeds  in  order  to  get 
them  out  of  the  way,  although  the 
master,  after  discussing  it,  had  told 
them  not  to  do  so.  Held,  a  question 
of  fact  for  the  jury  whether  the 
servants  acted  within  the  course  of 
their  employment  Seybold  v.  Eisle, 
154  Iowa,  128. 

•H  St.  Louis,  etc.,  R.  Co.  v.  Ford, 
supra;  Baldwin  v.  Alabama,  etc.,  Ry. 
Co.,  96  Miss.  52.  Compare  Chapman 
v.  New  York  Cent.  R.  Co.,  33  N.'  Y. 
369,  88  Am.  Dec.  392. 


CHAP.    V]  LIABILITY   OF  PRINCIPAL   TO   THIRD   PARTIES  [§    IQIO 

§  igio.  — . In  an  English  case  it  appeared  that  defendants 

were  solicitors  occupying  offices  over  plaintiffs'  store.  The  defendants 
employed  clerks  whose  duties  were  performed  in  the  general  office  in 
which  there  was  a  lavatory  for  their  use.  They  had  express  orders 
that  no  clerk  was  to  go  into  the  private  offices  after  the  members  of 
the  firm  had  left  them.  On  the  day  in  question,  one  of  the  clerks,  after 
the  solicitors  had  gone,  went  into  one  of  the  private  offices  to  wash  his 
hands  at  the  lavatory  in  that  room.  He  negligently  left  the  water  tap 
turned  and  the  water  flooded  the  plaintiffs'  premises.  The  plaintiffs 
brought  their -action  against,  the  solicitors,  and  it  was  urged  that  the 
clerk  was  acting  within  the  scope  of  his  employment..!}  at9rf-w 

But  Grove,  J.,  said :  "I.  am  of  opinion  that  the  verdict  should  be  en- 
tered for  the  defendants.  No  doubt  this  question  is  a  very  nice  one, 
and  there  may  be  cases  close  to  the  line  between  the  liability  and  non- 
liability of  a  master  for  the  act  of  another  person  done  in  the  'course 
of  his  employment'  if  he  is  a  servant,  or  'within  the  scope  of  his  au- 
thority' when  he  is  an  agent,  for  *  *  *  such  is  the  mode  in  which 
those  terms  have  been  applied  by  the  courts,  although  the  words  'scope 
of  authority'  may  cover  both  cases.  *  *  * 

"Although  a  definition  is  difficult,  I  should  say  that  the  act,  for  which 
the  master  is  to  be  held  liable,  must  be  something  incident  to  the  em- 
ployment for  which  the  servant  is  hired,  and  which  it  is  his  duty  to 
perform.  *  *  *  I  think  I  should  have  come  to  the  same  conclu- 
sion as  that  I  have  arrived  at,  if  there  had  been  no  express  prohibition 
in  the  case,  and  it  had  merely  been  shown  that  the  clerks  had  a  room 
of  their  own  and  a  lavatory  where  they  could  wash  their  hands.  Then 
what  possible  part  of  the  clerk's  employment  could  it  be  for  him  to  go 
into  his  master's  room  to  use  his  master's  lavatory,  and  not  only  the 
water,  but  probably  his  soap  and  towels,  solely  for  his,  the  clerk's,  own 
purposes  ?  What  is  there  in  any  way  incident  to  his  employment  as  a 
clerk?  I  see  nothing.  The  case  seems  to  me  just  the  same  as  if  he  had 
gone  up  two  or  three  flights  of  stairs  and  washed  his  hands  in  his  mas- 
ter's bed-room.  It  is  a  voluntary  trespass  on  the  portion  of  the  house 
private  to  his  master.  I  do  not  use  the  word  trespass  in  the  sense  of 
anything  seriously  wrong,  but  he  had  no  business  there  at  all.  In  do- 
ing that  which  his  employment  did  not  in  any  way  authorize  him  to  do, 
he  negligently  left  the  stop-cock  open  and  the  water  escaped  and  did 
damage.  I  think  there  was  nothing  in  this  within  the  scope  of  his  au- 
thority or  incident  to  the  ordinary  duties  of  his  employment."  55 

>ii  itini 

86  Stevens  v.  Woodward,  6  Q.  B.  "The  case  is  a  little  stronger  by  rea- 
Div.  318.  Grove,  J.,  further  said:  son  of  the  prohibition,  but  I  quite 

1485 


§§ 


TILE  LAW  OF  AGENCY 


[BOOK    IV 


§ 


In  a  recent  case,  it  appeared  that  defendant  was 


the  proprietor  of  a  teaming  business  and  his  stables  were  in  charge  of 
a  foreman.  The  foreman  brought  his  gun  to  the  barn  for  his  own  pur- 
poses, and  while  there  the  defendant  borrowed  it  on  a  single  occasion 
for  use  about  the  stables  in  destroying  trespassing  animals.  After  its 
return  to  the  foreman,  the  latter,  during  the  day,  undertook  to  explain 
the  workings  to  another  workman,  and  while  this  was  being  done,  the 
gun  was  accidentally  discharged  wounding  the  other  workman.  It 
was  held  that  there  was  nothing  in  these  circumstances  to  show  that 
using  or  handling  the  gun  was  within  the  course  of  the  foreman's  serv- 
ice.56 So  where  the  cook  upon  the  boarding  car  of  a  construction  train, 
who  had  nothing  to  do  with  its  load  or  management,  but  acting  upon 
the  direction  of  the  foreman  of  the  bridge-building  gang,  threw  from 
the  train  while  in  motion  an  article  belonging  to  the  foreman,  it  was 
held  that  the  act  was  wholly  without  the  course  of  employment  of  either 
the  cook  or  the  foreman.57 

§  1912.  Further  illustrations. — In  a  case  in  Maine,  it  ap- 
peared that  the  defendant's  son,  a  minor  of  the  age  of  seventeen  years, 
took  his  father's  horse  and  carriage,  which  he  had  been  allowed  to  use 


agree  .  .  .  that  there  are  cases 
where  a  prohibition  would  have  no 
effect,  and  I  cannot  put  a  nearer  one 
than  that  I  suggested  during  the  ar- 
gument; suppose  this  were  not  a 
clerk,  but  a  housemaid  whose  duty 
it  was  to  clean  up  the  room  and  at- 
tend to  the  lavatory  and  wipe  out 
the  basin,  then  I  think,  that  although 
she  was  expressly  prohibited  from 
using  the  basin,  and  was  told  not  to 
leave  the  tap  open,  yet,  notwith- 
standing the  prohibition,  her  act  of 
using  the  basin  and  omitting  to  turn 
off  the  water  would  be  so  incident 
to  her  employment  that  the  master 
would  be  liable."  Liudley,  J.,  con- 
curred, saying:  "I  am  of  the  same 
opinion  and  I  agree  for  much  the 
same  reasons.  I  do  not  see  on  what 
principle  the  defendants  are  to  be 
held  liable  for  the  negligent  acts  of 
a  man  who  trespasses  in  their  room 
and  leaves  their  tap  running.  The 
facts  show  that  the  clerk  was  a  tres- 
passer after  his  master  had  left." 

In  Ruddiman  &  Co.  v.  Smith,  60  L. 
T.  R.  708,  the  defendant  provided  a 
lavatory  for  the  use  of  his  clerks. 


One  of  them  undertook  to  use  it  one 
night  after  the  completion  of  his 
day's  work  but  before  leaving  the  de- 
fendant's place  of  business,  and 
found  he  could  get  no  water  by  turn- 
ing on  the  tap.  He  negligently  left 
the  tap  open  and  later  the  water  was 
turned  on  and  flooded  the  premises  of 
the  plaintiff  below.  The  court  held 
the  defendant  liable,  one  of  the 
judges  holding  that  the  use  of  the 
tap  was  in  the  course  of  the  servant's 
employment,  while  the  Chief  Justice 
preferred  to  rest  his  decision  on  the 
ground  that  the  act  of  the  servant 
was  "an  incident  to  his  employment." 

59  Smith  v.  Peach,  200  Mass.  504. 

57  St.  Louis,  etc.,  Ry.  Co.  v.  Bryant, 
81  Ark.  368.  But  where  it  was  within 
the  course  of  duty  of  the  superintend- 
ent of  bridge  work  to  direct  as  to  the 
disposal  of  pieces  of  bridge  work 
after  they  left  the  blacksmith  shop 
where  they  had  been  worked  upon, 
and  he  directed  that  they  be  thrown 
into  the  highway,  it  was  held  that 
the  company  was  liable  to  a  person 
injured  thereby.  Denny  v.  Virginia 
Bridge  Co.,  150  Mo.  App.  72. 


1486 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD   PARTIES 


without  restriction,  and  drove  to  a  store  for  the  purpose  of  .depositing 
money  which,  as  treasurer  of  a  Sunday  school,  he  had  received  the 
day  before.  Upon  entering  the  store  to  make  the  deposit,  he  left  the 
horse  unfastened  and  unattended,  and  the  horse  ran  away,  colliding 
with  plaintiff's  team,  and  caused  the  injury  for  which  the  action  was 
brought  against  the  father.  The  horse  and  carriage  were  taken  in  the 
father's  absence,  and  without  his  knowledge.  The  court  held  that,  un- 
der these  circumstances,  the  son  could  not  be  considered  as  engaged 
in  the  business  of  his  father,  or  as  acting  for  him,  and  that  the  father 
was  therefore  not  liable.58 

Many  other  cases  involving  the  unauthorized  use  of  teams,  automo- 
biles, and  the  like,  are  cited  in  the  notes.58 

arc  hours  or  dry?  of  In-oMii-'xuta  wh«.-n  >:h<? 

ss  Maddox  v.  Brown,  71  Me.  432,  36 
Am.  Rep.  336.  A  master  who  gives 
his  servant  a  day  off  and  permits  him 
to  take  a  horse  and  wagon  for  his 
own  pleasure  is  not  liable  for  in- 
juries caused  by  the  servant's  care- 
less use  of  the  horse.  Bard  v.  Yohn, 
26  Pa.  St.  482;  same,  where  master 
permits  servant  to  use  master's  au- 
tomobile on  servant's  business.  Cun- 


without  permission  and  on  his  own 
account.  Campbell  v.  Providence,  9 
R.  I.  262.  Same,  where  the  vehicle 
was  a  railway  engine  taken  out  under 
similar  conditions.  Cousins  v.  Han- 
nibal, etc.,  R.  Co.,  66  Mo.  572. 

Master  not  liable  where  servant,  on 
a  day  when  he  is  off  duty,  uses  mas- 
ter's automobile  without  his  consent 
to  take  a  friend  upon  a  pleasure  ride. 


ningham    v.  Castle,  127   N.    Y.    App.      Reynolds    v.    Buck,    127    Iowa,    601. 


Div.  580. 

Master  not  liable  for  negligent 
driving  by  servant  to  whom  he  lends 
or  leases  a  horse  to  use  on  servant's 
own  business.  Herlihy  v.  Smith,  116 
Mass.  265;  Thorp  v.  Minor,  109  N. 
Car.  152. 

68  Master  not  liable  where  servant, 
without  authority  or  consent,  takes 
master's  horses  to  drive  for  his  own 
pleasure,  even  though  he  be  author- 
ized to  drive  them  upon  the  master's 
business.  Fiske  v.  Enders,  73  Conn. 
338;  Fish  v.  Coolidge,  47  N.  Y.  App. 
Div.  159.  Same,  where  servant 
drives  upon  a  personal  errand  of  his 
own.  Way  v.  Powers,  57  Vt.  135. 

Where  the  servant  of  a  stable 
keeper  killed  a  horse  by  immoderate 
driving  at  a  time  when  he  was  driv- 
ing without  authority  and  for  pur- 
poses of  his  own,  his  master  was  held 
not  liable.  Adams  v.  Cost,  62  Md. 
264,  50  Am.  Rep.  211. 

So  where  servant  of  a  hack  owner 
took  the  hack  and  team  out  at  night 


To  the  same  effect,  though  un- 
der slightly  different  circumstances. 
Slater  v.  Advance  Thresher  Co.,  97 
Minn.  305,  5  L.  R.  A.  (N.  S.)  598; 
Clark  v.  Buckmobile  Co.,  107  N.  Y. 
App.  Div.  120. 

Same,  where  a  salesman  without 
authority  and  against  instructions, 
took  his  employer's  automobile  to  go 
to  dinner  and  on  the  way  injured  the 
plaintiff.  Mclntire  v.  Hartfelder 
Co.,  9  Ga.  App.  327;  where  defend- 
ant's officers  took  the  company's  au- 
tomobile for  a  pleasure  ride.  Power 
v.  Arnold  Engineering  Co.,  142  N.  Y. 
App.  Div.  401;  where  defendant's 
brother  took  defendant's  automobile 
for  his  own  purposes.  Freibaum  v. 
Brady,  143  N.  Y.  App.  Div.  220; 
where  defendant's  chauffeur  took  his 
automobile  to  go  on  a  pleasure  ride 
of  his  own,  without  authority  and 
contrary  to  express  commands.  Sar- 
ver  v.  Mitchell,  35  Pa.  Super.  69;  Dur- 
ham v.  Strauss,  38  Pa.  Super.  620; 
Stewart  v.  Baruch,  103  N.  Y.  App. 


1487 


THE  LAW  OF  AGENCY 


[BOOK    IV 


§  1913.  Injuries   to   servant's   invitees. — As   has   already 

been  seen,  it  is  not  ordinarily  within  the  scope  of  a  servant's  authority 
to  employ  or  obtain  assistants  to  himself,60  neither  is  it  usually  within 
his  implied  authority  to  invite  his  friends  or  others  to  accompany  him, 
visit  him,  or  cooperate  with  him  in  or  during1  the  performance  of  his 
service,  or  to  visit,  enter  upon  or  make  use  of  his  master's  premises  or 
/property.  For  injuries  to  such  third  persons,  therefore,  which  result 
^merely  from  their  being-  so  associated  with  the  servant,  or  from  being 
permitted  by  him  to  be  upon  or  in  the  master's  premises  or  property, 
or  which  result  from  the  servant's  negligence  to  them  while  there,  for 
which  the  master  would  not  be  liable  if  there  had  been  no  such  invita- 
tion or  permission,  the  master  is  not  ordinarily  responsible.81  So  far 


Div.  577;  Lotz  v.  Hanlon,  217  Pa.  339, 
118  Am.  St.  Rep.  922,  10  Ann.  Cas. 
731,  10  L.  R.  A.  (N.  S.)  202. 

Same,  where  defendant's  chauffeur, 
without  any  authority,  took  the  ma- 
chine, on  request  by  telephone,  to 
•carry  supplies  to  a  stranded  automo- 
bile. Riley  v.  Roach,  168  Mich.  294, 
:37  L.  R.  A.  (N.  S.)  834. 

Where  defendant's  son,  ordinarily 
permitted  to  use  the  automobile, 
takes  it  out  at  the  request  of  his 
another,  it  may  be  found  to  be  within 
the  course  of  his  employment.  Smith 
v.  Jordan,  211  Mass.  269. 

It  is  a  question  for  the  jury,  where 
he  takes  it  out  at  the  request  of  his 
sister  to  entertain  family  friends. 
Moon  v.  Matthews,  227  Pa.  488,  136 
Am.  St.  Rep.  902,  29  L.  R.  A.  (N.  S.) 
856.  The  father  was  held  in  Stowe 
v.  Morris,  147  Ky.  386,  39  L.  R.  A. 
(N.  S.)  224;  but  not  in  Doran  v. 
Thomsen,  76  N.  J.  L.  754,  19  L.  R.  A. 
335.  See  also  Winfrey  v.  Lazarus, 
148  Mo.  App.  388;  Kneff  v.  Sanford, 
63  Wash.  503. 

Where  there  was  evidence  that  de- 
fendant's salesman,  although  appar- 
ently taking  persons  for  a  pleasure 
ride,  was  thereby  promoting  possible 
sales,  it  was  held  that  he  might  be 
found  to  be  acting  within  the  course 
of  his  employment.  Boyle  v;  Fergu- 
son, [1911]  2  Irish  Rep.  489. 

Where  the  driver  of  a  taxi-cab,  at 
the  direction  of  the  general  manager, 


whose  directions  he  was  required  to 
obey  and  whose  direction  upon  the 
particular  occasion  he  did  not  know 
to  be  unauthorized,  drove  the  cab  on 
what  was  really  the  manager's  pri- 
vate business  and  while  so  doing 
negligently  injured  the  plaintiff,  the 
proprietors  were  held  liable.  Irwin 
v.  Waterloo  Taxi-cab  Co.,  [1912]  3  K. 
B.  588. 

eo  See  ante,  §  1866. 

ei  Master  not  liable  when  his  serv- 
ant leading  a  colt  to  water  invited  a 
boy  to  ride  upon  the  colt,  in  attempt- 
ing which  he  was  injured  by  a  kick. 
Bowler  v.  O'Connell,  162  Mass.  319, 
44  Am.  St.  Rep.  359,  27  L.  R.  A.  173. 
Same:  Corrigan  v.  Hunter,  139  Ky. 
315;  Raible  v.  Ice  Co.,  134  N.  Y.  App. 
Div.  705. 

Same  effect:  (riding  upon  wagons 
or  carts  at  request  or  invitation  of 
driver),  Schulwitz  v.  Delta  Lumber 
Co.,  126  Mich.  559;  Driscoll  v.  Scan- 
Ion,  165  Mass.  348,  52  Am.  St.  Rep. 
523;  Dover  v.  Mayes  Mfg.  Co.,  157  N. 
Car.  324;  Foster-Herbert  Stone  Co.'v. 
Pugh,  115  Tenn.  688,  112  Am.  St.  Rep. 
881,  4  L.  R.  A.  (N.  S.)  804;  Scott  V. 
Peabody  Coal  Co.,  153  111.  App.  103; 
(riding  on  hand  car),  Houston,  etc., 
R.  Co.  v.  Boiling,  59  Ark.  395,  43  Am. 
St.  Rep.  38,  27  L.  R.  A.  190;  Hoar  v. 
Maine  C.  R.  Co.,  70  Me.  65,  35  Am. 
Rep.  299;  (riding  in  elevator), 
Sweeden  v.  Atkinson  Improvement 
Co.,  93  1-rk.  397,  27  L.  R.  A.  (N.  S.) 


1488 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1914 

as  they  became  volunteer  servants,  also,  the  fellow-servant  rule  would 
ordinarily  apply  to  them.62 

Where,  however,  a  servant  in  charge  of  dangerous  premises  invites 
or  permits  very  young  children  or  others  not  capable  of  appreciating 
the  dangers  to  come  or  be  upon  the  premises,  it  is  held  in  several  cases 
that  the  master  may  be  liabk  for  negligent  inj-uries  to  them,  in  the 
same  way  that  he  would  be  if  they  had  come  there  without  such  invita- 
tion or  permission.63 

§  1914.  Negligence  when  servant  off  duty. — In  order  that  an  act 
of  alleged  negligence  shall  be  committed  within  the  course  of  the  em- 
ployment, it  is,  in  general,  true  that  the  servant  must  have  been  in  the 
service  at  the  time.  Few  kinds  of  service  are  entirely  continuous  and 
unbroken.  There  are  hours  or  days  of  intermission  when  the  servant 
is  not  on  duty.  He  comes  to  his  work  at  a  given  time  and  leaves  it 
again  at  another  time.  During  such  intervals  the  service  is  ordinarily 
suspended,  and  what  the  servant  does  in  such  an  interval, — even 
though  it  may  be  the  same  sort  of  act  as  that  which  belongs  to  the 
service, — if  done  on  the  servant's  own  account  and  not  as  an  act  in  the 
service,  would  ordinarily  not  be  imputed  to  the  master.  Many  illustra- 
tions of  this  have  already  appeared  in  the  cases  in  which  servants  when 
off  duty  and  without  consent  have  taken  the  master's  team  or  automo- 
bile and  driven  it  for  purposes  of  their  own.6* 

- 

124;  (riding  in  dump  car),  Morris  teen  year  old  boy  to  help  him  about 
v.  Brown,  111  N.  Y.  318,  7  Am.  St.  Rep.  dangerous  work  whose  perils  the  boy 
751;  (riding  on  engines),  Flower  v.  did  not  appreciate.  Kentucky  Cent. 
Penn.  R.  Co.,  69  Pa.  210,  8  Am.  Rep.  R.  Co.  v.  Gastineau,  83  Ky.  119,  fol- 
251;  Files  v.  Boston,  etc.,  R.  Co.,  149  lowed) ;  Poteet  v.  Blosson  Oil  Co.,  53 
Mass.  204;  (riding  on  freight  or  Tex.  Civ.  App.  187,  reversed  on 
gravel  trains),  Keating  v.  Michigan  ground  that  the  servant  was  the 

C.  R.  Co.,  97  Mich.  154,  37  Am.  St.  Rep.       father,  Tex.  ,  136  S.  W.  432; 

328;  Smith  v.  Louisville,  etc.,  R.  Co.,  (where  this  doctrine  and  that  of  at- 
124  Ind.  394;  Powers  v.  Boston,  etc.,  tractive  dangers  were  applied);  Mis- 
R.  Co.,  153  Mass.  188.  souri,  etc.,  Ry.  Co.  v.  Rodgers,  89 

A  servant  in  charge  of  an  ice  Tex.  675,  (boy  too  young  to  appre- 
wagon  has  no  authority  to  invite  ciate  danger  allowed  to  ride  on  hand 
boys  to  ride  thereon  or  to  take  ice  'car) ;  Gunderson  v.  Northwestern 
therefrom-  and  where  he  first  invites  Elev.  Co.,  47  Minn.  161,  (boy  six 
a  boy  to  get  ice  and  then  assaults  years  old  allowed  to  ride  on  horse 
him  for  so  doing  the  master  is  not  power). 

liable.  Kiernan  v.  New  Jersey  Ice  «*  See  Bard  v.  Yohn,  26  Pa.  482; 
Co.,  74  N.  J.  L.  175.  Adams  v.  Cost,  62  Md.  264,  50  Am. 

62  See  ante,  §  1658.  Rep.  211;   Fiske  v.  Enders,  73  Conn. 

es  See   Wells    v.    Kentucky   Distill.      338;  Cousins  v.  Hannibal,  etc.,  R.  Co., 
Co.,  144  Ky.  447;    (where  master  was      66  Mo.  572,  and  the  many  other  cases 
held  liable  because  servant  in  charge      cited,  ante,  §  1912. 
of  work  requested  or  permitted  thir- 

94  H89 


§    I9I5J  THE  LAW  OF  AGENCY  [BOOK    IV 

But,  on  the  other  hand,  it  may  be  the  fact  that  the  service  or  duty  is 
continuous;  and  such  cases  present  different  aspects.  Thus  where  a 
servant  had  charge  of  his  master's  team  "all  of  the  time"  whether  he 
was  at  work  with  it  or  not,  and  as  much  before  or  after  regular  hours 
of  work  as  during  such  hours,  and  he  left  the  team  unattended  upon 
the  street  in  order  to  do  a  service  for  a  friend,  it  was  held  that  it  was 
at  least  open. to  the  jury  to  find  that  this  was  negligence  within  the 
course  of  the  employment. 65  It  may  also  be  the  case  that,  though 
the  servant  was  entitled  to  a  period  of  rest  or  intermission,  he  had  not 
taken  it,  but  remained  at  work,  or  had  resumed  work  before  the  period 
had  expired,  and  the  like;  and  in  such  cases  ordinarily, — there  being 
nothing  to  show  that  this  was  contrary  to  his  duty, — the  service  would 
be  in  progress.66 

It  may  also  be  found  to  be  the  duty  of  the  servant  to  do  or  undo  in 
the  service  what  even  he  himself  had  wrongfully  done  or  left  undone 
while  off  duty ;  and  thus  impose  liability  for  the  former  even  if  there 
would  have  been  none  for  the  latter  only  ;8T  though  these  cases  must  be 
unusual  and  rest  upon  peculiar  ground. 

§  1915.  Where  the  section  men  of  a  railroad  company, 

having  finished  their  day's  work  and  returned  to  their  homes,  without 
permission  took  out  and  used  the  hand-car  belonging  to  the  company 
on  their  own  private  errands,  and  while  so  doing  negligently  injured 
the  plaintiff,  the  company  was  held  not  liable.68  And  so  where  a  sec- 
tion foreman,  without  the  knowledge  or  permission  of  the  company 
used  the  car  on  Sunday  to  convey  himself  to  the  river  where  he  wished 
to  fish,  the  company  was  held  not  liable  for  his  negligence  in  the  use 
of  the  car  and  tracks.69 

65  Corona   Coal   Co.   v.   White,   158  writer  speaks  of  this  case  as  "rather 
Ala.  627,  20  L.  R.  A.   (N.  S.)   958.  obscure"  because  it  is  inserted  in  the 

66  See   Tijan   v.    Illinois    Steel   Co.,  report  in  an   unusual  manner,   i.   e., 
250  111.  554,  where  defendant  was  held  without  headnotes  or  the  names  of 
liable  for  the  negligence  of  a  servant  counsel  or  briefs.] 

in  doing  what  was  in  general  within  However  sound  this  case  may  be  on 
his  service,  though  he  did  it  during  its  special  facts,  it  certainly  cannot 
an  interval  of  thirty  minutes  al-  be  true  as  a  general  rule  that,  what  a 
lowed  as  a  rest  period.  servant  does  in  departure  from  his 
6?  Thus  in  the  rather  obscure  case  duty,  it  immediately  becomes  his 
of  Chapman  v.  New  York  Central  R.  duty  within  the  course  of  his  em- 
Co.,  33  N.  Y.  369,  88  Am.  Dec.  392,  ployment  to  undo, 
the  defendant  was  held  liable  because  ««  Harrell  v.  Cleveland,  etc.,  R.  R. 
a  servant,  whose  duties  were  of  a  Co.,  27  Ind.  App.  29.  To  same  effect: 
rather  continuing  sort,  including  Branch  v.  International,  etc.,  Ry.  Co., 
work  after  hours  if  he  saw  "anything  92  Tex.  288. 

amiss,"  did  not  put  up  certain  bars  «»  Sammis  v.  Chicago,  etc.,  R.  Co., 

in  a  fence,  even  though  he  took  them  97  111.  App.  28. 

down  himself  when  off  duty.     [The 

( '•"•  •pv 

1490 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  IQl6, 

Where  the  conductor  of  a  street-car,  having  been  relieved  by  another 
conductor,  and  his  work  for  that  day  having  ended,  went  inside  the  car 
to  ride  to  his  home,  and  while  therein,  and  while  the  car  was  under  the 
control  of  the  second  conductor,  signalled  for  the  car  to  start  and 
thereby  injured  the  plaintiff,  it  was  held  that  the  company  was  not 
liable.70 

§  1916.  •  How  question  determined. — The  question  whether 
the  act  complained  of  was  within  the  course  of  the  employment, 
— the  question  whether  the  servant  did  the  act  on  his  own  account 
or  on  his  master's, — the  question  whether  the  servant  has  simply  made 
a  detour  or  has  entirely  departed  from  the  master's  service — these  are 
questions  which,  when  the  facts  are  in  dispute,  or,  though  the  facts  are 
not  in  dispute,  when  more  than  one  inference  can  reasonably  be  drawn 
from  them,  are  questions  for  the  jury  under  proper  instructions  from 
the  court.71 

The  court,  however,  here  as  in  other  similar  cases,  should  carefully 
instruct  the  jury  as  to  the  principles  which  are  involved,  and  the  con- 
siderations which  may  properly  be  taken  into  account  in  arriving  at  a 
conclusion. 

§  1917.  Master's  liability  for  acts  of  independent  contractor. — Al- 
though a  full  discussion  of  the  law  relating  to  independent  contractors 
is  not  within  the  scope  of  this  work,  one  matter  may  well  be  mentioned 
in  this  connection.  The  master's  liability  for  the  acts  of  his  servant, 
within  the  scope  of  his  employment,  depends,  as  has  been  seen,  upon 
the  fact  that  the  relation  of  master  and  servant  exists.  It  is  the  mas- 

TO  Lima  Ry.  Co.  v.  Little,  67  Ohio  Ave.,    etc.,  R.    Co.    v.    Robinson,  125 

St.  91.  Ala.  483;    Lewis  v.  Schultz,  98  Iowa, 

In    Dells    v.    Stollenwerk,    78    Wis.  341;  Deck  v.  B.  &  O.  Ry.  Co.,  100  Md. 

339,     the     defendants     were     house  168,    108    Am.    St.    Rep.    399;    (same 

movers,  who  were  moving  a  house  in  case,  102  Md.  669;   Waters  v.  Pioneer 

which  plaintiff  resided  as  a  tenant.  Fuel  Co.,   52  Minn.   474,   38  Am.   St. 

The  house   was  moved  but  was  left  Rep.  564;   Girvin  v.  N.  Y.  Central  R. 

in  its    new    position    without    steps.  Co.,   166   N.   Y.   289;    Magar  v.   Ham- 

The    plaintiff    requested    two    of    the  mond,  183  N.  Y.  387,  3  L.  R.  A.   (N. 

servants   of   the   defendant   to   erect  S.)    1038;    Jackson  v.  American  Tel. 

some  steps,   which  the  servants   did  Co.,  139  N.   C.   347,  70   L.   R.   A.  738; 

after  their  day's  work  for  defendant  Brennan   v.    Merchant,   205   Pa.    258; 

was  done.     It  was  no  part  of  the  de-  Love  joy  v.  Campbell,  16   S.   D.   231; 

fendant's  duty  to   erect  steps.     The  Bergman   v.    Hendrickson,    106    Wis. 

plaintiff  was  injured  because  of  the  434,  80  Am.   St.  Rep.  47;    St.  Louis, 

faulty  construction  of  the  steps,  but  etc.,  Ry.  Co.  v.  Van  Zant,  101  Ark. 

the    defendant   was    held    not    liable  586. 
therefor.  See  also,  O'Reilly  v.  McCall,  Irish 

71  Limpus  v.   London  General  Om-  Rep.  [1910]  2  K.  B.  42. 
nibus  Co.,  1  H.  &  C.  526;    Highland 

1491 


§  I91?] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


ter's  will  that  is  to  be  exercised ;  his  purpose  that  is  to  be  accomplished  ; 
his  are  the  benefits  and  advantages  which  ensue.  He  selects  his  own 
servant,  puts  him  in  motion,  and  has  the  right  to  direct  and  control  his 
actions.  It  is,  therefore,  held  that  he  should  be  responsible  for  what 
the  servant  does  while  so  employed. 

Where,  however,  the  master  has  not  this  right  of  control  a  different 
rule  prevails.  Neither  reason  nor  justice  requires .  that  he  should  be 
held  responsible  for  the  manner  of  doing  an  act  when  he  had  no  power 
or  right  to  direct  or  control  that  manner.  If,  therefore,  the  masterr 
using  due  care  in  the  selection  of  the  person,  enters  into  a  contract  with 
a  person  exercising  an  independent  employment,  by  virtue  of  which  the 
latter  undertakes  to  accomplish  a  given  result,  being  at  liberty  to  select 
and  employ  his  own  means  and  methods,  and  the  master  retains  no 
right  or  power  to  control  or  direct  the  manner  in  which  the  work  shall 
be  done,  such  a  contract  does  not  create  the  relation  of  master  and  serv- 
ant,72 and  the  person  contracting  for  the  work  is  not  liable  for  the  neg- 
ligence of  the  contractor,  or  of  his  servants  or  agents,  in  the  perform- 
ance of  the  work. 


72  who  is  to  be  regarded  as  an  In- 
dependent  contractor  has  been   con- 
sidered, ante,  §  1870. 

73  See  Myer  v.  Hobbs,  57  Ala.  175, 
29   Am.   Rep.   719;    Bennett  v.  True- 
body,  66  Cal.   509,  56  Am.  Rep.  117; 
Boswell  v.  Laird,  8  Cal.  469,  68  Am. 
Dec.  345;   Atlanta  R.  R.  Co.  v.  Kim- 
berly,   87   Ga.   161,   27   Am.   St.   Rep. 
231;   Ryan  v.  Curran,  64  Ind.  345,  31 
Am.  Rep.  123;    Kellogg  v.  Payne,  21 
Iowa,   575;    James  v.   McMinimy,   93 
Ky.  471,  40  Am.  St.  Rep.  200;  Rumans 
v.  Kelly  &  Brady  Co.,  141  Ky.   827; 
Leavitt  v.  Bangor,  etc.,  R.  R.  Co.,  89 
Me.  509,  36  L.  R.  A.  382;  McCarty  v. 
Second   Parish,  71   Me.   318,   36   Am. 
Rep.     320;     City,    etc.,    Ry.    Co.    v. 
Moores,  80  Md.  348,  45  Am.  St.  Rep. 
345;    Boomer   v.    Wilbur,    176    Mass. 
482,  53  L.  R.  A.  172;    Wood  v.  Cobb, 
13    Allen     (Mass.),    58;     Linton    v. 
Smith,  8  Gray  (Mass.),  147;  Hilliard 
v.  Richardson,  3  Gray    (Mass.),  349, 
63   Am.   Dec.   743;    Carey   v.   Baxter, 
201  Mass.  522;  Corliss  v.  Keown,  207 
Mass.    149;     Wright    v.    Big    Rapids, 
etc.,   Co.,   124   Mich.   91,   50  L.  R.   A. 
495;    De  Forrest  v.  Wright,  2  Mich. 


368;  Kilts  v.  Board  of  Supervisors, 
162  Mich.  646;  Rogers  v.  Parker,  15& 
Mich.  278,  18  Ann.  Cas.  753,  34  L.  R. 
A.  (N.  S.)  955;  City  of  St.  Paul  v. 
Seitz,  3  Minn.  297,  74  Am.  Dec.  753; 
Cuff  v.  Newark,  etc.,  R.  R.  Co.,  35  N. 
J.  L.  17,  10  Am.  Rep.  205;  Engell  v. 
Eureka.  Club,  137  N.  Y.  100,  33  Am. 
St.  Rep.  692;  Hexamer  v.  Webb,  101 
N.  Y.  377,  54  Am.  Rep.  703;  King  v. 
New  York,  etc.,  R.  R.  Co.,  66  N.  Y. 
181,  23  Am.  Rep.  37;  McCafferty  v. 
Spuyten  Duyvil,  etc.,  R.  R.  Co.,  61  N. 
Y.  178,  19  Am.  Rep.  267;  Gay  v. 
Roanoke  Ry.,  148  N.  C.  336;  Clark  v. 
Fry,  8  Ohio  St.  358,  72  Am.  Dec.  590; 
Missouri  K.  &  0.  Ry.  v.  Ferguson,  21 
Okl.  266;  Harrison  v.  Collins,  86  Pa. 
153,  27  Am.  Rep.  699;  Hass  v.  Phila., 
etc.,  Steamship  Co.,  88  Pa.  269,  32 
Am.  Rep.  462;  Sanford  v.  Pawtucket, 
etc.,  R.  R.  Co.,  19  R.  I.  537,  33  L.  R. 
A.  564;  Powell  v.  Construction  Co., 
88  Tenn.  692,  17  Am.  St.  Rep.  925; 
Bailey  v.  Troy  &  Boston  R.  R.  Co.,  57 
Vt.  252,  52  Am.  Rep.  129;  Bibbs 
Admr.  v.  N.  &  W.  R.  R.  Co.,  87  Vav 
711;  Richmond  v.  Sitterding,  101  Va. 
354,  99  Am.  St.  Rep.  879,  65  L.  R.  A. 


149* 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD   PARTIES 


[§    1918 


§ 


This  rule  of  immunity  from  liability  is,  however, 


subject  to  certain  exceptions.  No  one  can  lawfully  delegate  to  an- 
other the  authority  to  do  an  unlawful  act,  nor  can  one,  upon  whom  the 
law  imposes  the  performance  of  a  duty,  relieve  himself  from  respon- 
sibility for  its  non-performance,  by  committing  its  performance  to  a 
substitute.7*  So  if  the  thing  to  be  done  is  in  itself  unlawful,  or  if  it  is 
per  se  a  nuisance,  or  if  it  cannot  be  done  without  doing  damage,  he 
who  causes  it  to  be  done  by  another,  be  the  latter  servant,  agent,  or  in- 
dependent contractor,  is  as  much  liable  for  injuries  which  may  happen 
to  third  persons  from  the  act  done,  as  though  he  had  done  the  act  in 
person.75 

So,  though  the  act  be  not  one  necessarily  resulting  in  injury  but  is 
one  which,  from  its  nature,  will  probably,  unless  precautions  are  taken, 
do  injury  to  others,  it  is,  by  the  weight  of  authority,  the  duty  of  every 
person  who  does  it  in  person  or  causes  it  to  be  done  by  another  to  see 

^£f!l 

445;    Seattle   Lighting    Co.    v.    Haw-      Palmer  v.  Lincoln,  5  Neb.  136,  25  Am. 


ley,  54  Wash.  137;  Gary  v.  Sparkman 
Co.,  62  Wash.  363;  Milligan  v.  Wedge, 
12  Ad.  &  El.  737. 

T*  See  Luce  v.  Holloway,  156  Cal. 
162;  Kuh  v.  Santa  Barbara  Ice  Co., 
157  Cal.  591;  Cabot  v.  Kingman,  166 
*  ass.  403,  33  L.  R.  A.  45;  Sebeck  v. 
Plattdeutsche  Volkfest  Verein,  64  N. 
J.  L.  624,  81  Am.  St.  Rep.  512,  50  L. 
R.  A.  199;  Paltey  v.  Egan,  200  N.  Y. 
83;  Choctaw,  etc.,  R.  Co.  v.  Wilker, 
16  Okla.  384,  3  L.  R.  A.  (N.  S.)  595. 

"  See  Southern  Ry.  v.  Lewis,  165 
Ala.  555,  138  Am.  St.  Rep.  77;  Will- 
iams v.  Fresno  Canal,  etc.,  Co.,  96 
Cal.  14,  31  Am.  St.  Rep.  172;  Nor- 
walk  Gaslight  Co.  v.  Norwalk,  63 
Conn.  495;  Atlanta,  etc.,  R.  Co.  v. 
Kimberly,  87  Ga.  161,  27  Am.  St.  Rep. 
231;  Florsheim  v.  Dullaghan,  58  111. 
App.  593;  Chicago,  etc.,  R.  Co.  v.  Wat- 
kins,  43  Kan.  50;  Baumeister  v. 
Markham,  101  Ky.  122,  72  Am.  St. 
Hep.  397;  American  Car  &  Foundry 
Co.  v.  Spears,  146  Ky.  736;  Kershi- 
shian  v.  Johnson,  210  Mass.  135,  36 
L.  R.  A.  (N.  S.)  402;  McDonnell  v. 
Rifle  Boom  Co.,  71  Mich.  61;  Missis- 
sippi Central  Ry.  v.  Holden,  99  Miss. 
124;  Crisler  v.  Ott,  72  Miss.  166; 
Crenshaw  v.  Ullman,  113  Mo.  633; 
Brannock  v.  Elmore,  114  Mo.  55; 


Rep.  470;  Cuff  v.  Newark,  etc.,  R.  R. 
Co.,  35  N.  J.  L.  17,  10  Am.  Rep.  205; 
McCafferty  v.  Spuyten  Duyvil,  etc.,  R. 
Co.,  61  N.  Y.  178,  19  Am.  Rep.  267; 
Deming  v.  Terminal  Ry.,  169  N.  Y.  1, 
88  Am.  St.  Rep.  521;  Coleman  v. 
State,  134  N.  Y.  564;  Mullins  v.  Sie- 
gel-Cooper  Co.,  95  N.  Y.  App.  Div. 
234,  (affirmed  in  183  N.  Y.  129); 
Braisted  v.  Brooklyn,  etc.,  R.  Co.,  46 
N.  Y.  App.  Div.  204;  Carman  v.  Steu- 
benville,  etc.,  R.  R.  Co.,  4  Ohio  St. 
399;  Cameron  Mill  &  Elevator  Co.  v. 
Anderson,  98  Tex.  156,  1  L.  R.  A.  (N. 
S.)  198;  Whitney  v.  Clifford,  46  Wis. 
138,  32  Am.  Rep.  703;  St.  Paul  Water 
Co.  v.  Ware,  16  Wall.  (U.  S.)  566. 
21  L.  Ed.  485;  Ellis  v.  Sheffield  Gas, 
etc.,  00.7  2  El.  &  B.  767 ;  Hardaker  v. 
District  Council,  [1896]  1  Q.  B.  335; 
Hill  v.  District  Council,  79  L.  T.  Rep. 
495. 

Compare  Kendal  v.  Johnson,  51 
Wash.  477;  Seattle  Lighting  Co.  v. 
Hawley,  54  Wash.  107;  Richmond  v. 
Sitterding.  101  Va.  354,  99  Am.  St.  Rep. 
&79,  65  L.  R.  A.  445;  Norfolk  W.  R. 
Co.  v.  Stevens,  97  Va.  631,  46  L.  R.  A. 
367;  Rogers  v.  Parker,  159  Mich.  278, 
18  Ann.  Gas.  753,  34  L.  R.  A.  (N.  S.) 
955;  Laffery  v.  United  States  Gyp- 
sum Co.,  83  Kan.  349. 


1493 


§§    I9I9-I921]  THE  LAW  OF  AGENCY 


[BOOK  iv 


to  it  that  those  precautions  are  taken,  and  he  cannot  escape  this  duty 
by  turning  the  whole  performance  over  to  a  contractor.76 

§  1919.  The  fact  that  the  contractor  expressly  agrees  to 

assume  responsibility  for  injuries  cannot,  of  course,  relieve  the  em- 
ployer if  otherwise  liable.77 

§  1920.  Even  though  the  employer  might  not  be  liable  for 

injuries  happening  during  the  progress  of  the  work,  liability  may  at- 
tach to  him  where  he  has  resumed  possession  and  control  of  the  prem- 
ises and  the  injury  results  from  the  condition  in  which  they  are  main- 
tained.78 

§  1921.  Effect  of  ratification. — It  has  been  seen  in  an  earlier  por- 
tion of  the  work  that  a  principal  may  with  a  full  knowledge  of  the  facts, 
render  himself  liable  by  his  ratification  not  only  of  his  agent's  unau- 
thorized contract,  but  also  of  his  unauthorized  tort.79 

The  same  rules  also  apply  in  general  where  the  relation  is  that  of 
master  and  servant,  as  has  been  seen  in  the  same  place. 

This  question  has  been  so  fully  treated  there,  that  there  is  no  occasion 
for  a  further  discussion  of  it  here. 


78  See  Norwalk  Gaslight  Co.  v. 
Norwalk,  63  Conn.  495;  Wilson  v. 
White,  71  Ga.  506,  51  Am.  Rep.  269; 
Joliet  v.  Harwood,  86  111.  110,  29  Am. 
Rep.  17;  Jefferson  v.  Chapman,  127 
111.  438, 11  Am.  St.  Rep.  136;  James  v. 
McMinimy,  93  Ky.  471,  40  Am.  St.  Rep. 
200;  Philadelphia,  etc.,  Ry.  Co.  v. 
Mitchell,  107  Md.  600,  17  L.  R.  A.  (N. 
S.)  974;  Curtis  v.  Riley,  153  Mass. 
123;  Thompson  v.  Lowell,  etc.,  R.  Co., 
170  Mass.  577,  64  Am.  St.  Rep.  323,  40 
L.  R.  A.  345;  Weatherbee  v.  Par- 
tridge, 175  Mass.  185,  78  Am.  St.  Rep. 
486;  Carleton  Co.  Ins.  Co.  v.  Foley, 
117  Minn.  59,  38  L.  R.  A.  (N.  S.)  175; 
Omaha  v.  Jensen,  35  Neb.  68,  37  Am. 
St.  R.  432;  Thomas  v.  Harrington,  72 
N.  H.  45,  65  L.  R.  A.  742;  Hunter  v. 
Southern  Ry.  Co.,  152  N.  Car.  682, 
136  Am.  St.  Rep.  854,  29  L.  R.  A.  (N. 
S.)  851;  Hawver  v.  Whalen,  49  Ohio 
St.  69,  14  L.  R.  A.  828;  Southern  O. 
R.  Co.  v.  Morey,  47  Ohio  St.  207,  7  L. 
R.  A.  701;  McCarrier  v.  Hollister,  15 
S.  Dak.  366,  91  Am.  St.  Rep.  695;  Mc- 
Harg  v.  Newcomer,  117  Tenn.  595,  9 
L.  R.  A.  (N.  S.)  298;  Cameron  Mill 


-4  .LA.gr 

Co.  v.  Anderson,  98  Tex.  156,  1  L.  R. 
A.  (N.  S.)  198;  Walton  v.  Cherokee 
Colliery  Co.,  70  W.  Va.  48. 

Compare  Berg  v.  Parsons,  156  N. 
Y.  107,  66  Am.  St.  Rep.  542,  41  L.  R. 
A.  391;  Deming  v.  Terminal  Ry.  Co., 
169  N.  Y.  1,  88  Am.  St.  Rep.  521. 

77  Storrs  v.  City  of  Utica,  17  N.  Y. 
104,  72  Am.  Dec.  437. 

78  See  Sturgis  v.  Society,  130  Mass. 
414,    39    Am.    Rep.    463;     Young    v. 
Smith,  124  Ga.  475,  4  Ann.  Cas.  226; 
Sipe  v.  Pennsylvania  R.  R.,  222  Pa. 
400;    McCrorey   v.   Thomas,   109   Va. 
373,  17  Ann.  Cas.  373. 

.See  also,  Taylor  v.  Winsor,  30  R.  I. 
44.  After  an  acceptance  of  the  work 
by  the  proprietor  the  independent 
contractor  ceases  to  be  liable  to  third 
persons  for  results  of  its  condition. 
Curtin  v.  Somerset,  140  Pa.  70,  23 
Am.  St.  Rep.  220,  12  L.  R.  A.  322 
(building  negligently  constructed); 
Daugherty  v.  Herzog,  145  Ind.  255 
(idem),  57  Am.  St.  Rep.  204,  32  L. 
L.  A.  837. 

79  See  ante,  §  357. 


1494 


.v    ifc>... 


CHAP.    VJ        LIABILITY    OF    PRINCIPAL   TO   THIRD    PARTY       [§§    1922-1924 

4.  Liability  for  Trespass  or  Conversion. 

T  J    I  f 

§  1922.  Liable  for  trespass  or  conversion  in  course  of  employ- 
ment.— Even  though  the  agent  or  servant  may  not  have  been  guilty 
of  anything  which  may  technically  be  termed  negligence  he  may  yet 
without  any  wilful  or  malicious  purpose  of  his  own  and  solely  in  the  ef- 
fort to  perform  the  principal's  or  master's  business,  have  trespassed 
upon  the  person  or  property  of  another  or  converted  the  latter's  prop- 
erty to  the  master's  use.  Where  this  is  the  direct  and  immediate  result 
of  the  master's  directions  the  liability  would  be  plain.  So  it  would  where 
it  is  the  result  of  the  master's  failure  to  give  reasonably  specific  direc- 
tions or  instructions,  or  of  his  other  similarly  misleading  conduct.  But 
even  in  other  cases,  if  what  the  servant  or  agent  did  is  fairly  to  be  re- 
garded as  a  natural  and  proximate  consequence  of  what  he  was  set  to 
do,  and  was  done  during  and  as  a  part  of  that  act  for  the  master's  bene- 
fit—it will  be  an  act  within  the  course  of  the  employment  for  which  the 
master  will  be  liable. 

§  1923.  Special  cases. — Where  the  principal  or  master 

owed  to  the  person  injured  a  special  duty  of  protection,  as  in  the  case 
of  a  carrier  of  passengers,  an  innkeeper,  and  the  like,  and  the  servant 
or  agent  to  whom  the  performance  of  that  duty  has  been  confided  has 
failed  to  perform  it ;  or  where  the  principal  or  master  has  expressly  or 
by  implication  authorized  the  use  of  force  and  the  agent  or  servant  has 
used  excessive  force ;  or  where  the  principal  or  master  has  confided  to 
the  care  of  the  agent  or  servant  some  specially  dangerous  instrumen- 
tality, and  he  has-  used  or  permitted  it  to  be  used  to  the  injury  of  third 
persons ; — special  cases  which  are  more  fully  considered  in  the  sub- 
division relating  to  wilful  or  malicious  acts — a  liability  for  trespass  to 
person  or  property  may  attach  based  upon  those  special  circumstances, 
even  though  the  act  was  not  wilful  or  malicious,  but  simply  an  inten- 
tional though  mistaken  act  done  for  the  principal's  or  master's  bene- 
fit. If  there  would  be  liability  where  the  act  was  wilful  or  malicious,  a 
fortiori  would  there  usually  be  where  the  motive  was  to  benefit  the 
employer.  The  question  has  been  so  fully  considered  in  the  other  sub- 
division, that  it  seems  to  be  unnecessary  to  repeat  the  discussion  here. 

§  1924.  Illustrations. — Illustrations  of  the  application  of 

these  general  rules  are  numerous.  A  small  selection  from  them  is  all 
that  can  be  attempted.  The  majority  belong  rather  in  the  field  of  Mas- 
ter and  Servant  than  of  Principal  and  Agent.  Thus  where  the  prin- 
cipal instmcted  his  agent  to  get  a  certain  team  of  horses,  intending 
that  the  agent  should  get  the  owner's  consent  before  taking  the  team, 
but  the  agent,  misunderstanding  the  instructions,  took  the  horses  with- 

1495 


§  i925] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


out  getting  the  owner's  consent,  and  in  using  them  in  the  principal's 
business  killed  one  of  them,  it  was  held  the  principal  was  liable  in  tres- 
pass.80 The  same  ruling  was  made  where  a  father  sent  his  son  to  get 
six  heifers  from  a  certain  pasture,  and  the  son,  not  finding  them  all 
there,  searched  for  them  in  the  vicinity  and  having  found  part  of  them 
in  the  plaintiff's  pasture,  drove  off  with  them,  by  mistake,  two  heifers 
belonging  to  the  plaintiff  ;81  where  a  master  sent  his  servant  to  get  some 
lumber  belonging  to  him  at  a  saw-mill,  telling  him  to  inquire  of  the  saw- 
yer, who  would  inform  him  which  was  the  lumber,  and  the  servant  in- 
quired. but  was  given  such  indefinite  directions  that  by  mistake  he  took 
the  plaintiff's  lumber;82  and  where  a  servant  being  sent  to  cut  trees  in 
a  certain  direction,  inadvertently  cut  some  on  plaintiff's  land.83 

§  1925.  Not  liable  if  act  were  not  within  course  of  employment.  — 
Equally  clear  here  as  in  other  cases,  of  course,  is  the  conclusion  that 
the  master  is  not  liable  if,  in  the  act  in  question,  the  servant  was  not 
the  servant  of  the  defendant  or,  if  he  were,  if  the  act  was  not  one  done 
within  the  course  of  the  employment.8* 


soMoir  v.  Hopkins,  16  111.  313,  63 
Am.  Dec.  312.  So  where  a  mortgagee 
sent  an  agent  to  take  the  mortgaged 
goods  for  the  purpose  of  foreclosure, 
intending  and  directing  that  they 
should  be  taken  without  the  use  of 
force,  but  the  agent  broke  doors  and 
locks  to  get  the  goods,  the  principal 
was  held  liable.  Williams  v.  Tolbert, 
76  S.  Car.  211. 

si  Andrus  v.  Howard,  36  Vt.  248,  84 
Am.  Dec.  680.  Much 'to  same  effect. 
McAlary  v.  Stafford,  2  S.  R.  (N.  S. 
Wales)  386. 

82  May  v.  Bliss,  22  Vt.  477.  Where 
the  master  sent  his  servant  to  kill  a 
beef  at  a  certain  place,  and  the  serv- 
ant went  to  the  place  and  in  good 
faith  killed  the  only  animal  he 
found  there,  although  the  animal,  un- 
known to  the  servant,  was  the  plain- 
tiff's, defendant  was  held  liable. 
Maier  v.  Randolph,  33  Kan.  340. 

as  Luttrell  v.  Hazen,  3  Sneed 
(Tenn.),  20.  The  defendant  in- 
structed his  servant  to  keep  the 
plaintiff's  hogs  out  of  the  corn,  and 
incidentally  remarked  that  if  he  (the 
defendant)  had  to  run  after  the  hogs, 
he  would  kill  them.  The  servant 


seized  the  hogs  and  took  them  to  an- 
other farm  of  the  defendant  twenty- 
five  miles  away  and  in  an  adjoining 
state.  Held,  the  defendant  was  lia- 
ble for  the  conversion.  Burnett  v. 
Oechsner,  92  Tex.  588,  71  Am.  St. 
Rep.  880. 

s*  A  master  is  not  liable  for  a  con- 
version because  his  servant,  without 
the  master's  knowledge  and  for  no 
purpose  connected  with  his  business, 
receives  goods  from  a  sheriff  who 
has  wrongfully  levied  upon,  and  re- 
fuses upon  demand  to  deliver  them 
to  the  rightful  owner.  Vandeymark 
v.  Corbett,  131  N.  Y.  App.  Div.  391. 
See  also,  McCarthy  v.  McCabe,  131 
N.  Y.  App.  Div.  396. 

A  master  who  is  a  professional 
photographer  is  not  liable  where  his 
servant,  without  the  master's  knowl- 
edge or  consent,  and  for  a  price  paid 
to  the  servant,  "pirates"  or  duplicates 
a  copyrighted  photograph  in  the  mas- 
ter's possession.  Shaw  v.  Tomlinson, 
25  N.  Zeal.  L.  R.  612.  A  master  is 
not  responsible  where  his  servant 
wrongfully  loans  property  of  a  third 
person  in  the  master's  possession  and 
it  is  consequently  injured.  Hart  v. 


I496 


CHAP.    V]  LIABILITY  OF   PRINCIPAL   TO   THIRD   PARTIES  [§    1926 

5.  Liability  for  Wilful  or  Malicious  Acts  of  Servant, 

D  C.         T  1  1HM     "I  -4.      •  11  4-i.l       J      -ul.       4.     ^  •  '  1 

§  1926.  In  general. — While  it  is  well  settled  that  the  principal  or 
master  is  responsible  to  third  persons  for  the  negligent  act  of  his  serv- 
ant or  agent,  committed  within  the  scope  of  his  authority,  it  has  been 
held  in  many  cases  that  he  is  not  liable  for  the  agent's  wilful  or  ma- 
licious act.  In  the  language  of  Judge  Cowen,85  which  fairly  states  the 
doctrine  of  these  cases,  "the  dividing  line  is  the  wilfulness  of  the  act." 

The  statement  is  not  infrequently  made  that  the  distinction  between 
the  liability  of  the  master  for  negligent  acts  and  his  liability  for  wilful 
or  malicious  acts  is  merely  one  of  pleading,  or  at  least  that  it  originated 
in  a  mere  question  of  pleading.  If,  however,  the  following  considera- 
tions have  any  weight,  it  will  be  seen  to  be  something  more  than  that, 
though  it  is  true  that  in  some  of  the  early  cases  its  significance  seemed 
largely  formal. 

It  is  perhaps  not  strange  that  a  distinction  in  the  master's  respon- 
sibility for  negligent  acts  and  for  wilful  acts  should  constantly  present 
itself.  The  very  idea  of  negligence  in  the  servant  suggests  the  case 
wherein  the  servant  is  performing  the  master's  business,  but  doing  it 
heedlessly,  inattentively,  without  definite  purpose,  without  sufficient 
mental  attention  to  it  to  do  it  properly.  When,  however,  it  is  suggested 
that  the  servant  was  acting  wilfully  a  different  situation  presents  it- 
self. Instead  of  mental  inaction,  mental  activity  is  the  situation  at  once 
presented.  Instead  of  purposeless  inattention,  a  definite  purpose,  a  dis- 
tinct motive  is  now  suggested,  and  whose  motive  is  it?  At  this 
point  a  further  distinction  must  be  observed.  What  is  meant  by  "wil- 
fully"? It  may  mean  no  more  than  a  conscious  purpose  and  intent  to 
perform  the  master's  business,  and  in  this  view  is  wholly  commenda- 
ble and  in  furtherance  of  the  master's  interests.  It  may  mean  simply 
a  dogged,  obstinate  determination  to  perform  the  master's  business,  be- 
cause he  was  directed  to  perform  it.  It  may  mean. a  reckless  or  wan- 
ton determination  to  perform  the  master's  business,  because  it  is  such, 
but  regardless  of  the  consequences  of  doing  it  then  or  there.  On  the 
other  hand,  the  expression  may  be  used,  in  the  language  of  the  Century 
dictionary,  "with  an  implication  of  evil  intent  or  legal  malice,  or  with 
absence  of  reasonable  ground  for  believing  the  act  in  question  to  be 
lawful."  It  is  undoubtedly  in  this  latter  sense  that  the  expression  is 

Maney,    12    Wash.  266;   or    where    a      doing  so  kills  one  of  them.     Oxford 
servant  who    has    been    directed  to      v.  Peter,  28  111.  434. 
drive    a    trespassing    steer    out  of  a  »s  in  Wright  v.  Wilcox,   19  Wend, 

field,  does  so  and  then  also  pursues       (N.  Y.J  343,  32  Am.  Dec.  507. 
other   cattle   found   near  by   and   in 

1497 


§§    1927,  1928]  THE  LAW  OF  AGENCY  [«OOK    IV 

ordinarily  used  in  this  connection.  Inasmuch  as  it  can  rarely  be  sup- 
posed that  the  master  has  authorized  or  directed  a  wilful  or  malicious 
act,  the  conclusion  seems  now  natural  and  reasonable  that  the  servant 
is  effectuating  his  own  purpose  and  motive,  and  that  for  the  time  be- 
ing, at  least,  he  has  ceased  to  represent  his  master.  What  he  does,  then, 
while  so  acting,  is,  it  is  said,  his  own  act  and  not  the  act  of  his  master. 

§  1927.  Before  accepting  these  conclusions,  however,  a 

number  of  considerations  must  be  taken  into  account.  If  the  servant 
or  agent,  even  though  for  a  short  period,  goes  outside  of  his  employ- 
ment,— if  abandoning  his  service,  though  even  for  a  moment,  he  steps 
aside  to  commit  an  act  which  has  no  relation  to  his  master's  business, 
which  is  in  no  way  incident  to  it,  which  has  no  tendency  to  further  or 
promote  it,  and  which  was  done  merely  to  accomplish  some  wilful  or 
malicious  purpose  of  the  servant  only,  it  may  well  be  that  the  master 
should  not  be  held  responsible.  But  if,  on  the  other  hand,  the  act  be 
one  which  the  servant  might,  as  such,  perform  with  a  proper  motive ; 
if  the  act  be  incident  to  the  employment;  if  it  be  done  to  further  the 
master's  interests  and  not  the  servant's ;  if  the  master's  business  was 
thereby  done  or  attempted  to  be  done,  although  the  motive  which 
prompted  the  doing  of  it  at  that  time  or  place  or  in  that  manner,  was 
a  wanton  or  wilful  or  malicious  one,  a  different  conclusion  might  be 
justified.  Is  it  anything  else  than  doing  the  master's  business — with  a 
different  and  perhaps  a  wrong  motive  it  may  be,  but  still  a  performance 
of  the  master's  business  ? 

§  1928.  These  considerations  would  seem  to  lead  to  a 

variety  of  conclusions.  If  the  act  be  one  which  is  not  at  all  within  the 
scope  of  the  agent's  authority  or  within  the  course  of  the  servant's  em- 
ployment, the  question  of  the  motive  is  usually  not  material.  Such  an 
act,  even  if  done  with  a  good  motive  and  with  an  intent  to  benefit  the 
principal  or  master,  does  not  bind  him.  No  more  can  it  bind  him  if  it 
were  done  with  a  wrong  motive.  It  is  simply  an  unauthorized  act,  and, 
unless  ratified,  binds  the  servant  or  agent  only. 

On  the  other  hand,  if  the  act  were  within  the  scope  of  the  authority 
or  within  the  course  of  the  employment,  the  question  of  the  motive  may 
become  material.  If  the  act  were  done  negligently  merely,  the  princi- 
pal or  master  would  be  liable,  as  has  been  seen.  If  the  act  be  one  within 
the  scope  of  the  authority  or  within  the  course  of  the  employment,  but 
the  servant  or  agent  did  it  at  an  improper  time  or  under  improper  cir- 
cumstances in  order  to  perform  his  service,  even  though  he  saw  or 
might  have  seen  that  by  performing  it  at  that  time  or  under  those  cir- 
cumstances he  would  injure  some  one,  this  would  ordinarily  be  merely 

1498 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1929,  1930 

recklessness  or  wantonness  in  the  performance  of  the  service,  and  the 
principal  or  master  would  ordinarily  be  liable.  If,  however,  the  agent 
or  servant,  while  purporting  to  act  for  his  principal  or  master,  or  while 
acting  generally  for  him,  takes  advantage  of  the  occasion  or  the  oppor- 
tunity to  do  some  act  which  might  under  other  circumstances  bind  the 
principal  or  master,  but  which  he  does  on  the  given  occasion,  not  for 
the  master's  purposes  or  with  a  design  to  perform  the  service  as  such, 
but  solely  for  some  purpose  or  malice  or  spitefulness  of  his  own,  the 
principal  or  master  is  not  bound.  As  to  that  act,  so  done,  the  agency 
or  service  does  not  exist. 

§  1929.  It  is  obvious,  therefore,  that  the  question  of  the 

principal's  or  master's  liability  cannot  always  be  determined  merely  by 
putting  a  label  upon  the  motive.  The  motive  is  important,  but  it  is 
important  not  so  much  for  the  purpose  of  determining  how  the  act  was 
done  as  to  aid  in  deciding  whose  act  it  was.  Certain  it  is,  at  any  rate, 
that  the  tendency  of  the  modern  cases  is  to  attach  less  importance  to 
the  motive  with  which  the  act  was  done,  and  to  give  more  attention  to 
the  question  as  to  whose  business  was  being  done  and  whose  general 
purposes  were  being  promoted.  Some  investigation  of  these  cases  i? 
now  essential,  though  most  of  them  lie  rather  in  the  field  of  Master  and 
Servant  than  in  that  of  Principal  and  Agent.  It  is  obviously  imprac- 
ticable here  to  attempt  to  cite  or  otherwise  deal  with  all  of  the  many 
cases  which  now  exist :  a  discussion  of  their  general  conclusions  with 
a  sufficient  citation  to  furnish  illustrations,  is  all  that  can  be  here  at 
tempted. 

§  1930.  Special  classes  of  cases. — While  the  general  lia- 
bility of  the  master  in  these  cases  was  still  more  or  less  in  doubt,  there 
were  developed  several  .groups  of  cases  in  which  it  is  sometimes  said 
that,  by  reason  of  the  peculiar  nature  of  the  master's  duty,  the  essential 
ground  of  complaint  is  simply  that  the  duty  was  not  performed,  and 
if  in  such  cases  the  master  confides  its  performance  to  his  servant,  the 
question  of  the  motive  from  which  the  servant  failed  to  perform  the 
duty  can  have  no  effect  except,  perhaps,  to  aggravate  the  consequences 
of  the  nonperformance.  Before  taking  up  the  question  of  the  mas- 
ter's general  liability  for  his  servant's  wilful  or  malicious  acts  it  may  be 
well  to  consider  these  cases  which  are  supposed  to  stand  upon  some  pe- 
culiar ground. 

The  cases  of  this  sort  have  largely  grouped  themselves  together  into 
three  classes :  i.  Where  the  principal  or  master  owes  some  specific  and 
positive  duty  to  the  person  injured ;  2.  Where  he  confides  to  the  serv- 
ant or  agent  the  care  of  some  specially  dangerous  instrumentality ;  and 

1499 


§§    I93I~1933]  THE  LAW  OF  AGENCY  [BOOK    IV 

3.  Where  the  master  confides  to  the  servant  or  agent  the  performance 
of  duties  involving  the  exercise  of  force  toward  third  persons. 

§  1931.  I.  Where  the  master  owed  the  plaintiff  a  special  duty. — 
It  is  not  infrequently  said  that  where  the  principal  or  master  owes  to 
the  plaintiff  the  performance  of  some  specific  and  positive  duty,  and 
confides  the  performance  of  this  duty  to  a  servant  or  agent,  he  will  be 
responsible  to  the  plaintiff  if  the  duty  be  not  performed  by  such  serv- 
ant or  agent ;  and  in  such  a  case,  the  fact  that  the  servant  or  agent  acted 
wantonly,  wilfully  or  maliciously,  will,  instead  of  tending  to  exonerate 
the  principal  or  master,  only  serve  to  aggravate  the  injury.  The  gist 
of  the  complaint  is  that  the  duty  has  not  been  performed,  and  this  is 
the  fact,  while  to  this  wrong  of  nonperformance,  there  is  added  the  ag- 
gravating circumstance  that  the  nonperformance  was  wanton,  wilful 
or  malicious. 

§  1932. Non-delegable  duties. — There  are  some  cases  in 

which  one  person  owes  to  another  what  is  sometimes  termed  an  abso- 
lute or  non-delegable  duty.  Of  this  sort,  as  has  been  seen,  is  often  said 
to  be  the  duty  of  a  master  to  his  servants  with  reference  to  furnishing 
a  reasonably  safe  place  in  which  to  work,  reasonably  safe  tools  and 
equipment,  and  the  like.  Where  the  duty  is  of  this  sort,  the  master  is, 
as  has  been  seen,  liable  if  the  servant  or  agent,  to  whom  he  confides  the 
performance  of  it,  does  not  perform  it,86  and  the  fact  that  the  servant's 
own  bad  motive  caused  the  non-performance  would  furnish  no  excuse. 

§  I933-  " Rule  applied  to  carriers  of  passengers. — This  the- 
ory has  often  been  advanced,  for  example,  in  the  case  of  carriers  of  pas- 
sengers who  owe  a  special  duty  of  care  to  the  passengers  who  commit 
the  safety  of  their  persons  to  the  keeping  of  the  carrier.  While  car- 
riers of  persons  are  not  insurers  of  the  safety  of  their  passengers  while 
in  transit,  they  are  bound  to  exercise  the  highest  degree  of  care  for 
their  safety  and  protection.87  Their  duty  extends  not  only  to  the  ex- 
ercise of  such  care  to  protect  against  the  inanimate  agencies  employed, 
but  also  against  attacks  by  persons  within  and  without  the  conveyance ; 
not  only  this,  but  there  is  also  an  implied  stipulation  on  their  part,  says 
Judge  Story,  "not  for  protection  merely,  but  for  respectful  treatment, 

se  See  ante,  §§  1639  et  seq.  proval,  the  statement  in  Taylor  on 
ST  In  Chesapeake,  etc.,  Ry.  Co.  v.  Private  Corporations  (§  347,  2d  ed.) : 
Francisco,  149  Ky.  307,  the  court  "While  a  carrier  does  not  insure  his 
speaks  of  the  duty  of  the  carrier  as  passengers  against  every  conceivable 
one  independent  of  any  degree  of  danger,  he  is  held  absolutely  to  agree 
care.  In  New  Orleans,  etc.,  R.  Co.  v.  that  his  own  servants  engaged  in 
Jopes,  142  U.  S.  18,  the  court,  per  transporting  the  passenger  shall  corn- 
Brewer,  J.,  quotes,  with  apparent  ap-  mit  no  wrongful  act  against  him." 

1500 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD   PARTIES  [§    1934 

for  that  decency  of  demeanor  which  constitutes  the  charm  of  social  life, 
for  that  attention  which  mitigates  evils  without  reluctance,  and  that 
promptitude  which  administers  aid  to  distress.  In  respect  to  females, 
it  proceeds  yet  further ;  it  includes  an  implied  stipulation  against  gen- 
eral obscenity,  that  immodesty  of  approach  which  borders  on  lascivious 
ness  and  against  that  wanton  disregard  of  the  feelings  which  aggra- 
vates every  evil."  If  the  master  commits  the  performance  of  this  duty 
to  his  servant,  he  must  answer  for  the  servant's  nonperformance  of  it. 
If  he  would  be  answerable  for  a  failure  to  protect  the  passenger  as 
against  strangers,  a  fortiori  is  he  liable  where  the  assailant  is  not  a 
stranger  but  his  own  servant. 

As  has  been  often  pointed  out,  the  liability  in  these  cases  does  not 
rest  so  much  upon  the  doctrine  of  respondeat  superior,  as  upon  the  non- 
performance  of  a.  special  duty. 

§  1934.  Illustrations  of  the  carrier  cases. — This  principle 

has  been  applied  in  a  great  variety  of  cases.  Thus  where  a  railway 
brakeman  assaulted  and  grossly  insulted  a  passenger,  upon  the  false 
pretense  that  the  passenger  had  not  surrendered  his  ticket,  the  company 
was  held  liable.88  And  the  same  result  ensued  where  the  conductor  of 
a  passenger  train  had  wilfully  and  wrongfully  caused  passengers  to  be 
ejected  from  the  train  ;RO  where  the  steward  and  some  of  the  table  wait- 
ers upon  a  passenger-boat  wrongfully  and  without  provocation  as- 
saulted a  passenger  ;90  where  the  conductor  of  a  passenger  train  kissed 
a  female  passenger  against  her  will  ;91  where  a  brakeman  struck  a  pas- 
senger in  the  face  with  a  lantern  because  the  passenger,  who  had  lost  his 
watch,  said  he  thought  the  brakeman  had  it;92  where  the  driver  of  a 
street  railroad  car  maliciously  assaulted  a  passenger  because  the  pas- 
senger expostulated  with  the  driver  about  an  assault  made  by  the  driver 
upon  another  person  outside  the  car  ;9S  and  where  a  railway  brakeman 
made  a  malicious  assault  upon  a  passenger  who  had  attempted  to  enter 
the  wrong  car.9* 

ss  Goddard  v.  Grand  Trunk  Ry.,  57  »2  Chicago  &  Eastern  R.  R.  Co.  v. 

Me.  202,  2  Am.  Rep.  39.  Flexman,  103  111.  546,  42  Am.  Rep.  33. 

so  Passenger  R.  R.  Co.  v.  Young,  »s  Stewart  v.  Brooklyn,  etc.,  R.  R. 

21  Ohio  St.  518,  8  Am.  Rep.  78.  Co.,  90  N.  Y.  588,  43  Am.  Rep.  185. 

»o  Bryant  v.  Rich,  106  Mass.  180,  8  »*  McKinley  v.  Chicago  &  N.  W.  Ry. 

Am.  Rep.  311;  same  point,  Sherley  v.  Co.,  44  Iowa,  314,  24  Am.  Rep.  748. 

Billings,  8  Bush  (Ky.)  147,  8  Am.  The  same  rule  is  applied  where  the 

Rep.  451.  conductor  struck  a  passenger,  his 

91  Craker  v.  Chicago  &  N.  W.  Ry.  anger  aroused  by  an  insulting  epithet 

Co.,  36  Wis.  657,  17  Am.  Rep.  504.  used  by  the  passenger.  Baltimore, 

See  also  Strother  v.  Railroad  Co.,  123  etc.,  R.  Co.  v.  Barger,  80  Md.  23,  45 

N.  Car.  197;  Pick  v.  Chicago,  etc.,  R.  Am.  St.  Rep.  319,  26  L.  R.  A.  220; 

Co.,  68  Wis.  469,  60  Am.  Rep.  878.  Williams  v.  Gill,  122  N.  Car.  967. 


§    1935]  THE  LAW  OF  AGENCY 


[BOOK  iv 


§  I935-  Plaintiff  provoking  assault. — But  where  a  pro- 
spective passenger,  while  seeking  to  get  his  trunk  checked,  provoked 
a  personal  quarrel  with  the  baggage-master  and  was  struck  by  the  lat- 
ter as  an  act  of  personal  resentment,  it  was  held  that  the  company  was 
not  liable.05  Whether  the  same  court,  however,  would  now  decide  this 
case  in  the  same  way,  may  perhaps  be  questionable,86  though  the  court 


And  where  a  street-car  conductor,  in- 
censed at  a  passenger  for  pulling  the 
bell  cord,  struck  him.  Birmingham, 
etc.,  Co.  v.  Baird,  130  Ala.  334,  89  Am. 
St.  Rep.  43,  54  L.  R.  A.  752.  A  street 
car  company  was  held  where  its 
motorman  grossly  insulted  a  woman' 
passenger,  although  he  did  not  at- 
tempt to  touch  her.  Knoxville  Trac- 
tion Co.  v.  Lane,  103  Tenn.  376,  46 
L.  R.  A.  549.  And  where  a  Pullman 
porter  refused  to  redeliver  a  ticket 
to  a  passenger,  and,  upon  remon- 
strance knocked  him  down,  there  was 
held  to  be  evidence  on  which  a  jury 
should  pass  as  to  whether  he  was 
acting  in  the  scope  of  his  employ- 
ment. Dwinelle  v.  N.  Y.  Cent.,  etc., 
R.  R.  Co.,  120  N.  Y.  117,  17  Am.  St. 
Rep.  611,  8  L.  R.  A.  224.  Also  where 
a  baggageman  made  an  unprovoked 
assault  on  a  passenger.  Haver  v. 
Central  R.  R.  Co.,  62  N.  J.  L.  282,  72 
Am.  St.  Rep.  647,  43  L.  R.  A.  84  (but 
see  s.  c.  64  N.  J.  L.  312).  Likewise 
where  excessive  and  unnecessary 
force  was  used  in  compelling  a  sec- 
ond-class passenger  to  keep  on  the 
second-class  deck.  New  Jersey  Steam- 
boat Co.  v.  Brockett,  121  U.  S.  637,  30 
L,  Ed.  1049.  So  a  carrier  was  held 
liable  for  the  unauthorized  act  of  its 
conductor  in  causing  the  arrest  of 
the  plaintiff  in  order  to  detain  him 
as  a  witness.  New  York,  etc.,  R.  Cp. 
v.  Waldron,  116  Md.  441,  39  L.  R.  A. 
(N.  S.)  502.  Again,  where  an  audi- 
tor in  charge  of  a  train  falsely  ac- 
cused a  passenger  of  having  stolen 
his  fob  and  procured  his  arrest,  the 
carrier  was  held  liable.  Moore  v. 
La.  &  Ark.  Ry.  Co.,  99  Ark.  233,  34 
L.  R.  A.  (N.  S.)  299.  See  also  Berry 
v.  Carolina,  etc.,  R.,  155  N.  C.  287; 
Hull  v.  Boston  &  M.  R.  R.,  210  Mass. 


159,  36  L.  R.  A.  (N.  S.)  406;  Atchi- 
son,  etc.,  R.  Co.  v.  Henry,  55  Kan. 
715,  29  L.  R.  A.  465;  Western,  etc., 
R.  Co.  v.  Turner,  72  Ga.  292,  53 
Am.  Rep.  842  (assault  upon  one  seek- 
ing to  be  taken  as  a  passenger). 

In  Penny  v.  Atlantic,  etc.,  R.  R. 
Co.,  133  N.  C.  221,  63  L.  R.  A.  497,  a 
passenger  was  shot  by  a  person  who 
was  trying  to  shoot  one  of  the  de- 
fendant's train  crew.  Held,  the  de- 
fendant owed  the  same  duty  to  use 
due  care  to  warn  the  passenger,  as 
It  would  to  protect  him  from  direct 
assaults. 

In  Gooch  v.  Birmingham  Ry.,  etc., 

Co.,  --  Ala.  ,  58  South.  196,  it  was 

held  that  the  act  of  the  defendant's 
motorman  in  renewing  a  quarrel 
with  a  passenger  who  had  alighted 
and  causing  the  latter  to  shoot  at  the 
motorman  and  hit  the  plaintiff,  a  pas- 
senger, was  in  violation  of  the  duty 
the  defendant  owed  to  protect  its 
passengers. 

In  May  v.  Shreveport  Traction  Co., 
127  La.  420,  32  L.  R.  A.  (N.  S.)  206, 
where  a  white  passenger  on  a  street 
car  was  insulted  by  the  conductor, 
telling  her  that  she  belonged  in  the 
colored  section,  the  company  was 
held  liable. 

»5  Little  Miami  R.  R.  Co.  v.  Wet- 
more,  19  Ohio  St.  110,  2  Am.  Rep.  373. 
There  was  evidence  of  abusive  lan- 
guage by  the  passenger,  and  some 
evidence  of  assault,  but  the  court 
does  not  put  the  case  upon  the  ground 
of  self-defense.  See  also,  Peavy  v. 
Georgia  R.  Co.,  81  Ga.  485,  12  Am.  St. 
Rep.  334;  Harrison  v.  Fink,  42  Fed. 
787. 

so  Passenger  R.  R.  Co.  v.  Young,  21 
Ohio  St.  518,  8  Am.  Rep.  78;  Strana- 
han  Co.  v.  Coit,  55  Ohio  St.  398,  4  L. 


1502 


CHAP.    V]  LIABILITY   OF   PRINCIPAL   TO   THIRD    PARTIES 


[§    1935 


has  recently  spoken  of  it  with  apparent  approval,07  and,  unless  it  could 
be  said  that  the  baggage-master  was  not  a  servant  upon  whom  any  duty 
of  protection  rested — a  conclusion  which  in  view  of  the  cases  is  cer- 
tainly questionable,98  or  that  the  provocation  was  so  great  as  to  disenti- 
tle the  plaintiff  to  recover,  it  seems  impossible  to  reconcile  the  case  with 
others  already  cited.  It  has  moreover  been  held  in  several  recent  cases, 
at  least  where  the  servant,  like  the  conductor  of  a  passenger  vehicle,  is 
charged  with  the  duty  of  protection,  that  aggravating  conduct  or  abu- 
sive language,  on  the  part  of  the  passenger,  furnishes  no  justification 
for  an  assault  by  the  conductor,  though  it  may  possibly  be  used  by  way 
of  mitigation  of  damages.  It  is  the  duty  of  the  conductor,  in  such  a 
case,  to  eject  the  disorderly  passenger  and  not  to  beat  him."  Justifiable 
resistance,  however,  made  by  the  servant  to  an  assault  by  the  passenger 
would  not  impose  liability  upon  the  carrier,1  unless  the  resistance  went 
beyond  the  bounds  of  a  reasonable  defence.2 


R.  A.  (N.  S.)  506;  Nelson  Business 
College  v.  Lloyd,  60  Ohio  St.  448,  71 
Am.  St.  Rep.  729,  46  L.  R.  A.  314. 

97  See  Nelson  Business  College  Co. 
v.  Lloyd,  supra. 

98  That  a  passenger  is  entitled  to 
protection   from    assaults   by   a  bag- 
gage-master    while     lawfully     doing 
business  with  him,  see  Georgia  R.  R. 
Co.  v.  Richmond,  98  Ga.  495;  Gasway 
v.  Atlanta,  etc.,  R.  Co.,  58  Ga.  216; 
Haver  v.  Central    R.    R.    Co.,  supra; 
Daniel  v.  Petersburg  R.  R.   Co.,  117 
N.  C.    592,  4    L.    R.    A.  (N.    S.)   485; 
(but  see  comments  on  this  case  in 
Bowen  v.  111.  Cent.  R.  R.  Co.,  69  C.  C. 
A.  444,  136  Fed.  306,  70  L.  R.  A.  915). 
In  the  case  of  a  freight  agent,  see  Co- 
lumbus Ry.  Co.  v.  Christian,  97  Ga. 
56;  Redd  v.  Missouri  Pac.  Ry.  Co.,  161 
Mo.  App.  522. 

99  in  Baltimore  &  O.  R.  R.  Co.  v. 
Barger,  80  Md.  23,  45  Am.   St.  Rep. 
319,  26  L.  R.  A.  220,  it  was  said:  "If 
the  plaintiff  persisted  in  misbehaving 
on  the  train  either  by  the  use  of  foul 
and  abusive  language  toward  the  con- 


ductor, or  in  any  other  way  calcu- 
lated to  frighten  or  materially  inter- 
fere with  the  comfort  and  safety  of 
the  other  passengers,  after  being  ad- 
monished by  the  conductor,  the  latter 
would  have  been  justified  in  ejecting 
him  from  the  train.  The  remedy  in 
such  case  would  be  to  eject  the  un- 
ruly passenger — not  to  assault  him 
and  then  let  his  employer  escape  all 
liability,  because  he,  the  conductor, 
was  carrying  out  a  'personal  purpose 
and  feeling.'  " 

i  In  Birmingham,  etc.,  Co.  v.  Baird, 
130  Ala.  334,  89  Am.  St.  Rep.  43,  54 
L.  R.  A.  752,  the  court  said:  "Of 
course  a  conductor  has  the  right  of 
self-defense  against  the  assault  of  a 
passenger;  but  the  right  is  the  same 
in  this  connection  as  in  criminal  law. 
He  must  be  imperiled  and  he  must  be 
without  fault.  To  be  sure  he  need 
not  retreat  from  his  car.  And  he  may 
assault  a  passenger  when  necessary 
to  protect  other  passengers  from  as- 
sault, using  no  more  than  necessary 
force  and  this  may  become  a  duty — 


2  Where  a  servant  of  the  carrier 
uses  more  force  that  is  necessary  for 
self-defense  in  resisting  an  attack  by 
a  passenger,  the  carrier  is  liable  foJ 
the  excess.  Layne  v.  Chesapeake, 
etc.,  Ry.  Co.,  66  W.  Va.,  607;  Haver 
v.  Central  R.  Co.,  64  N.  J.  L.  312; 


Chicago,  etc.,   R.   Co.  v.   Barrett,   16 
111.  App.  17. 

So,  where  the  servant  pursues  and 
continues  his  violence  after  the  as 
sault  has  been  repelled.  Hanson  v. 
European,  etc.,  R.  Co.,  62  Me.  84,  16 
Am.  Rep.  404. 


§  1936] 


i  THE  LAW  OF' AGENCY  [BOOK    IV 


§  1936.  Limitations  of  doctrine. — It  is  clear  that  the  doc- 
trine is  to  be  confined  to  one  who  is  at  least  a  passenger  3  and  also  to  a 
passenger  who  is  entitled  to  this  extraordinary  protection  at  the  time 
and  place  at  which  the  injury  occurs*  (both  of  which  are  rather  ques- 

rh; 

indeed  it  is  a  duty  whenever  it  is  a      Wise  v.  South  Covington,  etc.,  R.  R. 
right.     But  he  cannoj;  assault  a  pas-      Co.,  17  Ky.  Law  Rep.  1359,  34  S.  W. 


senger  in  retaliation  for  an  assault 
committed  upon  himself  or  upon  an- 
other passenger,  and  a  fortiori,  he 
cannot  assault  a  passenger  for  abu- 
sive words,  or  in  revenge  or  punish- 
ment under  any  circumstances.  And 
if  he  does  assault  a  passenger  other- 
wise than  under  a  necessity  to  defend 
himself  or  a  passenger  from  battery 
or  in  rightfully  ejecting  a  passenger 
who  by  his  conduct  toward  other  pas- 
sengers has  forfeited  his  right  of  car- 
riage, the  carrier  is  liable.  The  fault 
of  the  passenger  short  of  producing  a 
necessity  to  strike  in  self-defense  will 
neither  justify  the  conductor  in  strik- 
ing, nor  relieve  the  carrier  from  lia- 
bility for  his  act.  Possibly  such  fault 
could  be  considered  in  mitigation  of 
damages." 

To  same  effect:  Weber  v.  Brook- 
lyn, etc.,  R.  R.  Co.,  47  N.  Y.  App.  Div. 
306  (dissenting  from  Scott  v.  Central 
Park,  etc.,  R.  R.  Co.,  53  Hun  (N.  Y.), 
414);  Williams  v.  Gill,  122  N.  C.  967; 
Birmingham,  etc.,  Co.  v.  Mullen,  138 
Ala.  614;  Coggins  v.  Chicago,  etc.,  R. 
Co.,  18  111.  App.  620;  East  Tenn.,  etc., 
Ry.  Co.  v.  Fleet  wood,  90  Ga.  23;  Jack- 
son v.  Old  Colony,  etc.,  Ry.  Co.,  206 
Mass.  477,  19  Ann.  Gas.  615,  30  L.  R. 
A.  (N.  S.)  1046;  New  Orleans,  etc., 
R.  Co.  v.  Jopes,  142  U.  S.  18,  35  L.  Ed. 
919. 

A  number  of  cases  distinguish  be- 
tween abusive  language  or  sneering 
and  contemptuous  conduct,  on  the 
one  hand,  and  an  actual  physical  as- 
sault upon  the  servant,  which  incites 
him  to  violence.  See  East  Tenn.,  etc., 
R.  R.  Co.  v.  Fleetwood,  90  Ga.  23;  Co- 
lumbus &  Rome  Ry.  Co.  v.  Christian, 
97  Ga.  56;  Georgia  R.  R.,  etc.,  Co.  v. 
Richmond,  98  Ga.  495;  City  Elec. 
Ry.  Co.  v.  Shropshire,  101  Ga.  33; 


894;  Coggins  v.  Chicago,  etc.,  R.  R. 
Co.,  18  111.  App.  620;  Williams  v.  Gill, 
122  N.  C.  967;  New  Orleans,  etc.,  R. 
Co.  v.  Jopes,  supra;  N.  J.  Steamboat 
Co.  v.  Brockett,  121  U.  S.  637,  30  L. 
Ed.  1049;  Jackson  v.  Old  Colony,  etc., 
Ry.  Co.,  supra. 

s  Barry  v.  Union  Ry.  Co.,  105  N.  Y. 
App.  Div.  520.  Thus  in  Andrews  v. 
Yazoo,  etc.,  R.  Co.,  86  Miss.  129,  a  per- 
son who  went  to  a  railway  station 
two  hours  before  train  time  in  order 
to  get  the  facilities  of  the  agent's  of- 
fice to  do  some  writing  of  his  own. 
until  train  time,  when  he  intended 
to  take  the  train,  was  held  not  to  be, 
in  this  interval,  a  passenger  to  whom 
a  special  duty  of  care  was  owing  to 
protect  him  from  assaults  by  the 
agent 

A  person  who  goes  to  a  railway 
station,  not  to  take  a  train  but  to  up- 
braid the  baggage  master  for  not 
checking  his  trunk  on  an  earlier  oc- 
casion, is  not  a  passenger  within  this 
rule.  Georgia  R.  Co.  v.  Richmond,  98 
Ga.  495.  Neither  is  a  person  who 
has  voluntarily  left  the  car  because 
of  the  motorman's  misconduct  and  is 
walking  along  the  street  toward  the 
offices  of  the  company  to  report,  and 
who  is  pursued  and  assaulted  by  the 
motorman.  Central  Ry.  Co.  v.  Pea- 
cock, 69  Md.  257,  9  Am.  St.  Rep.  425. 
But  a  street  car  company  was  held 
responsible  for  a  battery  by  the  con- 
ductor upon  a  passenger  committed 
within  the  car,  and  also  for  one  com- 
mitted by  the  same  conductor  in  the 
offices  of  the  company  where  the  pas- 
senger had  gone  to  complain.  Savan- 
nah, etc.,  R.  Co.  v.  Bryan,  86  Ga.  312. 

*  In  Zeccardi  v.  Yonkers  R.  Co.,  190 
N.  Y.  389,  17  L.  R.  A.  (N.  S.)  770,  it 
is  held  that  a  passenger  who  gets  out 

• 
1504 


CHAP.    V]  LIABILITY   OF   PRINCIPAL  TO   THIRD   PARTIES 


l§ 


tions  for  the  law  of  Carriers  than  of  Agency)  ;  and  also  to  the  case  in 
which  such  passenger  is  injured  by  a  servant  to  whose  protection  the 
passenger  has,  to  some  degree,  been  confided  by  the  master.6  Injury 
by  any  other  servant  of  the  master,  wholly  outside  the  course  of  his 
employment,  would  subject  the  master  to  liability  only  if  he  would  be 
liable  for  a  simliar  injury  by  a  stranger.0 

The  doctrine  seems  to  have  originated  and  to  find  its  reason  in  the 
cases  in  which  the  passenger  was  injured  while  upon  or  in  the  vehicle 
for  transportation.  Such  a  passenger  who  has  confided  the  safety  of 

:rt  ,bvon  vino  Jon"  at  ,->?.BD  tfttle-O  9ift  ni  noie 
of  the  car  in  order  to  intervene  in  a       carrying  the  passenger  injured,  if  he 


fight  between  the  conductor  and  an- 
other passenger  and  who  was  then 
assaulted  by  the  motorman,  thereby 
so  breaks  his  status  as  a  passenger 
as  not  to  be  entitled  to  this  protec- 
tion. 

s  In  a  late  case  in  Arkansas,  Moore 
v.  Louisiana,  etc.,  Ry.  Co.,  99  Ark. 
233,  34  L.  R.  A.  (N.  S.)  299,  the  doc- 
trine is  said  to  apply  to  "any  servant, 
whether  in  charge  of  the  train  or  not, 
the  performance  of  whose  duties  re- 
lates to  the  comfort  or  safety  of  the 
3  assengers,  and  furnishes  opportun- 
ity or  requires  him  to  come  in  per- 
sonal contact  with  them."  Applied 
there  to  ticket  auditor  on  train.  Ap- 
plied to  brakeman  on  train.  St. 
Louis,  etc.,  Ry.  Co.  v.  Dowgiallo,  82 
Ark.  289;  Williams  v.  Gill,  122  N.  C. 
967;  Atchison,  etc.,  R.  Co.  v.  Henry, 
55  Kan.  715,  29  L.  R.  A.  465;  McKin- 
ley  v.  Chicago,  etc.,  R.  Co.,  44  Iowa, 
314,  24  Am.  Rep.  748;  Lampkin  v. 
Louisville  &  N.  R.  Co.,  106  Ala.  287. 

In  Hayne  v.  Union  St.  Ry.  Co.,  189 
Mass.  551,  109  Am.  St.  Rep.  655,  3  L. 
R.  A.  (N.  6.)  605,  where  a  conductor 
belonging  to  one  street  car,  in  jest 
threw  a  missile  (a  dead  hen)  at  the 
motorman  on  a  passing  car,  which 
missile  struck  a  passenger,  the  court 
said:  "The  great  diligence  and  learn- 
ing of  the  defendant's  counsel  have 
discovered  for  our  enlightenment  no 
case  in  which  it  has  been  held  that 
the  carrier  was  not  liable,  because 
the  servant,  at  the  time  of  his  wrong- 
ful act,  was  not  directly  employed  in 


was  engaged  in  the  general  business 
of  which  the  transportation  of  the 
passenger  was  a  part.  .  .  .  The 
mere  fact  that  he  was  on  one  car  and 
his  wrongful  act  was  directed  to  a 
passenger  on  another  car,  should 
make  no  difference  with  the  master's 
liability." 

c  In  Greb  v.  Pennsylvania  R.  Co.,  41 
Pa.  Super.  61,  there  is  an  excellent 
discussion  of  the  question,  though  not 
by  the  court  of  last  resort.  There 
three  brothers  were  passengers  on  de- 
fendant's train.  One  of  them  was 
ejected  at  an  intermediate  station  for 
not  having  a  proper  ticket.  All  three 
were  involved  in  the  controversy, 
but  the  other  two  brothers  went  on 
to  their  destination.  After  they  had 
left  the  train  but  while  they  were 
still  on  the  station  platform,  the  case 
was  that  the  brakeman  followed  them 
with  some  threatening  remarks,  and 
finally  assaulted  one  of  them.  The 
other  brother  came  to  the  rescue 
when  he  was  attacked  by  the  conduc- 
tor. For  these  assaults  each  brother 
sued.  Held,  that  they  could  not  re- 
cover. The  court  distinguished  be- 
tween the  passenger  in  transit  and 
the  passenger  at  the  end  of  the 
transit  though  still  upon  the  prem- 
ises; it  was  also  held  that  the  assault 
was  made  by  servants  who  at  the 
time  and  place  were  not  the  servants 
of  the  company  to  protect  the  plain- 
tiffs but  were  merely  servants  mak- 
ing an  assault  not  within  the  course 
of  their  employment. 


95 


1505 


§  1937] 


Till-:  LAW  OF  AGENCY 


[BOOK  iv 


his  person  in  this  particular  manner  to  the  carrier  would  seem  to  be 
entitled  to  a  higher  degree  of  protection  than  one  who  is  merely  com- 
ing to,  waiting  at,  or  going  from  the  place  of  embarkment,7  but  the 
cases  have  actually  carried  the  doctrine,  whether  rightly  or  wrongly, 
to  a  much  further  point.8  In  some  of  them,  it  seems  to  have  been  done 
without  much  consideration  of  the  theory  upon  which  the  doctrine  rests. 

The  learned  author  of  Beven  on  Negligence, — the  leading  English 
text  book  on  that  subject, — expresses  the  opinion,  in  the  preface  to  his 
third  edition,  that  this  whole  doctrine,  at  least  so  far  as  it  finds  expres- 
sion in  the  Craker  case,  is  "not  only  novel,  but  fundamentally  unsound." 

§  1937.  Servant  a  public  officer. — The  fact  that  the  serv- 
ant or  agent,  who  commits  the  wrong,  is  also  a  public  peace  or  police 


7  In  Dodge  v.  Boston,  etc.,  Steam- 
ship Co.,  148  Mass.  207,  12  Am.  St. 
Rep.  541,  2  L.  R.  A.  83,  this  distinc- 
tion is  made:  "When  one  has  made  a 
contract  for  passage  upon  a  vehicle 
of  a  common  carrier,  and  has  pre- 
sented himself  at  the  proper  place  to 
be  transported,  his  right  to  care  and 
protection  begins  and  ordinarily  it 
continues  until  he  has  arrived  at  his 
destination,  and  reached  the  point 
where  the  carrier  is  accustomed  to 
receive  and  discharge  passengers. 
So  long  as  he  stands  strictly  in  this 
relation  of  a  passenger,  the  carrier  is 
held  to  the  highest  degree  of  care  for 
his  safety.  While  he  is  upon  the 
premises  of  the  carrier,  before  he  has 
reached  the  place  designed  for  use  by 
passengers  waiting  to  be  carried,  or 
put  himself  in  readiness  for  the  per- 
formance of  the  contract,  the  carrier 
owes  him  the  duty  of  ordinary  care, 
as  he  is  a  person  rightfully  there  by 
invitation.  It  has  sometimes  been 
said  that  a  passenger  at  the  end  of 
his  journey  retains  the  same  relation 
to  the  carrier  until  he  has  left  the 
carrier's  premises.  But  there  are 
other  cases  which  indicate  that  the 
contract  of  carriage  is  performed 
when  the  passenger  at  the  end  of  his 
journey  has  reached  a  safe  and 
proper  place,  where  persons  seeking 
to  become  passengers  are  regularly 
received,  and  passengers  are  regu- 
larly discharged,  and  that  the  degree 


of  care  to  which  he  is  then  entitled 
is  less  than  during  the  continuance 
of  his  contract,  as  a  carrier  of  goods 
is  held  to  a  liability  less  strict  after 
they  have  reached  their  destination 
and  been  put  in  a  freight  house,  than 
while  they  are  in  transit." 

See  also  Jackson  v.  Old  Colony  St. 
Ry.  Co.,  206  Mass.  477,  19  Ann.  Cas. 
615,  30  L.  R.  A.  (N.  S.)  1046. 

s  Thus,  as  has  been  seen  above,  it 
has  been  applied  to  baggage  masters 
in  their  dealings  with  persons  check- 
ing or  obtaining  baggage.  Haver  v. 
Central  R.  Co.,  62  N.  J.  L.  282,  72 
Am.  St.  Rep.  647,  43  L.  R.  A.  84; 
Georgia  R.  Co.  v.  Richmond,  98  Ga. 
495;  Daniel  v.  Petersburg  R.  Co.,  117 
N,  Car.  592,  4  L.  R.  A.  (N.  S.)  485 
(but  see  comments  on  this  case  in 
Bowen  v.  Illinois  Cent.  R.  Co.,  69  C. 
C.  A.  444,  136  Fed.  306,  70  L.  R.  A. 
915). 

Ticket  agent.  Neville  v.  Southern 

Ry.  Co., Tenn.  ,  146  S.  W.  846, 

40  L.  R.  A.  (N.  S.)  995. 

Freight  agent.  Columbus  Ry.  Co. 
v.  Christian,  97  Ga.  56;  Gassenheimer 
v.  Western  Ry.,  —  Ala.  — ,  57  So. 
718,  40  L.  R.  A.  (N.  S.)  998;  Nesbit 
v.  Ry.  Co.  (Iowa),  143  N.  W.  1114. 

It  has  been  applied  in  the  case  of 
insulting  remarks  made  by  a  negro 
woman,  in  charge  of  a  passenger 
waiting  room,  to  a  woman  waiting  to 
take  a  train.  Gulf,  etc.,  Ry.  Co.  v. 
Luther,  40  Tex.  Civ.  App.  517. 

506 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1938, 

officer,  does  not  relieve  the  master,  if  what  he  did  he  did  in  his  capacity 
as  servant  or  agent.9  If  on  the  other  hand  he  was  acting  in  his  capacity 
as  a  public  officer,  the  master  is  not  liable  even  though  the  officer  was 
also  his  servant.10  The  question  seems  to  be  one  of  fact,  in  each  par- 
ticular case,  as  to  the  capacity  in  which  the  person  in  question  acted 
upon  the  occasion  in  controversy. 

§  1938.  Servant  insane. — It  has  also  been  held  that  the 

fact  that  the  servant  was  insane,  without  the  knowledge  of  the  mas- 
ter, was  no  defence  to  the  latter  for  not  performing  his  duty  of  protec- 
tion.11 

§  I939.  Application  to  other  cases— Difficulty  of  deter- 
mining classes. — The  difficulty  in  the  application  of  this  principle 
is  in  determining  what  are  the  cases  in  which  there  is  such  a  specific 
and  positive  duty  as  that  upon  which  the  rule  is  based,  and  it  will  be  ob- 
vious from  a  consideration  of  the  cases  that  no  general  agreement  has 
yet  been  reached  concerning  it.  It  has  been  suggested  that  the  doc- 
trine should  be  confined  to  cases  in  which  the  duty  is  a  contractual  one, 
but  the  courts  have  long  since  gone  far  beyond  this  point.  Thus  it  has 
been  applied  in  the  case  of  an  express  company  to  make  the  company 
liable  for  abusive  language  applied  by  its  agent  in  charge  of  its  office 
to  one  coming  there  on  business  with  the  company.  The  court  said  that 
the  case  was  analogous  to  the  case  of  carriers  of  passengers,  and  that 
the  company  "is  bound,"  in  Judge  Story's  language,  "for  respectful 
treatment  and  for  decency  of  demeanor."  12  It  has  been  applied  to  the 
proprietor  of  a  theater  to  make  him  liable  for  the  malicious  assault  of 
a  ticket-seller  and  a  special  policeman  upon  a  patron  of  the  theater. 

»  Rand  v.  Butte  Electric  Ry.  Co.,  40  v.  Railway  Co.,  72  N.  H.  413;   Taylor 

Mont.  398;  Layne  v.  Chesapeake,  etc.,  v.  New  York,  etc.,  R.  Co.,  80  N.  J.  L. 

R.  Co.,  66  W.  Va.  607;  Baltimore,  etc.,  282,  39  L.  R.  A.  (N.  S.)  122;  McKain 

R.  Co.  v.  Twilley,  106  Md.  445;    Tol-  v.  Baltimore  &  O.  R.  Co.,  65  W.  Va. 

Chester  Beach  Imp.  Co.  v.  Scharnagl,  233,  131    Am.  St.    Rep.    964,  17    Ann. 

105  Md.  199;    Norfolk,  etc.,  R.  Co.  v.  Cas.  634,  23  L.  R.  A.  (N.  S.)  289. 
Galliher,  89  Va.  639;  Foster  v.  Grand          Many   other   cases   are   cited,  post, 

Rapids  Ry.  Co.,  140  Mich.  689.     See  §  1973. 

also,  Dickson  v.  Waldron,  135  Ind.  507,          n  Chesapeake,  etc.,  Ry.  Co.  v.  Fran- 

41  Am.  St.  Rep.  440,  24  L.  R.  A.  483,  cisco,  149  Ky.  307,  42  L.  R.  A.  (N.  S.) 

488,   where   a   theatre   manager   was  83. 

held  liable  in  an  action  by  a  ticket-          12  Richberger  v.  Am.   Express  Co., 

holder,  for  the  acts  of  a  police  officer  73  Miss.  161,  55  Am.  St.  Rep.  522,  31 

employed  by  the  manager.  L.  R.  A.  390.     (But  see  Bowen  v.  111. 

Many   other   cases   are   cited,  post,  Cent.  R.  R.  Co.,  69  C.  C.  A.  444,  136 

§  1973.  Fed.  306,  70  L.  R.  A.  915;    Lynch  v. 

10  Chicago,  etc.,  Ry.  Co.  v.  Nelson,  Florida,  etc.,  Ry.  Co.,  113  Ga.  1105,  54 

87    Ark.    524;     Buman    v.    Michigan  L..   R.   A.    810;    Hudson   v.    Missouri, 

Cent.  R.  Co.,  168  Mich.  651;  Cordner  etc.,  Ry.  Co.,  16  Kan.  470). 

1507 


§  I940J 


THE  LAW  OF  AGENCV 


[TOOK  iv 


The  court  said :  "Common  carriers,  inn-keepers,  merchants,  managers 
of  theaters,  and  others,  who  invite  the  public  to  become  their  patrons 
and  guests,  and  thus  submit  personal  safety  and  comfort  to  their  keep- 
ing, owe  a  more  special  duty  to  those  who  may  accept  such  invitation. 
Such  patrons  and  guests  have  a  right  to  ask  that  they  shall  be  protected 
from  injury  while  present  on  such  invitation,  and  particularly  that  they 
shall  not  suffer  wrong  from  the  agents  and  servants  of  those  who  have 
invited  them."  13  Opinions  to  the  contrary  have,  however,  been  ex- 
pressed.14 

§  1940.  It  has  been  applied  to  a  county  fair  association  to 

make  it  liable  for  an  attack  upon  a  patron,  made  by  a  watchman,  guard 
or  special  policeman,  employed  by  it.  Said  the  court :  "Those  who  visit 
public  places  in  response  to  invitation  made  generally  or  otherwise 
have  a  right  to  personal  protection  while  there,  especially  so  as  against 
assault  from  the  agents  and  servants  of  the  person  or  corporation  ex- 
tending such  invitation."  15  This  is  certainly  a  very  sweeping  rule. 

It  has  been  applied,  although  not  without  dissent,  to  inn-keepers, 
whose  servants  have  maliciously  assaulted  guests.18  It  has  been  ap- 
plied to  a  saloon-keeper,  to  impose  liability  for  a  malicious  assault  made 
by  his  cook  and  his  bartender  upon  a  person,  who  had  for  some  days 

is  Dickson  v.  Waldron,  135  Ind.  507, 
41  Am.  St.  Rep.  440,  24  L.  R.  A.  483. 

In  Interstate  Amusement  Co.  v. 

Martin, Ala.  App.  ,  62  So.  404, 

the  doctrine  was  applied  to  make  the 
proprietor  of  a  theater  liable  for 
abusive  language  applied  by  an  actor 
employed  there  to  a  patron. 

i*  Thus  in  Williams  v.  Palace  Car 
Co.,  40  La.  Ann.  87,  8  Am.  St.  Rep. 
538,  the  court  said  arguendo:  "A  per- 
son has  a  right  to  enter  a  bank  for 
the  purpose  of  collecting  a  check,  and 
to  present  it  to  the  paying  teller  for 
payment;  but,  if,  on  such  presenta- 


tion, the  teller  should  leap  over  the 
counter  and  knock  him  down,  surely 
such  an  act  would  not  subject  the 
bank  to  liability.  So  one  may  law- 
fully enter  a  store  and  deal  with  any 
clerk  with  reference  to  the  purchase 
of  goods,  but,  if,  on  some  dispute,  the 
clerk  should  commit  assault  and  bat- 
tery upon  him,  the  merchant  would 
not  be  responsible  therefor.  Or  if 
one,  on  lawful  business,  should  knock 
at  the  door  of  any  private  house,  and 


>  OJ 

on  asking  the  servant  who  answered 
the  call  for  permission  to  see  the 
master,  the  servant  should  assault 
and  beat  him,  would  the  master  be 
responsible?" 

15  Brooks  v.  Jennings  County,  etc., 
Ass'n,  35  Ind.  App.  221.  To  same  ef- 
fect, Oakland,  etc.,  Society  v.  Bing- 
ham,  4  Ind.  App.  545;  Indianapolis 
St.  R.  Co.  v.  Dawson,  31  Ind.  App. 
605. 

isLehnen  v.  Hines,  88  Kan.  58, 
127  Pac.  612,  42  L.  R.  A.  (N.  S.)  830; 
Overstreet  v.  Moser,  88  Mo.  App.  72; 
Clancy  v.  Barker,  71  Neb.  83,  115  Am. 
St.  Rep.  559,  8  Ann.  Gas.  682,  69  L.  R. 
A.  642;  DeWolf  v.  Ford,  193  N.  Y. 
397,  127  Am.  St.  Rep.  969,  21  L.  R.  A. 
(N.  S.)  860. 

But  see  dictum  in  Evansville  & 
Crawfordsville  R.  R.  Co.  v.  Baum,  26 
Ind.  70,  to  the  effect  that  he  is  not 
liable.  (There  is,  however,  a  con- 
trary dictum  in  Dickson  v.  Waldron, 
supra.)  See  also,  Curtis  v.  Dinneen, 
4  Dak.  245;  Clancy  v.  Barker,  66  C. 
C.  A.  469,  131  Fed.  161,  69  L.  R.  A. 


1508 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


"been  a  guest  and  a  patron  of  the  defendant's  saloon,"  and  who,  hav- 
ing spent  all  his  money  there,  had  gone  there  to  sleep.17  Liability  how- 
ever was  denied  in  an  almost  precisely  similar  case.18 

§  1941.  It  has  been  applied  to  the  proprietors  of  shops 

and  stores  to  make  them  liable  for  wanton  and  wilful  injuries  committed 
by  their  employees  there  to  persons  properly  coming  there  as  patrons.19 
But  its  applicability  to  such  cases  has  been  most  vigorously  denied, 
and  the  principle  declared  applicable  only  to  carriers  as  to  their  pas- 
sengers, and  to  hotels,  theaters,  steam-boats  and  like  places  as  to  their 
guests. 

It  has  also  been  applied  to  telegraph  companies  to  make  them  re- 
sponsible for  injuries  caused  to  third  persons  by  false  and  fraudulent 
messages  sent  over  their  wires  by  an  agent  to  whom  they  had  confided 
the  performance  of  the  duty  which  the  court  declared  they  owed  to 


653,  (where  the  majority  reach  an 
opposite  conclusion  to  that  of  71  Neb. 
83,  supra) ;  Rahmel  v.  Lehnddorff,  142 
Gal.  681,  100  Am.  St.  Rep.  154,  65  L. 
R.  A.  88  (compare  Wade  v.  Thayer, 
40  Cal.  578). 

"Cumin  v.  Olson,  88  Minn.  307, 
97  Am.  St.  Rep.  517,  60  L.  R.  A.  733. 
Followed  in  Beilke  v.  Carroll,  51 
Wash.  395,  130  Am.  St.  Rep.  1103,  22 
L.  R.  A.  (N.  S.)  527.  See  also,  Mas- 
tad  v.  Swedish  Brethren,  83  Minn.  40, 
85  Am.  St.  Rep.  446.  53  L.  R.  A.  803; 
Rommel  v.  Schambacher,  120  Pa.  579, 
6  Am.  St.  Rep.  732. 

is  Anderson  v.  Diaz,  77  Ark.  606, 
113  Am.  St.  Rep.  180,  4  L.  R.  A.  (N. 
S.)  649. 

See  also,  Bergman  v.  Hendrickson, 
106  Wis.  434,  80  Am.  St.  Rep.  47. 

19  Swinarton  v.  Le  Boutillier,  7  Misc. 
(N.  Y.)  639  (affirmed  without  opin- 
ion in  148  N.  Y.  752),  where  a  cus- 
tomer was  struck  in  the  eye  by  a  pin 
"snapped"  by  a  mischievous  cash-boy. 
Mallach  v.  Ridley,  24  Abbott's  New 
Cases  (N.  Y.),  172,  9  N.  Y.  Supp.  922, 
where  a  customer  was  wrongfully  ac- 
cused of  shoplifting  and  was  sub- 
jected to  search  and  other  humilia- 
tions. 

20  Bowen  v.  111.  Cent.  R.  R.  Co.,  69 
C.  C.  A.  444,  136  Fed.  306,  70  L.  R.  A. 
915.  In  this  case  the  sole  and  gen- 
eral agent  of  the  railroad  company 

1509 
oiac: 


at  a  small  station  who  had  charge  of 
the  sale  of  tickets  and  the  receipt 
and  delivery  of  freight,  while  at  his 
ticket  window  was  approached  by  a 
patron  of  the  company  who  made  an 
inquiry  respecting  demurrage  on  a 
car-load  of  freight.  He  answered  the 
question  and  as  the  questioner 
started  to  go  away,  called  him  back, 
saying  he  had  received  a  package  for 
him.  While  the  patron  was  standing 
at  the  desk  and  signing  or  about  to 
sign  a  receipt  for  the  alleged  pack- 
age, and  without  any  controversy  or 
altercation  taking  place,  the  agent 
suddenly  seized  a  revolver  and  shot 
and  killed  the  patron.  In  an  action 
by  his  widow,  it  was  held  that  the 
railroad  company  was  not  liable.  See 
also,  Lynch  v.  Florida,  etc.,  Ry.  Co.. 
113  Ga.  1105,  54  L.  R.  A.  810;  Chris- 
tian v.  Columbus  &  Rome  Ry.  Co.,  79 
Ga.  460;  Hudson  v.  Missouri,  etc.,  Ry. 
Co.,  16  Kan.  470;  Ducre  v.  Sparrow- 
Kroll  Lumber  Co,  168  Mich.  49. 

In  Fairbanks  v.-  Boston  Storage 
Warehouse  Co.,  189  Mass.  419,  109 
Am.  St.  Rep.  646,  13  L.  R.  A.  (N.  S.) 
422,  it  was  held  that  the  doctrine 
does  not  apply  to  the  case  in  which 
the  elevator  man,  in  a  storage  ware- 
house, assaults  a  customer  in  the 
warehouse  as  he  was  about  to  take 
the  elevator. 

.:<••'•       't 


§§  Cli}42,  1943]  THE  LAW  OF  AGENCY  [BOOK    IV 

the  public  not  to  knowingly  send  false  or  forged  messages.  The  case 
of  the  carrier  of  passengers  was  thought  to  furnish  an  analogy.21 

It  has  been  applied  on  the  theory  of  the  existence  of  a  specific  duty 
with  respect  of  premises,  where  a  master  knew  that  his  servants  were 
in  the  habit  of  wantonly  throwing  missiles  from  his  premises  upon  ad- 
joining premises  and  took  no  steps  to  prevent  it.22 

§  1942.  — In  a  case  in  Wisconsin,23  in  which  state  the  doc- 
trine as  applied  to  carriers,  has  found  very  striking  illustration,  the 
court  extended  it  to  the.  case  of  the  driver  of  a  vehicle  passing  another 
upon  the  highway.  Calling  to  mind  the  theory  as  one  applying  to  the 
case  of  a  principal  who  owes  a  specific  and  positive  duty  to  third  per- 
sons and  confides  its  performance  to  an  agent,  the  court  said :  "It  is 
claimed  that  no  such  duty  here  existed.  The  mere  fact  that  the  con- 
ductor's duty  to  the  passenger  in  the  case  [Craker  v.  C.  &  N.  W.  R. 
Co.24]  arose  out  of  the  passenger's  contract  with  the  master  does  not 
confine  the  principle  involved  to  the  breaches  of  duty  created  by  con- 
tract. *  *  *  A  duty  may  and  often  does  exist  without  any  con- 
tract. Two  teams  upon  a  public  highway,  each  with  a  sleigh  or  ve- 
hicle, coming  in  close  proximity  to  each  other,  the  driver  of  each  most 
certainly  owes  a  duty  to  those  riding  with  the  other.  That  duty  is 
created  by  law,  and  requires  each  driver  to  proceed  with  care  and  cir- 
cumspection and  with  reference  to  the  shifting  situation  of  the  other. 
When  such  driver  is  a  servant  acting  within  the  course  and  scope  of 
his  employment,  then  such  duty  rests  upon  the  master  as  well  as  the 
servant.  The  employer  in  such  case,  being  responsible  for  the  per- 
formance of  such  duty  by  his  delegated  agency,  can  no  more  escape 
liability  for  such  failure  when  it  occurs  through  his  agent's  gross  neg- 
ligence or  wilful  misconduct,  than  he  can  when  it  is  by  reason  of  his 
agent's  want  of  ordinary  care." 

§  1943.  The  duty  which  the  court  here  refers  to  was  not 

one  imposed  by  any  special  statute,25  but  apparently  the  general  duty 

i 

21  McCord   v.   Western   Union   Tel.  radt  v.  Clauve,  93  Ind.  476,  47  Am. 
Co.,  39   Minn.   181,   12   Am.    St.  Rep.  Rep.     388;      Fletcher     v.     Baltimore, 
636,  1  L.  R.  A.  143.    See  also,  Bank  of  etc.,  R.  Co.,  168  U.  S.  135,  42  L.  Ed. 
Palo  Alto  v.  Pacific  Postal  Tel.  Cable  411).    Affirmed,  though  not  upon  this 
Co.,  103  Fed.  841;  Dougherty  v.  Wells,  precise  ground,  in  199  N.  Y.  388,  32 
Fargo  &  Co.,  7  Nev.  368.  L.  R.  A.  (N.  S.)  1038. 

22  Hogle  v.  Franklin  Mfg.  Co.,  128  23  Schaefer  v.   Osterbrink,   67  Wis. 
N.  Y.   App.   Div.  403,    (relying  upon  495,  58  Am.  Rep.  875. 

Clifford  v.  New  York,  etc.,  R.  Co.,  Ill          24  36  Wis.  657,  17  Am.  Rep.  504. 
N.  Y.    App.    Div.    809;    Carpenter  v.          25  The  common  statute  prescribing 
Boston  &  Albany  R.  Co.,  97  N.  Y.  494,       the  conduct  to  be  pursued  by  teams 
49   Am.  Rep.  540;    Swinarton  v.  Le-      meeting  upon  the  highway,  which  is 
Boutillier,   7   N.   Y.   Misc.   639;    Con-      to   be    found    in   Wisconsin   as   else- 

1510 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  IQ44,  IQ45 


which  the  law  imposes  to  exercise  due  care  under  the  circumstances. 
It  is  obvious  that  if  this  conclusion  be  sound,  there  are  very  few  cases 
of  negligence  in  which  the  rule  may  not  be  applied,  and  the  liability 
for  malicious  acts,  under  the  doctrine  now  being  considered,  instead 
of  being  an  exceptional  one,  becomes  the  ordinary  case. 

§  1944.  The  same  court,  in  a  recent  case,  very  elaborately 

considered,  refused  by  a  small  majority  (four  judges  against  three)  to 
extend  this  doctrine  of  special  duty  to  a  case  in  which  the  servant  of 
a  garage  keeper  wilfully,  and  for  his  own  purposes,  took  out  a  patron's 
car  in  the  night  time,  and  while  so  using  it  injured  it.28 

§  1945.  II.  Where  master  confides  to  servant  the  care  of  a  dan- 
gerous instrumentality. — In  an  early  English  case,  at  nisi  prius,  it 
was  held  as  a  ground  for  imposing  liability  upon  the  master  for  his 


where,  did  not  apply  to  the  case,  as 
here  both  teams  were  going  in  the 
same  direction. 

26  Firemen's  Fund  Ins.  Co.  v. 
Schreiber,  150  Wis.  42,  Ann.  Gas. 
1913,  E.  823,  45  L.  R.  A.  (N.  S.)  314. 
It  was  urged  by  the  dissenting  judges 
that  the  case  stood  upon  the  same 
footing  as  the  cases  involving  car- 
riers of  passengers.  The  master  owed 
a  special  duty  as  bailee  respecting  the 
care  of  the  car,  which  duty  he  con- 
fided to  the  servant  to  perform.  The 
facts  of  the  case  were  these:  The  de- 
fendant, in  whose  garage  the  machine 
was  housed,  employed  Flynn  to  wash 
automobiles,  starting  at  6  o'clock  p. 
m.,  and  working  until  the  job  was 
completed.  During  this  time  he  also 
let  patrons  in  and  out  with  their  ma- 
chines. He  was  the  only  attendant 
during  the  night  and  upon  leaving  it 
was  his  duty  to  lock  the  door.  Upon 
the  occasion  in  question,  having  com- 
pleted his  work,  he  stepped  out  to  a 
lunch  counter,  intending  to  return 
for  his  coat  and  permanently  close 
the  place.  While  there,  he  and  a 
friend  conceived  the  idea  of  taking 
the  machine  out  for  a  ride,  which 
they  did,  the  injury  complained  of 
resulting  during  the  trip.  Flynn  had 
no  authority  to  take  the  machine. 

In  Cheshire  v.  Bailey,  21  Times  L. 
R.  130,  it  was  held  that  where  defend- 
ant used  reasonable  care  in  selecting 
a  coachman  to  drive  for  plaintiff's 


salesman  and  to  watch  the  samples  in 
the  absence  of  the  salesman,  the  de- 
fendant was  not  liable  for  the  theft 
of  the  goods  committed  with  the  con- 
nivance of  the  coachman. 

In  lerzino  v.  Toronto  General  Hos- 
pital, 5  Ontario  W.  R.  76,  the  plain- 
tiff sued  to  recover  money  which  he 
contended  was  stolen  by  a  ward- 
keeper  in  the  hospital,  after  it  had 
been  removed  from  his  person  when 
he  was  brought  in  injured.  Held, 
that  the  defendants  were  not  within 
the  cases  relating  to  innkeepers,  nor 
were  they  bailees  for  hire,  the  plain- 
tiff paying  nothing  for  their  services, 
and  that  the  defendants  were  not  lia- 
ble. 

Where  defendant's  coachman,  with- 
out authority,  took  out  a  carriage 
which  the  plaintiff  had  loaned  to  the 
defendant  while  he  was  repairing  de- 
fendant's carriage,  the  defendant  was 
held  not  liable  for  injury  to  the  car- 
riage due  to  the  servant's  negli- 
gence. Sanderson  v.  Collins,  [1904] 
1  K.  B.  628;  (distinguishing,  if  not 
throwing  doubt  upon,  Coupe  Co.  v. 
Maddick,  [1891]  2  Q.  B.  413). 

In  Taylor  v.  Carnell,  2  Alberta  L. 
R.  237,  it  was  held  that  the  employ- 
ment of  a  certified  engineer  did  not 
relieve  a  bailee  for  hire  of  a  steam 
boiler  from  liability  for  the  negli- 
gence of  the  engineer  in  using  the 
boiler. 


§    I946J  THE  LAW  OF  AGENCY  [BOOK   IV 

servant's  negligence  in  mis-managing  the  master's  carriage,  that 
"whenever  the  master  has  entrusted  the  servant  with  the  control  of 
the  carriage,  it  is  no  answer  that  the  servant  acted  improperly  in  the 
management  of  it.  *  *  *  The  master  in  such  a  case  will  be  lia- 
ble and  the  ground  is  that  he  has  put  it  in  the  servant's  power  to  mis- 
manage the  carriage,  by  entrusting  him  with  it."  2T  This  reasoning, 
as  a  ground  for  imposing  liability  in  the  ordinary  case,  is  wholly  un- 
sound and  has  long  since  been  generally  abandoned.28  As  a  ground, 
however,  for  holding  the  master  liable  for  his  servant's  malicious  acts 
in  cases  which  otherwise  might  not  be  brought  within  the  scope  of  the 
authority,  a  doctrine  somewhat  similar  to  the  ones  discussed  in  the  pre- 
ceding sections,  has  lately  been  advanced.  It  is  that  wherever  the  mas- 
ter, having  under  his  control  some  specially  dangerous  agency  or  in- 
strumentality, and  which  he  is  therefore  under  special  obligation  to 
keep  with  care,  confides  this  duty  to  his  servant  or  agent,  he  will  be 
responsible  if  the  duty  be  not  performed,  whether  through  the  negli- 
gence or  the  wantonness  or  the  malice  of  his  servant  or  agent.  "The 
inability  of  the  master,"  it  is  said  in  one  case,29  "to  shift  the  responsi- 
bility connected  with  the  custody  of  dangerous  instruments,  employed 
in  his  business,  from  himself  to  his  servants  entrusted  with  their  use, 
is  analogous  to,  and  may  be  said  to  rest  upon  the  same  principle,  as 
that  which  disenables  him  from  shifting  to  an  independent  contractor, 
liability  for  negligence  in  the  performance  of  work  that  necessarily 
tends  to  expose  others  to  danger,  unless  the  work  is  carefully  guarded." 

§  1946.  This  doctrine  has  been  applied  in  a  great  many 

cases  where  servants  in  charge  of  locomotive  engines  have,  though 
wantonly  and  intentionally,  blown  the  whistle  or  let  off  steam  so  as  to 
frighten  the  plaintiff's  horses.30  It  has  been  applied  where  a  railway 

27  Sleath  v.  Wilson,  9  C.  &  P.  607.  47  Ohio  St.  387,  21  Am.  St.  Rep.  840, 

as  See,  for  example,  Storey  v.  Ash-  8  L.  R.  A.  464;  see  also,  Harriman  v. 

ton,  L.  R.  4  Q.  B.  476;   Slater  v.  Ad-  Ry.   Co.,  45   Ohio   St.   11,  4  Am.   St 

vance  Thresher  Co.,  97  Minn.  305,  5  Rep.  507. 

L.  R.  A.  (N.  S.)  598;  St.  Louis,  etc.,  so  Toledo,  etc.,  R.  Co.  v.  Harmon, 
Ry.  Co.  v.  Harvey,  75  C.  C.  A.  536,  144  47  111.  298,  95  Am.  Dec.  489;  Chicago, 
Fed.  806.  etc.,  R.  Co.  v.  Dickson,  63  111.  151,  14 
Sleath  v.  Wilson  was,  however,  ap-  Am.  Rep.  114;  Nashville,  etc.,  R.  Co. 
proved,  in  1852,  in  Philadelphia,  etc.,  v.  Starnes,  9  Heisk.  (Tenn.)  52,  24 
R.  Co.  v.  Derby,  55  U.  S.  (14  How.)  Am.  Rep.  296;  Regan  v.  Reed,  96  111. 
468,  14  L.  Ed.  502,  and  in  1901,  it  was  App.  460;  Texas,  etc.,  R.  Co.  v.  Sco- 
cited  with  apparent  approval  and  ap-  vill,  10  C.  C.  A.  479,  62  Fed.  730,  27 
parently  without  question  as  to  its  L.  R.  A.  179;  Ga.  R.  R.  Co.  v.  New- 
soundness,  in  Salisbury  v.  Erie  R.  some,  60  Ga.  492;  Billman  v.  R.  Co., 
Co.,  66  N.  J.  L.  233,  88  Am.  St.  Rep.  76  Ind.  166,  40  Am.  Rep.  230;  Alsever 
480,  55  L.  R.  A.  578.  v.  Minneapolis,  etc.,  R.  Co.,  115  Iowa, 

2»  Pittsburg,  etc.,  Ry.  Co.  v.  Shields,       338,  56  L.  R.  A.  748;   Bittle  v.  Cam- 

?>  i  ,', 

1512 


CHAP.    Vj  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


conductor,  though  wantonly  and  capriciously,  employed  railway  tor- 
pedoes, confided  to  his  charge  for  proper  use,  to  frighten  passengers 
in  a  car.  "He  was  not,  it  is  true,"  said  the  court,  "within  his  employ- 
ment as  to  the  use  of  them,  but,  in  so  doing,  he  violated  the  duties  co-n- 
nected  with  his  employment  as  the  custodian  of  them  and  thereby 
made  his  master  liable."  31 

§  1947.  In  order  to  impose  liability  in  these  cases  it  is, 

however,  held  to  be  essential  that  the  servant  whose  act  is  complained 
of  shall  be  the  one  to  whose  custody  the  article  was  confided  and  that 
it  was  permitted  to  do  the  injury  while  in  his  custody  as  such  servant.32 


den,  etc.,  R.  Co.,  55  N.  J.  L.  615; 
Stewart  v.  Lumber  Co.,  146  N.  Car. 
47;  Cobb  v.  Columbia  R.  Co.,  37  S.  C. 
194;  Skipper  v.  Clifton  Mfg.  Co.,  58 
S.  C.  143. 

Contra:  Stephenson  v.  So.  Pac.  Ry. 
Co.,  93  Cal.  558,  27  Am.  St.  Rep.  223, 
15  L.  R.  A.  475.  See  also,  Halm  v. 
So.  Pac.  Ry.  Co.,  51  Cal.  605. 

si  Pittsburg,  etc.,  Ry.  Co.  v.  Shields, 
47  Ohio  St.  387,  21  Am.  St.  Rep.  840, 
8  L.  R.  A.  464.  In  this  case,  a  freight 
conductor  had  been  entrusted  with 
signal  torpedoes.  The  conductor 
placed  some  of  them  on  the  track  for 
the  purpose  of  frightening  some 
women  in  the  caboose.  One  failed  to 
explode,  and  the  plaintiff,  a  boy, 
picked  it  up,  carried  it  a  short  dis- 
tance, exploded  it  by  hitting  it  with 
a  rock,  and  was  badly  injured.  The 
court  allowed  him  to  recover  from 
the  railroad. 

In  Sullivan  v.  Louisville,  etc.,  R. 
Co.,  115  Ky.  447,  103  Am.  St.  Rep.  330, 
the  foreman  of  the  switching  crew,  as 
a  prank  took  a  torpedo  from  the  en- 
gine box  and  placed  it  on  the  track, 
to  frighten  the  engineer.  It  exploded 
and  a  flying  piece  of  it  struck  and  in- 
jured the  plaintiff.  The  court  held 
the  company  not  liable,  on  the  ground 
that  the  switchman  had  entirely  de- 
parted from  his  employment. 

In  Merschel  v.  Louisville,  etc.,  R. 
Co.,  121  Ky.  620,  the  petition  alleged 
that  a  servant  of  defendant  was  en- 
trusted with  the  care  and  custody  of 
torpedoes,  and  negligently  left  one  of 


them  exposed  where  children  were  ac- 
customed to  be;  that  the  plaintiff 
picked  it  up,  and  impelled  by  curios- 
ity struck  it  with  a  hammer,  and  was 
injured.  The  defendant  demurred, 
partly  because  the  petition  did  not 
allege  the  servant  to  have  been  acting 
within  the  scope  of  his  employment. 
The  court  overruled  the  demurrer, 
saying  that  if  the  care  of  a  danger- 
ous machine  was  entrusted  by  a  mas- 
ter to  a  servant,  he  is  liable  for  any 
injuries  proceeding  from  negligence 
in  the  care  of  same.  The  court  dis- 
tinguished the  case  of  Sullivan  v. 
Louisville,  etc.,  R.  Co.,  supra,  on  the 
ground  that  in  that  case  the  servant 
who  was  at  fault  was  not  the  one  en- 
trusted with  the  care  of  the  instru- 
ment. 

si*  Sullivan  v.  Louisville,  etc.,  R. 
Co.,  supra.  Obertoni  v.  Boston  & 
Maine  R.  R.,  186  Mass.  481,  67  L.  R. 
A.  422,  is  probably  to  be  placed  upon 
this  ground.  There  the  plaintiff,  a 
small  boy,  picked  up  a  railroad  tor- 
pedo upon  a  railroad  crossing,  took  it 
home,  attempted  to  crack  it  with  a 
rock  and  was  seriously  injured.  In 
attempting  to  account  for  its  presence 
on  the  crossing,  there  was  testimony 
tending  to  show  that  the  brakeman 
and  the  flagman  at  the  crossing  had 
been  tossing  the  torpedo  back  and 
forth  between  themselves,  that  fin- 
ally the  brakeman  tossed  it  to  the 
flagman,  that  he  did  not  catch  it,  that 
it  fell  to  the  ground,  and  that  both 
brakeman  and  flagman  resumed  their 


1513 


§  1948] 


THE  LAW   OF   AGENCY 


[BOOK  iv 


It  would  seem  to  be  a  necessary  qualification  of  this  doctrine  that  lia- 
bility would  attach  if  the  injury  was  done  because  the  servant  negli- 
gently permitted  the  article  to  get  beyond  his  control  in  the  course  of 
his  employment. 

§  1948.  It  is  also  held  in  several  cases  (though  there  are 

cases  apparently  contrary)  that  it  must  further  appear  that  the  use  to 
which  the  servant  puts  the  dangerous  instrumentality  is  one  which 
might  be  justified  by  his  employment,  and  that  the  master  will  not  be 
liable  where  the  servant,  even  though  temporarily,  diverts  it  from  the 
master's  business  and  uses  it  as  the  instrument  of  his  own  malice  or 
amusement.33  The  obvious  tendency  of  this  rule  is  greatly  to  limit  the 


duties  without  picking  it  up.  It  did 
not  appear  where  the  torpedo  came 
from,  or  that  it  had  ever  been  con- 
fided to  the  care  or  custody  of  either 
of  these  servants.  The  court  held 
that  from  these  facts  there  was  no 
evidence  of  negligence  on  the  part  of 
the  railroad  company.  The  court  re- 
ferred to  the  Ohio  cases  above  cited, 
and  declared  that  while  they  were 
entitled  to  great  consideration  they 
were  not  in  accordance  with  the  law 
of  Massachusetts. 

33  In  Galveston,  etc.,  Ry.  Co.  v.  Cur- 
rie,  100  Tex.  136,  10  L.  R.  A.  (N.  S.) 
367,  an  employee  in  a  round  house 
where  a  compressed  air  apparatus  of 
great  power  was  used  to  clean  en- 
gines, diverted  it  to  play  a  prank 
upon  a  fellow  workman,  and  in  a 
wholly  unexpected  manner,  caused 
his  death,  held,  that  the  railway 
company  was  not  liable.  [Almost 
identical  in  facts  and  holding  is  Bal- 
lard  v.  Louisville,  etc.,  R.  Co.,  128  Ky. 
826,  16  L.  R.  A.  (N.  S.)  1052.]  With 
reference  to  the  particular  ground  of 
liability  now  being  considered, 
namely,  the  confiding  of  dangerous 
instrumentalities  to  the  agent's  care, 
the  court  contended  that  that  doc- 
trine could  not  be  extended  so  far  as 
to  make  the  master  liable  for  every 
use  to  which  the  dangerous  instru- 
ment might  be  put  by  the  servant.  It 
must  be  a  use  which  would  be  within 
the  scope  of  the  employment.  If  a 
butcher,  said  the  court,  should  put 


into  the  hands  of  his  servant  a  knife 
with  which  to  slaughter  animals  in 
the  master's  business,  and  the  serv- 
ant while  standing  with  the  knife 
raised  for  that  purpose  should,  upon 
seeing  an  enemy  standing  near,  sud- 
denly plunge  it  into  the  breast  of  the 
enemy,  would  any  one  contend  that 
the  master  would  be  responsible?  Or, 
if  the  engineer  of  a  locomotive  en- 
gine should  take  fire  from  the  fire- 
box of  the  engine  and  burn  a  build- 
ing to  gratify  his  malice  or  light  a 
bonfire  for  his  amusement  from 
which  fire  should  spread  and  do  in- 
jury, would  the  master  be  liable? 
The  court  dissented  from  certain  of 
the  language  used  in  Pittsburgh,  etc., 
R.  R.  Co.  v.  Shields,  47  Ohio  St.  387, 
21  Am.  St.  Rep.  840,  8  L.  R.  A.  464, 
cited  supra,  and  Euting  v.  Chicago, 
etc.,  R.  R.  Co.,  116  Wis.  13,  96  Am. 
St.  Rep.  936,  60  L.  R.  A.  158,  cited 
supra,  though  it  thought  the  actual 
conclusions  in  those  cases  not  incon- 
sistent with  its  own.  See  also,  Can- 
ton Cotton  Warehouse  Co.  v.  Poole, 
78  Miss.  147,  84  Am.  St.  Rep.  620, 
where  the  master  was  held  not  liable 
because  a  night-watchman  left  in 
charge  of  the  masters'  machinery 
let  off  steam  from  the  master's  boiler 
as  a  practical  joke  upon  some  boys 
who  were  on  the  premises,  whereby 
one  of  them  was  injured. 

See  also,  Evers  v.  Krouse,  70  N.  J. 
L.  653,  66  L.  R.  A.  592,  where  de- 
fendant's minor  son,  while  sprink- 


1514 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1948 

master's  liability.  The  master  is  not  liable  wherever  a  servant  to  whom 
he  has  committed  the  custody  of  a  dangerous  instrumentality  has  al- 
lowed it  to  escape,  (unless  indeed  he  be  the  general  custodian)  but 
only  when  it  was  permitted  to  escape  while  being  used  by  a  servant 
authorized  to  use  it  and  while  being  used  within  the  general  scope  of 
the  employment. 


ling  the  defendant's  lawn  by  means 
of  garden  hose,  turned  the  hose  in  a 
spirit  of  mischief  upon  the  plaintiff's 
horse  standing  on  the  opposite  side 
of  the  street,  causing  it  to  run  away 
and  do  injury.  The  defendant  was 
held  not  responsible.  The  act,  said 
the  court,  though  accomplished  by 
defendant's  tool,  was  prompted  solely 
by  the  servant's  malice  or  mischiev- 
ousness  and  had  no  connection  with 
defendant's  business.  So  in  Chicago, 
etc.,  Ry.  Co.  v.  Epperson,  26  111.  App. 
72,  the  fireman  upon  defendant's  en- 
gine while  the  train  was  standing  at 
a  station,  went  to  the  caboose  and 
took  from  the  drawer  in  which  they 
were  kept  a  number  of  signal  torpe- 
does which  he  placed  upon  the  track 
where  they  were  later  exploded, 
causing  injury  to  the  plaintiff.  The 
torpedoes  were  under  charge  of  the 
conductor  and  he  alone  had  power  to 
direct  their  use.  The  fireman  had 
no  authority  to  obtain  or  use  them, 
and  his  act  was  prompted  solely  by 
his  own  spirit  of  mischief.  The  con- 
ductor did  not  know  that  they  had 
been  taken  until  after  their  explo- 
sion. It  was  held  that  the  defendant 
was  not  liable. 

In  International,  etc.,  R.  R.  Co.  v. 
Cooper,  88  Tex.  607,  the  engineer  and 
fireman  on  one  of  defendant's  loco- 
motives permitted  the  plaintiff  to  ride 
upon  the  locomotive.  In  order  to 
play  a  practical  joke  upon  him,  the 
fireman  slipped  an  end  of  a  hose, 
connected  with  the  engine,  into 
Cooper's  pocket,  and  the  engineer 
opened  a  valve  to  which  the  hose  was 
attached,  intending  to  turn  on  cold 
water  but  by  mistake  turning  on  boil- 

1515 


ing  water  and  steam  whereby  Cooper 
was  severely  burned.  The  defendant 
was  held  not  liable.  "The  injury  did 
not  occur  from  anything  done  in  the 
performance  of  such  duty  but  by  the 
independent  act  of  the  servants,  in 
nowise  connected  with  the  duties 
thus  being  performed.  It  is  true  that 
circumstances  might  have  required 
the  discharge  of  hot  water  from  the 
boiler  by  means  of  the  appliances 
used  in  this  instance,  but  upon  this 
occasion  the  evidence  shows  that  the 
act  done  was  not  for  the  purpose  of 
discharging  a  duty,  but  simply  as 
one  of  sport  and  mischief  on  their 
part  towards  the  injured  party." 

See  also,  Cobb  v.  Columbia,  etc., 
R.  R.  Co.,  37  S.  C.  194. 

Contra:  The  case  of  Merschel  v. 
Louisville,  etc.,  R.  Co.,  121  Ky.  620, 
seems  to  be  contra.  The  court  seems 
to  hold  that  it  is  immaterial  whether 
the  torpedo  which  caused  the  injury 
was  negligently  left  by  its  custodian 
upon  the  railroad  track  [where  he 
might  have  occasion  to  put  it  in  the 
course  of  his  employment]  or  upon 
the  street  [where,  so  far  as  appears, 
he  could  never  have  any  occasion  to 
put  it  at  all]. 

The  implications  of  Pittsburgh, 
etc.,  R.  Co.  v.  Shields,  47  Ohio  St. 
387,  21  Am.  St.  Rep.  840,  8  L.  R.  A. 
464,  are  also  contra,  although  possi- 
bly the  particular  case  might  be 
brought  within  the  rule  stated.  Tho 
employee  put  the  torpedo  where  he 
might  lawfully  and  properly  put  it 
under  many  circumstances:  he  did 
not  put  it  there  at  this  particular 
time  for  any  purpose  connected  with 
the  service. 

.  j  . .'  - ' .  . ' .'  '• 

/      ••'!    ..i    ...>t<» 


§§  !949>  ^S0]  THE  LAW  OF  AGENCY  [BOOK  iv 


§  1949.  •  ••  The  doctrine  here  involved,  like  the  one  consid- 
ered in  the  preceding  sections,  is  ordinarily  deemed  to  rest  upon  some 
exceptional  element  in  the  situation;  there  a  special  duty,  here  a  spe- 
cially dangerous  instrumentality,  giving  rise  to  a  specific  and  positive 
duty.  In  this  case  as  in  that  one,  it  is  not  always  easy  to  determine 
what  are  to  be  deemed  dangerous  instrumentalities  within  the  mean- 
ing of  the  rule,  and  there  is  undoubtedly  a  tendency  in  many  places,  in 
this  case  as  in  that,  to  push  the  rule  beyond  its  original  limits.  If  the 
doctrine  has  any  justification  at  all,  it  lies  in  the  fact  that  according  to 
the  ordinary  experience  of  men,  certain  agencies  and  instrumentalities 
are  so  inherently  and  essentially  dangerous,  even  when  used  in  the 
ordinary7  manner  and  for  the  purpose  or  purposes  for  which  they  are 
designed,  as  to  be  in  themselves  a  menace  to  safety  unless  they  are 
guarded  with  special  care.  It  is  not  that  the  thing  in  question  may  be 
made  the  means  of  doing  injury,  because  the  most  inherently  harmless 
thing  may  be  so  used,  but  that  it  is  dangerous  in  itself.  A  hammer  or 
a  billet  of  wood  as  ordinarily  used  is  not  in  itself  a  dangerous  object, 
though  in  the  hands  of  an  angry  and  excited  man,  it  may  be  made  the 
means  of  severe  injury.  "Poison,"  it  was  said  in  one  case,8.*  "is  a  dan- 
gerous substance.  Gunpowder  is  the  same.  A  torpedo  is  a  dangerous 
instrument,  as  is  a  spring  gun,  a  loaded  rifle,  or  the  like.  They  are  in- 
struments and  articles  in  their  nature  calculated  to  do  injury  to  man- 
kind, and  generally  intended  to  accomplish  that  purpose.  They  are  es- 
sentially and  in  their  elements  instruments  of  danger."  35  Even  this 
enumeration,  however,  is  doubtless  open  to  qualification. 

§  1950.  -  Within  the  meaning  of  this  rule,  it  has  been  held 
that  locomotive  engines,  with  steam  up  and  out  upon  the  track,  are, 
at  least  with  respect  of  the  steam  employed,  dangerous  instrumentali- 
ties.36 Signal  torpedoes  have  been  held  to  fall  within  the  same  cate- 

3*  Loop  v.  Litchfield,  42  N.  Y.  351,  Am.  Rep.  114;   Nashville,  etc.,  R.  Co. 

1  Am.  Rep.  543.  v.   Starnes,  9  Heisk.    (Tenn.)    52,  24 

35  it   is   true    that   in   Barmore   v.  Am.  Rep.  296;  Regan  v.  Reed,  96  111. 

Vicksburg,  etc.,  Ry.  Co.,  85  Miss.  426,  App.  460;   Texas,  etc.,  R.  Co.  v.  Seo- 

3  Ann.  Cas.  594,  70  L.  R.  A.  627,  this  vill,  62  Fed.  730,  10  C.  C.  A.  479,  27 

distinction  seems  to  be  repudiated  by  L.  R.  A.  179;   Georgia  R.  Co.  v.  New- 

the   majority   of  the   court;  but  the  some,  60  Ga.  492;   Billman  v.  Indian- 

present  writer  cannot  concur  in  this  apolis,   etc.,  R.   Co.,   76    Ind.   166,   40 

repudiation.     The  rule  quoted   from  Am.   Rep.   230;    Alsever  v.   Minneap- 

1  Thompson  on  Negligence,  §  589,  is  olis,  etc.,  R.  Co.,  115  Iowa,  338,  56  L. 

believed  to  be  misapplied  here;  other-  R.  A.  748;   Cobb  v.  Columbia  R.  Co., 

wise  it  is  believed  to  be  unsound.  37  S.  C.  194;   Skipper  v.  Clifton  Mfg. 

so  Toledo,  etc.,  R.  Co.  v.  Harmon,  Co.,  58    S.    C.    143;   Stewart   v.  Cary 

47  111.  298,  95  Am.  Dec.  489;  Chicago,  Lumber  Co.,  146  N.  Car.  47. 
etc.,  R.  Co.  v.  Dickson,  63  111.  151,  14        Whether  a  locomotive  on  a  track 

1516 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1951 


gory  ;37  and  cases  involving  poisons,  fire-arms,  explosives  and  the  like 
are  referred  to  in  preceding  sections.  It  has  also  been  said  that  a  "rail- 
way tricycle"  is  also  within  the  rule,38  though  this  seems  certainly  to 
be  questionable.  On  the  other  hand,  an  automobile,39  a  railway  hand- 
car,40 a  hatchet,  41  a  horse  and  cart,42  a  wagon  and  a  team  of  mules  *3 
and  many  similar  articles  of  common  use  44  have  been  held  not  to  be 
dangerous  instrumentalities  within  this  rule. 

§  1951.  III.  Where  the  master  entrusts  to  servant  performance 
of  duties  involving  the  use  of  force. — Another  class  of  cases  in  which 
it  is  sometimes  said  that  the  master  may  be  under  a  special  responsi- 
bility for  his  servant's  wilful,  wanton  or  malicious  act,  are  the  cases 
wherein  the  master  has  confided  to  the  servant  the  performance  of  du- 


in  charge  of  an  engineer  is  more  in- 
trinsically dangerous  than  an  auto- 
mobile in  the  hands  of  the  ordinary 
driver,  is  well  open  to  question. 

37  Pittsburgh,  etc.,  R.  Co.  v. 
Shields,  47  Ohio  St.  387,  21  Am.  St. 
Rep.  840,  8  L.  R.  A.  464;  Sullivan 
v.  L.  &  N.  R.  Co.,  115  Ky.  447,  103 
Am.  St.  Rep.  330;  Merschel  v.  L.  & 
N.  R.  Co.,  121  Ky.  620. 

ss  Barmore  v.  Vicksburg,  etc.,  Ry. 
Co.,  85  Miss.  426,  3  Ann.  Gas.  594,  70 
L.  R.  A.  627.  In  Salisbury  v.  Erie 
R.  Co.,  66  N.  J.  L.  233,  88  Am.  St. 
Rep.  480,  55  L.  R.  A.  578,  a  railway 
"push-car"  was  the  means  of  inflict- 
ing thn  injury  but  the  case  is  put 
rather  upon  the  now  generally  repu- 
diated doctrine  of  Sleath  v.  Wilson, 
(9  C.  &  P.  607),  than  upon  the  ground 
of  a  dangerous  instrumentality. 

3»  See  Slater  v.  Advance  Thresher 
Co.,  97  Minn.  305,  5  L.  R.  A.  (N. 
S.)  598;  Lotz  v.  Hanlon,  217  Pa. 
339,  10  Ann.  Gas.  731,  118  Am. 
St.  Rep.  922,  10  L.  R.  A.  (N. 
S.)  202;  Cunningham  v.  Castle,  127 
N.  Y.  App.  Div.  580;  Jones  v.  Hoge, 
47  Wash.  663,  125  Am.  St.  Rep.  915, 
14  L.  R.  A.  (N.  S.)  216;  Lewis  v. 
Amorous,  3  Ga.  App.  50;  Danforth  v. 
Fisher,  75  N.  H.  Ill,  139  Am.  St.  Rep. 
670,  21  L.  R.  A.  (N.  S.)  93;  Vincent 
v.  Crandall,  etc.,  Co.,  131  N.  Y.  App. 
Div.  280;  Steffen  v.  McNaughton,  142 
Wis.  49,  19  Ann.  Gas.  1227,  26  L.  R. 
A.  (N.  S.)  382;  Mclntyre  v.  Orner 


166  Ind.  57,  117  Am.  St.  Rep.  359,  8 
Ann.  Gas.  1087,  4  L.  R.  A.  (N.  S.) 
1130;  Colwell  v.  Aetna  Bottle  Co.,  33 
R.  I.  531. 

Contra:   Ingraham   v.    Slockamore, 
63  N.  Y.  Misc.  114. 

40  Branch  v.  International,  etc.,  R. 
Co.  92  Tex.  288,  71  Am.  St.  Rep.  844. 
See  also,  Dougherty  v.  Chicago,  etc., 
R.    Co.,   137    Iowa,   257,    126   Am.    St 
Rep.  282,  14  L.  R.  A.   (N.  S.)  590. 

41  Little    Miami    Ry.    Co.    v.    Wet- 
more,  19   Ohio    St.   110,  2    Am.    Rep. 
373. 

42  Storey  v.  Ashton,  L.  R.,  4  Q.  B. 
476. 

43  Dover  v.  Mayes  Mfg.  Co.,  157  N. 
C.  324. 

44  "The  ordinary  appliances  in  use 
in  an  ice  factory  cannot  be  so  classed, 
certainly  not  a  coal  scoop  and  elec- 
tric   lights."     Canton    Cotton   Ware- 
house Co.  v.  Pool,  78  Miss.  147,  84  Am. 
St.  Rep.    620.      Neither    can    a  com- 
pressed-air  hose.      Ballard   v.    Louis- 
ville, etc.,  R.  Co.,  128  Ky.  826,  16  L. 
R.  A.  (N.  S.)  1052.     See  also,  Galves- 
ton,  etc.,  Ry.  Co.  v.  Currie,  100  Tex. 
136,  10  L.  R.  A.   (N.  S.)  367, — a  case 
almost  identical  in  its  facts.     Nor  a 
passenger  elevator  in  an  office  build- 
ing.    Sweeden  v.  Atkinson  Improve- 
ment Co.,   93   Ark.   397,    27   L.   R.   A. 
(N.    S.)    124.     Nor    a    garden    hose. 
Evers  v.  Krouse,  70  N.  J.  L.  653,  66 
L.  R.  A.  592. 


§§    1952,  1953]  THE   LAW  OF  AGENCY  [BOOK    IV 

ties  which  in  the  ordinary  and  natural  course  may  involve  the  use  of 
force  upon  third  persons,  and  has  expressly  or  impliedly  committed 
to  the  servant  the  determination  of  the  occasion  when  force  is  to  be 
used  and  the  degree  of  force  which  is  to  be  exercised.  "If  the  master 
give  an  order  to  a  servant,"  it  is  said  in  one  case,45  "which  implies  the 
use  of  force  and  violence  to  others,  leaving  to  the  discretion  of  the 
servant  to  decide  when  the  occasion  arises  to  which  the  order  applies, 
and  the  extent  and  kind  of  force  to  be  used,  he  is  liable,  if  the  servant 
in  executing  the  order  makes  use  of  force  in  a  manner  or  to  a  degree 
which  is  unjustifiable."  In  such  a  case  "if  the  act  be  done  in  execu- 
tion of  the  authority  given  him  by  his  master,  and  for  the  purpose  of 
performing  what  the  master  has  directed,  the  master  will  be  responsi- 
ble whether  the  wrong  done  be  occasioned  by  negligence  or  by  a  wan- 
ton or  reckless  purpose  to  accomplish  the  master's  business  in  an  un- 
lawful manner." 

§  1952.  Breach  of  instructions  no  defense. — It  is  no  de- 
fense to  the  liability  of  the  master  in  such  a  case  (if  the  act  be  one 
within  the  scope  of  the  authority),  that  the  master  in  conferring  the 
authority  to  use  force  had  specifically  pointed  out  the  extent  to  which 
the  servant  might  go  or  had  expressly  forbidden  the  use  of  excessive 
force.416  The  rule  is  of  frequent  application  to  the  case  of  the  agents 
or  servants  of  carriers  who  undertake,  with  unnecessary  or  unreason- 
able force  and  violence  or  at  improper  times  and  places,  to  eject  from 
their  conveyances  persons  whom  they  would  be  authorized  to  remove 
under  proper  circumstances.  But  it  is  by  no  means  confined  to  such 
cases.  It  applies  wherever  the  circumstances  bring  the  case  within 
the  operation  of  the  rule  regardless  of  the  nature  of  the  occupation.47 

§  1953.  Master  not  liable  for  servant's  personal  malice. — 

Even  under  this  rule,  however,  the  master  would  not  be  responsible 
for  a  wanton  or  malicious  act  of  the  servant  not  committed  in  the 
execution  of  the  authority.  As  stated  in  one  case  which  has  been  often 
cited :  **  "If  he  is  authorized  to  use  force  against  another  when  nec- 

« Howe    v.    Newmarch,    12    Allen  154;    Williams  v.  Tolbert,  76  S.  Car. 

(Mass.),  49.  211. 

To  same  effect:  Ploof  v.  Putnam,  83          *?  Applied  in  Tillar  v.  Reynolds,  96 

Vt.  252,  138  Am.  St.  Rep.  1085;   New  Ark.    358,  30    L.    R.    A.  (N.  S.)  1043, 

Ellerslie  Fishing  Club  v.  Stewart,  123  where  the  defendant's  overseer  of  a 

Ky.  8;  Burke  v.  Burke,  1  Ont.  L.  Rep.  convict  farm  excessively  punished  a 

127,  419.  convict. 

*«  West  Jersey,  etc.,  R.  Co.  v.  Welsh,          4S  Rounds  v.  Delaware,  etc.,  R.  R. 

62  N.  J.  L.  655,  72  Am.  St.  Rep.  659;  Co.,  64  N.  Y.  129,  21  Am.  Rep.  597. 
Letts  v.  Hoboken,  etc.,  Co.,  70  N.  J.          To    same    effect:  Rogahn    v.    The 

L.   358;    Barden  v.  Felch,  109  Mass.  Moore   Mfg.,   etc.,    Co.,  79   Wis.  573; 

I5l8 


CHAP.  V]          LIABILITY  OF. PRINCIPAL  TO  THIRD   PARTIES       [§§  IQ54, 

essary  in  executing  his  master's  orders,  the  master  commits  it  to  him 
to  decide  what  degree  of  force  he  shall  use;  and  if,  through  mis  judg- 
ment or  violence  of  temper,  he  goes  beyond  the  necessity  of  the  occa- 
sion, and  gives  a  right  of  action  to  another,  he  cannot,  as  to  third  per- 
sons, be  said  to  have  been  acting  without  the  line  of  his  duty,  or  to 
have  departed  from  his  master's  business.  If,  however,  the  servant, 
under  guise  and  cover  of  executing  his  master's  orders,  and  exercising 
the  authority  conferred  upon  him,  wilfully  and  designedly,  for  the 
purpose  of  accomplishing  his  own  independent,  malicious  or  wicked 
purposes,  does  an  injury  to  another,  then  the  master  is  not  liable.  The 
relation  of  master  and  servant,  as  to  that  transaction,  does  not  exist  be- 
tween them.  It  is  a  wilful  and  wanton  wrong  and  trespass,  for  which 
the  master  cannot  be  held  responsible." 

§  1954.  Act  must  have  been  within  course  of  employment. 

— It  is  indispensable  to  the  operation  of  this  rule  that  the  force  shall 
have  been  used  while  the  servant  was  acting  in  the  course  of  his  em- 
ployment and  as  part  of  it.  For  if  he  were  then  not  so  acting,  if  his 
service  had  not  yet  begun,  or  if  it  had  ended,  or  if  he  were  acting  upon 
some  matter  not  connected  with  the  service  and  constituting  part  of 
it,  his  exercise  of  force  must  be  regarded  as  his  own  unlawful  act  for 
which  the  master  is  not  responsible.49 

§  1955.  >—  Use  of  force  must  have  been  authorized. — It  is 

also  essential  to  the  operation  of  this  rule  that  the  case  shall  be  one  in 
which  the  exercise  of  some  degree  of  force  will  be  permissible.  If  the 
master  has  not  authorized  the  use  of  force  under  any  circumstances, 
he  can  not  be  liable  under  this  rule  for  excessive  force.  Thus  where  a 
brakeman  who  might  under  proper  circumstances  have  used  force  to 
expel  a  trespasser  or  to  eject  a  passenger  for  the  non-payment  of  fare, 
forcibly  expelled  a  person  from  the  train  because  he  would  not  give  a 
gratuity  to  the  servant,  it  was  held  that  the  master  was  not  liable  within 

Gray  v.    B.  &  M.    Ry.,    168    Mass.  20;  200;    Jackson  v.  Second  Ave.  R.  Co., 

Aiken    v.    Holyoke    St.    Ry.    Co.,    184  47  N.  Y.  274,  7  Am.  Rep.  448;    Bren- 

Mass.  269;   Barabasz  v.  Kabat,  86  Md.  nan  v.  Merchant  &  Co.,  205  Pa.  258; 

23;  Hoffman  v.  N.  Y.  Cent.  R.  Co.,  87  Southern  Ry.  Co.  v.  James,  118   Ga. 

N.  Y.  25,  41  Am.  Rep.  337;  Alton  Ry.,  340,  63  L.  R.  A.  257. 

etc.,  Co.  v.  Cox,  84  111.  App.  202;  West  49  Thus  where  a  train  crew  pursued 

Jersey,  etc.,  R.  Co.  v.   Welsh,  62  N.  a  boy  who  had  been  a  trespasser  on 

J.  L.  655,  72  Am.  St.  Rep.  659;   Letts  the  train  and  assaulted  him  the  com- 

v.  Hoboken  R.  Warehouse,  etc.,  Co.,  pany  was  held  not  liable.     The  crew 

70  N.  J.  L.  358;   Chicago,  etc.,  R.  Co.  only   had   authority   to  remove   tres- 

v.  Kerr,  74  Neb.  1;  Rowell  v.  B.  &  M.  passers.     Cincinnati,  etc.,  Ry.  Co.  v. 

Ry.,  68  N.  H.  358;    Collins  v.  Butler,  Rue,  142  Ky.  694,  34  L.  R.  A.  (N.  S.) 

83  N.  Y.  App.  Div.  12;  Ramsden  v.  B.  200. 
&  A.  R.,  104  Mass.  117,  6  Am.  Rep. 

T5I9 


THE   LAW  OF  AGENCY.  [BOOK    IV 

this  rule.  It  was  clear  that  what  he  did  was  done  for  his  own  purposes, 
and  that  he  was  "using  his  authority  to  eject  trespassers,  if  any  there 
were,  as  a  mere  cover  under  which  to  extort  money,  not  as  a  fare  but 
for  his  own  pocket."  50 

§  1956.  Other  limitations. — Still  further  limitations  upon 

this  doctrine  are  clearly  suggested.  The  master  would  certainly  not 
be  liable  for  the  use  of  force  upon  a  person  not  belonging  to  the  class 
of  persons  contemplated  and  upon  whom  the  use  of  force  could  not  be 
regarded  as  a  natural  and  proximate  result  of  the  authority  given.  So 
also  it  must  be  true,  though  the  lines  of  distinction  are  not  easy  to  draw 
abstractly,  that  the  master  would  not  be  liable  for  the  use  of  force  of 
a  sort  or  a  degree  not  naturally  and  proximately  resulting  from  the 
authority  but  extraordinary,  unnatural  and  unprecedented. 

§  1957.  IV.  Master's  liability  for  malicious  acts  in  other  cases. — 
Returning  now  to  the  general  question  of  the  master's  liability  for  ma- 
licious acts  in  cases  not  affected  by  any  such  special  considerations  as 
those  which  have  just  been  considered,  it  may  be  premised,  as  has  been 
already  stated,  that  the  tendency  of  the  modern  cases  is  undeniably  to 
attach  less  importance  to  the  motive  with  which  the  act  was  done  and 
to  give  more  attention  to  the  question  whether  or  not  it  can  be  deemed 
to  fall  within  the  course  of  the  servant's  employment. 

§  1958.  Illustrations. — The  scope  of  the  rulings  upon  this 

subject  can  be  best  illustrated  by  some  selections  from  the  adjudicated 
cases.  Thus  in  a  leading  case  in  New  York,51  in  which  the  older  and 
more  rigid  rule  was  adhered  to,  it  appeared  that  a  son  while  driving 
his  father's  horses  and  wagon  about  his  father's  business,  seeing  some 
boys  attempting  to  get  into  the  wagon,  whipped  up  his  horses  and  the 
wagon  ran  over  one  of  the  boys  who  was  seen  to  be  between  the  wheels 
when  the  horses  were  started.  An  action  was  brought  against  the  fa- 
ther and  the  son  jointly  to  recover  damages,  and  a  verdict  rendered 
against  them  both.  But  Cowen,  J.,  said:  "It  is  impossible  to  sustain 
this  verdict  against  the  father.  It  is  difficult  to  infer  from  the  evidence, 
anything  short  of  a  design  in  Stephen  (the  son),  to  throw  the  plain- 
tiff's boy  from  the  wagon ;  and  the  judge,  as  I  understand  the  charge, 
told  the  jury  that  the  defendants  were  jointly  liable  in  that  view.  If 
Stephen,  in  whipping  the  horses,  acted  with  the  wilful  intention  to 
throw  the  plaintiff's  boy  off,  it  was  a  plain  trespass,  and  nothing  but  a 
trespass,  for  which  the  master  of  Stephen  is  no  more  liable  than  if  his 
:;  •  i:  '  •  . .  /.  {•;  .ri'vi  .» 

so  Illinois  Central  R.  R.  Co.  v.  BI  Wright  v.  Wilcox,  19  Wend.  (N. 
Latham,  72  Miss.  32.  Y.)  343,  32  Am.*Dec.  507. 

1520 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1959 

servant  had  committed  any  other  assault  and  battery.  All  the  cases 
agree  that  a  master  is  not  liable  for  the  wilful  mischief  of  his  servant, 
though  he  be  at  the  time,  in  other  respects,  engaged  in  the  service  of 
the  former.62  Why  is  the  master  chargeable  for  the  act  of  his  serv- 
ant? Because  what  a  man  does  by  another  he  does  by  himself.  The 
act  is  within  the  scope  of  the  agency.  'A  master  is  not  answerable,' 
says  Mr.  Hammond,  'for  every  act  of  his  servant's  life,  but  only  for 
those  done  in  his  relative  capacity.  To  charge  the  master,  it  must 
always  be  shown  or  presumed,  that  the  relation  of  master  and  servant 
subsisted  between  them  in  the  particular  affair.  If  the  master  is  liable 
under  other  circumstances,  he  is  so,  not  quatenus  master,  but  as  any 
one  would  be  who  instigates  an  injury.'  The  dividing  line  is  the  zvil- 
f ulness  of  the  act.  If  the  servant  make  a  careless  mistake  of  commis- 
sion or  omission  the  law  holds  it  to  be  the  master's  business  negligently 
done.  It  is  of  the  very  nature  of  business  that  it  may  be  well  or  ill 
done.  We  frequently  speak  of  a  cautious  or  careless  driver  in  anoth- 
er's employment.  Either  may  be  in  the  pursuit  of  his  master's  busi- 
ness, and  negligence  in  servants  is  so  common,  that  the  law  will  hold 
the  master  to  the  consequences  as  a  thing  that  he  is  bound  to  foresee 
and  provide  against.  But  it  is  different  with  a  wilful  act  of  mischief. 
To  subject  the  master  in  such  a  case,  it  must  be  proved  that  he  actually 
assented,  for  the  law  will  not  imply  assent.  In  the  particular  affair, 
there  is,  then,  no  longer  the  presumed  relation  of  master  and  servant, 
The  distinction  seems  to  resolve  itself  into  a  question  of  evidence." 

§  1959.  The  rule  here  announced  by  Judge  Cowen  is  un- 
doubtedly that  laid  down  by  the  older  cases.53  But  the  more  modern 
rule  clearly  is  that  the  mere  nature  of  the  act  is  not  the  only  criterion, 
but  that  the  most  important  test  is  whether  the  act  was  done  in  the 
course  of  the  employment.  Thus  Ryan,  C.  J.,  says :  "We  cannot  help 

52  Citing  1  Chit.  PI.  69;  McManus  v.  boat    Co.    v.    Housatonic   R.    Co.,    24 

Crickett,  1  East,  106;    Hammond  on  Conn.  40,  63  Am.  Dec.  154;    Bard  v. 

Parties,  83;    Croft  v.  Alison,  4  Barn.  Yohn,   26   Pa.   482;    Mali  v.  Lord,  39 

&    Aid.    590;    1    Chit.    Gen.    Pr.  80;  N.  Y.  381,  100  Am.  Dec.  448;   State  v. 

Bowcher  v.  Noidstrom,  1  Taunt.  568.  Morris,  etc.,  Ry.  Co.,  3  Zab.    (N.  J.) 

ss  McManus    v.    Crickett,    1    East,  360;   Illinois  Cent.  R.  R.  Co.  v.  Dow- 

106;   Ellis    v.    Turner,  8    T.    R.    531;  ney,  18  111.  259;   Evansville,  etc.,  Ry. 

Middleton    v.    Fowler,    1    Salk.  282;  Co.  v.  Baum,  26  Ind.  70;  New  Orleans, 

Croft  v.  Alison,  4  B.  &  Aid.  590;  Bow-  etc.,  Ry.  Co.  v.  Harrison,  48  Miss.  112, 

cher  v.  Noidstrom,  1  Taunt.  568.    See  12  Am.  Rep.  356;  Wesson  v.  Seaboard, 

also,    Tuller    v.    Voght,    13    111.    278;  etc.,  R.  Co.,  49  N.  C.  379. 
Brown  v.  Purviance,  2  H.  &  G.  (Md.)  A  very  recent  case  in  Michigan  also 

316;   Foster  v.  Essex  Bank,  17  Mass.  seems  to   commit  that  court  to   the 

479,  9  Am.  Dec.  168;  Church  v.  Mans-  older  view.     Ducre  v.  Sparrow-Kroll 

field,  20  Conn.  284;    Thames  Steam-  Lumber  Co.,  168  Mich.  49. 
06                                             1521 


§    1960]  THE  LAW  OF   AGENCY  [BOOK   IV 

i 

thinking  that  there  has  been  some  useless  subtlety  in  the  books  in  the 
application  of  the  rule  respondcat  superior,  and  some  unnessary  con- 
fusion in  the  liability  of  principals  for  wilful  and  malicious  acts  of 
agents.  This  has  probably  arisen  from  too  broad  an  application  of  the 
dictum  of  Lord  Holt,  that  'no  master  is  chargeable  with  the  acts  of 
his  servant  but  when  he  acts  in  the  execution  of  the  authority  given  to 
him,  and  the  act  of  the  servant  is  the  act  of  the  master.' 5*  For  this 
would  seem  to  go  to  excuse  the  master  for  the  negligence  as  well  as 
for  the  malice  of  his  servant.  One  employing  another  in  good  faith  to 
do  his  lawful  work  would  be  as  little  likely  to  authorize  negligence  as 
malice ;  and  either  would  be  equally  dchors  the  employment.  Strictly, 
the  act  of  the  servant  would  not,  in  either  case,  be  the  act  of  the  mas- 
ter. It  is  true  that  so  great  an  authority  as  Lord  Kenyon  denies  this, 
in  the  leading  case  of  McManus  v.  Crickett,™  which  has  been  so  ex- 
tensively followed ;  and  again,  in  Ellis  v.  Turner™  distinguishes  be- 
tween the  negligence  and  the  wilfulness  of  the  one  act  of  the  agent, 
holding  the  principal  for  the  negligence  but  not  for  the  wilfulness.  It 
is  a  singular  comment  on  these  subtleties,  that  McManus  v.  Crickett 
appears  to  rest  on  Middle  ton  v.  Fozvler,  the  only  adjudged  case  cited 
to  support  it ;  and  that  Middleton  v.  Fowler  was  not  a  case  of  malice, 
but  of  negligence,  Lord  Holt  holding  the  master  in  that  case  not  liable 
for  the  negligence  of  his  servant,  in  such  circumstances  as  no  court 
could  now  doubt  the  master's  liability.  In  spite  of  all  the  learned  sub- 
tleties of  so  many  cases,  the  true  distinction  ought  to  rest,  it  appears  to 
us,  on  the  condition  whether  or  not  the  act  of  the  servant  be  in  the 
course  of  his  employment." 57 

§  1960.  In  accordance  with  the  rule  laid  down  in  the  case 

last  above  referred  to,  it  has  been  held  in  a  great  variety  of  cases  that 
the  master  is  liable  for  the  wanton  or  malicious  acts  of  his  servant  if 
they  were  committed  while  the  servant  was  acting  in  the  execution  of 
his  authority  and  within  the  course  of  his  employment.58  When  this 

"  Middleton  v.  Fowler,  1  Salk.  282.  89  Md.  495,  45  L.  R.  A.  527;  Aiken  v 

ool  East,  106,  supra.  Holyoke  St.  Ry.  Co.,  184  Mass.  269, 

»e  8  Term  Rep.  52.1.  Chicago,  etc.,  Ry.  Co.  v.  Kerr,  74  Neb. 

67  Craker  v.  Chicago  &  Northwest-  1;    Mott  v.  Consumers'  Ice  Co.,  73  N. 

ern  Ry.  Co.,  36  Wis.  657,  17  Am.  Rep.  Y.  543;  Magar  v.  Hammond.  183  N.  Y. 

504.    See  also,  Redding  v.  South  Caro-  387,  3  L.  R.  A.  1038;  Jackson  v.  Tele- 

lina  R.  R.  Co.,  3  S.  C.  1,  16  Am.  Rep.  graph  Co.,  139  N.  C.  347,  70  L.  R.  A. 

681.  738;    Stranahan  Co.  v.  Coit,  55  Ohio 

ss  St.  Louis,  etc.,  Ry.  Co.  v.  Hack-  St.  398,  4  L.  R.  A.   (N.  S.)   506;   Nel- 

ett,  58  Ark.  381,  41  Am,  St.  Rep.  105;  son  Business  College  Co.  v.  Lloyd,  60 

Baltimore  Consol.  Ry.  Co.  v.  Pierce,  Ohio  St.  448,  71  Am.  St.  Rep.  729,  46 

1522 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1961,  1962 

has  been  said,  however,  the  problem  is  by  no  means  solved,  for  the  dif- 
ficult question  always  remains  as  to  what  acts  may  be  deemed  to  be 
within  the  course  of  his  employment  within  the  meaning  of  this  rule. 
As  in  the  case  already  considered  of  the  master's  liability  for  the  negli- 
gent acts  of  his  servant,  it  is  impossible  to  lay  down  any  hard  and  fast 
rule  by  which  this  question  can  be  determined.  In  many  cases  no  bet- 
ter definition  can  be  given  than  the  words  themselves  suggest.  But,  in 
general  terms,  it  may  be  said  that  an  act  is  within  the  course  of  the 
employment  if  (i.)  it  be  something  fairly  and  naturally  incident  to  the 
business,  and  if  (2.)  it  be  done  while  the  servant  was  engaged  upon  the 
master's  business  and  be  done,  although  mistakenly  or  ill-advisedly, 
with  a  view  to  further  the  master's  interests,  or  from  some  impulse  or 
emotion  which  naturally  grew  out  of  or  was  incident  to  the  attempt 
to  perform  the  master's  business,  and  did  not  arise  wholly  from  some 
external,  independent  and  personal  motive  on  the  part  of  the  servant 
to  do  the  act  upon  his  own  account. 

§  1961.  In  dealing  with  this  question  of  motive,  the  time 

and  circumstances  of  its  origin  may  often  be  significant.  Thus  if  the 
alleged  wilfulness  or  malice  arose  out  of  the  aggravations,  annoyances 
or  conflicts  of  the  attempted  performance  of  the  master's  service,  it  is 
vastly  easier  to  see  that  the  act  resulting  from  it  was  still  an  act  within 
the  course  of  the  employment,  than  it  is  where  the  motive  arose  at  a 
time  when  the  servant  was  not  engaged  in  the  employment,  and  did  not 
owe  its  origin  to  any  attempt  at  performance,  but  .was  the  personal  and 
private  malice  or  ill-will  of  the  servant  which  the  exigencies  of  the  serv- 
ice did  not  create  but  merely  furnished  an  opportunity  to  express  or 
satisfy. 

§  1962.  i —  It  does  not  by  any  means  follow,  from  this  rule, 

that  the  master  is  liable  for  any  wilful  or  malicious  act  of  his  servant, 
even  though  it  be  committed  during  the  time  in  which  the  servant  is 
generally  engaged  upon  the  execution  of  his  employment.     As  has  al- 
ready been  pointed  out  when  dealing  with  the  matter  of  negligence,  it 
is  not  merely  a  question  of  time  or  place  but  is  a  matter  of  incident  and 
relation.     It  is  not  enough  merely  that  the  act  was  done  during  trleT 
time,  or  at  the  place,  in  which  the  servant  is  acting  within  the  exercise  \ 
of  his  authority,  but  it  must  also  be  within  the  course  of  the  employ-    \ 
ment  as  already  explained.    At  the  same  time,  it  is  not  to  be  inferred 
that  the  master's  liability  depends  upon  whether  he  has  or  has  not  in- 
tentionally authorized  the  doing  of  the  particular  wrongful  act.     If 

L.  R.  A.  314;  Ploof  v.  Putnam,  83  Vt.       (N.  S.)  251;  Western  Un.  Tel.  Co.  v 
252,  138  Am.  St.  Rep.  1085,  26  L.  R.  A.       Cattell,  100  C.  C.  A.  489,  177  Fed.  71. 

I523 


§§    1963,  1964]  THE   LAW  OF  AGENCY 


[BOOK  iv 


he  has  done  so,  he  is  of  course  liable.  The  question  is  rather,  as  has 
been  explained,  whether  the  act  can  fairly  be  regarded  as  a  natural 
incident  to,  a  direct  outgrowth  of,  a  natural  ingredient  in,  the  execu- 
tion of  the  service  which  the  master  confided  to  the  servant.  If  that 
be  the  character  of  the  act,  the  master  is  liable  though  the  act  were 
done  wilfully  or  maliciously.  If,  on  the  other  hand,  the  servant  step- 
ped aside  from  his  employment  to  do  some  act  having  no  connection 
with  his  master's  business,  and  to  which  he  was  inspired  by  his  own 
private  malice  or  ill-will,  the  master  is  not  liable.59 

§  1963.  Many  attempts  have  been  made  to  press  the  rule 

still  further,  and  it  is  not  to  be  denied  that  some  very  sweeping  and 
extreme  statements  are  to  be  met  with  in  the  cases.  But  the  over- 
whelming weight  of  authority  and  reason — in  fact  the  very  necessities 
of  a  law  of  Agency,  if  that  is  to  be  the  basis  of  liability — requires  that 
the  rule  shall  be  limited  as  has  been  indicated.  Rules  based  upon  new 
theories  of  law  or  society  will  doubtless  require  legislation  to  make 
them  operative. 

§  1964.  An  excellent  illustration  of  the  principles  here  in- 
volved is  furnished  by  the  English  case  of  Limpus  v.  London  General 
Omnibus  Company,™  whereki  the  question  was  very  carefully  con- 


BO  Louisville,  etc.,  R.  Co.  v.  Routt, 
25  Ky.  L.  Rep.  887,  76  S.  W.  513. 

In  Greb  v.  Pennsylvania  Ry.  Co.,  41 
Pa.  Super.  Ct.  61,  a  passenger  after 
he  had  gotten  off  the  train  on  which 
he  had  been  a  passenger  and  stepped 
onto  the  platform,  was  assaulted, 
without  provocation,  by  the  conductor 
of  the  train.  Held,  that  an  instruc- 
tion that  defendant  was  liable  was 
erroneous.  Also  that  there  was  no 
liability  under  the  general  duty  to 
protect. 

In  Collins  v.  Butler,  179  N.  Y.  156, 
the  plaintiff  alleged  that  a  clerk  in 
defendant's  store  became  unreason- 
ably enraged  at  her  while  she  was 
seeking  to  buy  some  apples  that  had 
been  placarded  in  the  store-windows, 
swore  at  her,  threatened  to  "kick  her 
out"  of  the  store,  and  did  violently 
push  and  thrust  her  into  the  street. 
Held,  that  the  employer  was  not,  as  a 
matter  of  law,  liable  for  the  act  of 
the  clerk;  reversing  83  App.  Div.  12. 

It  is  true  that  statements  are  not 
infrequently  found  denying  this  dis- 


tinction. Thus  in  Central  Ry.  Co.  v. 
Brown,  113  Ga.  414,  84  Am.  St.  Rep. 
250,  the  court  refers  to  the  general 
doctrine  as  "too  refined,"  "fine  spun," 
etc.,  but  the  case  was  one  involving 
passengers,  which,  as  has  been  seen, 
are  put  on  different  ground. 

so  1  H.  &  C.  526.  In  the  course  of 
his  opinion  in  this  case,  Willes,  J., 
said: 

"But  there  is  another  construction 
to  be  put  upon  the  act  of  the  servant 
in  driving  across  the  other  omnibus; 
he  wanted  to  get  before  it.  That  was 
an  act  done  in  the  course  of  his  em- 
ployment. He  was  employed  not  only 
to  drive  the  omnibus,  which  alone 
would  not  support  this  summing  up, 
but  also  to  get  as  much  money  as  he 
could  for  his  master,  and  to  do  it  in 
rivalry  with  other  omnibuses  on  the 
road.  The  act  of  driving  as  he  did 
is  not  consistent  with  his  employ- 
ment, when  explained  by  his  desire 
to  get  before  the  other  omnibus.  '  I 
do  not  speak  without  authority  when 
I  treat  that  as  the  proper  test  Take 


1524 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1965 

sidered  and  in  which  there  was  some  difference  of  opinion.  The  facts 
as  stated  by  one  of  the  judges  who  held  the  defendants  not  liable,  and 
whose  statement  presents  the  facts  in  the  strongest  light  against  the 
plaintiff,  were  as  follows :  "It  appears  by  the  evidence  in  this  case  that 
the  defendants  were  the  proprietors  of  an  omnibus  plying  between  the 
Bank  and  Hounslow,  which  at  the  time  in  question  was  driven  by  a 
coachman  in  their  service ;  that  whilst  upon  the  road,  in  the  course  of 
his  employment  to  drive  defendants'  omnibus  from  Piccadilly  to  Ken- 
sington, he  wilfully  and  on  purpose,  and  contrary  to  the  express  orders 
of  the  defendants,  wrongfully  endeavored  to  hinder  and  obstruct  the 
passage  along  the  road  of  another  omnibus  belonging  to  the  plaintiff; 
and  for  that  purpose,  he,  who  was  ahead  of  the  plaintiff's  omnibus  80 
or  loo  yards,  slackened  his  pace,  until  the  plaintiff's  omnibus  came  up 
to  him  and  was(about  to  pass,  and  he  then  purposely  pulled  across  the 
road  in  order  to  prevent  and  obstruct  his  progress,  and  in  so  doing  ran 
against  one  of  the  plaintiff's  horses  with  his  (the  defendants')  omni- 
bus, thereby  causing  considerable  damage.  The  reason  assigned  by  the 
defendants'  coachman  for  this  wrongful  proceeding  was  that  he  pulled 
across  the  plaintiff's  coachman  to  keep  him  from  passing,  in  order  to 
serve  him  (the  plaintiff's  coachman)  as  he  had  served  him  (the  defend- 
ants' coachman)." 

§  1965.  >      A  verdict  for  the  plaintiff  having  been  rendered, 

judgment  was  affirmed  by  a  majority  of  the  judges  in  the  Exchequer 
Chamber,  one  judge  dissenting.  The  position  of  the  majority  is  shown 
by  the  following  extract  from  the  opinion  of  Blackburn,  J. :  "The  de- 
fendants' servant  was  the  driver  of  an  omnibus,  and  as  such  it  was  his 
duty,  not  only  to  conduct  it  from  one  terminus  to  another,  but  to  use  it 
for  the  purpose  of  picking  up  traffic  during  the  course  of  the  journey. 
He  drove  across  another  omnibus  under  circumstances  from  which  the 
jury  might  have  thought  that  it  was  done  for  the  purpose  of  wreaking 
his  spite  against  the  driver  of  that  omnibus.  The  learned  judge,  hav- 

B  r.K  ftaCStf  ;>!rf&J  5»rtl: 

the  ordinary  case  of  a  master  of  a  tiff's  cab-driver  moved  into  a  line 
vessel,  who  it  must  be  assumed  is  in-  drawn  up  at  a  cab-stand  ahead  of  his 
structed  not  to  do  what  is  unlawful  regular  "turn."  The  defendant's 
but  what  is  lawful,  if  he  has  distinct  driver,  who  probably  was  entitled  to 
instructions  not  to  sell  a  cargo  under  the  desirable  location  pre-empted  by 
any  circumstances,  but  he  does  so  the  plaintiff's  driver,  after  asking 
under  circumstances  consistent  with  plaintiff's  driver  to  yield  the  position, 
his  duty  to  his  master,  the  master  is  cut  in  ahead  of  plaintiff's  cab  with  an 
liable  in  damages  to  the  person  whose  electric  cab  and  backed  into  plain- 
goods  are  sold."  tiff's  horse  and  injured  him.  The  de- 
See  also,  Curley  v.  Electric  Vehicle  fendant  company  was  held  liable  for 
Co.,  68  App.  Div.  18,  where  the  plain-  the  injury. 

1525 


§    1966]  THE    LAW    OF   AGENCY  [BOOK   IV 

ing  to  tell  the  jury  what  was  the  test  by  which  they  were  to  determine 
whether  the  act  was  done  in  the  course  of  the  service  or  not,  used  lan- 
guage in  which  he  tells  them,  perfectly  rightly,  that  if  the  act  was  done 
in  the  course  of  the  service  the  defendants  were  responsible ;  and  he 
goes  on  to  say,  'that  if  the  jury  believed  that  the  real  truth  of  the  mat- 
ter was  that  the  defendants'  driver,  being  dissatisfied  and  irritated  with 
the  plaintiff's  driver,  whether  justly  or  unjustly,  by  reason  of  what 
had  occurred,  and  in  that  state  of  mind  acted  recklessly,  wantonly,  and 
improperly,  but  in  the  course  of  his  service  and  employment,  and  in 
doing  that  which  he  believed  to  be  for  the  interest  of  the  defendants, 
then  the  defendants  were  responsible  for  the  act  of  their  servant.'  No 
doubt  what  Mr.  Mellish  said  is  correct:  it  is  not  universally  true  that 
every  act  done  for  the  interest  of  the  master  is  done  in  the  course  of 
the  employment.  A  footman  might  think  it  for  the  interest  of  his  mas- 
ter to  drive  the  coach,  but  no  one  could  say  that  it  was  within  the  scope 
of  the  footman's  employment,  and  that  the  master  would  be  liable  for 
damages  resulting  from  the  wilful  act  of  the  footman  in  taking  charge 
of  the  horses.  But,  in  this  case,  I  think  the  direction  given  to  the  jury 
was  a  sufficient  guide  to  enable  them  to  say  whether  the  particular  act 
was  done  in  the  course  of  the  employment." 

§  1966.  Many  other  illustrations  of  these  principles  are 

furnished  by  recent  cases.  Thus  where  the  master  was  the  proprietor 
of  a  business  college  and  had  in  his  employment  a  servant  whose  duty 
it  was  to  clean  the  rooms  at  the  close  of  the  day,  and  this  involved  the 
moving  of  the  tables  for  that  purpose,  it  appeared  that  on  a  certain  day 
the  plaintiff  had  been  called  in  to  repair  an  electric  light  in  one  of  the 
rooms.  In  order  to  reach  the  light  he  had  placed  a  ladder  upon  one  of 
the  tables  in  the  room.  It  was  at  the  close  of  the  day  and  the  janitor 
was  engaged  in  cleaning  the  room.  This  involved  the  moving  of  the 
table  on  which  the  ladder  stood.  He  sought  to  move  the  table  in  order 
to  go  on  with  his  work.  The  plaintiff  remonstrated  and  urged  that 
the  table  be  left  as  a  support  to  the  ladder  until  the  plaintiff  had  com- 
pleted the  repairs.  An  altercation  followed  and  the  janitor,  becoming 
impatient,  went  on  with  his  work  of  cleaning,  pushed  the  table  aside 
and  thereby  threw  the  plaintiff  to  the  floor,  causing  the  injuries  for 
which  he  sought  damages  from  the  master.  The  defendant  contended 
"that  the  janitor  by  reason  of  his  ill-will  toward  the  plaintiff,  was  ac- 
tuated wholly  by  malice,  and  violently  shoved  the  table,  not  in  the  per- 
formance of  any  duty  within  his  employment  but  with  the  wilful  pur- 
pose only  of  injuring  the  plaintiff."  The  court,  however,  held  that  it 
was  a  fair  inference  from  the  evidence  that  the  moving  of  the  table, 

1526 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1967,  1968 

under  the  circumstances  was  an  act  within  the  scope  of  the  employ- 
ment, and  that  it  was  error  for  the  trial  court  to  direct  a  verdict  for 
the  defendant.61 

§  1967. In  another  case  in  the  same  court,  it  appeared  that 

the  defendant  was  under  contract  to  supply  and  deliver  milk  to  the 
plaintiff's  creamery ;  that  the  defendant  had  in  his  employment  a  serv- 
ant who  assisted  in  preparing  the  milk  and  delivering  it  to  the  plain- 
tiff, and  that  this  servant,  as  was  contended,  maliciously  and  to  gratify 
ill-will  which  he  had  toward  the  defendant  (although  the  defendant 
was  ignorant  of  it)  fouled  and  adulterated  the  milk  which  he  delivered 
to  the  plaintiff,  thereby  causing  plaintiff  the  injury  for  which  recovery 
was  sought.  The  trial  court  instructed  the  jury  that  if  this  was  the 
case,  the  defendant  was  not  liable.  A  verdict  and  judgment  for  the 
defendant  under  this  instruction  was  reversed  by  the  Supreme  Court 
upon  several  grounds,  one  of  which,  pertinent  here,  was  that  the  jury 
might  fairly  find  that  the  servant's  act  in  adulterating  the  milk,  which 
it  was  his  duty  to  prepare  and  deliver,  was  an  act  within  the  scope  of 
his  employment.62  It  will  be  observed  that  in  this  case,  contrary  to 
the  usual  facts,  the  alleged  malice  of  the  servant  existed  against  his 
employer  and  not  against  the  plaintiff. 

§  1968. —  In  another  case  it  appeared  that  the  defendant,  a 

telegraph  company  had  a  squad  of  men  at  work  erecting  wires  under 
the  charge  of  the  company's  servant.  It  was  desired  to  erect  the  wires 
across  the  plaintiff's  land.  The  plaintiff  objected  and  offered  forcible 
resistance.  In  order  to  get  the  plaintiff  out  of  the  way,  the  servant  in 
charge  of  the  work  lodged  a  complaint  against  the  plaintiff  before  a 
local  magistrate  and  caused  him  to  be  arrested  and  taken  from  the 
scene  of  action.  While  he  was  thus  absent,  the  work  was  hastily  com- 
pleted. Upon  the  hearing  of  the  complaint,  the  magistrate  found  that 
it  was  "frivolous  and  malicious"  and  discharged  the  plaintiff.  The 
plaintiff  sued  the  telegraph  company  for  false  imprisonment  and  ma- 
licious prosecution.  It  was  held  to  be  a  question  for  the  jury  whether 
the  servant,  in  causing  the  plaintiff's  arrest,  was  performing  his  mas- 
ter's business  or  was  engaged  in  some  pursuit -of  his  own.  The  jury 
found  that  the  defendant's  servant  "caused  the  plaintiff  to  be  unlaw- 
fully arrested  for  the  purpose  of  putting  him  out  of  the  way  so  that 
its  agents  and  servants  might  erect  telephone  and  telegraph  poles  on 
his  land."  The  court  said :  "If  this  is  not  an  act  done  in  the  course  of 

ei  Nelson    Business   College    Co-,   v.          62  Stranahan  Co.  v.  Coit,  55  Ohio  St. 
Lloyd,  60  Ohio  St.  448,  71  Am.  St.  Rep.       398,  4  L.  R.  A.  (N.  S.)  506. 
729,  46  L.  R.  A.  314. 

1527 


§  J9^9]  THE  LAW  OF  AGENCY  [BOOK  iv 

the  employment  and  in  furtherance  of  the  master's  business  for  his 
benefit  and  advantage,  it  would  be  hard  to  conceive  of  one  which  would 
C9me  under  that  class."  63 

Many  other  cases  in  which  the  master  was  held  liable  are  cited  in 
the  notes.64 

§  1969.  Even  under  the  most  extreme  statement  of  the 

modern  rule,  however,  there  are  many  cases  in  which  the  master  will 
not  be  liable.  As  has  been  already  stated,  it  is  not  enough  that  the  act 
be  done  while  the  servant  was  generally  acting  in  the  execution  of  his 
authority  but  the  act  complained  of  must  be  an  act  within  the  scope  of 
the  employment.  As  was  pointed  out  in  a  preceding  section,  this  is  not 
merely  a  question  of  time  but  of  incident  and  relation.  As  is  stated  in 
a  recent  case  it  seems  sometimes  to  be  assumed  "that  an  act  done  by  a 
servant  while  engaged  in  the  master's  work  is  necessarily  an  act  done 
within  the  scope  of  the  former's  employment.  But  this  is  conspicu- 
ously a  non  sequitur.  An  act  done  by  the  servant  while  engaged  in 
the  work  of  his  master  may  be  entirely  disconnected  therefrom,  done, 
not  as  a  means  or  for  the  purpose  of  performing  that  work,  but  solely 
for  the  accomplishment  of  the  independent,  malicious,  or  mischievious 
purpose  of  the  servant.  Such  an  act  is  not,  as  a  matter  of  fact,  the  act 
of  the  master  in  any  sense  and  should  not  be  deemed  to  be  so  as  a  mat- 
ter of  law.  As  to  it,  the  relation  of  master  and  servant  does  not  exist 
between  the  parties,  and  for  the  injury  resulting  to  a  third  person  from 
it  the  servant  alone  should  be  held  responsible."  w 

<53  Jackson  v.  Telegraph  Co.,  139  N.  court  held  the  master  would  be  liable 

C.  347,  70  L.  R.  A.  738.  for  a  wilful,  wanton  or  reckless  in- 

«*  St.  Louis,  etc.,  Ry.  Co.  v.  Hack-  jury,  only  if  it  was  committed  in  the 
ett,  58  Ark.  381,  41  Am.  St.  Rep.  105  general  scope  of  the  watchman's  em- 
( night-watchman  of  railroad  wan-  ployment);  Aiken  v.  Holyoke  St.  Ry. 
tonly  shooting  an  unresisting  and  Co.,  184  Mass.  269  (a  motorman  wan- 
harmless  trespasser) ;  Chicago,  etc.,  tonly  started  his  car  and  injured  the 
Ry.  Co.  v.  Kerr,  74  Neb.  1  (where  a  plaintiff,  a  six  year  old  boy,  who  was 
conductor  threw  a  boy,  who  was  steal-  trying  to  get  a  secure  position  on  the 
ing  a  ride,  under  the  train,  after  the  front  step  and  who  was  calling  to  the 
boy  had  left  the  train  in  obedience  to  motorman  to  stop), 
the  conductor's  command);  Mott  v.  es  Evers  v.  Krouse,  70  N.  J.  L.  653, 
Consumers'  Ice  Co.,  73  N.  Y.  543  66  L.  R.  A.  592.  That  there  is  a 
(driver  of  ice-wagon  purposely  drove  marked  distinction  between  the  lia- 
into  plaintiff;  court  held  fact  it  was  bility  of  the  master  for  acts  done 
a  wilful  act  did  not  exclude  all  pre-  during  the  employment  and  those 
sumption  of  liability;  it  was  still  a  done  within  the  scope  of  the  employ- 
question  for  the  jury  whether  he  was  ment,  see  Bowen  v.  Illinois  Cent.  R. 
executing  his  authority);  Magar  v.  Co.,  69  C.  C.  A.  444,  136  Fed.  306,  70 
Hammond,  183  N.  Y.  387,  3  L.  R.  A.  L.  R.  A.  915.  Compare  Haehl  v.  Wa- 
(N.  S.)  1038  (a  poacher  was  shot  by  bash  Ry.  Co.,  119  Mo.  325. 
a  watchman  of  a  game  preserve;  the 

1528 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  IQ/O,  1971 

§  1970.  In  the  case  from  which  this  quotation  was  made 

it  appeared  that  the  defendant's  minor  son  was  engaged  in  sprinkling 
his  father's  lawn  under  such  circumstances  as  to  warrant  the  inference 
that  in  so  doing  he  was  acting  as  the  father's  servant.  While  so  doing 
he  turned  the  hose  off  the  lawn  and,  apparently  in  a  spirit  of  mischief, 
threw  water  upon  a  horse,  standing  on  the  opposite  side  of  the  street, 
causing  the  horse  to  run  away  and  bringing  about  the  injury  for  which 
a  recovery  was  sought  against  the  father.  The  trial  judge  instructed 
the  jury  that  if  they  should  find  that  the  boy  was  in  the  father's  service, 
and  either  negligently  or  "from  a  mischievous  disposition"  threw  the 
water  upon  the  horse  and  thereby  caused  the  injury,  the  father  would 
be  responsible.  The  court  of  errors  and  appeals  unanimously  held  that 
this  instruction  was  erroneous  and  reversed  a  judgment  which  had  been 
rendered  for  the  plaintiff.  The  court  said:  "If  the  act  of  the  defend- 
ant's son  in  throwing  water  upon  the  plaintiff's  horse  was  not  the  re- 
sult of  his  careless  handling  of  the  garden  hose  while  sprinkling  his 
father's  lawn,  but  was  deliberately  done  by  him  purely  out  of  a  spirit 
of  mischief,  for  the  purpose  of  frightening  the  animal,  the  fact  that  he 
used  the  tool  supplied  to  him  for  the  doing  of  his  father's  work  for 
the  accomplishment  of  his  own  mischievous  purpose  did  not  make  it  an 
act  within  the  scope  of  his  employment  and  did  not  render  the  defend- 
ant liable  for  the  injury  resulting  therefrom."  es 

§  1971.  •—  In  a  recent  case  in  Pennsylvania  where  damages 

were  sought  against  the  master  for  the  act  of  his  servant,  a  teamster, 
who  had  with  his  whip  struck  a  boy  who  had  climbed  up  on  the  side 
of  the  master's  wagon  while  the  servant  was  driving  it  upon  the  mas- 
ter's business,  and  had  thereby  caused  the  boy  to  fall  beneath  the 
wheels,  the  court  said  it  was  a  question  for  the  jury  to  determine 
whether  the  driver  did  the  act  for  the  purpose  of  ejecting  a  trespasser 
from  his  master's  wagon — a  result  which  it  would  be  both  his  right 
and  his  duty  to  accomplish  and  for  accomplishing  which,  either  negli- 
gently or  with  excessive  force  the  master  would  be  responsible, — or 
whether  he  struck  the  boy  to  gratify  some  personal  feeling  of  his  own, 
in  which  event  the  master  would  not  be  liable.  In  the  language  of  the 
court:  "If  his  act  in  striking  the  boy  was  intended  to  remove  him  by 
force  from  the  wagon,  it  would  be  the  act  of  his  employer  for  which 
the  latter  would  be  responsible.  If,  on  the  other  hand,  the  purpose  of 
the  driver  was  not  to  cause  the  boy  to  leave  the  wagon,  but  to  inflict 
punishment  upon  him  to  gratify  the  ill-will  of  the  driver,  the  defendant 
company  is  not  responsible  for  the  wrongful  or  tortious  act.  It  would 

ee  Evers  v.  Krouse,  supra. 


§§  i972>  J973l  TIIE  LAW  OF  AGENCY  [BOOK  iv 

not  be  an  act  done  by  the  employee  in  the  execution  of  his  employer's 
business,  although  it  was  performed  while  he  was  in  the  service  of  the 
employer.  It  would  be  an  act  of  the  employee  directed  against  the  boy 
independently  of  the  driver's  contract  of  service,  and  in  no  way  con- 
nected with,  or  necessary  for,  the  accomplishment  of  the  purpose  for 
which  the  driver  was  employed."  6T 

§  1972.  In  another  case  the  master,  a  railroad  company, 

was  sought  to  be  held  liable  for  the  alleged  act  of  the  conductor  and 
other  train-men  in  forcibly  putting  a  man  upon  the  train  against  his 
will  and  carrying  him  away.  The  act,  if  done  at  all,  was  done  while 
the  servants  were  acting  generally  in  the  execution  of  their  authority. 
But  it  was  held  that  the  act,  if  done,  would  not  be  an  act  within  the 
course  of  the  employment.  "If  a  conductor,"  said  the  court,  "know- 
ingly and  wilfully  participates  in  the  act  of  taking  and  transporting 
upon  the  cars  against  his  will,  one  whom  he  had  no  right  to  receive  on 
the  cars  for  transportation,  he  and  not  the  company,  would  be  liable 
for  his  conduct.  The  master  is  not  liable  for  the  criminal  acts  of  his 
servant,  not  authorized  or  sanctioned  by  him  nor  'for  his  acts  of  wil- 
ful and  malicious  trespass.'  "  °® 

Other  similar  cases  are  cited  in  the  note.69 

Attention  may  now  be  given  to  some  of  the  classes  of  cases  which 
present  themselves  so  frequently  that  they  may  be  considered  in 
groups. 

§  J973-  False  imprisonment  and  unauthorized  arrest. — 

The  liability  of  the  master  for  false  imprisonment  or  unauthorized  ar- 
rest must  also  depend  upon  the  circumstances  of  each  case.  A  person 
may  be  employed,  as  for  example  a  detective,  for  the  express  purpose 
of  bringing  about  an  arrest  or  imprisonment.70  Even  though  author- 
ity to  arrest  was  not  expressly  given  it  may  arise  by  implication,  as  an 

«T  Brennan  v.  Merchant  &  Co.,  205  tiff  and  a  station  agent  which  grew 

Pa.  258.  out  of  the  provoking  conduct  of  the 

In  a  later  case,  almost  identical  in  plaintiff  even  though  the  original 

its  facts,  the  court  held  the  master  ground  of  controversy  arose  out  of 

liable  on  the  first  ground.  Hyman  v.  matters  connected  with  the  railroad 

Tilton,  208  Pa.  641.  company's  business. 

es  Jackson  v.  St.  Louis,  etc.,  Ry.  ?o  Pennsylvania  Co.  v.  Weddle,  100 

Co.,  87  Mo.  422,  56  Am.  Rep.  460.  Ind.  138;  Evansville,  etc.,  R.  Co.  v. 

8»  Thus  in  Lynch  v.  Florida,  etc.,  McKee,  99  Ind.  519,  50  Am.  Rep.  102; 

R.  Co.,  113  Ga.  1105,  54  L.  R,  A.  810,  American  Express  Co.  v.  Patterson, 

the  railroad  company  was  held  not  73  Ind.  430;  Duggan  v.  Baltimore, 

responsible  for  a  personal  assault  etc.,  R.  Co.,  159  Pa.  248,  39  Am.  St. 

made  by  its  station  agent  during  a  Rep.  672;  Kastner  v.  Long  Island  R. 

personal  encounter  between  the  plain-  Co.,  76  N.  Y.  App.  Div.  323. 

1530 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1973 


incident  of  some  other  employment.  Thus  watchmen,  private  police- 
men or  private  detectives  are  not  infrequently  employed  by  railroad 
and  steamboat  companies,  theaters  and  department  store  companies,  and 
the  like,  for  the  purpose  of  protecting  property,  preventing  crime  and 
apprehending  offenders.71  It  is  not  uncommon,  in  such  cases,  for  the 
persons  so  appointed  to  be  also  commissioned  by  the  state  or  the  mu- 
nicipality as  public  policemen  or  detectives.72  Authority  to  arrest  and 

?i  A  private  railroad  detective  was       87    Ark.    524;    Union    Depot    Co.   v. 


authorized  to  make  arrests  only  on 
consultation  with  attorneys,  unless 
the  proof  was  clear  and  the  necessity 
urgent.  Without  consulting  any  one 
he  caused  the  arrest  of  plaintiff  for 
passing  counterfeit  money.  The 
charge  being  groundless,  it  was  held 
that  the  defendant  company  was  lia- 
ble for  the  false  arrest.  Eichengreen 
v.  Louisville,  etc.,  R.  Co.,  96  Tenn. 
229,  54  Am.  St.  Rep.  833,  31  L.  R.  A. 
702. 

A  watchman  in  the  employ  of  the 
defendant  wrongfully  arrested  the 
plaintiff  for  throwing  sticks  at  pas- 
senger trains.  The  watchman  had 
been  specifically  authorized  to  inves- 
tigate the  matter  of  throwing  at 
cars.  The  court  held  that  the  watch- 
man was  performing  his  duty  in  his 
own  way,  and  even  though  the  means 
used  were  unlawful  and  unauthor- 
ized, the  company  was,  nevertheless, 
liable.  Johnston  v.  Chicago,  etc.,  Ry., 
Co.,  130  Wis.  492. 

72  It  is  often  difficult  in  these  cases 
to  determine  whether  what  was  done 
was  done  as  servant  of  the  master  or 
as  public  officer  for  the  public  good. 
The  mere  fact  that  the  servant  was 
also  a  public  officer  will  not  relieve 
the  master  from  liability.  Nor  does  the 
fact  that  the  public  officer  was  also  a 
servant  impose  such  liability.  It 
seems  to  be  a  question  of  fact  in 
each  case.  If  what  was  done  was 
clone  as  servant  and  for  the  protec- 
tion of  the  master's  property  the 
master  would  be  liable;  otherwise 
not.  See  St.  Louis,  etc.,  Ry.  Co.  v. 
Hackett,  58  Ark.  381,  41  Am.  St.  Rep. 
105;  Chicago,  etc.,  Ry.  Co.  v.  Nelson, 


Smith,  16  Colo.  361;  Wells  v.  Wash- 
ington Market  Co.,  8  Mackey  (D.  C.), 
385;  Dickson  v.  Waldron,  135  Ind. 
507,  41  Am.  St.  Rep.  440,  24  L.  R.  A. 
483,  488;  Baltimore,  etc.,  Ry.  Co.  v. 
Ennalls,  108  Md.  75,  16  L.  R.  A.  (N. 
S.)  1100;  Tolchester  Beach  Imp.  Co. 
v.  Steinmeier,  72  Md.  313,  8  L.  R.  A. 
846;  Deck  v.  Baltimore,  etc.,  Ry.  Co., 
100  Md.  168,  108  Am.  St.  Rep.  399; 
Baltimore,  etc.,  R.  Co.  v.  Deck,  102 
Md.  669;  Baltimore,  etc.,  R.  Co.  v. 
Twilley,  106  Md.  445;  Tolchester 
Beach  Imp.  Co.  v.  Scharnagl,  105  Md. 
199;  Healey  v.  Lothrop,-  171  Mass. 
263;  Foster  v.  Grand  Rapids  Ry.  Co., 
140  Mich.  689;  Buman  v.  Michigan 
Cent.  R.  R.  Co.,  168  Mich.  651;  King 
v.  111.  Cent.  R.  Co.,  69  Miss.  245;  Brill 
v.  Eddy,  115  Mo.  596;  Rand  v.  Butte 
Elec.  Ry.  Co.,  40  Mont.  398;  Cordner  v. 
Railway  Co.,  72  N.  H.  413;  Tucker  v. 
Erie  Ry.  Co.,  69  N.  J.  L.  19;  Taylor 
v.  New  York,  etc.,  R.  Co.,  80  N.  J.  L. 
282,  39  L.  R.  A.  (N.  S.)  122;  Clark 
v.  Starin,  47  Hun  (N.  Y.),  345;  Ty- 
son v.  Bauland  Co.,  186  N.  Y.  397,  9 
L.  R.  A.  (N.  S.)  267;  Sharp  v.  Erie 
Ry.  Co.,  184  N.  Y.  100,  6  Ann.  /Cas. 
250;  Fults  v.  Munro,  202  N.  Y.  34, 
Ann.  Cas.  1912  D.  870;  Texas,  etc., 
R.  Co.  v.  Parsons,  102  Tex.  157,  132 
Am.  St.  Rep.  857;  Norfolk,  etc.,  R. 
Co.  v.  Galliher,  89  Va.  639;  McKain 
v.  Baltimore,  etc.,  R.  Co.,  65  W.  Va. 
233,  131  Am.  St.  Rep.  964,  17  Ann. 
Cas.  634,  23  L.  R.  A.  (N.  S.)  289; 
Layne  v.  Chesapeake,  etc.,  Ry.  -Co., 
66  W.  Va.  607;  Pennsylvania  R.  Co. 
v.  Kelly,  101  C.  C.  A.  359,  177  Fed. 
189,  30  L.  R.  A.  (N.  S.)  481;  Thomas 
v.  Can.  Pac.  R.  Co.,  14  Ont.  L.  Rep. 


1531 


§  I973J 


THE  LAW  OF  AGENCY 


[BOOK  iv 


imprison  in  such  cases  may  often  be  expressly  given,  but  where  it  is 
not  authority  to  detain  or  give  into  custody  may  often  be  regarded  as 
a  fair  incident  of  the  employment,  and  the  employer  will  be  liabk  for 
its  wrongful  exercise.  Ticket  agents  and  gatemen  of  railroads,  steam- 
boats, theaters,  and  the  like,  may  be  expressly  or  by  implication  author- 
ized to  arrest  or  detain  persons  attempting  to  pass  without  paying  fare 
or  having  the  proper  ticket ; 73  "floorwalkers,"  managers  of  stores,  and 


55,  8  Ann.  Gas.  324.  See  also,  Pres- 
ley v.  Fort  Worth,  etc.,  Ry.  Co.  (Tex. 
Civ.  App.),  145  S.  W.  669. 

In  St.  Louis,  etc.,  Ry.  Co.  v.  Hud- 
son, 95  Ark.  506,  there  was  a  statute 
authorizing  conductors  on  trains  to 
act  as  peace  officers  in  arresting 
drunken  persons.  The  court  in- 
structed that  if  the  conductor  erred 
in  thinking  plaintiff  drunk  the  com- 
pany was  liable.  Held:  Erroneous; 
the  company  is  not  liable  if  the  con- 
ductor reasonably  and  bona  fide  be- 
lieved plaintiff  to  be  drunk. 

In  St.  Louis,  etc.,  R.  Co.  v.  Morrow, 
88  Ark.  583,  a  town  marshal  was  fur- 
nished with  a  pass  over  appellant's 
railroad,  in  return  for  which  the 
marshal  was  to  give  particular  pro- 
tection to  the  railroad  property. 
The  marshal,  in  arresting  a  tramp 
who  was  stealing  a  ride  on  the  ap- 
pellant's train  shot  and  wounded 
him.  The  court  thought  it  doubtful 
whether  there  was  evidence  sufficient 
to  establish  the  relation  of  master 
and  servant;  that  there  was  evidence 
warranting  a  finding  that  the  mar- 
shal was  acting  in  the  discharge  of 
his  public  duty,  and  that  the  jury 
should  have  been  instructed  that  if 
they  should  so  find,  the  appellant  was 
not  liable. 

A  railroad  company  which  pays  for 
a  special  policeman  to  guard  its 
property  and  preserve  order  upon  one 
of  its  piers,  is  not  liable  for  an  un- 
provoked assault  by  the  policeman 
upon  a  driver  of  a  team  in  the  pub- 
lic street  but  coming  to  the  pier,  be- 
cause the  driver  did  not  stop  as  soon 
as  the  policeman  signalled  to  him  to 
do  so.  Pennsylvania  R.  Co.  v.  Kelly, 
supra. 


7a  A  ticket  agent  who,  in  order  to 
collect  a  fare  which  he  claims  has 
not  been  paid,  follows  a  woman  out 
upon  the  platform  of  an  elevated 
railway  structure  and  there  accuses 
her  of  passing  counterfeit  money, 
slanders  her  character,  lays  hands 
upon  her  and  detains  her  for  some 
time,  is  acting  within  the  course  of 
his  employment.  Palmeri  v.  Man- 
hattan R.  Co.,  133  N.  Y.  261,  28  Am. 
St  Rep.  632,  16  L.  R.  A.  136. 

The  conductor  of  a  passenger  train 
refused  to  accept  plaintiff's  ticket 
and  demanded  cash  fare.  Some  dif- 
ficulty ensued  and  the  conductor 
caused  the  plaintiff  to  be  arrested 
and  taken  from  the  train  at  the  next 
town.  The  company  was  held  liable 
for  the  false  arrest.  Atchison,  etc., 
R.  Co.  v.  Henry,  55  Kan.  715,  29  L.  R. 
A.  465.  See  also,  Palmer  v.  Maine 
Central  R.  Co.,  92  Me.  399,  69  Am.  St. 
Rep.  513,  44  L.  R.  A.  673;  Lynch  v. 
Metropolitan  El.  R.  Co.,  90  N.  Y.  77, 
43  Am.  Rep.  141;  Krulevitz  v.  East- 
ern R.  Co.,  143  Mass.  228;  Ruth  v.  St. 
Louis  Transit  Co.,  98  Mo.  App.  1; 
Dwyer  v.  St.  Louis  Transit  Co.,  108 
Mo.  App.  152;  Farry  v.  Great  North. 
Ry.  Co.,  [1898]  2  Irish,  352;  Robert- 
son v.  Balmain  Ferry  Co.,  6  New 
South  Wales  State  Rep.  195. 

A  railroad  company  is  liable  for  an 
assault  and  battery  by  the  conduc- 
tor upon  a  passenger  in  seizing  or  at- 
tempting to  seize  her  property  in  or- 
der to  enforce  payment  of  fare. 
Ramsden  v.  Boston,  etc.,  R.  Co.,  104 
Mass.  117,  6  Am.  Rep.  200. 

Where  the  agent  of  an  express  com- 
pany instituted  criminal  proceedings 
against  consignees  who  had  ob- 
tained a  package  without  paying  the 


1532 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


L§    1973 


others  similarly  situated  may  be  found  to  be  expressly  or  by  implica- 
tion, authorized  to  apprehend,  detain  or  give  into  custody  persons  guilty 
of  "shop-lifting"  and  other  similar  offenses.74  Conductors  and  other 
similar  agents  on  trains  and  boats,  door-keepers  at  theaters,  and  the 


charges,  it  was  held  that  if  he  did 
this  as  a  means  of  collecting  the 
money  for  his  principal  the  latter 
was  liable:  but  not,  if  the  purpose 
was  simply  to  punish  the  offender. 
Cameron  v.  Pacific  Express  Co.,  48 
Mo.  App.  99. 

But  where  a  ticket  agent  directed 
the  arrest  of  one  who  he  thought  had 
attempted  to  rob  the  till,  he  was  held 
to  be  acting  without  the  scope  of  his 
authority:  his  authority  being  lim- 
ited to  the  protection  of  his  princi- 
pal's property,  and  as  the  attempt  of 
plaintiff  to  rob  the  till  had  been  com- 
pleted, and  without  success,  his  ar- 
rest was  not  an  act  of  protection  but 
of  punishment,  for  which  the  de- 
fendant was  not  liable.  Allen  v. 
London,  etc.,  R.  Co.,  L.  R.  6  Q.  B.  65. 
Followed  in  Knight  v.  North  Metro- 
politan Tramways  Co.,  78  L.  T.  227, 
where  a  conductor  caused  the  arrest 
of  a  passenger  because  he  errone- 
ously thought  the  passenger  had  at- 
tempted to  pay  fare  with  counterfeit 
money. 

74  Where  a  saleswoman  mistakenly 
thought  she  saw  a  customer  steal 
lace,  and  reported  it  immediately  to 
the  floor  walker,  who  arrested  the 
customer  and  searched  her,  the  em- 
ployer was  held  liable.  Knowles  v. 
Bullene,  71  Mo.  App.  341. 

A  clerk  was  temporarily  left  in 
charge  of  a  small  store.  Erroneously 
thinking  he  discovered  a  customer 
stealing  silverware  he  detained  her 
and  sent  for  a  police  officer  who 
searched  her.  The  court  held  the 
employer  liable  on  the  ground  that 
protecting  and  attempting  to  recover 
the  master's  property  might  be  found 
to  be  within  the  course  of  the  serv- 
ant's employment.  Staples  v.  Schmid, 
18  R.  I.  224,  19  L.  R.  A.  824  (disap- 
proving Mali  v.  Lord,  39  N.  Y.  381, 


100  Am.  Dec.  448);  Mallach  v.  Rid- 
ley, 43  Hun  (N.  Y.),  336,  follows 
Mali  v.  Lord,  supra.  In  Gearity  v. 
Strasbourger,  133  N.  Y.  App.  Div.  701, 
a  saleswoman  in  a  department  store 
falsely  reported  to  the  manager  that 
the  plaintiff  had  stolen  goods.  The 
manager  took  plaintiff  to  one  of  the 
proprietors,  called  a  police  officer  and 
with  the  acquiescence  of  the  proprie- 
tor caused  plaintiff's  arrest.  Held, 
that  both  manager  and  proprietor 
were  liable.  See  also,  Vrchotka  v. 
Rothschild,  100  111.  App.  268. 

Where  a  floor-walker,  for  the  pur- 
pose of  extortion,  arrested  a  woman 
and  accused  her  of  theft  when  he 
knew  'she  had  not  stolen  anything, 
the  employer  is  not  liable.  Cobb  v. 
Simon,  124  Wis.  467. 

In  Smith  v.  Munch,  65  Minn.  256, 
the  plaintiff  was  a  striker  who  cre- 
ated some  disturbance  in  and  about 
the  factory  of  the  Bohn  Mfg.  Co.,  at 
the  noon-hour.  Munch,  who  was  su- 
perintendent of  the  shops  and  yard, 
was  absent  at  the  time.  Late  in  the 
afternoon  Munch  returned  to  the  fac- 
tory, and  upon  learning  of  the  trou- 
ble at  noon,  directed  a  policeman  to 
arrest  the  plaintiff,  which  was  done 
without  a  warrant.  The  court  held 
the  company  liable  for  the  unlawful 
arrest,  saying,  by  Mitchell,  J. :  "This 
duty  [of  the  general  superintend- 
ency]  impliedly  included  the  protec- 
tion of  the  premises  and  property 
from  trespassers,  and  the  protection 
of  the  employees,  while  at  work, 
from  the  interference  of  intruders. 
The  act  of  Munch  in  directing  plain- 
tiff's arrest  was  evidently  not  done 
in  his  own  interest,  or  for  his  own 
benefit,  but  in  the  furtherance  of  the 
interest  of  the  company  by  protect- 
ing its  property  and  employees  from 
wrongdoers." 


1533 


§    1974] 


THE  LAW  OF  AGENCY  [BOOK    IV 


; 


like,  have  often  express,  and  may  have  implied,  authority  to  arrest 
and  give  into  custody  persons  misbehaving  themselves  upon  the  em- 
ployers' premises  or  vehicles.75  Many  other  similar  cases  will  at  once 
suggest  themselves. 

In  all  these  cases  the  master  will  be  liable  if  the  servant  thus  author- 
ized, while  acting  within  the  course  of  his  master's  business  and  not 
solely  for  his  own  ends  or  purposes,  makes  an  unjustifiable  arrest  or, 
causes  an  illegal  imprisonment,  even  though  the  servant  acted  upon 
insufficient  evidence  or  with  mistaken  zeal  or  even  in  direct  disregard 
of  the  precautionary  instructions  which  had  been  given  him  by  the 
master.76 

§  1974.  Where' however  no  express  authority  to  arrest 

has  been  given  and  it  cannot  be  regarded  as  a  legitimate  incident  of 
any  power  expressly  given,  the  master  will  not  be  liable,  even  though 
the  servant  may  have  caused  the  arrest  with  the  mistaken  notion  of 
furthering  the  master's  business.77  A  fortiori  will  the  master  not  be 


75  In  Gillingham  v.  Ohio  River  R. 
Co.,  35  W.  Va.  588,  29  Am.  St.  Rep. 
827,  14  L.  R.  A.  798,  the  conductor  of 
the    defendant    had    a    controversy 
with  an   intoxicated   passenger.     He 
summoned  a  policeman  to  arrest  the 
disturber,  but  by  mistake  he  pointed 
out  the  Wrong  passenger.     The  court 
held  the  company  liable  for  the  false 
arrest,  as  the  conductor  was  acting 
on  behalf  of  the  company  in  direct- 
ing the  arrest  of  the  plaintiff. 

For  cases  of  unauthorized  arrests 
growing  out  of  controversies  over  the 
payment  of  fare,  see,  Ruth  v.  St. 
Louis  Transit  Co.,  98  Mo.  App.  1; 
Kelly  v.  Durham  Traction  Co.,  132 
N.  Car.  368. 

Proprietor  of  theater  liable. for  as- 
sault and  arrest  of  patron  by  door- 
keeper and  ticketseller.  Dickson  v. 
Waldron,  135  Ind.  507,  41  Am.  St. 
Rep.  440,  24  L.  R.  A.  483. 

76  See,  Hull  v.  Boston,  etc.,  R.  Co., 
210  Mass.    159,  36    L.    R.    A.   (N.  S.) 
406,  Ann.  Gas.  1912,  C.  1147;    Whit- 
man v.  Atchison,  etc.,  R.  Co.,  85  Kan. 
150,  Ann.  Gas.  1912,  D.  722;  Pennsyl- 
vania R.  Co.  v.  Weddle,  100  Ind.  138; 
Evansville,  etc.,  R.  Co.  v.  McKee,  99 
Ind.  519,  50  Am.  Rep.  102;  American 
Express  Co.  v.  Patterson,  73  Ind.  430; 


Gillingham  v.  Ohio  R.  R.  Co.,  35  W. 
Va.  588,  29  Am.  St.  Rep.  827,  14  L.  R. 
A.  798;  Smith  v.  Munch,  65  Minn. 
256;  Singer  Mfg.  Co.  v.  Rahn,  132 
U.  S.  518,  33  L.  Ed.  440;  Kastner  v. 
Long  Island  R.  Co.,  76  N.  Y.  App. 
Div.  323;  Chicago,  etc.,  R.  Co.  v.  Hol- 
liday,  30  Okla.  680,  39  L.  R.  A.  (N. 
S.)  205.  And  other  cases  cited  in 
preceding  notes. 

77  An  agent  in  possession  of  a  stock 
of  goods  as  agent  for  a  chattel  mort- 
gagee has  no  implied  authority  to 
prosecute  for  perjury.  Laird  v.  Far- 
well,  60  Kan.  512. 

Authority  to  arrest  persons  for  vio- 
lation of  labor  contracts  is  not  inci- 
dent to  the  employment  of  clerks  in 
a  commissary  store  maintained  by  the 
construction  company  whose  con- 
tracts had  been  violated.  Vara  v. 
Quigley  Const.  Co.,  114  La.  262. 

Authority  to  exclude  all  persons 
from  a  certain  building  who  do  not 
have  a  ticket,  does  not  authorize  the 
servant  to  procure  a  policeman  to  ar- 
rest a  woman  who  tried  to  force  her 
way  in  without  a  ticket.  Barabasz  v. 
Kabat,  86  Md.  23. 

It  is  no  part  of  a  ticket  agent's 
duty  to  endeavor  to  apprehend  coun- 
terfeiters, and  the  company  is  not  re- 


1534 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1974 


liable  where  the  arrest  or  imprisonment  is  merely  the  result  of  the  serv- 
ant's own  persona]  malice  or  ill-will,78  or  of  his,  generally  commenda- 
ble, desire,  as  a  citizen,  after  his  duty  to  his  master  has  ceased,  to  bring 
offenders  to  justice.79 


sponsible  for  an  unauthorized  arrest 
where  the  company's  interests  are 
not  concerned,  as  where  the  ticket 
agent  deliberately  takes  a  bill  which 
he  believes  to  be  counterfeit  in  order 
to  aid  the  police  in  the  detection  of 
counterfeiters.  Mulligan  v.  N.  Y., 
etc.,  Ry.  Co.,  129  N.  Y.  506,  26  Am.  St. 
Rep.  539,  14  L.  R.  A.  791.  See  also, 
Central  Ry.  Co.  v.  Brewer,  78  Md. 
394,  27  L.  R.  A.  63;  Gulf,  etc.,  R.  Co. 
v.  Donahoe,  56  Tex.  162. 

In  Little  Rock  Trac.  &  Elec.  Co.  v. 
Walker,  65  Ark.  144,  40  L.  R.  A.  473, 
a  street  car  conductor  called  a  police- 
man to  take  off  and  arrest  a  delin- 
quent passenger.  The  company  was 
held  not  liable  as  the  conductor's  au- 
thority was  limited  to  removing  pas- 
sengers. 

In  Milton  v.  Missouri  Pac.  Ry.  Co., 
193  Mo.  46,  4  L.  R.  A.  (N.  S.)  282,  the 
defendant  company  employed  a  de- 
tective to  ascertain  the  facts  sur- 
rounding a  train  robbery.  The  de- 
tective caused  the  arrest  of  the  plain- 
tiff. The  court  held  the  defendant 
was  not  liable,  as  authority  to  ascer- 
tain facts  does  not  imply  authority 
to  arrest  persons  for  the  purpose  of 
ascertaining  whether  or  not  the  per- 
son arrested  was  concerned  in  the 
robbery;  (substantially  similar  is 
Murrey  v.  Kelso,  10  Wash.  47). 

In  Lubliner  v.  Tiffany  &  Co.,  54  N. 
Y.  App.  Div.  326,  the  defendant  was 
held  not  liable  for  an  unauthorized 
arrest,  since  the  agent  who  caused  it 
was  not  one  who  had  any  duty  in  the 
matter.  To  same  effect:  Waters  v. 
Anthony,  20  App.  Cases  (D.  C.),  124. 

See  also,  Hern  v.  Iowa  State  Agri- 
cultural Society,  91  Iowa,  97,  24  L.  R. 
A.  655. 

78  If  a  "floor-walker"  in  a  store 
knowingly  makes  a  false  charge  of 
theft  against  a  person  and  by  trick 


attempts  to  sustain  it,  for  the  pur- 
pose of  extorting  money  from  her, 
the  master  is  not  liable.  Cobb  v. 
Simon,  124  Wis.  467,  119  Wis.  597. 

79  Arrests  made  or  caused  after  the 
emergency  is  passed  and  merely  for 
the  purpose  of  punishing  the  offender 
or  bringing  him  to  justice,  are  not 
ordinarily  within  the  scope  of  the 
employment  of  an  agent  whose  duty 
it  is  to  guard  or  protect  property  or 
to  recover  it  if  taken.  Markley  v. 
Snow,  207  Pa.  447,  64  L.  R.  A.  685; 
Hanson  v.  Waller,  [19011  1  Q.  B.  390, 
Abrahams  v.  Deakin,  [1891]  1  Q.  B. 
516  (where  the  servant  having  first 
been  offered  a  coin  which  he  thought 
was  counterfeit,  and  having  refused 
it  and  received  another  which  was 
good,  shortly  afterwards  gave  the 
payer  into  custody  for  attempting  to 
pass  counterfeit  money);  Allen  v. 
London,  etc.,  Ry.  Co.,  L.  R.  6  Q.  B.  65; 
Travis  v.  Standard  L.  &  A.  Ins.  Co., 
86  Mich.  288  (followed  in  Govaski  v. 
Downey,  100  Mich.  429;  Singer  Mfg. 
Co.  v.  Hancock,  74  111.  App.  556. 

In  Decker  v.  Lackawanna,  etc.,  R. 
Co.,  39  Pa.  Super.  Ct.  225,  the  con- 
ductor of  a  train  telegraphed  ahead 
to  the  train  dispatcher  that  there  was 
a  crowd  of  disorderly  persons  on  his 
train.  The  dispatcher  telegraphed 
back  that  there  would  be  police  offi- 
cers at  the  station  when  the  train  ar- 
rived, but  that  they  were  instructed 
not  to  arrest  anyone  for  what  he 
had  done  upon  the  train.  When  the 
train  arrived,  a  police  officer  asked 
the  conductor  to  point  out  the  dis- 
orderly group  and  the  conductor  did 
so.  Thereupon  the  officer  arrested 
the  plaintiff  who  was  one  of  them. 
Held,  that  the  company  was  not  lia- 
ble for  this  arrest. 

Arrests  caused  by  an  agent  to  save 
himself  from  liability  to  master 


1535 


§  1975] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


§  1975. 


Unfounded   prosecutions. — Closely  allied   to  the 


questions  just  considered  and  in  many  cases  identical  with  them,  is  the 
question  of  the  master's  liability  for  unjustified  prosecutions.  The  au- 
thority to  institute  prosecutions  may  be  expressly  conferred,  6ri:it 
mav  be  found  to  be  within  the  scope  of  an  authority  conferred  for  some 
other  purpose.  In  either  event  a  prosecution  undertaken  in  pursuance 
of  it  and  for  the  purpose  of  furthering  the  masters  business  would,  if 
unfounded,  impose  liability  upon  the  master.80 

•^Prosecutions,  however,  the  institution  of  which  has  no  legitimate 
relation  to  the  master's  business  or  which  can  not  be  deemed  to  be 


i  •.  * 

rather  than  to  further  the  master's 
interests,  do  not  make  master  liable. 
Larson  v.  Fidelity  Mut  L.  Ass'n,  71 
Minn.  101.  Nor  does  an  arrest  di- 
rected by  a  ticket  collector  of  a  pas- 
senger who  pushed  him  while  going 
upon  the  platform  to  take  a  train. 
Hamilton  v.  Railway  Commissioners, 
5  New  S.  Wales  S.  R.  267. 

so  See  Ruth  v.  St.  Louis  Transit 
Co.,  98  Mo.  App.  1  (a  case  where  the 
foreman  of  the  transit  company  in- 
stituted a  proceeding  against  the 
plaintiff  for  a  disturbance  of  the 
peace,  as  the  reSult  of  a  controversy 
over  an  unfounded  claim  that  the 
plaintiff  had  not  paid  his  fare); 
Dwyer  v.  St  Louis  Transit  Co.,  108 
Mo.  App.  152,  (a  case  of  the  same 
general  nature).  But  see  Central 
Ry.  Co.  v.  Brewer,  78  Md.  394,  27  L. 
R.  A.  63;  Cameron  v.  Pacific  Express 
Co.,  48  Mo.  App.  99,  (a  more  ques- 
tionable case,  where  the  agent  of  an 
express  company  instituted  criminal 
proceedings  for  the  purpose  of  coerc- 
ing payment  of  charges  upon  a  pack- 
age sent  C.  0.  D.  which  the  con- 
signees had  obtained  from  a  boy  in 
charge  of  the  office  without  paying 
the  charges);  Lyden  v.  McGee,  16 
Ont  105;  Wheeler  &  Wilson  Mfg.  Co. 
v.  Boyce,  36  Kan.  350,  59  Am.  Rep. 
571,  (where  the  company  had  di- 
rected an  agent  to  bring  replevin  for 
a  machine  sold,  which  the  agent  did, 
and  then  as  the  constable  could  not 
find  it  caused  the  plaintiff,  who  was 
the  buyer's  husband,  to  be  arrested, 
charged  with  secreting  the  machine). 


si  In  the  following  cases  the  de- 
fendant was  held  not  liable:  Govaski 
v.  Downey,  100  Mich.  429,  (prosecu- 
tion for  the  theft  of  a  railroad  com- 
pany's property  instituted  by  one 
called  a  detective  but  no  evidence 
given  showing  that  the  act  was 
within  the  scope  of  his  employment)  ; 
Murrey  v.  Kelso,  10  Wash.  47, 
(where  agent  employed  to  search  for 
property  which  had  been  lost  and  to 
take  all  legal  steps  for  its  recovery, 
instituted  a  prosecution  for  the  lar- 
ceny of  the  property) ;  Laird  v.  Far- 
well,  60  Kan.  512,  (where  an  agent 
put  in  charge  of  goods  instituted 
prosecution  for  perjury  against  a  per- 
son who  had  made  an  affidavit  In  at- 
tachment proceedings  wherein  some 
of  the  goods  in  the  agent's  possession 
were  seized) ;  Springfield  Engine  Co. 
v.  Green,  25  111.  App.  106,  (where  the 
collection  agent  instituted  prosecu- 
tions for  forgery  against  a  debtor 
who,  as  he  contended,  had  forged  an 
agreement  giving  a  rebate  on  the 
claim);  Atchison,  etc.,  Ry.  Co.  v. 
Brown,  57  Kan.  785,  (where  the  claim 
agent  of  a  railroad  company  insti- 
tuted prosecution  for  the  robbing  of 
a  post-office  on  the  theory,  as  it  was 
contended,  that  he  might  thereby 
discover  who  had  robbed  the  railroad 
company  on  another  occasion) ;  Sta- 
ton  v.  Mason,  106  N.  Y.  App.  Div.  26, 
(where  a  prosecution  was  instituted 
by  one  called  the  'credit  clerk"  of  the 
defendant,  hut  concerning  the  scope 
of  whose  duty  no  evidence  at  all  ap- 
pears). 


1536 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1976 

within  the  scope  of  the  agent's  authority  ;81  and  those  instituted  merely 
to  punish  an  offender  or  to  bring  a  wrongdoer  to  justice;82  and  those 
instituted  merely  to  accomplish  some  purpose  of  the  agent  only  ;83  and 
those  which  owe  their  origin  wholly  to  the  personal  ill-will  or  malice 
of  the  agent,84  impose  no  liability  upon  the  master.  *.& 

§  1976.  Malicious  prosecution. — It  has  been  seen  in  an 

earlier  section  8B  that  there  are  many  cases  in  which  the  principal  may 
be  liable,  as  for  an  act  within  the  scope  of  the  employment,  where  his 
agent  has  instituted  a  prosecution  against  a  third  person  without  rea- 
sonable cause.  Although  these  are  called  cases  of  malicious  prosecu- 
tion, the  cause  of  action  does  not  depend  upon  the  existence  of  express 
or  actual  malice.  The  question  now  in  hand  concerns  cases  where  such 
express  or  actual  malice  is  involved.  May  the  principal  be  held  liable 
for  a  prosecution  instituted  because  of  the  express  and  actual  malice 
of  hi's  agent?  The  determination  of  this  question  seems  to  depend 
upon  the  same  considerations  as  those  already  referred  to  in  connection 
with  the  general  subject  of  malicious  motive.  If,  though  the  agent  had 
actual  ill-will  against  the  person  prosecuted,  the  prosecution  of  that 
person  was  an  act  within  the  scope  of  his  employment,  and  was  insti- 
tuted because  it  was  within  the  scope  of  his  employment,  the  princi- 
pal would  be  liable  regardless  of  the  motive.86  If,  on  the  other  hand,, 
though  the  prosecution  of  some  other  person  might  be  within  the  scope 
of  the  employment,  the  prosecution  of  this  person  was  not,  or  though 
the  prosecution  of  this  person  under  some  other  circumstances  would  be 
within  the  course  of  his  employment,  the  prosecution  of  him  under 
these  circumstances  was  not,  and  the  agent  prosecuted  this  person,  or 
this  person  under  these  circumstances,  merely  to  give  expression  to 

sa  Markley   v.    Snow,    207   Pa.   447,  stituted  by  an  agent  primarily  to  co- 

64  L.  R.  A.  685;    Singer  Mfg.  Co.  v.  erce  payment  of  a  claim  upon  which 

Hancock,  74  111.  App.  556;    Carter  v.  the  agent  was  also  liable). 

Howe    Machine   Co.,    51   Md.    290,    34  In  Kutner  v.  Fargo,  20  N.  Y.  Misc. 

Am.    Rep.    311;     Daniel    v.    Atlantic  207,  it  was  held  that  the  master  is 

Coast  L.  R.  Co.,  136  N.  C.  517,  1  Ann.  not  chargeable  with  the  malice  of  his 

Cas.  718,  67  L.  R.  A.  455.  agent  or  servant  in  giving  testimony 

T^ie   master   is   not   liable   for   ar-  upon  a  criminal  proceeding, 

rests   or   prosecutions   by   a   servant  84  See  post,  §  1976. 

"on    his    own    responsibility    only,"  85  See  ante,  §  1973. 

even  though  his  purpose  was  to  pro-  86  See  Ruth    v.    St.    Louis    Transit 

mote  his  master's  interest,  e.  g.,  to  Co.,  98  Mo.  App.  1;  Stubbs  v.  Mulhol- 

collect    a    debt    due    to    the    master.  land,  168  Mo.  47;  Dw.yer  v.  St  Louis 

Emerson  v.  Lowe  Mfg.  Co.,  159  Ala.  Transit  Co.,  108  Mo.  App.  152;   Hus- 

350.  sey  v.  Norfolk,  etc.,  R.  R.  Co.,  98  N. 

ss  Larson   v.   Fidelity  Mutual  Life  C.  34,  2  Am.  St.  Rep.  312. 
Ass'n,  71  Minn.  101,   (prosecution  in- 

97  1537 


§  1977]  THE  LAW  OF  AGENCY  [BOOK  rv 

some  actual  malice  of  his  own,  the  principal  would  not  be  liable.87  In 
some  cases,  the  time  at  which  the  prosecution  was  instituted  may  be 
material.  The  institution  of  proceedings  at  the  time  of  the  transaction 
may  sometimes  be  deemed  to  be  so  closely  incidental  to  the  transaction, 
as  to  come  within  the  scope  of  the  authority  to  do  it ;  while  if  the  pros- 
ecution be  delayed  it  can  only  be  accounted  for  upon  the  ground  that 
its  purpose  was  to  punish  or  to  get  revenge  or  simply  to  perform  a 
public  duty  by  bringing  the  offender  to  justice.88  No  one  of  these  pur- 
poses would  ordinarily  be  within  the  scope  of  the  authority,  and  the 
second  one,  which  is  the  only  one  here  pertinent,  would  obviously  not 
be  within  its  scope. 

§  1977.  •  Assaults. — The  cases  in  which  the  master  can  be 
held  liable  for  assaults  committed  by  his  servant,  upon  the  ground  that 
the  assault  was  committed  within  the  scope  of  the  employment,  are  not 
very  numerous.  The  cases  in  which  the  master  owes  a  special  duty  of 
protection,  as  in  the  case  of  the  carrier  of  passengers  and  others  simi- 
larly situated,  stand  upon  special  ground,  and  have  already  been  con- 
sidered.89 They  do  not  usually  rest  merely  upon  the  doctrine  of  re- 
spondcat  superior.  So  it  has  been  seen  that  where  the  master  confides 
to  the  servant  the  performance  of  a  duty  which  ordinarily  and  directly 
involves  the  exercise  of  force  and  the  servant  is  put  in  a  position  where 
he  must  determine  when  the  force  is  to  be  exercised,  and  to  what  de- 
gree, the  master  may  be  liable  though  the  servant  mistakes  the  occa- 
sion or  uses  the  force  to  an  excessive  degree.90  So,  though  the  master 

. 

87  See    Larson    v.    Fidelity    Mutual      souri  Valley  R.   Co.,   55  Mo.  315,  17 
Life  Ass'n,  71  Minn.  101;    Carter  v.      Am.    Rep.    653;     Daniel    v.    Atlantic 
Howe   Machine   Co.,    51    Md.    290,    34       Coast  L.   R.   Co.,  136  N.   Car.   517,   1 
Am.   Rep.   311;    Wallace   v.   Finberg,      Ann.  Cas.  718,  67  L.  R.  A.  455. 
46  Tex.  35.  89  See  §  1931. 

ss  See  Allen  v.  London,  etc.,  Ry.  90  "If  the  master  give  an  order  to 
Co.,  L.  R.  6  Q.  B.  65,  (where  the  a  servant  which  implies  the  use  of 
court  refers  to  "a  marked  distinction  force  and  violence  to  others,  leav- 
between  an  act  done  for  the  purpose  ing  to  the  discretion  of  the  servant 
of  protecting  the  property  by  pre-  to  decide  when  the  occasion  arises  to 
venting  a  felony,  or  of  recovering  if  which  the  order  applies,  and  the  ex- 
back,  or  an  act  done  for  the  purpose  tent  and  kind  of  force  to  be  used,  he 
of  punishing  the  offender  for  that  is  liable  if  the  servant  in  executing 
which  has  already  been  done") ;  Car-  the  order  makes  use  of  force  in  a 
ter  v.  Howe  Machine  Co.,  51  Md.  290,  manner  or  to  a  degree  which  is  un- 
34  Am.  Rep.  311;  Travis  v.  Standard  justifiable."  Howe  v.  Newmarch,  12 
L.  &  A.  Ins.  Co.,  86  Mich.  288;  Allen  (Mass.),  49. 
Markley  v.  Snow,  207  Pa.  447,  This  doctrine  is  constantly  applied 
64  L.  R.  A.  685;  Tolchester  Beach  in  a  great  variety  of  cases  against 
Imp.  Co.  v.  Steinmeier,  72  Md.  railroad  companies  which  have  au- 
313,  8  L.  R.  A.  846;  Gillett  v.  Mis-  thorized  their  servants  to  eject  or 

1538 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1977 


may  not  have  contemplated  the  exercise  of  force,  still  if  he  sends  his 
servant  to  perform  an  act  which  is  immediately  and  directly  likely  to 
result  in  the  exercise  of  force  by  the  servant,  as  where  resistance  to 
the  act  is  reasonably  to  be  anticipated,  the  master  will  be  liable  if,  in 
a  conflict  which  ensues,  the  servant  is  guilty  of  illegal  or  excessive 
force.91  There  may  also  be  cases  in  which  the  use  of  force  for  the  pro- 


remove  persons  who  do  not  pay  their 
fare  or  comply  with  other  regulations 
of  the  company,  or  persons  who  tres- 
pass upon  the  vehicles  or  premises 
of  the  company.  These  cases  are  al- 
most too  numerous  to  mention,  but 
among  them  see:  Golden  v.  Northern 
Pac.  Ry.  Co.,  39  Mont.  435,  18  Ann. 
Cas.  886,  34  L.  R.  A.  (N.  S.)  1154; 
Chicago,  etc.,  Ry.  Co.  v.  Kerr,  74 
Neb.  1;  Central  of  Georgia  Ry.  Co. 
v.  Brown,  113  Ga.  414,  84  Am.  St. 
Rep.  250;  M.  &  O.  R.  R.  Co.  v.  Scales, 
100  Ala.  368;  Kansas  City,  etc.,  R. 
Co.  v.  Kelly,  36  Kan.  655,  59  Am.  Rep. 
596;  Marion  v.  Chicago,  etc.,  R.  Co., 
64  Iowa,  568;  St.  Louis,  etc.,  R.  Co.  v. 
Pell,  89  Ark.  87. 

Within  the  same  principle  are  Bar- 
den  v.  Felch,  109  Mass.  154;  where 
the  defendant  entered  on  land  and 
directed  his  servant  to  maintain  pos- 
session by  force.  The  servant  injured, 
the  plaintiff  in  a  conflict  which  en- 
sued over  the  possession. 

Rogahn  v.  Moore  Mfg.  Co.,  79  Wis. 
573,  where  the  foreman  of  the 
defendant's  works  discharged  an  em- 
ployee and  seriously  injured  him 
while  forcibly  ejecting  him  from  the 
works. 

Canfield  v.  C.  R.  I.  &  P.  Ry.  Co.,  59 
Mo.  App.  354,  where  the  defendant 
had  employed  a  servant  to  prevent 
telegraph  operators,  who  were  on  a 
strike,  from  persuading  the  operators 
in  the  employ  of  the  defendant  from 
joining  the  strike,  and  such  servant 
had  viciously  assaulted  plaintiff,  one 
of  the  striking  operators,  while 
plaintiff  was  in  the  company's  offices 
talking  to  the  operator. 

Houston,  etc.,  Ry.  Co.  v.  Bell,  73 
S.  W.  56  (Tex.  Civ.  App.),  where  a 
freight  agent  whose  duties  included 


the  protection  of  freight,  injured 
plaintiff  in  an  altercation  which  grew 
out  of  rough  handling  of  freight  by 
plaintiff. 

In  Alton  Ry.  &  Illuminating  Co. 
v.  Cox,  84  111.  App.  202,  a  care-taker 
of  a  park  owned  by  defendant  or- 
dered plaintiff  to  leave  the  park. 
The  plaintiff  started  out,  and  a  con- 
troversy arose  as  to  the  keeper's  au- 
thority to  put  him  out  of  the 
grounds.  In  the  controversy  and 
physical  combat  which  followed  the 
keeper  threw  stones  at  the  plaintiff 
and  struck  him.  The  master  was  held 
liable.  See  also,  Johnson  v.  C.  R.  I. 
&  P.  Ry.  Co.,  58  Iowa,  348. 

In  Lesch  v.  Great  Northern  Ry.  Co., 
93  Minn.  435,  a  watch'man  authorized 
to  search  for  stolen  property,  brutally 
conducted  a  search  and  seriously 
frightened  plaintiff.  The  defendant 
was  held  liable. 

See  also,  Griffith  v.  Friendly,  30 
Misc.  393;  Oakland  City  Agricultural 
Society  v.  Bingham,  4  Ind.  App.  545. 

si  In  McClung  v.  Dearborne,  134  Pa. 
396,  19  Am.  St.  Rep.  708,  8  L.  R.  A. 
204,  the  defendant  instructed  his  col- 
lector to  take  possession  of  a  certain 
organ  if  he  could  get  it  peaceably  and 
without  assaulting  anyone.  The  col- 
lector  assaulted  the  plaintiff  in  his 
effort  to  get  possession  of  the  organ. 
The  court  held  the  defendant  liable. 
Followed  in  Shear  v.  Singer  Sewing 
Mach.  Co.,  171  Fed.  678. 

For  a  case  very  similar  in  its  facts, 
except  that  the  master  did  not  cau- 
tion the  servant  not  to  commit  an  as- 
sault, see  Ferguson  v.  Roblin,  17  Ont. 
167;  also,  O'Connell  v.  Samuel,  81 
Hun  (N.  Y.),  357;  Levi  v.  Brooks,  121 
Mass.  501;  Regg  v.  Buckley-Newhall 
Co.,  72  N.  Y.  Misc.  387,  (where  such 


1539 


§  1978] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


tection  of  property,  or  the  prevention  of  trespasses,  and  the  like,  was 
so  far  contemplated  as  to  make  the  master  liable  for  an  unlawful  as- 
sault in  the  performance  of  these  duties.92  Aside  from  cases  of  this 
nature,  the  instances  must  be  rare  in  which  the  exercise  of  personal 
violence  can  be  regarded  as  within  the  scope  of  the  employment.93 

§  1978.  The  servant's  act  in  punishing  persons  who  annoy 

him  in  the  performance  of  the  service,  or  who  interfere  with  or  in- 
jure the  master's  property,  or  his  own  gratuitous  act  in  using  personal 
violence  as  a  means  of  coercing  the  performance  of  contracts  or  the 
payment  of  debts  due  the  master,,  can  very  seldom  be  regarded  as 
within  the  course  of  the  employment.94  A  fortiori  will  this  be  true 

instructions  were  given);  see  also,  without  provocation  assaulted  a  cus- 
tomer against  whom  he  had  personal 
ill-will);  Paulton  v.  Keith,  23  R.  I. 
164,  54  L.  R.  A.  670  (the  manager  of 
the  defendant's  theater  held  the  door 
to  the  stage  to  prevent  an  officer  serv- 
ing a  writ  on  an  actor  within);  Ever- 
ingham  v.  Chicago,  Burlington,  etc., 
R.  R.  Co.,  148  Iowa,  662,  Ann.  Gas. 
1912,  C.  848  (where  the  defendant's 
switchman  while  switching  cars  on 
the  spur  track  near  plaintiff's  eleva- 
tor, walked  over  to  the  plaintiff  and 
assaulted  him  after  abusive  words 
had  passed  between  them);  Berry- 
man  v.  Pennsylvania  R.  R.  Co.,  228 
Pa.  621,  30  L.  R.  A.  (N.  S.)  1049 
(where  the  plaintiff  had  just  stepped 
off  the  defendant's  train,  the  defend- 
ant's watchman  without  provocation 
fired  several  revolver  shots  at  him); 
Miller  v.  Wanamaker,  111  N.  Y. 
Supp.  786  (where  the  defendant's 
driver,  irritated  because  the  plain- 
tiff would  not  let  him  unload  his 
wagon  as  soon  as  he  desired,  kicked 
the  plaintiff's  horse,  causing  it  to  run 
away) ;  Ducre  v.  Sparrow-Kroll  Lum- 
ber Co.,  168  Mich.  49  (the  plaintiff 
had  been  using  abusive  and  indecent 
language  in  the  defendant's  store,  and 
after  he  had  become  quiet,  the  de- 
fendant's servant  assaulted  him  with 
a  hammer). 

»4  In  the  following  cases  the  mas- 
ter was  held  not  liable:  Dolan  v. 
Hubinger,  109  Iowa,  408  (where  a 
motorman  threw  a  stone  at  boys  who 
had  placed  obstructions  on  the  track 


Dyer  v.  Munday,  [1895]  1  Q.  B, 
D.  742.  Peddie  v.  Gaily,  109  N. 
Y.  App.  Div.  178,  is  put  on  the 
same  ground,  although  the  in- 
ference of  authority  does  not  seem 
to  the  present  writer  so  obvious  as  it 
did  to  the  court.  Canton  v.  Grinnell, 
138  Mich.  590;  Zart  v.  Singer  Sewing 
Mach.  Co.,  162  Mich.  387,  lay  down  a 
narrower  rule. 

See  also,  Hardeman  v.  Williams, 
169  Ala.  50.  Probably  Miller-Brent 
Lumber  Co.  v.  Stewart,  166  Ala.  657, 
where  the  assault  occurred  in  forcing 
a  disputed  way,  must  rest  on  some 
such  ground  as  this  if  it  be  sound. 
Waaler  v.  Great  Northern  Ry.  Co.,  22 
S.  Dak.  256,  18  L.  R.  A.  (N.  S.)  297, 
another  case  of  a  disputed  way,  was 
put  upon  this  ground. 

In  Cleveland  v.  South  Covington, 
etc.,  Ry.  Co.,  30  Ky.  L.  Rep.  1072,  100- 
S.  W.  283,  11  L.  R.  A.  (N.  S.)  853,  a 
street  railway  company  was  held  lia- 
ble where  its  inspector,  whose  duty 
It  was  to  visit  and  interview  persons 
claiming  to  have  been  injured  and  to 
ascertain  the  nature  and  extent  of 
their  injuries,  undertook  to  do  this 
by  putting  his  hands  on  the  plaintiff 
and  physically  examining  her  alleged 
injuries. 

»2  See  ante  under  False  Imprison- 
ment and  Arrest  and  post  under  head 
of  Shooting. 

»3  Thus  the  master  was  held  not 
liable  in  Linck  v.  Matheson,  63  Wash. 
593  (an  employee  in  a  billiard  parlor 


1540 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1978 


where  the  violence  is  resorted  to  for  the  purpose  of  coercing  the  per- 
formance of  that  in  which  the  servant  was  primarily  interested  rather 


and  struck  the  plaintiff,  one  of  the 
boys);  Rudgeair  v.  Reading  Traction 
Co.,  180  Pa.  333  (where  a  motorman 
left  a  car  and  struck  the  driver  of  a 
team  which  was  on  the  track  ahead  of 
him);  Lynch  v.  Florida,  etc.,  Ry.  Co., 
113  Ga.  1105,  54  L.  R.  A.  810  (where 
a  station  agent  and  his  father  struck 
and  injured  plaintiff  in  an  altercation 
arising  from  a  personal  quarrel, 
which  quarrel  had  its  inception  in  a 
dispute  over  a  business  transaction 
of  the  plaintiff  with  the  defendant 
railroad);  Georgia  Railroad  &  Bank- 
ing Co.  v.  Wood,  94  Ga.  124,  47  Am. 
St.  Rep.  146  (where  a  brakeman  threw 
a  stone  at  a  boy  who  had  been  jump- 
ing on  the  train,  and  struck  the  plain- 
tiff, a  by-stander) ;  Guille  v.  Camp- 
bell, 200  Pa.  119,  86  Am.  St.  Rep.  705, 
55  L.  R.  A.  Ill  (where  a  servant  of 
defendant  who  was  engaged  in  hand- 
ling bales  of  cotton,  waved  an  iron 
hook,  furnished  by  defendant  to  fa- 
cilitate the  handling  of  the  cotton,  to 
frighten  boys  who  were  playing  on 
the  bales;  the  hook  slipped  from  his 
hand  and  struck  plaintiff);  Williams 
v.  Pullman  Car  Co.,  40  La.  Ann.  87, 
8  Am.  St.  Rep.  512  (where  a  porter 
of  defendant  violently  assaulted  the 
plaintiff  who  had  stepped  from  the 
day  coach  into  the  sleeper  operated 
by  defendant  to  ask  permission  to  use 
the  toilet  accommodations  therein); 
Fairbanks  v.  Boston  Storage  Ware- 
house Co.,  189  Mass.  419,  109  Am.  St. 
Rep.  646,  13  L.  R.  A.  (N.  S.)  422 
(where  an  elevator  operator  em- 
ployed by  defendant  struck  the  plain- 
tiff, without  provocation,  while  the 
plaintiff  was  in  defendant's  ware- 
house looking  after  his  goods  that 
were  stored  there);  Brown  v.  Boston 
Ice  Co.,  178  Mass.  108,  86  Am.  St.  Rep. 
469  (where  the  driver  of  defendant's 
ice  wagon  left  the  company's  ax  on 
the  sidewalk  while  he  delivered  ice 
to  a  house;  upon  returning  he  found 
that  plaintiff,  a  boy,  had  broken  it, 


and  the  driver  struck  him  to  punish 
him  for  the  act);  Johanson  v.  Pio- 
neer Fuel  Co.,  72  Minn.  405  (where 
an  employee  in  charge  of  a  coal  yard 
accused  the  plaintiff  of  attempting  to 
get  more  coal  than  he  was  entitled  to, 
and  upon  plaintiff  denying  it,  became 
enraged  and  beat  plaintiff) ;  Campbell 
.  v.  Northern  Pacific  Ry.  Co.,  51  Minn. 
488  (where  a  surgeon  employed  by 
defendant  railroad  assaulted  and  in- 
jured the  plaintiff,  an  assistant,  while 
both  were  in  a  hospital  performing 
their  respective  duties) ;  Walker  v. 
Hannibal,  etc.,  Ry.  Co.,  121  Mo.  575, 
42  Am.  St.  Rep.  547,  24  L.  R.  A.  363 
(where  a  baggageman  threw  drills 
out  of  his  car  which  struck  plaintiff, 
which  drills  the  baggageman  was  car- 
rying merely  for  accommodation  and 
without  authority  from  the  defend- 
ant) ;  Collette  v.  Rebori,  107  Mo.  App. 
711  (where  a  debtor  called  to  see 
about  a  bill  he  claimed  to  have  paid, 
and  a  servant  of  the  defendant  who 
was  authorized  to  collect,  assaulted 
him  in  an  altercation  that  followed); 
Feneran  v.  Singer  Mfg.  Co.,  20  N. 
Y.  App.  Div.  574,  47  N.  Y.  Supp.  284 
(where  an  agent  of  defendant,  au- 
thorized to  collect  installments  but 
directed  not  to  re-take  property,  in- 
jured plaintiff  in  an  attempt  to 
re-take  property);  Meehan  v.  More- 
wood,  52  Hun  (N.  Y.),  566  (where 
the  foreman  of  the  defendant's 
tea-house  assaulted  the  plaintiff,  a 
truckman  who  was  getting  a  load 
of  tea,  because  the  plaintiff  re- 
fused to  take  a  chest  he  thought  was 
in  bad  order) ;  Kennedy  v.  White,  91 
N.  Y.  App.  Div.  475  (a  janitor  em- 
ployed by  defendant  occasionally 
drove  away  unruly  boys  from  about 
the  premises;  on  one  such  occasion 
the  boys  who  were  disturbing  him 
ran  away  at  his  approach,  and  look- 
ing across  the  street  he  saw  plaintiff, 
who  was  not  and  had  not  been  mis- 
conducting himself,  and  threw  a  stick 


1541 


§ 


THE  LAW  OF  AGENCY 


[BOOK  iv 


than  the  master.95  It  is  true  that  expressions  indicating  a  wider  lia- 
bility are  sometimes  to  be  found.  Thus  in  a  case  in  Wisconsin  9e  where 
the  servant  who  was  a  barkeeper  had  made  an  assault  upon  one  of  his 
master's  patrons,  for  the  purpose,  as  it  was  contended,  of  coercing  pay- 
ment for  liquors  which  he  had  purchased,  the  court  said :  "If  B  (the 
servant)  committed  the  assault  for  the  purpose  of  collecting  payment 
for  his  master's  liquor,  he  was  within  the  scope  of  his  employment.  It 
was  his  method  of  performing  the  duty  delegated  to  him,  and,  although 
the  method  may  not  have  been  either  authorized  or  even  contemplated, 

— nay,  although  it  may  have  been  expressly  prohibited, — yet  the  mas- 

•  '8  8i9fjw)  H&£  J'fiifiirp  riv(ic*i't'.>(|  t:  uio 
-tti  fvnfi  bftjiufisefl  bi»oift/n  Infibnalab 
at  him  which  struck  and  injured 
him);  Wagner  v.  Haak,  170  Pa.  495 
(where  defendant  told  his  lessees  of 
a  quarry  to  tear  down  a  fence  erected 
by  plaintiff,  and  "he  would  stand  by 
them,"  and  the  lessees  struck  and 
beat  plaintiff  when  he  resisted) ;  Ben- 
ton  v.  Hill  Mfg.  Co.,  26  R.  I.  192 
(where  an  operator  of  defendant 
threw  a  sharp  piece  of  iron  and 
struck  the  plaintiff,  a  child,  who  was 
annoying  such  operator  by  watching 
him  work ) ;  Waaler  v.  Great  North- 
ern Ry.  Co.,  18  S.  D.  420,  112  Am.  St. 
Rep.  794,  70  L.  R.  A.  731  [but  see  s.  c. 
22  S.  Dak.  256,  18  L.  R.  A.  (N.  S.) 
297]  (where  the  owner  of  land  on 
which  defendant's  foreman  had  been 
directed  to  build  a  snow  fence  sent 
the  plaintiff  to  remonstrate  and 
thereupon,  at  the  foreman's  direction, 
one  of  the  foreman  s  crew  assaulted 
plaintiff) ;  Ware  v.  Barataria,  etc., 
Canal  Co.,  15  La.  169,  35  Am.  Dec. 
189  (where  a  lock-keeper  on  a  canal 
assaulted  the  plaintiff  under  the  pre- 
text that  the  latter  had  not  paid  the 
toll) ;  Kaiser  v.  McLean,  20  N.  Y.  App. 
Div.  326  (a  servant  employed  to  light 
lamps  and  guard  them  on  an  elevated 
railroad  structure,  threw  stones  at 
plaintiff,  which  caused  plaintiff  to 
run  in  front  of  an  approaching  train; 
the  court  held  the  servant  had  no  au- 
thority to  assault  anyone). 

ss  In  McDermott  v.  American  Brew- 
ing Co.,  105  La.  124,  83  Am.  St.  Rep. 
225,  52  L.  R.  A.  684,  defendant's 
driver  made  an  assault  to  secure  pay- 


r>  nl  nofjq»-mi  sji  barf  [fmenp 
ment  for  beer  delivered  the  day  be- 
fore without  being  paid  for,  and  for 
which  the  driver  was  therefore  per- 
sonally responsible.  Held,  that  the 
defendant  company  was  not  liable  for 
the  assault. 

In  Steinman  v.  Baltimore  Antisep- 
tic Laundry  Co.,  109  Md.  62.  21  L.  R. 
A.  (N.  S.)  884,  the  same  result  was 
reached  in  a  case  involving  similar 
facts. 

ee  Bergman  v.  Hendrickson,  106 
Wis.  434,  80  Am.  St.  Rep.  47. 

Compare  McDermott  v.  American 
Brewing  Co.,  105  La.  124,  83  Am.  St. 
Rep.  225,  52  L.  R.  A.  684,  supra.  See 
also,  McClung  v.  Dearborne.  334  Pa. 
396,  19  Am.  St.  Rep.  708,  8  L.  R.  A. 
»04;  O'Connell  v.  Samuel,  81  Hun 
(N.  Y.),  357;  Peddle  v.  Gaily,  109  N. 
Y.  App.  Div.  178;  Ferguson  v.  Rob- 
lin,  17  Ont.  167. 

Language  very  similar  to  that  of 
the  Wisconsin  court  is  found  in  the 
opinion  of  Vann,  J.,  in  Nowack  v. 
Metropolitan  St.  Ry.  Co.,  166  N.  Y. 
433,  82  Am.  St.  Rep.  691,  54  L.  R.  A. 
592.  With  deference,  the  implica- 
tions of  his  language  are  too  wide. 

An  assault  to  coerce  the  payment 
of  a  debt  seems  to  have  been  thought 
to  be  within  the  course  of  the  em- 
ployment of  the  foreman  of  a  gang 
of  men  engaged  in  railroad  construc- 
tion in  Bucken  v.  South,  etc.,  R.  Co., 
157  N.  Car.  443.  The  writer  cannot 
understand  how  reasonable  men 
could  come  to  that  conclusion,  but  it 
is  evident  that  they  did. 


1542 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1979 


tcr  is  liable  for  the  damages  caused  thereby,  provided  he  has  entrusted 
to  the  servant  the  duty  he  was  attempting  to  perform."  Unless  there 
was  something  indicating  that  the  use  of  force  was  contemplated  or 
usual, — of  which  there  was  no  evidence — or  unless  the  court  deemed 
the  case  to  fall  within  the  principle  of  those  in  which  a  special  duty  of 
protection  is  supposed  to  exist  (which  seems  probable  from  the  cases 
cited),  it  must  be  thought  that  the  rule  here  laid  down  is  wider  than 
sound  principle  or  the  authorities  generally  will  justify.  It  surely  can- 
not be  true  that  because  the  master  has  entrusted  to  a  servant  the  per- 
formance of  a  duty,  the  master  can  be  held  responsible  for  whatever 
method  the  servant  may  adopt  in  attempting  to  perform  it. 

§  1979.  Shooting. — The  question  whether  a  master  can  be 

held  responsible  for  the  shooting  of  a  person  by  a  servant  whom  the 
master  has  placed  in  charge  of  property,  is  a  question  which  must  de- 
pend upon  a  great  variety  of  circumstances.  The  master  may  undoubt- 
edly authorize  the  use  of  force  under  such  circumstances  as  to  be  liable 
even  for  so  extreme  an  application  of  it.87  Under  familiar  principles 

OT  In  Letts  v.  Hoboken  Ry.,  etc., 
Co.,  70  N.  J.  L.  358,  the  plaintiff's 
petition  alleged  that  defendant's 
watchman,  while  executing  his  au- 
thority by  removing  the  plaintiff 
from  the  defendant's  premises,  shot 
and  injured  the  plaintiff.  The  court 
held  the  petition  good  on  demurrer, 
saying:  "Authority,  given  by  the 
master  to  his  servant,  to  eject  tres- 
passers from  the  former's  premises, 
charges  the  master  with  liability  for 
the  act  of  the  servant  in  using  ex- 
cessive or  inappropriate  force  in  re- 
moving one  who  was  a  trespasser." 

In  Fraser  v.  Freeman,  56  Barb.  (N. 
Y.)  234,  the  defendant  was  in  a  dis- 
pute with  the  plaintiff's  intestate 
over  the  right  to  a  building  occupied 
by  defendant.  The  defendant  took 
two  servants,  both  armed  to  defend- 
ant's knowledge,  with  the  declared 
intention  of  "fighting  it  out"  with 
plaintiff's  intestate.  The  plaintiff's 
intestate  offering  resistance,  the  serv- 
ant of  defendant  killed  him.  The 
master  was  held  liable  for  the  serv- 
ant's acts. 

In  Haehl  v.  Wabash  Ry.  Co.,  119 
Mo.  325,  a  watchman  of  defendant, 


' 

employed  on  a  bridge  with  authority 
to  keep  trespassers  off,  shot  and 
killed  the  plaintiff's  intestate,  while 
he  was  trespassing  on  the  bridge,  al- 
though the.  evidence  fails  to  show 
any  personal  ill  will  held  by  the  serv- 
ant against  the  trespasser.  The  court 
held  the  defendant  liable,  but  this 
case  goes  very  far,  and  it  cannot  be 
reconciled  with  some  of  the  cases 
cited  in  the  following  note. 

In  Magar  v.  Hammond,  183  N.  Y. 
387,  3  L.  R.  A.  (N.  S.)  1038,  the  de- 
fendant employed  a  watchman  to 
guard  his  game  preserve.  The  watch- 
man shot  the  plaintiff,  who  was 
poaching  thereon.  The  court  held 
that  to  render  the  defendant  liable 
the  shooting  must  have  been  done  by 
the  watchman  while  acting  in  the 
scope  of  his  employment,  and  whether 
it  was  so  done  is  a  question  for  the 
jury  to  determine. 

In  Southern  Ry.  Co.  v.  James,  118 
Ga.  340,  63  L.  R.  A.  257,  the  railway 
company  hired  a  watchman  to  arrest 
tramps  who  were  stealing  rides. 
This  watchman  arrested  plaintiff  and 
was  taking  him  to  the  jail  when  the 
plaintiff  sought  to  escape  by  running 


1543 


§  1979] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


he  may  be  liable  where,  having  authorized  the  servant  to  use  some 
force,  the  servant  has  used  excessive  force.  The  mere  fact  however 
that  the  servant  is  put  in  charge  of  property  will  not  justify  him  in 
shooting  any  one  who  interferes  with  it,  and  the  master  will  certainly 
not  be  liable  where  the  servant  shoots  simply  to  give  vent  to  his  own 
personal  malice  or  resentment,  and  certainly  not  in  any  case  in  which 
the  shooting  had  no  connection  with  or  relation  to  the  act  which  the 
s'ervant  was  authorized  to  perform." 


away.  The  watchman  shot  him  to 
stop  him.  The  company  was  held 
liable. 

In  Savannah  Electric  Co.  v. 
Wheeler,  128  Ga.  550,  10  L.  R.  A.  (N. 
S.)  1176,  a  drunken  street  car  con- 
ductor refused  to  give  a  passenger 
change,  and  when  asked  for  it,  drew 
his  revolver,  and  attempted  to  shoot 
the  passenger,  but  the  passenger  so 
deflected  his  aim  as  to  cause  the  bul- 
let to  go  wide,  and  it  struck  and  killed 
a  passer-by  on  the  street.  The  com- 
pany was  held  to  be  responsible  for 
such  acts  of  the  conductor  (as  the  as- 
sault was  really  upon  the  passenger), 
and  to  be  liable  for  the  death  of  the 
pedestrian. 

See  also,  Deck  v.  Baltimore,  etc., 
R.  Co.,  100  Md.  168,  108  Am.  St.  Rep. 
399. 

In  Conchin  v.  El  Paso  &  S.  W.  R. 
Co.,  13  Ariz.  259,  28  L.  R.  A.  (N.  S.) 
88,  the  watchman,  with  a  revolver 
furnished  by  defendant,  shot  toward 
plaintiff,  intending  to  frighten  him 
away  only,  and  hit  him.  Plaintiff 
was  a  technical  trespasser.  The  de- 
fendant was  held  liable. 

In  Jones  v.  Railroad,  150  N.  C.  473, 
plaintiff  was  climbing  upon  a  freight 
car.  The  flagman  told  him  to  come 
on  up,  but  plaintiff  turned  to  run, 
when  the  flagman  shot  him.  The 
jury,  in  answer  to  a  specific  instruc- 
tion, said  the  agent  was  not  acting 
within  the  scope  of  employment,  yet 
gave  verdict  for  plaintiff.  Held,  it  was 
error  to  enter  judgment  for  plaintiff. 

In  Robarda  v.  Bannon  Sewer  Pipe 
Co.,  130  Ky.  380,  18  L.  R.  A.  (N.  S.) 
923,  where  the  defendant's  watchman 


shot  and  injured  the  plaintiff,  allega- 
tions that  the  defendant  placed  fire- 
arms in  the  servant's  hands  to  use  at 
his  discretion  in  protection  of  the  de- 
fendant's property,  and  that  the  serv- 
ant negligently  adjudged  the  plain- 
tiff, who  was  on  or  near  the  prem- 
ises, to  be  a  wrongdoer,  and  fired 
upon  him, — were  held  to  be  good  on 
demurrer  as  showing  an  act  within 
the  scope  of  employment. 

In  Texas,  etc.,  R.  R.  Co.  v.  Parsons, 
102  Tex.  157,  132  Am.  St.  Rep.  857, 
the  defendant  company  employed  a 
deputy  sheriff  regularly  to  protect 
their  yards  from  trespassers.  While 
driving  a  group  of  trespassers  from 
the  yards,  he  shot  at  an  innocent 
third  party,  whom  he  mistook  for  one 
of  the  trespassers  and  accidentally 
hit  the  plaintiff,  one  of  the  trespass 
ers.  The  defendant  was  held  liable. 

os  The  master  was  held  not  liable 
In  Lytle  v.  Crescent  News  &  Hotel 
Co.,  27  Tex.  Civ.  App.  530  (the  plain- 
tiff disputed  with  the  waiter  at  de- 
fendant's restaurant  over  a  matter  of 
change.  The  plaintiff  called  waiter 
an  opprobrious  name  as  he  was  leav- 
ing the  restaurant.  The  waiter  pur- 
sued and  shot  him);  Turley  v.  B.  & 
M.  Ry.  Co.,  70  N.  H.  348  (a  servant  of 
defendant,  whose  duty  it  was  to  trim 
switch-lamps,  shot  plaintiff,  a  member 
of  a  gang  he  was  trying  to  drive  from 
the  yards.  It  was  no  part  of  his  duty 
to  clear  the  yards  of  trespassers); 
Grimes  v.  Young,  51  N.  Y.  App.  Div. 
239  (a  night  watchman  was  furnished 
with  a  revolver  by  defendant,  his 
master,  and  instructed  to  use  it  only 
in  self  defense,  or  to  fire  in  the  air 


1544 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


§  1980. Slander    and    libel. — The    principal    or    master, 

whether  individual,  corporate  or  partnership,  may  also  be  held  liable 
in  many  cases  for  the  publication  or  utterance  of  a  libel  or  slander  by 
his  servant  or  agent.  In  the  case  of  libel,  where  the  publication  is  in 
the  ordinary  course  of  business  and  involves  no  other  malice  or  ill-will 
than  that  inferred  from  the  unjustifiable  publication  of  the  derogatory 
matter,  the  cases  holding  the  principal  liable  are  now  so  numerous  as 
to  require  no  discussion.09  The  principal  is  liable  in  such  a  case  even 
though  he  was  not  personally  present  or  aware  of  the  publication,  but 


to  scare  trespassers.  The  watchman 
killed  a  boy  wantonly,  who  was  not 
on  defendant's  property  nor  interfer- 
ing in  any  way  with  it) ;  Sandles  v. 
Levenson,  78  N.  Y.  App.  Div.  306  (a 
watchman  seized  and  held  a  boy  who 
had  gone  into  defendant's  yards 
(guarded  by  the  watchman)  for  a 
ball.  While  so  holding  the  boy  the 
watchman,  for  some  purpose,  dis- 
charged his  revolver  in  the  air,  and 
the  bullet  accidentally  struck  plain- 
tiff) ;  Holler  v.  Ross,  68  N.  J.  L.  324, 
96  Am.  St.  Rep.  546,  59  L.  R.  A.  943 
(defendant  hired  a  watchman  to 
guard  his  goods  stored  on  a  wharf 
belonging  to  another.  The  watchman 
saw  men  prowling  about  the  wharf 
and  ordered  them  to  halt.  They  re- 
fused and  he  shot  them.  The  gun 
used  was  not  furnished  by  the  de- 
fendant); Golden  v.  Newbrand,  52 
Iowa,  59,  35  Am.  Rep.  257  (an  armed 
watchman,  employed  by  defendant  to 
protect  his  property,  shot  and  killed 
an  intoxicated  man  who  had  just  been 
engaged  in  a  disturbance  with  an- 
other, but  who  was  retreating  from 
the  defendant's  property  when 
killed);  Belt  Ry.  Co.  v.  Banicki,  102 
111.  App.  642  (a  watchman  shot  a 
trespasser;  and  the  court  held  the 
mere  employment  of  a  watchman  to 
guard  premises  and  keep  away  tres- 
passers, did  not  involve  an  authority 
to  shoot  trespassers;  a  fortiori,  where 
the  trespasser  was  actually  leaving 
the  premises,  as  in  this  case,  when 
shot). 

See  also,  Johnson  v.  Alabama  Fuel 
&    Iron    Co.,  .166    Ala.    534;    Shay  v. 


American  Steel  W.  Co.,  218  Pa.  172; 

Hidalgo  v.  Gulf,  etc.,  R.  Co., Tex. 

Civ.  App.  ,  128  S.  W.  683;  Strador 

T.  Hydraulic,  etc.,  Co.,  146  Ky.  580. 

»9  See,  for  example,  in  the  case  of 
corporations.  Hypes  v.  Sou.  Ry.  Co., 
82  S.  C.  315,  17  Ann.  Cas.  620,  21  L. 
R.  A.  (N.  S.)  873  (slander),;  Rivers 
v.  Yazoo  &  Miss.  R.  R.  Co.,  90  Miss. 
196,  9  L.  R.  A.  (N.  S.)  931  (slander); 
Sawyer  v.  Norfolk  &  Sou.  R.  R.,  142 
N.  C.  1,  115  Am.  St.  R.  716,  9  Ann. 
Cas.  440  (slander);  Peterson  v. 
Western  U.  Tel.  Co.,  65  Minn.  18,  33 
L.  R.  A.  302  (libel);  Philadelphia, 
etc.,  R.  Co.  v.  Quigley,  62  U.  S.  (21 
How.)  202,  16  L.  Ed.  73  (libel); 
Washington  Gas  Light  Co.  v.  Lans- 
den,  172  U.  S.  534,  43  L.  Ed.  543 
(libel);  Hussey  v.  Norfolk  &  Sou.  R. 
R.  Co.,  98  N.  C.  34,  2  Am.  St.  Rep.  312 
(libel);  Hardoncourt  v.  North  Penn. 
Iron  Co.,  225  Pa.  379  (libel).;  Fogg  v. 
Boston  &  Lowell  R.  R.  Co.,  148  Mass. 
513,  12  Am.  St.  Rep.  583  (libel); 
Rowland  v.  Blake  Mfg.  Co.,  156  Mass. 
543  (libel);  Rose  v.  Imperial  Engine 
Co.,  127  N.  Y.  App.  Div.  885,  195  N.  Y. 
515  (libel);  Fraternal  Alliance  v. 
Mallalieu,  87  Md.  97  (libel);  Minter 
v.  The  Bradstreet  Co.,  174  Mo.  444 
(libel). 

For  cases  involving  liability  ol 
partners  for  libel,  see:  Woodling  v. 
Knickerbocker,  31  Minn.  268;  Atlan- 
tic Glass  Co.  v.  Paulk,  83  Ala.  404; 
Wheless  v.  Davis  (Tex.  Civ.  App.), 
122  S.  W.  929;  Haney  Mfg.  Co.  v. 
Perkins,  78  Mich.  1  (slander,  and 
libel);  Lothrop  v.  Adams,  133  Mass. 
471,  43  Am.  Rep.  528. 


1545 


§  1981] 


THE  LAW  OF  AGENCY 


[BOOK   IV 


had  confided  the  conduct  of  the  business  to  an  agent.1  The  principal 
may  also  be  liable  for  publications  in  the  course  of  the  business,  even 
though  actual  malicious  intention  must  be  proved,2  and  he  will  be  liable 
for  a  publication  made  in  the  course  of  the  business  and  for  the  pur- 
pose of  furthering  the  principal's  interests  even  though  it  was  the  re- 
sult of  actual  malice.8  On  the  other  hand,  there  could  be  no  doubt  that 
a  servant  or  agent  who  merely  took  advantage  of  the  opportunity  af- 
forded by  his  position,  to  libel  others  in  order  to  gratify  his  own  malice 
and  ill-will,  in  matters  in  no  way  within  the  course  of  his  employment, 
would  not  impose  a  liability  upon  his  principal.* 

§  1981.  'With  reference  to  slander,  the  case  presents  some 

differences  of  aspect.  It  is  more  easy  to  see,  for  example,  that  a  prin- 
cipal or  master,  whose  business  is  that  of  publishing,  may  be  liable  for 


That  a  partner  is  not  liable  for  the 
slander  of  a  co-partner,  depending 
upon  statute.  Ozborn  v.  Woolworth, 
106  Ga.  459;  Hendricks  v.  Middle- 
brooks  Co.,  118  Ga.  131,  136. 

For  cases  involving  liability  of  in- 
dividual principal  or  master  for  libel 
of  agent  or  servant,  see  Dunn  v. 
Hearst,  139  Cal.  239;  Taylor  v. 
Hearst,  107  Cal.  262;  Williams  V. 
Fuller,  68  Neb.  354,  68  Neb.  362. 

1  See  Storey  v.  Wallace,  60  111.  51; 
Dunn  v.  Hall,  1  Ind.  344;   Andres  v. 
Wells,  7  Johns.    (N.  Y.)    260,   5  Am. 
Dec.    267;     Ferret    v.    New    Orleans 
Times,  25  La.  Ann.  170. 

2  Lothrop  v.  Adams,  133  Mass.  471, 
43  Am.  Rep.  528  (a  case  involving  lia- 
bility of  one  partner  for  act  of  an- 
other);   Bruce  v.  Reed,  104  Pa.  408, 
49  Am.  Rep.  586. 

3  Pennsylvania      Iron      Works     v. 
Voght  Machine  Co.    (Ky.),  96  S.  W. 
551,  29  Ky.  L.  Rep.  861,  8  L.  R.  A. 
(N.  S.)  1023  (a  case  of  libelous  letter 
written  by  the  agent  of  a  corporation 
in  an  endeavor  to  get  business  for 
principal);    Citizens'  Life  Assurance 
Co.  v.  Brown,  [1904]  A.  C.  423   (a  li- 
belous circular  sent  out  by  defend- 
ant's superintendent  as  a  means  of 
promoting    and    keeping    business) ; 
Fitzsimons  v.  Duncan,  [1908]  2  Ir.  R. 
483  (libelous  report  by  correspondent 
of  a  commercial  agency). 

Blacklisting,  Etc.  —  Where  defend- 


ant's manager  notified  other  estab- 
lishments in  the  same  business  not 
to  employ  plaintiff  because  the  latter 
was  defendant's  apprentice  who  had 
quit  without  cause,  but  in  fact  plain- 
tiff was  not  an  apprentice  and  was 
discharged  from  defendant's  employ 
by  defendant's  foreman,  Held,  de- 
fendant's manager  having  acted  in 
good  faith  for  his  principal's  interest, 
was  acting  in  the  general  scope  of 
his  employment,  and  defendant  is  lia- 
ble in  a  tort  action  for  preventing 
plaintiff  from  securing  employment. 
Blumenthal  v.  Shaw,  23  C.  C.  A.  590, 
77  Fed.  954. 

But  in  Graham  v.  St.  Charles 
Street  R.  R.  Co.,  47  La.  Ann.  1656, 
where  defendant's  foreman,  having 
authority  to  employ  and  discharge 
laborers,  used  that  power  in  such  a 
way  as  to  discriminate  against  those 
trading  at  plaintiff's  store,  his  mo- 
tives not  being  to  enforce  any  rule 
of  the  company,  such  act  was  held  to 
be  without  the  scope  of  his  employ- 
ment. 

*  See  Washington  Gas  L.  Co.  v. 
Lansden,  172  U.  S.  534,  43  L.  Ed.  543. 
Where  an  agent  was  authorized  only 
to  write  routine  letters,  a  letter  to 
other  dealers  containing  false  state- 
ments about  a  discharged  employe, 
was  outside  the  course  of  the  agent's 
business.  Willner  v.  Silverman,  109 
Md.  341,  24  L.  R.  A.  (N.  S.)  895. 


1546 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1982 

defamatory  publications  by  his  servant  or  agent,  than  it  is  to  see  how 
liability  for  defamatory  spoken  words  may  arise  in  the  conduct  of  a 
business  in  which  publication  is  not  an  incident.  Nevertheless  such 
cases  may  exist, — the  difficulty  ordinarily  being  to  find  that  the  speak- 
ing was  within  the  scope  of  the  employment.  In  the  case  of  corporate 
principals  or  masters,  several  text  writers  and  some  courts  have  held 
that  there  can  be  no  liability  for  slander  by  a  servant  or  agent,  it  being 
said  that  "there  can  be  no  agency  to  slander." B  But  this  reasoning 
is  not  conclusive,  and  several  courts  have  held  that  liability  may  exist 
in  these  cases  if  the  speaking  of  the  words  was  in  the  course  of  the 
employment,6  though  it  must  be  said  that,  upon  the  latter  point,  there 
has  been  a  tendency  in  some  courts  to  overlook  the  distinction  between 
acts  done  in  the  course  of  the  employment  and  those  done  merely  dur- 
ing the  employment. 

§  1982.  How  question  decided — Court  or  jury. — Here,  as  in  the 
preceding  case  of  negligence,  the  question  of  whether  the  act  was  one 
within  the  course  of  the  employment,  is  usually  a  question  of  fact,  in 
view  of  what  the  employment  was  and  what  can  fairly  be  deemed  to 
be  within  its  course  under  the  circumstances  of  the  case.  Where  only 
one  legal  inference  may  reasonably  be  drawn  from  the  facts,  the  court 
should  decide  it;  but  where  differing  legal  inferences  may  reasonably 

«  Odgers  on  Libel  and  Slander  (1st  Text  Book  Co.  v.  Heartt,  69  C.  C.  A. 

Am.  ed.)  *368;  Newell  on  Defamation  127,  136  Fed.  129   (same);   Rivers  v. 

(1st  ed.)    361   [but  see  2d  ed.  376];  Yazoo,  etc.,  R.  Co.,  90  Miss.  196,  9  L. 

Townshend  on  Slander  and  Libel  (2d  R-  A.  (N.  S.)  931  (a  case  which  was 

ed.)    §  265;    Behre  v.  National  Cash  decided  upon  the  pleadings  but  which 

Reg.  Co.,  100  Ga.  213,  62  Am.  St.  Rep.  seems  questionable  upon  the  facts): 

320;    Singer  Mfg.  Co.  v.  Taylor,  150  Hypes  v.  Southern  Ry.  Co.,  82  S.  Car. 

Ala.  574,  9  L.  R.  A.   (N.  S.)   929  and  315,  17  Ann.  Gas.  620. 
Note,  124  Am.  St.  Rep.  90;  Duquesne          In    Interstate    Amusement    Co.    v. 

Distrib.  Co.   v.   Greenbaum,  135   Ky.  Martin, Ala.  App. ,  62  So.  404, 

182,  24  L.  R.  A.  (N.  S.)  955  (a  part-  the  proprietor  of  a  theater  was  held 

nership) ;    Lindsey  v.  St  Louis,  etc.,  responsible  for  abusive  language  used 

Ry.    Co.,    95    Ark.    534;    New    South  by   an    employee   towards   a   patron, 

Wales  Country  Press  Co.  v.  Stewart,  but  the  decision  goes  largely  upon  a 

12  Comw.  L.  R.  (Australia)  481.  special  duty  of  protection. 

«May  v.   Shreveport  Traction   Co.,          See  Ellis  v.  National  Free  Labor 

127  La.  420,  32  L.  R.  A.  (N.  S.)   206;  Ass'n,  7  Ct.  of  Sess.  Cases  (Scotch), 

Empire  Cream  Co.  v.  De  Laval  Dairy  629;     Sheppard    Publishing    Co.     v. 

Co.,  75  N.  J.  L.  207;   Sawyer  v.  Nor-  Press  Pub.  Co.,  10  Ontario  L.  R.  243; 

folk,  etc.,  R,  Co.,  142  N.  C.  1,  115  Am.  May  v.  Western  Un.  Tel.  Co.,  157  N. 

St.    Rep.    716    and    Note    (defendant  Car.  416,    37    L.    R.    A.   (N.  S.)   912. 

held  not  liable  in  this  case  because  act  Municipal  corporation  not  liable  for 

not  in  course  of  employment),  9  Ann.  slander   by   its   tax   collector.     Glas 

Cas.  440;  Redditt  v.  Singer  Mfg.  Co.,  gow  v.  Lorimer,  [1911]  App.  Cas.  209. 
124  N.  C.  100  (same);   International 

IS47 


THE   LAW  OF  AGENCY 


[BOOK  iv 


be  drawn,  it  is  a  question  for  the  jury.7  The  court,  however,  should 
carefully  instruct  the  jury  as  to  the  principles  of  law  involved,  and  the 
functions  of  the  jury,  and  not  leave  them  .to  determine  the  matter  by 
their  own  unguided  notions  of  what  may  be  just  or  equitable. 

§  1983.  Ratification. — Even  though  the  act  were  not  within  the 
course  of  the  employment,  liability  for  it  may  arise  by  ratification  as  in 
other  cases.8  It  seems  unnecessary  to  discuss  the  conditions,  as  they 
have  been  so  fully  dealt  with  in  the  chapter  on  Ratification. 

6,  Liability  for  Fraudulent  Acts  and  Representations. 

j 

§  1984.  Liability  for  agent's  fraudulent  act. — The  principal  is 
also  liable  for  the  fraudulent  or  deceitful  act  of  his  agent  committed  as 
an  incident  to  and  during  the  performance  of  an  act  which  is  within 
the  scope  of  the  agent's  authority.9  As  is  said  in  a  leading  case  10  "no 

139;  Palo  Alto  Bank  v.  Pacific,  etc., 
Cable  Co.,  103  Fed.  841;  Alger  v.  An- 
derson, 78  Fed.  729;  London  Life  Ins. 
Co.  v.  Molsons  Bank,  5  Ont.  L.  Rep. 
407;  Rex  v.  Canadian  Pac.  R.  Co.,  14 
Can.  Exch.  150;  Stevenson  v.  Bear,  2 
Viet.  L.  Rep.  220. 

10  Barwick  v.  English  Joint  Stock 
Bank,  L.  R.  2  Ex.  259. 

In  Nowack  v.  Metropolitan  St.  Ry. 
Co.,  166  N.  Y.  433,  82  Am.  St.  Rep. 
691,  54  L.  R.  A.  592,  a  bare  majority 
of  the  court  of  appeals  held  that  evi- 
dence was  admissible  that  an  agent 
authorized  to  look  up  the  testimony 
in  cases  and  "to  see  to  the  witnesses 
and  take  statements  and  to  interview 
witnesses,"  had  attempted  to  bribe 
the  most  important  witness  of  the  op- 
posite side.  [Vann,  J.,  said:  "He 
was  employed  'to  see  to  the  wit- 
nesses,' and  this  was  his  manner  of 
seeing  to  them.  He  was  to  procure 
evidence,  the  method  not  being  speci- 
fied, and  he  tried  to  get  it  by  an  un- 
lawful method.  The  subject  was  left 
to  his  judgment  and  he  acted  accord- 
ing to  his  judgment.  The  scope  of 
the  business  intrusted  to  him  in- 
cluded whatever  he  thought  best  to 
do  in  order  to  get  the  right  kind  of 
witnesses."  With  deference,  the  pres- 
ent writer  ventures  to  think  that  this 
last  sentence  and  its  implications  are 
wholly  unsound.]  On  the  main  point, 
— of  the  admissibility  of  the  evidence 


f  Among  many  other  cases,  see  Col- 
lins v.  Butler,  179  N.  Y.  156  (citing, 
many  others);  Bucken  v.  South., 
etc.,  R.  Co.,  157  N.  Car.  443;  May  v. 
Western  Un.  Tel.  Co.,  157  N.  Car.  416, 
37  L.  R.  A.  (N.  S.)  912;  St.  Louis, 
etc.,  Ry.  Co.  v.  Hackett,  58  Ark.  381, 
41  Am.  St.  Rep.  105. 

s  See  ante,  Book  I,  Chap.  VII. 

»  Locke  v.  Stearns,  1  Mete.  (Mass.) 
560,  35  Am.  Dec.  382;  Reynolds  v. 
Witte,  13  S.  Car.  5,  36  Am.  Rep.  678; 
Fogel  v.  Schmalz,  92  Cal.  412;  Hol- 
lingsworth  v.  Holbrook,  80  Iowa,  151, 
20  Am.  St.  Rep.  411;  Noble  v.  Steam- 
boat Northern  Illinois,  23  Iowa,  109; 
Durst  v.  Burton,  47  N.  Y.  167,  7  Am. 
Rep.  428;  Fifth  Ave.  Bank  v.  Forty- 
second  St.,  etc.,  R.  Co.,  137  N.  Y.  231, 
33  Am.  St.  Rep.  712,  19  L.  R.  A.  331; 
Dougherty  v.  Wells,  Fargo  &  Co.,  7 
Nev.  368;  McKinnon  v.  Vollmar,  75 
Wis.  82,  17  Am.  St.  Rep.  178,  6  L.  R. 
A.  121;  Andrews  v.  Clark,  72  Md. 
396;  New  England  Mutual  Life  Ins. 
Co.  v.  Swain,  100  Md.  558;  Binghamp- 
ton  Trust  Co.  v.  Auten,  68  Ark.  299, 
82  Am.  St.  Rep.  295;  Goshorn  v.  Peo- 
ple's Nat.  Bank,  32  Ind.  App.  428, 
102  Am.  St.  Rep.  248;  Western  Cot- 
tage, etc.,  Co.  v.  Anderson,  45  Tex. 
Civ.  App.  513;  Thompson  v.  Barry, 
184  Mass.  429;  Robertson  v.  Cove- 
nant, etc.,  Ins.  Co.,  123  Mo.  App.  238; 
Phipps  v.  Mallory  Comm.  Co.,  105  Mo. 
App.  67;  Whaley  v.  Duncan,  47  S.  C. 


1548 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§ 


sensible  distinction  can  be  drawn  between  the  case  of  fraud  and  the 
case  of  any  other  wrong."  In  the  same  line  it  was  said  by  a  learned 
judge  in  a  case  involving  the  fraudulent  disposition  by  an  agent  of 
bonds  of  a  third  person  with  which  he  had  been  intrusted  by  his  prin- 
cipal :  "It  is  difficult  to  understand  upon  what  ground  the  principal 

that  one  party's  agent  employed  to  Am.  St.  Rep.  411  (agent  to  collect 
look  up  the  evidence  had  attempted 
to  tamper  with  the  other  party's  wit- 
nesses— the  decision  is  supported  by 
Chicago  City  Ry.  Co.  v.  McMahon, 
103  111.  485,  42  Am.  Rep.  29.  See  also, 
Snell  v.  Bray,  56  Wis.  156;  Baltimore, 
etc.,  R.  Co.  v.  Rambo,  59  Fed.  75. 

Compare  Green  v.  Town  of  Wood- 
bury,  48  Vt.  5. 

In  the  following  cases  the  princi- 
pal was  held  to  be  responsible  for,  or 
affected  by,  the  fraudulent  acts  of  his 
agent.  Durst  v.  Burton,  47  N.  Y.  167, 
7  Am.  Rep.  428  (manager  of  defend- 
ant's cheese  factory  put  unsuitable 
and  unfit  materials  into  the  center 
of  cheeses);  Fifth  Avenue  Bank  v. 
Forty-second  St.,  etc.,  R.  Co.,  137  N. 
Y.  231,  33  Am.  St.  Rep.  712,  19  L.  R. 
A.  331  (defendant's  secretary  and 
transfer  agent,  in  charge  of  surrender 
and  reissue  of  certificates,  issued  a 
forged  and  fictitious  certificate  of 
stock);  (see  also,  Andrews  v.  Clark, 
72  Md.  396,  a  case  similar  in  princi- 
ple); Dougherty  v.  Wells,  Fargo  & 
Co.,  7  Nev.  368,  (agent  cashed  an  old 
certificate  of  deposit,  delivered  with 
instructions  to  secure  a  renewal,  and 
absconded) ;  McKinnon  v.  Vollmar,  75 
Wis.  82,  17  Am.  St.  Rep.  178,  6  L.  R. 
A.  121,  (agent  fraudulently  showed 
prospective  purchasers  the  wrong 
tract  of  land ) ;  Noble  v.  Steamboat 
Northern  Illinois,  23  Iowa,  109  (de- 
fendant's agent  obtained  by  fraud  a 
receipt  for  wages  due  an  employee  of 
defendant,  and  then  withheld  a  part 
of  employee's  wages) ;  Herbert  v. 
Huie,  1  Ala.  18,  34  Am.  Dec.  755  (one 
entrusted  with  a  paper  signed  in 
blank  filled  it  in  with  a  different 
amount  and  used  it  in  a  different 
manner  than  intended);  Hollings- 
worth  v.  Holbrook,  80  Iowa,  151,  20 


and  take  security  for  a  debt  altered  a 
chattel  mortgage  which  he  took)', 
Aultman  v.  Olson,  34  Minn.  450 
(plaintiff's  agent  procured  a  renewal 
of  notes  by  agreeing  to  insert  a  war- 
ranty provision  in  the  renewal,  and 
instead  inserted  a  clause  releasing 
plaintiff  from  warranty  claims);  Al- 
ger  v.  Anderson,  78  Fed.  729  (defend- 
ant's agents  to  sell  land  bribed  plain- 
tiff's land  inspector,  influencing  his 
report  to  plaintiff,  who  later  pur- 
chased); Honaker  v.  Board  of  Edu- 
cation, 42  W.  Va.  170,  57  Am.  St.  Rep. 
847  (bribery  by  agent  of  members  of 
board  to  induce  them  to  attend  a 
meeting) ;  Bank  of  Palo  Alto  v.  Paci- 
fic Postal  Tel.  Cable  Co.,  103  Fed.  841 
(defendant's  operator  in  collusion 
with  a  third  party,  sent  a  forged  tele- 
gram to  plaintiff  bank  inducing  the 
payment  of  money  to  the  third  party; 
to  same  effect,  McCord  v.  Western 
Union  Tel.  Co.,  39  Minn.  181,  12  Am. 
St.  Rep.  636,  1  L.  R.  A.  143;  see  also, 
Bank  of  California  v.  Western  Union 
Tel.  Co.,  52  Cal.  280;  Elwood  v.  Tele- 
graph Co.,  45  N.  Y.  549,  6  Am.  Rep. 
140);  Jasper  Trust  Co.  v.  Kansas 
City,  etc.,  R.  Co.,  99  Ala.  416,  42  Am. 
St.  Rep.  75  (express  agent  fraudu- 
lently induced  money  to  be  sent  and 
then  embezzled  it). 

In  Wilmerding  v.  Postal  Tel.  Co., 
118  N.  Y.  App.  Div.  685,  aff' d,  no  opin- 
ion, 192  N.  Y.  580,  a  majority  of  the 
court  held  the  defendant  liable  for 
the  fraud  of  its  collecting  agent  who, 
in  presenting  daily  a  number  of  gen- 
uine bills  for  telegraphing,  slipped 
in  also  a  number  of  fictitious  ones 
which  plaintiff's  clerk  paid  without 
suspecting  or  detecting  their  fraudu- 
lent character.  The  majority  held 
that  "An  employer  who  has  put  it 


1549 


§  1984] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


should  be  held  liable  for  the  negligence  of  his  agent  and  not  for  his 
fraud,  where  the  act  is  done  or  omitted  to  be  done  to  the  very  property 
as  to  which  the  agency  exists,  and  in  the  course  of  the  agency.  Fraud 
by  which  the  property  is  lost  is  generally  considered  one  of  the  forms 
of  gross  negligence.  What  is  the  proper  understanding  of  the  phrase 
'within  the  scope  of  the  agency?'  Does  'the  scope'  include  negligence 
and  exclude  fraud?  It  cannot  properly  be  restricted  to  what  the  par- 
ties intended  in  the  creation  of  the  agency,  for  that  would  also  exclude 
negligence,  as  no  agent  is  appointed  for  the  purpose  of  being  negli- 
gent, any  more  than  for  the  purpose  of  acting  fraudulently.  The  ques- 
tion cannot  be  determined  by  the  authority  intended  to  be  conferred  by 
the  principal.  We  must  distinguish  between  the  authority  to  commit 
a  fraudulent  act,  and  the  authority  to  transact  the  business  in  the  course 
of  which  the  fraudulent  act  was  committed.  Tested  by  reference  to  the 
intention  of  the  principal,  neither  negligence  nor  fraud  is  within  'the 
scope  of  the  agency' ;  but  tested  by  the  connection  of  the  act  with  the 
property  and  business  of  the  agency,  fraud  in  taking  the  very  property 
is  as  much  'within  the  scope  of  the  agency'  as  negligence  in  allowing 
others  to  take  it.  The  proper  inquiry  is,  whether  the  act  was  done  in 


within  the  power  of  his  employee  to 
defraud  a  third  person  by  interming- 
ling fraudulent  and  genuine  bills  and 
collecting  money  therefrom,  should 
be  held  responsible  to  an  innocent 
third  party  for  the  dishonesty  of  his 
employee."  As  the  minority  pointed 
out,  however,  both  of  the  implica- 
tions of  fact,  that  defendant  had  "put 
it  within  the  power"  of  the  agent  and 
that  the  plaintiff  was  "an  innocent 
third  party"  who  owed  no  duty  of 
care,  are  certainly  questionable. 

In  Bartlett  v.  First  Nat.  Bank,  247 
111.  490,  principals  who  knew  that 
their  agent  was  making  drafts  to  the 
order  of  various  persons  not  inter- 
ested, and  then  forging  the  signa- 
tures of  the  payees  and  obtaining  the 
money  upon  them,  and  who  made  no 
objection  so  long  as  they  thought  the 
money  was  being  applied  to  their  use, 
were  held  liable  to  Z>ona  fide  holders 
of  similar  drafts,  the  proceeds  of 
which  the  agent  appropriated. 

In  Cribb  v.  Dwyer,  [1910]  St.  Rep. 
Queensland,  242,  a  principal  was  held 
responsible  for  the  fraudulent  state- 


ment of  his  agent  to  purchase  land, 
made  at  the  time  of  executing  the 
contracts,  that  it  was  not  necessary 
to  include  a  certain  stipulation  be- 
cause he  (the  agent)  had  already  re- 
ported that  stipulation  to  his  princi- 
pal and  that  the  latter  had  assented 
to  it, — a  statement  which  in  fact  was 
not  true. 

See  also  Malcolm  v.  Waterhouse,  24 
Times  L.  R.  854. 

Where  a  husband  with  fraudulent 
intent  took  from  his  wife  a  power  of 
attorney  to  carry  on  business  for  her, 
and  by  false  representations  obtained 
goods  not  intending  to  pay  for  them, 
and  then  induced  his  wife  to  make 
an  assignment,  the  wife  though  ac- 
tually innocent  is  chargeable  with 
his  fraud,  and  this  vitiates  the  as- 
signment Warner  v.  Warren,  46  N. 
Y.  228. 

In  Brown  v.  American  Tel.  Co.,  82 
S.  Car.  173,  the  defendant  was  held 
liable  for  an  entry  upon  land  and  a 
cutting  of  trees,  though  It  attempted 
to  justify  under  a  permission  ob- 
tained by  fraud  of  its  agents. 


1550 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1984 


the  course  of  the  agency  and  by  virtue  of  the  authority  as  agent.  If 
it  was,  then  the  principal  is  responsible,  whether  the  act  was  merely 
negligent  or  fraudulent."  u 

Just  as  clearly,  of  course,  is  the  principal  not  responsible  where  the 
fraud  was  not  committed  while  the  agent  was  acting  or,  at  least,  pur- 
porting to  act  within  the  scope  of  his  authority,  but  was  an  incident 
to  an  act  done  by  the  agent  in  pursuance  of  his  own  or  some  other  prin- 
cipal's purposes.12 


11  In  Reynolds  v.  Witte,  13  S.  Car. 
5.  36  Am.  Rep.  678. 

12  The  rule  has  no  where  been  bet- 
ter stated  than  by  Lord  Herschell,  in 
Thome   v.   Heard,    [1895]    App.    Cas. 
495,   502,  as  follows:    "It  appears  to 
me  perfectly  clear  that  in  order  to 
charge    any    person    with    a    fraud 
which  has  not  been  personally  com- 
mitted  by   him   the   agent   who   has 
committed  the  fraud  must  have  com- 
mitted   it   while    acting   within    the 
scope   of  his  authority,  while  doing 
something     and     purporting    to     do 
something  on  behalf  of  the  principal. 
If    the    person    is    doing    something 
within  the  scope  of  his  authority  and 
purporting  to  do  it  for  his  principal, 
although  in   doing  it  he  commits  a 
wrong    which    his    principal    neither 
sanctioned  nor  intended,  the  princi- 
pal may  be  liable.    But  if  the  person, 
although   he   has   been   employed   as 
agent,    is    not,    in    the    transaction 
which  is  the  wrongful  act,  acting  for 
or   purporting   to   be   acting   for   the 
principal,  it  seems  to  me  impossible 
to  treat    that    as    the    fraud    of  the 
principal." 

In  Stimpson  v.  Achorn,  158  Mass. 
342,  it  was  held  that  a  principal  was 
not  liable  for  the  fraud  of  an  agent 
in  selling  the  property  of  another 
person  and  pretending  that  the  prin- 
cipal's property  belonged  to  that 
other  person  and  was  included  in  the 
sale. 

In  Foster  v.  The  Essex  Bank,  17 
Mass.  478,  9  Am.  Deec.  168,  the  de- 
fendant was  held  not  liable  for  the 
theft  by  its  cashier  of  a  special  de- 
posit, the  bank  not  having  been  neg- 
ligent 


In  Bigelow  v.  Stilphen,  35  Vt.  521, 
the  plaintiff  was  held  not  to  be  af- 
fected by  the  alteration  of  the  note 
sued  upon,  the  alteration  having  been 
fraudulently  made  by  his  agent. 

In  Robinson  v.  Bank  of  Pikeville, 
146  Ky.  538,  37  L.  R.  A.  (N.  S.)  1186, 
a  creditor  was  held  not  liable  for  the 
fraud  of  his  attorney  and  collecting 
agent  who  was  alleged  to  have  con- 
nived at  getting  credit  on  a  forged 
check  at  the  bank  in  order  to  pay  the 
claim.  The  act  had  no  relation  to 
anything  he  was  authorized  to  do. 

In  Weisser  v.  Denison,  10  N.  Y.  68, 
61  Am.  Dec.  731;  Hardy  v.  Chesa- 
peake Bank,  51  Md.  562,  34  Am.  Rep. 
325,  the  principal  was  held  not  lia- 
ble for  forgery  of  checks  by  his  agent 
who  had  no  authority  to  draw  checks 
at  all. 

See  also,  German  Savings  Bank  v. 
Citizens  Nat.  Bank,  101  Iowa,  530,  63 
Am.  St.  Rep.  399. 

See  also,  Merchants'  Bank  v.  Pru- 
dential Ins.  Co.,  110  Mo.  App.  62 
(defendant's  local  agent  forged  the 
payee's  name  on  a  check  drawn  by 
the  defendant  and  entrusted  to  him 
for  delivery  in  settlement  of  a  loss, 
and  also  acted  as  a  witness  to  the 
pretended  signature  of  the  payee. 
Held,  that  defendant  is  not  responsi- 
ble); Harvey  v.  Schuylkill  Trust  Co., 
199  Pa.  421;  (plaintiff  could  not  re- 
cover money  paid  to  defendant's  so- 
licitor to  be  invested  in  mortgages, 
and  which  was  embezzled  by  him 
where  he  had  no  authority  to  invest 
or  receive  money  for  investment). 

Gompertz  v.  Cook,  20  Times  L.  Rep. 
106  (agent  had  authority  simply  to 
endorse  bills  for  deposit  but  not  to 


1551 


§§    I9^5>  1986]  THE   LAW  OF   AGENCY  [BOOK    IV 

§  1985.  Within  familiar  rules,  previously  considered,13 

however,  the  principal  may  often  be  liable  where,  though  the  fraudulent 
act  could  not  be  considered  within  the  scope  of  the  employment,  the 
principal  voluntarily  and  with  knowledge  seeks  to  enforce,  or  to  base 
a  defence  upon,  or  to  claim  benefits  under,  a  contract,  grant  or  other 
similar  act,  actually  induced  by  the  fraud  of  his  agent.  In  such  a  case 
he  may  be  held  to  have  assumed  responsibility  for  the  instrumentalities 
which  brought  about  the  contract.1* 

§  1986.  Agent's  fraud  supplemented  by  some  act  or  omis- 
sion of  the  principal. — It  may  also  happen  that,  while  the  agent's 
fraud  alone  would  not,  under  the  circumstances,  involve  the  principal, 
the  latter  himself  may,  by  some  culpable  act  or  omission  of  his  own, 
so  supplement  or  assist  the  agent's  act  as  to  charge  the  principal  with 
the  consequences.  There  are,  as  has  elsewhere  been  pointed  out,15  many 
loose  statements  to  be  found  in  the  books  to  the  effect  that  there  is  a 
general  principle  of  the  law  that,  where  one  of  two  innocent  persons 
must  suffer  by  the  act  of  a  third,  that  one  should  bear  the  loss  by  whose 
act  the  loss  was  made  possible,  or  who  enabled  the  wrongful  act  to  be 
committed,  or  who  first  reposed  trust  and  confidence  in  the  wrongdoer, 
and  the  like.  As  a  matter  of  fact,  notwithstanding  these  general  state- 
ments, there  is  no  such  general  principle  as  that  which  is  thus  declared. 
Like  many  other  alleged  maxims,  this  one  contains  only  a  half  truth  at 
most,  and  its  use  seems  to  be  resorted  to  only  to  cover  loose  reason- 
ing or  to  span  a  gap  without  noticing  it. 

It  is,  of  course,  true  that  the  principal  may  clothe  the  agent  with  the 
apparent  indicia  of  ownership  or  authority,  and  he  may  then  be  estop- 
ped to  deny  the  validity  of  the  agent's  acts  done  thereunder,  even 
though  the  agent  was  attempting  to  perpetrate  a  fraud.16  He  may  also 

:  <m*2a     t! 

cash  them;    he  endorsed  some  such  derson  v.  Railroad  Co.,  17  Tex.  560, 

bills,   obtained   the   money   on   them  67  Am.  Dec.  675;  Wright  v.  Calhoun, 

from   the   defendant   and   absconded  19  Tex.  412;  White  v.  New  York,  etc., 

with    it.     Held,  that    the    defendant  R.  Co.,  68  N.  J.  L.  123;  Western  Mfg. 

must    bear    the    loss);    Executors  of  Co.  v.  Cotton,  126  Ky.  749,  12  L.  R, 

Luse  v.  Parke,  17  N.  J.  Eq.  415.  A.   (N.  S.)  427. 

13  See  ante,  §  435  et  seq.  Many  other  cases  are  cited,  post, 

i*  See  Bennett  v.  Judson,  21  N.  Y.  §  1993. 
238;  Fairchild  v.  McMahon,  139  N.  Y.          i»  See  ante,  §  748. 
290,  36  Am.   St.  Rep.  701;    Mundorff          ™  See  post,  §§  3015,  et  seq,  where 

v.  Wickersham,  63  Pa.  87,  3  Am.  Rep.  this  question  is  more  fully  discussed. 
531;    Keough   v.  Leslie,   92   Pa.   424;  Such  cases  as  Pickering  v.  Busk,  15 

Aultman  v.  Olson,  34  Minn.  450;  Man-  East,  38:  McNeil  v.  Tenth  Nat.  Bank, 

kin    v.    Mankin,    91    Iowa,    406;    Me-  46  N.  Y.  325,  7  Am.  Rep.  341;  Bowers 

fceighan    v.    Hopkins,    19    Neb.    33;  v.  Bryan  Lumber  Co.,  152  N.  Car.  604, 

<5oetz  v.  Flanders,  118  Mo.  342;  Hen-  are  here  in  point. 

1552 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1987 


by  his  culpable  act  or  omission  involve  himself  in  a  liability  which 
would  not  otherwise  have  attached  to  him.  But  even  in  this  latter  case 
he  can  only  be  responsible  for  the  natural  and  proximate  consequences 
of  his  negligence ;  and  his  act  or  omission  will  not  constitute  negligence 
where  the  result  was  not  one  reasonably  to  be  apprehended  and  guarded 
against.17  That  a  previously  honest  agent  will  commit  a  crime  is 
not,  for  example,  ordinarily  an  act  reasonably  to  be  so  anticipated.18 

§  1987.  Liability  of  principal  for  agent's  false  or  fraudulent  rep- 
resentations.— 'The  liability  of  the  principal  for  the  agent's  false  or 
fraudulent  representations,  rests  upon  much  the  same  ground  as  his 
liability  for  the  agent's  fraudulent  acts,  considered  in  the  preceding 
section.  There  is  also  involved  the. question,  considered  in  an  earlier 
section,  of  the  authority  of  an  agent  to  bind  his  principal  by  his  ad- 
missions and  representations  generally.19 

The  principal  may,  either  expressly  or  by  implication,  put  the  agent 
in  such  a  position,  or  charge  him  with  such  duties,  that  the  making  of 
representations  will  fall  within  the  scope  of  his  authority,  as  where,  ex- 
pressly or  by  implication,  he  refers  persons  to  the  agent  for  informa- 
tion 20  or  authorizes  him  to  do  acts  to  which  the  making  of  representa- 
tions is  a  necessary  or  a  usual  incident.21 


IT  Knox  v.  Eden  Musee  Co.,  148  N. 
Y.  441,  51  Am.  St.  Rep.  700,  31  L.  R. 
A.  779;  Baxendale  v.  Bennett,  L.  R. 
3  Q.  B.  Div.  525;  Smith  v.  Prosser, 
[1907]  2  K.  B.  735. 

is  Thus  in  Knox  v.  Eden  Musee  Co., 
supra,  it  is  said:  "It  is  not  generally 
an  omission  of  ordinary  prudence 
that  an  employer  deals  with  his  em- 
ployees on  the  assumption  that  those 
who  have  hitherto  been  faithful  in 
the  performance  of  their  duties  will 
continue  so  to  be,  or  because  he  does 
not  anticipate  and  provide  against 
the  possibility  of  their  criminal  acts. 
Breaches  of  trust  and  confidence  un- 
fortunately are  not  infrequent.  But 
honesty  is  nevertheless,  we  believe, 
the  general  rule  of  human  conduct, 
and  one  may  indulge  in  this  faith  in 
human  nature  and  trust  those  who 
have  proved  themselves  worthy  of  it, 
without  subjecting  himself  to  a 
charge  of  negligecne  if  it  should  turn 
out  that  they  afterwards  yielded  to 
temptation  and  used  their  position  to 


the  injury  of  others.  'It  is  one  thing 
to  say  that  a  man  shall  be  amenable 
for  such  immediate  consequences  of 
his  acts  as  a  reasonable  man  might 
foresee  and  dread  and,  therefore, 
shun.  But  it  is  another  and  very 
different  proposition  to  maintain 
that  a  man  shall  forfeit  his  property 
because  he  has  done  an  act  which 
will  not  be  perilous  unless  others  are 
guilty  of  misconduct  which  that  act 
does  not  cause.'  Williams,  J.,  Ex 
parte  Swan,  7  C.  B.  N.  S.  447." 

See  also,  per  Bramwell,  L.  J.,  in 
Baxendale  v.  Bennett,  L.  R.  3  Q.  B. 
Div.  530,  47  L.  J.  Q.  B.  624;  Vaughan 
Williams,  L.  J.,  in  Smith  v.  Prosser, 
[1907]  2  K.  B.  735. 

is  See  ante,  §§  17-73  et  seq. 

20  Hahl  v.  Brooks,  213  111.  134; 
O'Donnell,  etc.,  Brewing  Co.  v.  Far- 
rar,  62  111.  App.  471;  Lindmeier  v. 
Monahan,  64  Iowa,  24. 

21 A  principal  who  employs  an 
agent  to  sell  his  real  estate  is  liable 
for  a  false  representation  made  by 


98 


1553 


§  1987] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


Where  the  principal  thus  authorizes  the  making  of  representations, 
it  may  be  proved  or  conceded  that  he  intended  the  agent  to  make  only 
fair  and  honest  ones.  But  a  power  to  make  representations,  although 


the  agent  as  to  matters  of  the  sort 
concerning  which  representations  are 
naturally  and  ordinarily  made,  such 
as  the  condition,  situation,  title, 
boundaries  and  encumbrances  of  the 
land.  Rhoda  v.  Annis,  75  Me.  17,  46 
Am.  Rep.  354;  Wolfe  v.  Pugh,  101 
Ind.  293;  Lynch  v.  Mercantile  Trust 
Co.,  18  Fed.  486;  Law  v.  Grant,  37 
Wis.  548;  Quarg  v.  Scher,  136  Cal. 
406;  Haskell  v.  Starbird,  152  Mass. 
117,  23  Am.  St.  Rep.  809;  Millard  v. 
Smith,  119  Mo.  App.  701;  Howe  v. 
Martin,  23  Okl.  561,  138  Am.  St.  Rep. 
840;  Ballard  v.  Lyons,  114  Minn. 
264,  38  L.  R.  A.  (N.  S.)  301;  Sand- 
ford  v.  Handy,  23  Wend.  (N.  Y.) 
260;  Gund  Brewing  Co.  v.  Peterson, 
130  Iowa,  301;  West  Fla.  Land  Co.  v. 
Studebaker,  37  Fla.  28;  Williamson 
v.  Tyson,  105  Ala.  644;  Krolik  v. 
Curry,  148  Mich.  214. 

See  also,  McNeile  v.  Cridland,  168 
Pa.  16;  Shepard  v.  Pabst,  149  Wis. 
35;  Brandt  v.  Krogh,  14  Cal.  App. 
39. 

Same,  in  sale  of  chattels,  stocks, 
notes,  etc.  Jewett  v.  Carter,  132 
Mass.  335;  Locke  v.  Stearns,  1  Mete. 
(Mass.)  560,  35  Am.  Dec.  382;  White 
v.  Sawyer,  16  Gray  (Mass.),  586; 
Erie  City  Iron  Works  v.  Barber,  106 
Pa.  125;  Morton  v.  Scull,  23  Ark. 
289;  Wheeler  v.  Baars,  33  Fla.  696; 
Campbell  v.  Park,  128  Iowa,  181; 
Ferguson  v.  Hamilton,  35  Barb.  (N. 
Y.)  427;  Chisholm  v.  Eisenhuth,  69 
N.  Y.  App.  Div.  134;  Hindman  v. 
First  Nat.  Bank,  50  C.  C.  A.  623,  112 
Fed.  931,  57  L.  R.  A.  108. 

Oral  misrepresentations  will  bind, 
even  though  the  sale  is  finally  con- 
summated by  writing.  St.  Louis 
Refrig.  Co.  v.  Vinton  Wash.  Mach. 
Co.,  79  Iowa,  239,  18  Am.  St.  R.  366. 

In  Fifth  Ave.  Bk.  v.  Forty-second 
St.  R.  Co.,  137  N.  Y.  231,  33  Am.  St. 
Rep.  712,  19  L.  R.  A.  331,  the  trans- 
fer agent  of  defendant  forged  a  cer- 


tificate of  stock;  the  plaintiff  was 
later  asked  to  make  a  loan  on  it  by 
the  then  holder;  before  doing  so, 
plaintiff  inquired  of  the  transfer 
agent  whether  the  certificate  was 
genuine,  and  was  informed  that  it 
was.  The  defendant  was  held  liable 
for  this  misrepresentation.  Same  ef- 
fect: Jarvis  v.  Manhattan  Beach  Co., 
148  N.  Y.  652,  51  Am.  St.  Rep.  727. 

In  the  following  cases  the  princi- 
pal was  held  responsible  for  the 
agent's  misrepresentations.  Arnold 
v.  Nat'l  Bank  of  Waupaca,  126  Wis. 
362,  3  L.  R.  A.  (N.  S.)  580  (defend- 
ant's cashier,  in  employing  plaintiff 
to  secure  purchasers  for  defendant's 
real  estate,  by  mistake  designated 
the  wrong  tract;  plaintiff  sued  for 
commissions);  Griswold  v.  Gebbie, 
126  Pa.  353,  12  Am.  St.  Rep.  878  (a 
vendor's  agent  made  reckless  and  un- 
true statements  as  to  acreage  of  the 
tract  in  connection  with  the  sale) ; 
Williard  v.  Key,  83  Neb.  850  (a  simi- 
lar case);  Wilson  v.  Sale,  41  Pa. 
Super.  Ct.  566  (lessor's  agent  mis- 
represented size  of  premises  in  mak- 
ing a  lease) ;  Haynor  Mfg.  Co.  v. 
Davis,  147  N.  C.  267,  17  L.  R.  A.  (N. 
S.)  193  (agent,  in  selling  a  so-called 
"Buchu  Tonic,"  warranted  it  to  be 
non-alcoholic,  when  he  knew  it  was 
not);  Darks  v.  Scudder-Gale  Co.,  146 
Mo.  App.  246  (agent  of  a  jobber  of 
drugs  sold  ginger  extract  containing 
wood  alcohol  and  represented  it  to  be 
fit  for  medicinal  purposes);  Head  v. 
Pacific  Express  Co.  (Tex.  Civ.  App.), 
126  S.  W.  682,  (agent  of  consignee  of 
a  diamond  ring  represented  to  the 
express  agent  that  it  was  merely 
merchandise,  and  ring  was  lost); 
Morris  v.  Posner,  111  Iowa,  335  (a 
husband,  as  his  wife's  agent  to  run 
a  clothing  business,  bought  goods, 
misrepresenting  his  wife's  financial 
condition);  Park  v.  Brandt,  20 
Idaho,  660  (fraudulent  representa- 


IS54 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1988 


fair  and  honest  ones  only  were  intended  or  directed,  involves  the  pos- 
sibility of  the  making  of  false  and  fraudulent  ones ;  and  if  the  agent 
in  such  a  case,  while  acting  in  the  course  of  the  principal's  business, 
and  for  the  purpose  of  promoting  the  principal's  objects,  and  not  those 
of  the  agent  only,  makes  false  or  fraudulent  representations  concern- 
ing the  subject  matter  of  his  agency,  not  so  extravagant,  unreasonable 
or  unrelated  that  a  reasonably  prudent  man  would  not  rely  upon  them, 
the  principal  will  be  responsible  for  them.22 

§  1988.  No  liability  for  representations  if  any  representa- 
tion is  outside  authority. — But  if,  on  the  other  hand,  the  making  of 
any  representation  concerning  the  subject  matter  could  not  be  deemed 
to  be  within  the  scope  of  the  authority,  then  obviously  the  making  of 
false  or  fraudulent  ones  cannot  be;  and  (unless  the  principal,  by  some 
act  can  be  deemed  to  have  ratified  or  adopted  them,  under  the  circum- 


tlons  of  an  agent  of  a  seller  of  stal- 
lions); Pulton  v.  Fisher,  151  Iowa, 
429  (misrepresentation  as  to  value  of 
land  and  a  scheme  between  owner  of 
land  and  his  agent  whereby  the 
agent  feigned  ability  to  resell  imme- 
diately at  an  advance  in  connection 
with  a  trade) ;  Williams  v.  Goldberg, 
58  N.  Y.  Misc.  210  (landlord's  agent 
represented  to  a  tenant  that  a  ceiling 
was  safe,  and  the  latter  remained  in 
the  premises  and  was  injured);  Mat- 
teson  v.  Rice,  116  Wis.  328  (land- 
lord's agent  on  leasing  premises  rep- 
resented to  the  tenant  that  a  wall 
was  fireproof) ;  Sheppard  Publish- 
ing Co.  v.  Press  Pub.  Co.,  10  Ont.  L. 
R.  243  (defendants'  agent,  in  selling 
trade  annuals,  falsely  represented 
that  plaintiffs  had  sold  out  that 
branch  of  their  business);  Binghamp- 
ton  Trust  Co.  v.  Auten,  68  Ark.  299, 
82  Am.  St.  Rep.  295  (president  of  de- 
fendant bank  induced  plaintiff  to  dis- 
count notes  by  fraudulently  repre- 
senting that  defendant  bank  held 
valuable  warehouse  receipts  of  the 
maker) ;  Thompson  v.  Barry,  184 
Mass.  429  (defendant's  agent  to  pur- 
chase land  of  plaintiff  made  fraudu- 
lent representations  as  to  identity  of 
defendant) ;  Wullenwaber  v.  Duni- 
gan,  30  Neb.  877,  13  L.  R.  A.  811 


(railroad  agent  soliciting  subscrip- 
tions made  representations  as  to  loca- 
tion of  station,  etc.). 

In  Barwick  v.  English  Joint  Stock 
Bank,  L.  R.  2  Ex.  259,  defendant's 
manager  led  plaintiff  to  go  on  fur- 
nishing goods  to  a  customer  of  his 
and  a  debtor  of  the  bank  by  promis- 
ing to  see  that  he  was  paid  out  of 
the  proceeds  next  after  the  bank's 
claim,  although  the  manager  then 
knew  that  the  situation  was  such 
that  there  could  be  no  surplus  and 
that  the  bank  would  get  the  benefit  of 
whatever  plaintiff  supplied.  Held,  to 
be  a  fraud  on  plaintiff,  for  which  the 
bank  must  be  liable,  the  same  as  for 
any  other  wrong  committed  by  an 
agent  in  the  course  of  the  principal's 
business. 

There  is  no  distinction  in  principle 
In  these  cases  between  the  general  or 
the  special  agent;  if  in  either  case 
the  representation  is  deemed  to  be  an 
incident  of  the  act  authorized  the 
principal  may  be  charged.  Haskell  v. 
Starbird,  152  Mass.  117,  23  Am.  St. 
Rep.  809. 

22  King  v.  Livingston  Mfg.  Co.,  

Ala. ,  60  So.  143;  Matteson  v.  Rice, 

116  Wis.  328;  Sandford  v.  Handy,  23 
Wend.  (N.  Y.)  268. 


1555 


§  1989] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


stances  considered  in  a  following  paragraph),  responsibility  for  them 
will  not  attach  to  him.28 

A  fortiori  will  there  be  no  liability  if  there  was  no  agency  at  all.2* 

§  1989.  Representations     within     apparent     authority. — 

While  in  ordinary  actions  based  upon  the  negligence  or  trespass  of 
an  agent  or  servant,  the  question  usually  depends  upon  who  was  the 
real  principal  or  master,,  and  appearances  are  ordinarily  immaterial, 
it  is  nevertheless  true  that  in  actions  based  upon  fraud  or  deceit  in 
contractual  dealings  the  question  of  "apparent"  authority  may  become 
material.  For  if  the  principal  causes  or  permits  another  to  appear  to 
be  his  agent  or  to  appear  to  be  authorized  to  make  a  certain  contract 
or  to  perform  a  certain  act,  when  he  is  not,  responsibility  for  misrep- 
resentations and  deceit  as  part  of  the  contract  or  act  will  attach  on 
the  same  grounds  as  responsibility  for  the  contract  or  act  itself.25 


23  See  Lamm  v.  Port  Deposit  Home- 
stead As-s'n,  49  Md.  233,  33  Am.  Rep. 
246  (an  agent  conducting  a  public 
sale  for  the  foreclosure  of  a  mort- 
gage, has  no  implied  authority  to 
make  representations  as  to  when  pos- 
session will  be  given) ;  Hamilton  v. 
Georgia  R.,  78  Ga.  328  (roadmaster 
authorized  to  let  the  contract  for  the 
construction  of  a  station  building  has 
no  authority  to  assure  a  sub-contrac- 
tor that  he  need  not  file  his  lien  for 
work  done,  as  the  company  would  not 
settle  with  the  contractor  until  all 
the  sub-contractors  had  been  paid); 
McDonald  v.  Cole,  46  W.  Va.  186  (an 
agent  of  a  corporation  appointed  to 
buy  timber  has  no  authority  to  rep- 
resent that  the  company  is  a  partner- 
ship); Fogg  v.  Pew,  10  Gray  (Mass.), 
409,  71  Am.  Dec.  662  (an  insurance 
agent,  whose  authority  extends  only 
to  the  taking  of  applications,  has  no 
authority  to  represent  that  the  com- 
pany's capital  stock  is  paid  in). 

See  also,  Richardson  v.  Palmer,  36 
Mo.  App.  88;  Thayer  v.  Schley,  137 
N.  Y.  App.  Div.  166. 

In  Hartford  Life  Ins.  Co.  v.  Sher- 
man, 223  111.  329,  the  court  appears 
to  lay  down  a  wider  rule,  and  to  hold 
the  defendant  responsible  for  repre- 
sentations which,  it  is  submitted, 
could  not  fairly  be  deemed  to  be 
within  the  scope  of  the  agent's  au- 


thority.   The  conclusion  in  the  case, 
however,  was  doubtless  correct. 

24  There  can,  of  course,  be  no  lia- 
bility  unless  the   person   who   made 
the  representations  was  actually  or 
apparently  the  defendant's  agent.    A 
mere   optionee    or    person   having   a 
contract    to     buy    property     is     not 
thereby  the  agent  of  the  owner  so  as 
to  charge  him  with  the  representa- 
tions of  the  former.    Alger  v.  Keith, 
44  C.  C.  A.  371,  105  Fed.  105;  Reeves 
v.  McCracken,  103  Tex.  416;   Shepard 
v.  Pabst,  149  Wis.  35. 

Where  a  wholesale  dealer's  agent, 
as  a  condition  of  a  contract  of  sale 
between  wholesaler  and  retailer,  was 
to  help  sell  the  goods  bought  of  the 
wholesaler,  he  is  the  retailer's  agent, 
and  the  wholesaler  is  not  responsible 
for  misrepresentations  made  in  retail 
sales.  Doylestown  Agr.  Co.  v.  Brack- 
ett,  Shaw  &  Lunt  Co.,  109  Me.  301,  84 
Atl.  146,  citing,  Wyman  v.  Berry,  106 
Me.  43,  20  Ann.  Cas.  439;  Coughlan 
v.  Cambridge,  166  Mass.  268;  Clapp  v. 
Kemp,  122  Mass.  481. 

25  In   Griswold   v.   Gebbie,   126   Pa. 
353,  12  Am.  St.  Rep.  878,  it  is  said: 
"The  general  rule  that  a  principal  is 
responsible    for    the    misrepresenta- 
tions of  his  agent  within  his  author- 
ity, is  beyond  question,  and  the  bet- 
ter opinion  is  that  as  to  third  per- 
sons affected  by  his  acts  or  words,  it 


1556 


CHAP.    VJ  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    1990 


§    1990. 


Liability  for  representations  not  made  for  prin- 


cipal's benefit. — A  principal  would  clearly  not  be  liable  ordinarily 
for  false  representations  ostensibly  made  for  the  agent's  benefit  only. 
Whether  he  is  liable  for  such  representations  really  made  to  serve  some 
purpose  of  his  own  only,  but  ostensibly  made  in  the  course  of  his  prin- 
cipal's business  and  for  the  latter's  benefit,  is  a  question  upon  which 
there  is  some  difference  of  opinion.  The  English  courts  had  seemed  to 
hold  that  the  principal  would  not  be  liable  in  such  a  case,26  but  that 
view  has  been  now  definitely  discarded.27  The  American  cases  have 
generally  held  the  principal  liable  to  innocent  third  persons  where  the 
representation  was  made  in  the  course  of  the  principal's  business  and 
apparently  for  his  account  and  while  the  agent  was  acting  within  the 
general  scope  of  his  authority,  even  though  in  the  particular  case  he 
was  secretly  abusing  his  authority  and  attempting  to  perpetrate  a  fraud 
upon  his  principal  or  some  other  person  for  his  own  ultimate  benefit.28 


is  the  apparent  scope  of  his  author- 
ity, and  not  his  actual  instructions, 
that  must  govern." 

Same  effect:  Wachter  v.  Phoenix 
Assur.  Co.,  132  Pa.  428,  19  Am.  St. 
Rep.  600;  McNeile  v.  Cridland,  168 
Pa.  16;  Wilson  v.  Sale,  41  Pa.  Super. 
566;  Crook  v.  International  Trust 
Co.,  32  App.  D.  C.  490. 

20  See  British  Mut.  Banking  Co.  v. 
Charnwood,  etc.,  Ry.  Co.,  18  Q.  B. 
Div.  714;  Barwick  v.  English  Joint 
Stock  Bank,  L.  R.  2  Ex.  259;  Malcolm 
v.  Waterhouse,  24  T.  L.  R.  854;  Lloyd 
v.  Grace,  [1911]  2  K.  B.  489,  over- 
ruled in  1912. 

27  The  late  case  of  Lloyd  v.  Grace, 
11912]  App.  Cas.  716,  Ann.  Cas.  1913, 
B.  819,  in  the  House  of  Lords  seems 
to  set  this  question  at  rest.  Here  it 
was  held  that  the  principal  is  liable 
for  the  fraud  of  his  agent  acting 
within  the  scope  of  his  authority, 
whether  the  fraud  is  committed  for 
the  benefit  of  the  principal  or  is  se- 
cretly intended  to  enure  to  the  ulti- 
mate benefit  of  the  agent.  Here  the 
conveyancing  clerk  of  defendants, 
who  were  solicitors,  by  false  repre- 
sentations induced  a  client  of  defend- 
ants to  make  conveyances  of  her 
property  to  him  (which  he  later  dis- 
honestly disposed  of),  under  pretense 


that  they  were  rie'cessary  to  enable 
a  reinvestment  of  her  money  to  be 
made,  which  was  the  purpose  for 
which  she  went  to  the  defendants. 

zs  Thus  in  Phillips  v.  Mercantile 
Nat.  Bank,  140  N.  Y.  556,  37  Am.  St. 
Rep.  596,  23  L.  R.  A.  584,  where  a 
bank  cashier,  who  had  authority  to 
draw  checks  as  cashier  upon  the 
bank's  deposit  in  New  York,  fraudu- 
lently drew  such  checks  for  his  own 
purposes  to  the  order  of  certain  per- 
sons who  had  no  knowledge  of  it  and 
then  endorsed  their  names  upon  the 
checks  and  procured  the  money  upon 
them  from  the  New  York  bank,  which 
acted  in  good  faith,  it  was  held  that 
his  bank  was  liable  for  it.  "It  may 
be  quite  true,"  said  the  court,  "that 
the  cashier  was  not  the  agent  of  the 
bank  to  commit  a  forgery,  or  any 
other  fraud  of  such  a  nature;  but  he 
was  authorized  to  draw  or  check 
upon  the  bank's  funds.  Tf  he  abused 
his  authority  and  robbed  his  bank,  it 
must  suffer  the  loss."  See  also,  West- 
ern Maryland  R.  Co.  v.  Franklin 
Bank,  60  Md.  36;  Hambleton  v. 
Rhind,  84  Md.  456,  40  L.  R.  A.  216. 

In  McCord  v.  Western  Union  Tel. 
Co.,  39  Minn.  181,  12  Am.  St.  Rep. 
636,  1  L.  R.  A.  143,  where  a  telegraph 
agent  sent  a  message  asking  for 


1557 


§§  I99T>  T9921  THE  LAW  OF  AGENCY  [BOOK  iv 

§  iggi.  Representations  concerning  facts  which  condi- 
tion authority. — As  has  many, times  been  pointed  out,  representa- 
tions by  an  agent  concerning  his  own  authority  do  not  usually  bind 
the  principal.  The  mere  fact  that  one  person  makes  another  his  agent 
does  not  amount  to  a  direction  to  third  persons  to  make  inquiries  con- 
cerning the  agent's  authority  of  the  agent  himself.  But  as  has  also 
been  seen,  there  is  a  considerable  number  of  cases,  notably  in  New 
York,  in  which  it  is  held, — contrary  to  the  view  of  the  English  and 
several  American  courts, — that  where  the  rightfulness  of  the  agent's 
act  under  given  conditions  depends  upon  the  existence  of  facts  "nec- 
essarily and  peculiarly"  within  the  agent's  own  knowledge,  his  under- 
taking to  act  as  though  those  facts  did  exist  is  a  representation  that 
they  do  exist,  upon  which  third  persons  dealing  with  him  in  good  faith 
may  rely  as  against  the  principal.  This  question  has  been  so  fully  con- 
sidered in  other  places  20  that  it  is  not  necessary  to  repeat  the  discus- 
sion here. 

§  1992  It  is  essential,  even  to  the  New  York  view,  that 

the  agent  shall  be  one  who  would  have  authority  to  do  the  act  or  one 
similar  to  it,  under  some  circumstances.  If  the  existence  of  some  ex- 
trinsic facts,  "necessarily  and  peculiarly  within  the  agent's  knowledge" 
would  not  bring  the  act  within  his  authority,  there  is  no  room  for  any 
representation  concerning  them,  which  forms  the  basis  of  the  princi- 
pal's liability.  Thus  where  a  clerk  in  the  office  of  a  corporation  who 
had  no  authority  to  issue  new  certificates  even  when  old  ones  had  been 
surrendered,  (though  he  regularly  acted  in  the  mere  clerical  capacity 
of  getting  certificates  ready  for  signature  by  the  proper  officers)  ab- 
stracted from  the  office  safe  certain  endorsed  certificates  which  had 
been  surrendered  for  cancellation  but  had  through  oversight  or  negli- 
gence not  been  cancelled,  and  put  them  into  circulation  again  through 
a  confederate  for  his  own  purposes,  it  was  held  that  the  corporation 
was  not  liable  under  the  rule  here  being  discussed.80 

money  purporting  to  be  from  a  cer-  »"  "The  certificates  were,  at  all 
tain  person,  but  really  invented  by  times  after  their  surrender  and  be- 
the  agent  in  order  that  he  might  get  fore  they  were  abstracted  by  Jurgens 
the  money,  it  was  urged  that  the  [the  clerk]  from  the  safe  of  the  de- 
company  was  not  liable  because  the  fendant,  in  the  legal  possession  of 
wrongful  act  and  any  representation  the  company.  The  company  never 
made  by  the  agent  was  not  for  the  placed  them  in  the  possession  of  Jur- 
principal's  benefit;  but  it  was  held  gens  or  invested  him  with  the  indicia 
that  the  company  was  liable.  See  of  ownership.  He  had  access  to  the 
also,  Bank  of  Palo  Alto  v.  Pacific  safe  as  the  mere  servant  of  the  de- 
Postal  Tel.  Co.,  103  Fed.  841.  fendant.  The  doctrine  of  implied 
2»  See  ante,  §§  759,  1800.  agency  is,  we  think,  wholly  inappli- 

1.558 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1993 

In  a  recent  English  case  the  defendant  in  South  Africa,  being  about 
to  leave  for  England,  signed  two  blank  forms  of  promissory  notes  and 
left  them  in  the  custody  of  his  agent,  to  be  held  by  him  unless  and 
until  the  defendant  should  send  him  authority  to  fill  them  out  for  cer- 
tain sums  and  issue  them  for  the  principal's  account.  Nevertheless  the 
agent,  without  any  authority  whatever,  filled  them  up  and  negotiated 
them,  to  a  bona  fide  holder,  for  his  own  purposes.  It  was  held  that  as 
defendant  had  never  authorized  their  issue  under  an^  circumstances, 
and  as  the  agent  held  the  blank  forms  as  custodian  only,  the  defendant 
was  not  estopped  to  deny  their  validity.81 

§  1993.  Liability  by  ratification  or  adoption  of  act. — But 

even  though  it  should  be  held  that  the  representations  were  ones  which 
the  agent  was  neither  expressly  nor  by  implication  authorized  to  make, 
the  principal  may  nevertheless  be  charged  with  responsibility  for  them 
if,  after  knowledge  of  their  making,  he  voluntarily  seeks  to  enforce  or 
to  gain  or  retain  benefits  flowing  from  the  act  or  contract  which  was 
induced  by  such  representation!  The  principal,  in  such  a  case,  when 
he  learns  of  the  unauthorized  representations,  may  disaffirm  the  trans- 
action and  escape  liability.  But  if  he  voluntarily  takes  the  benefits  of 
the  act  or  contract,  he  must  ordinarily  assume  responsibility  for  the 
instrumentalities  by  which  it  was  brought  about.32  What  the  limita- 
tions upon  this  doctrine  are,  has  been  considered  in  an  earlier  chapter.33 

cable    to    the    circumstances    of   this  Meyerhoff  v.  Daniels,  173  Pa.  555,  51 

case."    Knox  v.  Eden  Musee  Co.,  148  Am.  St.  Rep.  782;   Nelson  v.  Title  & 

N.  Y.  441,  51  Am.  St.  Rep.  700,  31  L.  Trust   Co.,    52   Wash.    258;    Morse   v. 

R.  A.  779.  Ryan,  26  Wis.  356;  Mclntyre  v.  Pryor, 

Compare    Western    Md.    R.    Co.    v.  173  TJ.   S.  38,  43   L.  Ed.   606;    Conti« 

Franklin  Bank,  60  Md.  36.  nental  Ins.   Co.   v.   Insurance   Co.   of 

si  Smith  v.  Prosser,  [1907]  2  K.  B.  Pa.,  2  C.  C.  A.  525,  51  Fed.  884;  Welch 

735.  v.  Handcock,  7  N.  S.  Wales  St.  Rep. 

»See  an*.  §  411;   Wolfe  v.  Pugh,  404. 

101    Ind.    293;    Day   v.    Merrick,  This  doctrine  has  usually  been  ap- 

lowa,  ,  138  N.  W.  400;    Busch  v.  plied  in  insurance  cases  where  insur- 

Wilcox,  82  Mich.  336,  21  Am.  St.  Rep.  ance  has  been  obtained  by  unauthor- 

563;   Presby  v.  Parker,  56  N.  H.  409;  ized  false  representations.    See  Kibbe 

Bennett  v.  Judson,  21  N.  Y.  238;    El-  v.     Hamilton     Ins.     Co.,     11     Gray 

well    v.  Chamberlain,    31    N.    Y.  611;  (Mass.),   163.     So   in  Mullin  v.  Ver- 

Baker  v.  Union  Mut.  L.  Ins.  Co.,  43  mont  Mut.  Ins.  Co.,  58  Vt.  113,  where 

N.  Y.  28;  Garner  v.  Mangam,  93  N.  Y.  the  husband  swore  to  a  false  inven- 

642;  Fairchild  v.  McMahon,  139  N.  Y.  tory  made  by  the  wife  after  a  fire, 

290,  36  Am.  St.  Rep.  701;  Coleman  v.  he  was   held    affected    by   the  fraud. 

Stark,  1  Oreg.  115;  Mundorff  v.  Wick-  But  in  Evans  v.  Crawford  County  Ins. 

ersham,  63  Pa.  87,  3  Am.  Rep.  531;  Co.,  130  Wis.  189,  118  Am.  St.  Rep. 

as  See  ante,  '§§  436-439. 
1559 


§§  I994>  T995]  THE  LAW  OF  AGENCY  [BOOK  iv 

§  1994.  Effect  of  misrepresentations — Remedies. — The  question 
of  the  effect  of  the  misrepresentation  of  an  agent  or  the  remedies  which 
the  other  party  may  have  therefor,  is  not  a  question  of  Agency  but  of 
general  law,  being  the  same,  where  the  principal  is  charged  with  re- 
sponsibility, as  though  he  had  made  the  misrepresentation  in  person. 
Thus  it  may  be  ground  for  the  rescission  of  the  transaction,  and  in 
some  states  a  purely  innocent  misrepresentation  will  so  suffice.  It 
may  be  used  as  a  defence  to  escape  liability  when  pursued  by  the  prin- 
cipal upon  the  contract.  Where  the  representation  is  made  as  part  of 
the  contract,  rather  than  as  a  mere  inducement  to  it,  any  appropriate 
contractual  remedy  may  be  had,  even  though  in  many  cases  a  tort  rem- 
edy would  be  an  alternative. 

The  diversity  of  views  prevailing  in  many  States  as  to  what  kinds  of 
untrue  statements  are  to  be  regarded  as  fraudulent  renders  any  ex- 
tended discussion  of  the  general  question  impracticable  here. 

§  1995.  Action  of  deceit. — Whether  an  innocent  principal 

can  be  held  liable  in  an  action  of  deceit  for  the  false  representations  of 
his  agent  has  been  much  questioned.  It  has  been  held  in  -some  cases 
that  such  an  action  cannot  be  maintained,3*  but  the  weight  of  modern 
authority  is  to  the  effect  that  the  action  is  maintainable.35  Even  though 

1009,  9  L.  R.  A.   (N.  S.)   485,  where  party  is  a  rescission  or  disaffirmance 

the  wife  of  an  absent  husband  had  of    the    contract.      The    most    recent 

made  false  proofs  of  loss — acting  as  case  is  Reitman  v.  Fiorillo,  76  N.  J. 

the  court  held,  as  an  agent  ex  neces-  L.  815. 

sitate, — it  was  held  that  the  husband  ™  See  City  Nat.  Bank  v.  Dun,  51 

was  not  affected  by  it  in  the  absence  Fed.    160;     Hindman    v.    First    Nat. 

of  some  affirmative  act  of  ratification.  Bank,  50  C.  C.  A.  623,  112  Fed.  931, 

The  court  thought  that  "the  law  is  57  L.  R.  A.  108;   Haskell  v.  Starbird, 

somewhat  more  tender  of  the  inter-  152  Mass.  117,  23  Am.  St.  Rep.  809; 

ests  of  a   principal"  in   such  a  case.  White  v.   Sawyer,   16   Gray    (Mass.), 

To  same  general  effect  is  Metzger  v.  586  (partners);  Wheeler  v.  Baars,  33 

Manchester  F.  Assur.  Co.,  102  Mich.  Fla.  696;  Wolfe  v.  Pugh,  101  Ind.  293; 

334,  though  the  grounds  are  not  the  Campbell    v.    Park,    128    Iowa,    181; 

same.     Grant,  J.,  thought  the  princi-  Rhoda  v.  Annis,  75  Me.  17,  46  Am. 

pal  affected  by  the  fraud.  Rep.  354;  Peebles  v.  Guano  Co.,  77  N. 

34  See  Kennedy  v.  McKay,  43  N.  J.  Car.  233,  24  Am.  Rep.  447  (a  corpora- 

L.  288,  39  Am.  Rep.  581;  White  v.  N.  tion) ;    Griswold   v.   Gebbie,   126   Pa. 

Y.,    etc.,    R.    Co.,    68    N.    J.    L.    123;  353,  12  Am.  St.  Rep.  878;   Smalley  v. 

Marsh  v.  Buchan,  46  N.  J.  Eq.  595;  Morris,    157    Pa.    349;     Wachter    v. 

Decker  v.  Fredericks,  47  N.  J.  L.  469;  Phoenix  Assur.  Co.,  132  Pa.  428,  19 

Keen  v.  James,  39  N.  J.  Eq.  527,  51  Am.  St.  Rep.  600. 

Am.  Rep.  29;   Freyer  v.  McCord,  165  Among  the  English  cases,  see  Hern 

Pa.  539;    Keefe  v.  Sholl,  181  Pa.  90;  v.  Nichols,   1   Salk.  288.     The  much 

Mayo  v.  Wahlgreen,  9  Colo.  App.  506.  criticized  case  of  Cornfoot  v.  Fowke, 

In  the  New  Jersey  cases  it  is  held  .  6  M.  &  W.  358,  may  perhaps  be  dis- 

that    the    remedy    of    the    defrauded  tinguished  upon  the  ground  that  the 

1560 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    1996 

the  principal  may  have  had  no  guilty  knowledge,  the  guilty  knowledge 
of  the  agent  is  said  to  be  imputable  to  him.36 

§  igg6.  1 —  Upon    this    subject,    it    is    said    in    Pollock    on 

Torts:37  "Bearing  in  mind  that  reckless  ignorance  is  equivalent  to 
guilty  knowledge,  we  may  state  the  alternatives  to  be  considered  as 
follows : — 

(1)  "The  principal  knows  the  representation  to  be  false  and  au- 
thorizes the  making  of  it.     Here  the  principal  is  clearly  liable;  the 
agent  is  or  is  not  liable  according  as  he  does  or  does  not  himself  believe 
the  representation  to  be  true. 

(2)  "The  principal  knows  the  contrary  of  the  representation  to  be 
true,  and  it  is  made  by  the  agent  in  the  general  course  of  his  employ- 
ment but  without  specific  authority.     Here,  if  the  agent  does  not  be- 
lieve his  representation  to  be  true,  he  commits  a  fraud  in  the  course  of 
his  employment  and  for  the  principal's  purposes,  and,  according  to 
the  general  rule  of  liability  for  the  acts  and  defaults  of  an  agent,  the 
principal  is  liable.     If  the  agent  does  believe  the  representation  to  be 
true,  there  is  difficulty ;  for  the  agent  has  not  done  any  wrong  and  the 
principal  has  not  authorized  any.    Yet  the  other  party's  damage  is  the 
same.    That  he  may  rescind  the  contract,  if  he  has  been  misled  into  a 
contract,  may  now  be  taken  as  settled  law.    But  what  if  there  was  not 
arty  contract,  or  rescission  has  become  impossible?     Has  he  a  distinct 
ground  of  action,  and  if  so,  how  ?    Shall  we  say  that  the  agent  had  ap- 
parent authority  to  pledge  the  belief  of  his  principal,  and  therefore 
the  principal  is  liable? — in  other  words,  that  the  principal  holds  out 
the  agent  as  having  not  only  authority  but  sufficient  information  to  en- 
able third  persons  to  deal  with  the  agent  as  they  would  with  the  prin- 
cipal?   Or  shall  we  say,  less  artificially,  that  it  is  gross  negligence  to 
withhold  from  the  agent  information  so  material  that  for  want  of  it 
he  is  likely  to  mislead  third  persons  dealing  with  the  principal  through 

question  there  was  whether  the  guilty  38  Thus  in  Mayer  v.  Dean,  115  N.  Y. 

knowledge  of  the  principal  could  be  556,  5  L.  R.  A.  540,  it  is  said:  "In  an 

tacked    to    the    innocent    representa-  action   between   vendor   and   vendee, 

tions  of  the  agent.     With  respect  of  knowledge    possessed    by    either    the 

Udell  v.  Atherton,  7  H.  &  N.  172,  see  principal    or    the    agent    is,    respec- 

Barwick  v.  English  Joint  Stock  Bank,  tively,  imputable  to  each  other,  and 

L.  R.   2   Ex.   259;    Western   Bank  of  an  agent,  whose  principal  has  knowl- 

Scotland  v.  Addie,  L.  R.  1  H.  L.  (Sc.)  edge   of   latent   defects    in    property 

145;  Mackay  v.  Commercial  Bank,  L.  proposed  to  be  sold  cannot  honestly 

R.  5  P.  C.  394.  represent  to  its  intending  purchaser 

See  also,  Houldsworth  v.  Glasgow  that  it  Is  free  from  such  defects." 

Bank,    5   App.    Cases,   317;    Swire   v.  si  8th  ed.,  p.  303. 
Francis,  3  App.  Cases,  106. 

1561 


§  1996] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


him,  and  such  negligence  is  justly  deemed  equivalent  to  fraud?  Such 
a  thing  may  certainly  be  done  with  fraudulent  purpose,  in  the  hope  that 
the  agent  will,  by  a  statement  imperfect  or  erroneous  in  that  very  par- 
ticular, though  not  so  to  his  knowledge,  deceive  the  other  party.  Now 
this  would  beyond  question  be  actual  fraud  in  the  principal,  with  the 
ordinary  consequences.  If  the  same  thing  happens  by  inadvertence,  it 
seems  inconvenient  to  treat  such  inadvertence  as  venial,  or  exempt 
it  from  the  like  consequences.  We  think,  therefore,  that  an  action  lies 
against  the  principal ; 38  whether  properly  to  be  described,  under  com- 
mon law  forms  of  pleading,  as  an  action  for  deceit,  or  as  an  analogous 
but  special  action  on  the  case,  there  is  no  occasion  to  consider.39  On 
the  other  hand,  an  honest  and  prudent  agent  may  say,  'To  the  best  of 
my  own  belief,  such  and  such  is  the  case,'  adding  in  express  terms  or 
by  other  clear  indication, — 'but  I  have  no  information  from  my  princi- 
pal.' Here  there  is  no  ground  for  complaint,  the  other  party  being 
fairly  put  on  inquiry. 

(3)  "If  the  principal  does  not  expressly  authorize  the  representa- 
tion, and  does  not  know  the  contrary  to  be  true,  but  the  agent  does, 
the  representation  being  a  matter  within  the  general  scope  of  his  au- 
thority, the  principal  is  liable  as  he  would  be  for  any  other  wrongful 


sa  in  the  famous  case  of  Cornfoot  v. 
Fowke,  6  M.  &  W.  358,  an  agent  au- 
thorized to  let  a  dwelling  house  was 
asked  whether  there  was  any  objec- 
tion to  it.  He  replied  that  there  was 
none.  He  believed  this  to  be  true, 
but  in  fact  there  was  a  brothel  next 
door  as  the  principal  knew.  In  an 
action  for  rent  the  tenant  pleaded 
this  alleged  fraud  as  a  defense.  It 
was  held  that  his  plea  was  bad.  The 
case  has  been  much  criticised.  See 
Fitzsimmons  v.  Joslin,  21  Vt.  129,  52 
Am.  Dec.  46;  Ludgater  v.  Love,  44  L. 
T.  R.  694;  National  Exchange  Co.  v. 
Drew,  2  Macq.  103. 

In  Barwick  v.  English  Joint  Stock 
Bank,  L.  R.  2  Ex.  259,  Willes,  J., 
said:  "I  should  be  sorry  to  have  it 
supposed  that  Cornfoot  v.  Fowke 
turned  upon  anything  but  a  point  of 
pleading." 

Sir  Frederick  Pollock  says  of  it: 
"It  is  difficult  to  suppose  that  as  a 
matter  of  fact  the  agent's  assertion 
can  have  been  otherwise  than  reck- 
less: what  was  actually  decided  was 


that  it  was  misdirection  to  tell  the 
jury  without  qualification  'that  the 
representation  made  by  the  agent 
must  have  the  same  effect  as  if  made 
by  the  plaintiff  [the  principal]  him- 
self,' the  defendant's  plea  averring 
fraud  without  qualification." 

In  Fuller  v.  Wilson,  3  Q.  B.  (N.  S.) 
58,  where  the  owner  of  a  house  em- 
ployed an  agent  to  sell  it  and  the  lat- 
ter described  it  to  a  purchaser  as  be- 
ing free  from  rates  and  taxes  (which 
he  supposed  was  true),  but  it  was  in 
fact  subject  to  them  (as  the  principal 
knew),  it  was  held  that  the  pur- 
chaser could  maintain  an  action  of 
deceit  against  the  principal.  (Re- 
versed on  other  grounds,  3  Q.  B.  (N. 
S.)  1009.) 

39  As  to  this  point,  it  is  said  in  the 
note:  "The  decision  of  the  House  of 
Lords  in  Derry  v.  Peek  (1889),  14 
App.  Cas.  337,  58  L.  J.  Ch.  864,  may 
be  thought  to  make  this  opinion  less 
probable;  but  see  per  Lord  Halsbury 
in  S.  Pearson  &  Son  v.  Dublin  Cor- 
poration, [1907]  A.  C.  351,  357." 


1562 


CHAP.  V]          LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES       [§§  1997,  1998 

act  of  an  agent  about  his  business.  And  as  this  liability  is  not  founded 
on  any  personal  default  in  the  principal,  it  equally  holds  when  the  prin- 
cipal is  a  corporation.  * 

(4)  "The  hardest  case  that  can  be  put  for  the  principal,  and  by  no 
means  an  impossible  one,  is  that  the  principal  authorizes  a  specific 
statement  which  he  believes  to  be  true,  and  which  at  the  time  of  giv- 
ing the  authority  is  true;  before  the  agent  has  executed  his  authority 
the  facts  are  materially  changed  to  the  knowledge  of  the  agent,  but  un- 
known to  the  principal;  the  agent  conceals  this  from  the  principal, 
and  makes  the  statement  as  originally  authorized.  But  the  case  is  no 
harder  than  that  of  a  manufacturer  or  carrier  who  finds  himself  ex- 
posed to  heavy  damages  at  the  suit  of  an  utter  stranger  by  reason  of 
the  negligence  of  a  servant,  although  he  has  used  all  diligence  in  choos- 
ing his  servants  and  providing  for  the  careful  direction  of  their  work. 
The  necessary  and  sufficient  condition  of  the  master's  responsibility  is 
that  the  act  or  default  of  the  servant  or  agent  belonged  to  the  class  of 
acts  which  he  was  put  in  the  master's  place  to  do,  and  was  committed 
for  the  master's  purposes.  And  'no  sensible  distinction  can  be  drawn 
between  the  case  of  fraud  and  the  case  of  any  other  wrong.'  The  au- 
thority of  Barwick  v.  English  Joint  Stock  Bank  40  is  believed,  notwith- 
standing the  doubts  still  sometimes  expressed,  to  be  conclusive." 

§  1997.  Effect  of  fraud  not  avoided  by  recitals  in  contract  that 
there  was  none. — Where  the  making  of  the  contract  has  in  fact  been 
induced  by  the  agent's  fraud,  it  is  held  that  the  results  which  follow 
cannot  be  avoided  by  any  recitals  in  the  contract  that  no  fraud  or  mis- 
representation has  been  practiced.  "In  such  case,"  it  is  said,  "the 
agent's  fraud  avoids  the  assent  to  this  as  well  as  to  the  other  recitals 
and  stipulations  of  the  contract  which  the  buyer  signs  under  the  influ- 
ence of  such  misrepresentation."  41 

Such  recitals  may,  however,  be  pertinent  upon  the  question  whether 
any  fraud  was,  in  fact,  practiced. 

7.  Liability  for  Penal  or  Criminal  .Acts  of  Agent. 

§  1998.  What  here  involved. — In  previous  subdivisions  the  ques- 
tion of  the  liability  of  a  principal  or  master  for  the  negligent,  the  frau- 
dulent, and  the  wilful  or  malicious  acts  of  his  servant  or  agent,  has 
been  considered.  It  is  proposed  here  to  consider  the  liability  of  a  prin- 
cipal or  master  for  the  penal  or  criminal  acts  of  his  agent  or  servant. 
This  will  involve  two  aspects:  (a)  The  cizil  liability  of  the  principal 
or  master,  and  (b)  His  penal  or  criminal  liability. 

*>  L.  R.  2  Ex.  259.  «  Shepard  v.  Pabst,  149  Wis.  35. 

1563 


§  1999]  THE  LAW  OF  AGENCY  [BOOK  iv 

a.  Civil  Liability. 

§  1999.  Principal's  civil  liability  for  agent's  criminal  or  penal  act. 

• — The  principal's  civil  liability  for  his  agent's  criminal  or  penal  act 
rests  upon  the  same  considerations,  and  is,  in  many  aspects,  of  the  same 
nature,  as  his  liability  for  his  agent's  torts  generally.  The  performance 
of  an  act  as  a  crime,  unless  expressly  directed,  or  immediately  partici- 
pated in  by  the  principal,  could  rarely  be  deemed  to  be  within  the  scope 
of  the  agent's  authority,  but  inasmuch  as  most  acts  which  are  punished 
as  crimes  have  also  a  side  from  which  they  may  be  regarded  merely  as 
torts,  it  may  often  happen  that  the  same  act,  which  may  from  one  stand- 
point be  regarded  and  punished  as  a  crime,  may,  from  another,  be  re- 
garded as  a  mere  private  tort ;  and  if  from  this  standpoint  the  act  would 
impose  liability  upon  the  principal  as  an  act  done  within  the  scope  of 
the  employment,  the  fact  that  it  might  from  another  standpoint  be 
treated  and  punished  as  a  crime  would  not  affect  the  result.  This  is 
still  more  clear  in  the  cases  in  which  the  act  would  not  ordinarily  be 
regarded  as  criminal  even  though  in  the  particular  case  it  may  be  pro- 
hibited under  a  penalty. 

Thus,  as  an  illustration  of  that  class  of  cases  in  which  a  criminal  in- 
tent is  necessary  to  constitute  the  offense,  the  malicious  assault  of  a 
conductor  upon  a  railway  passenger  may  be  adverted  to.  Here,  as  has 
been  seen,  the  principal  is  liable  in  a  civil  action  by  the  person  injured, 
for  damages  occasioned  by  the  trespass.  At  the  same  time  the  assault 
is  an  offense  against  the  state,  which  the  state  may  and  does  punish  as 
such.  As  respects  the  individual  injured  the  act  is  a  tort;  as  respects 
the  state,  it  is  a  crime.42 

Many  cases  have  already  been  referred  to,  when  dealing  with  the 
question  of  the  master's  liability  for  the  wanton  or  wilful  acts  of  his 
servant,  and  it  is  not  necessary  to  repeat  that  discussion  here.  As  was 
pointed  out  in  a  leading  English  case,*3  "There  is  no  distinction  in 

42  In  Dyer  v.  Munday,  [1895]  1  Q.  only  a  tortious  act,  did  not  affect  the 

B.  742,  the  defendants'  servant,  while  liability  of  the  defendant  for  the  act 

acting  in  the    scope    of   his  employ-  of  his  servant,  and  that  the  release 

ment,  namely,  in  endeavoring  to  re-  of  the  servant,  under  24  and  25  Viet, 

take  property  sold  by  his  master  on  c.  100,  s.  45,  from  civil  proceedings 

the   instalment  plan,   and   on  which  for  the  assault,  did  not  release  the 

the  instalments  were  in  arrears,  had  defendant  from  liability, 
committed    an    assault    on    plaintiff.          See  also,  that  the  master  is  respon- 

For  this  he  had  been  arrested,  con-  sible  for  acts  that  might  also  have 

victed,  fined,  and  paid  the  fine.    Then  been  punished  criminally.     Marion  v. 

this   action  was   commenced  against  Chicago,  etc.,  Ry.  Co.,  64  Iowa,  568. 
the     master     to     recover     damages.          «  Dyer  v.  Munday,  [1895]  1  Q.  B. 

Held,  that  the  mere  fact  that  the  as-  742. 
sault  was  a  criminal  offense,  and  not 

1564 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    2OOO 

this  respect  between  the  effects  of  a  tortious  and  criminal  act,  provided 
such  acts  are  done  by  the  servant  in  the  conduct  of  his  employment  and 
in  the  interests  of  his  master." 

§  2000.  Civil  liability  for  statutory  torts  committed  in  course  of 
employment. — But  there  is  also  another  class  of  cases  where  the 
liability  is  not  dependent  upon  the  intent,  but  upon  the  question  of  the 
infraction.  These  are  usually  the  subject  of  express  statutory  prohibi- 
tion, based  often  upon  the  police  power  of  the  state,  and  making  that, 
which  might  under  other  circumstances  be  a  thing  innocent  or  indif- 
ferent in  itself,  a  wrong  prohibited  under  a  penalty, — a  malum  prohib- 
itum  as  distinguished  from  a  malum  in  se.  Of  this  class,  the  now  com- 
mon legislation  providing  for  the  recovery  of  penalties  or  damages  for 
the  prohibited  sale  of  intoxicating  liquors,  furnishes  a  well-recognized 
illustration.  In  such  cases,  so  far  as  the  forbidden  act  can  be  regarded 
as  a  mere  statutory  tort,  or  the  penalty  prescribed  regarded  as  damages, 
a  civil  action  may  be  maintained  against  the  principal. 

Thus  in  an  action  to  recover  as  damages  a  penalty  fixed  by  law,  al- 
leged to  be  due  by  reason  of  the  unlawful  sale  of  intoxicating  liquors 
by  an  agent,  the  Supreme  Court  of  Massachusetts  said :  "The  action  is 
brought  under  a  statute  which  makes  that  a  tort  which  was  not  so  be- 
fore, and  provides  for  the  recovery  of  damages  against  the  tort-feasor. 
The  tort  consists  in  selling  intoxicating  liquor  to  one  who  has  the  habit 
of  using  it  to  excess,  after  notice  of  his  habit  and  a  request  from  his 
wife  not  to  sell  such  liquor  to  him.  The  defendant  engages  in  the  busi- 
ness of  selling  liquor  voluntarily.  He  chooses  to  intrust  the  details  of 
the  business  to  a  servant.  If  he  forbids  the  making  of  sales  to  the  in- 
temperate person,  and  his  servant  negligently,  through  forgetfulness  of 
the  instruction  given  him,  or  through  a  failure  to  recognize  the  person, 
continues  to  make  sales  to  that  person,  there  is  no  reason  why  the  de- 
fendant should  not  be  responsible  for  the  wrongful  act.  The  sale  is 
his  sale,  made  in  the  performance  of  his  business,  and  is  an  act  within 
the  general  scope  of  the  servant's  employment."  4*  And  the  same  re- 

44  George  v.  Gobey,  128  Mass.  289,  Gjorud,     82     Mich.     503;     Austin    v. 

35  Am.  Rep.  376.     See  also,  Worley  Davis,  7  Ont.  App.  478;   Southern  Ex- 

v.  Spurgeon,  38  Iowa,  465;    Peterson  press   Co.   v.    State,   1   Ga.   App.   700. 

v.  Knoble,  35  Wis.  80;   Smith  v.  Rey-  And  so  where  a  servant  unlawfully 

nolds,  8  Hun  (N.  Y.),  128;   Keedy  v.  sold  to  a  minor.     Comm.  v.  Stevens, 

Howe,  72  111.  133;   Walker  v.  Dailey,  155  Mass.  291. 

101  111.  App.  575;  Kennedy  Bros.  v.  See  the  same  principle  applied  in 
Sullivan,  136  111.  94;  Skinner  v.  Buel  v.  New  York  Steamer,  17  La. 
Hughes,  13  Mo.  440;  Manning  v.  Mor-  541,  under  a  penal  statute  against  the 
ris,  28  Tex.  Civ.  App.  502;  Boos  v.  employment  of  slaves;  Bryan  v.  Ad- 
State,  11  Ind.  App.  257;  Gullikson  v.  ler,  97  Wis.  124,  65  Am  St.  R.  99,  41 


§    2001] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


suit  would,  within  the  principles  already  considered,  undoubtedly  fol- 
low though  the  act  was  wilful.48 

§  2001.  No  civil  liability  for  acts  not  in  course  of  employment. — 
But  here,  as  in  other  cases,  the  principal  is  liable  only  while  the  agent 
was  acting  within  the  scope  of  his  employment.  If  the  agent  has  gone 
outside  of  that,  to  commit  a  criminal  act,  the  principal  is  not  liable. 
Thus  where  an  armed  watchman,  employed  by  the  owners  of  a  brewery 
to  guard  their  premises  and  preserve  the  peace  pursued  a  person,  who 
had  been  acting  on  the  premises  in  a  drunken  and  disorderly  manner, 
and,  while  the  latter  was  retreating  and  was  off  of  the  premises,  killed 
him,  it  was  held  that  the  proprietors  of  the  brewery  were  not  liable. 
Without  determining  whether  the  principals  would  be  liable  in  any 
event  for  such  an  act,  the  court  held  that  the  fact  that  the  deceased  was 
retreating  from  the  brewery  at  the  time  he  was  shot,  showed  conclu- 
sively that  the  shot  was  not  fired  either  in  the  defense  of  the  brewery 
or  in  the  line  of  the  watchman's  duty.46  Other  cases  are  cited  in  the 
note.*7 


L.  R.  A.  658,  a  public  restaurateur 
was  held  liable  for  statutory  damages 
because  one  of  his  waiters  violated  a 
statute  giving  equal  rights  in  restau- 
rants, etc.,  although  the  violation 
was  wilful,  in  direct  violation  of  the 
principal's  orders,  and  neither  ap- 
proved at  the  time  nor  subsequently 
ratified;  City  of  Hammond  v.  New 
York,  etc.,  Ry.  Co.,  5  Ind.  App.  526, 
defendant  held  liable  for  a  statutory 
penalty,  for  the  act  of  one  of  its  lo- 
comotive engineers  in  exceeding  a 
speed  limitation;  Zellers  v.  White, 
208  111.  518,  100  Am.  St.  Rep.  243,  ac- 
tion, under  a  statute,  to  recover 
money  lost  in  gambling;  Gulf,  etc., 
Ry.  Co.  v.  Reed,  80  Tex.  362,  26  Am. 
St.  Rep.  749,  an  action  under  a  stat- 
ute for  polluting  streams.  In  a  great 
variety  of  cases,  the  violation  of  stat- 
utes and  ordinances  designed  to  pro- 
mote the  public  safety  is  held  to  be 
negligence.  See  2  Thompson  on  Neg- 
ligence, §  1394  et  seq. 

«Kreiter  v.  Nichols,  28  Mich.  496; 
Kehrig  v.  Peters,  41  Mich.  475;  Keedy 
v.  Howe,  supra.  His  assent  must  be 
shown.  Commonwealth  v.  Putnam, 
supra. 


46  Golden  v.  Newbrand,  52  Iowa,  59, 
35  Am.  Rep.  257. 

See  also,  Oxford  v.  Peter,  28  111. 
434;  Candiff  v.  Louisville,  etc.,  Ry. 
Co.,  42  La.  Ann.  477. 

47  Thefts  by  agent  or  servant. — In 
a    number    of   cases    employers    not 
personally  at   fault   have   been   held 
not  liable  for  thefts  by  their  work- 
men.     Searle    v.    Parke,    68    N.    H. 
311   (decorators  at  work  on  a  build- 
ing); Cheshire  v.  Bailey,  [1905]  1  K. 
B.  237  (stable  keepers  who  furnished 
a  driver  to  drive  wagon  used  by  jew- 
elry    salesman);      Merchants     Nat. 
Bank  v.   Guilmartin,   88   Ga.   797,   17 
L.   R.   A.   322    (bank  was  not  liable 
for  the  theft  by  its  cashier  of  special 
deposits);    Foster  v.  Essex  Bank,  17 
Mass.  478,  9  Am.  Dec.  168    (same) ; 
Satterlee  v.  Groat,  1  Wend.   (N.  Y.) 
272;    Fay  v.  Slaughter,  194  111.  157, 
88  Am.  St.  Rep.  148,  56  L.  R.  A.  564 
(principal  not  liable  for  the  forgery 
and  theft  of  certificates  of  stock  and 
the  embezzlement  of  their  proceeds). 

On  the  other  hand,  where  the  prin- 
cipal or  master  owes  a  special  or  ab- 
solute duty  of  protection,  as  in  the 
case  of  innkeepers,  common  carriers 


1566 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    2002 


§  2002.  Usury. — The  question  of  how  far  the  principal  is  to  be 
subjected  to  the  penalties  imposed  upon  usury,  where  the  loan  was  made 
by  an  agent,  is  one  of  considerable  difficulty  owing  to  the  varying  forms 
of  the  statutes  upon  the  subject,  and  to  the  marked  tendency  of  legis- 
latures in  many  states  to  make  that  usury  which  would  not  be  so,  in 
form  at  least,  under  ordinary  statutes.  In  order  to  affect  a  principal 
with  the  consequences  of  usury  exacted  by  one  said  to  be  his  agent, 
it  must  first  appear  that  the  alleged  agent  was  really  such.  The  mere 
fact  that  the  borrower  may  have  paid  more  than  legal  interest  to  ob- 
tain the  money  does  not  necessarily  present  a  case  of  usury  under  the 
ordinary  statute.48  If  the  alleged  agent  was  not  the  agent  of  the  lender, 
but  of  the  borrower,  commissions  or  fees  charged  by  the  borrower's 
agent  for  his  services  in  finding  a  lender  cannot  be  imputed  to  the  len- 
der in  order  to  make  the  loan  usurious.49  If  the  borrower  has  employed 


of  goods,  carriers  of  passengers'  bag- 
gage, and  the  like,  a  liability  for  lar- 
ceny or  theft  by  servants  or  agents 
would  attach.  See  as  to  innkeepers. 
Chamberlain  v.  Masterton,  26  Ala. 
371;  Pinkerton  v.  Woodward,  33  Gal. 
557,  91  Am.  Dec.  657;  Weisenger  v. 
Taylor,  64  Ky.  (1  Bush)  275,  89  Am. 
Dec.  626;  Lusk  v.  Belote,  22  Minn. 
468;  Epps  v.  Hinds,  27  Miss.  657,  61 
Am.  Dec.  528;  Houser  v.  Tully,  62 
Pa.  92,  1  Am.  Rep.  390;  Schultz  v. 
Wall,  134  Pa.  262,  19  Am.  St  Rep. 
686,  8  L.  R.  A.  97;  Cunningham  v. 
Bucky,  42  W.  Va.  671,  57  Am.  St. 
Rep.  876,  35  L,  R.  A.  850;  carriers 
of  goods:  Rosenblum  v.  Weir,  113 
N.  Y.  Supp.  520,  aff'd  no  opinion,  132 
N.  Y.  App.  Div.  929;  Hasbrouck  v. 
New  York,  etc.,  R.  Co.,  202  N.  Y.  363, 
35  L.  R.  A.  (N.  S.)  535,  Ann.  Cas. 
1912  D.  1150;  Watkinson  v.  Laugh- 
ton,  8  Johns.  (N.  Y.)  213;  Adams  Ex- 
press Co.  v.  Berry,  35  App.  D.  C.  208, 
31  L.  R.  A.  (N.  S.)  309;  Dougherty 
v.  Wells  Fargo  &  Co.,  7  Nev.  368; 
passengers'  baggage:  Pullman,  etc., 
Co.  v.  Martin,  95  Ga.  314,  29  L.  R.  A. 
498;  Illinois  Cent.  R.  Co.  v.  Handy, 
63  Miss.  609,  56  Am.  Rep.  846;  Levins 
v.  New  York,  etc.,  R.  Co.,  183  Mass. 
175,  97  Am.  St.  Rep.  434;  Lewis  v. 
New  York,  etc.,  Co.,  143  Mass.  267, 


58  Am.  Rep.  135;  Pullman,  etc.,  Co. 
v.  Gavin,  93  Tenn.  53,  42  Am.  St 
Rep.  902,  21  L.  R.  A.  298.  There  are 
many  others. 

48  in  Ridgway  v.  Davenport,  37 
Wash.  134,  it  was  held  that,  under 
the  broad  terms  of  the  peculiar  usury 
statute  in  force,  it  was  immaterial 
that  the  agent  did  not  act  within  the 
scope  of  his  authority.  See  also,  in 
Missouri,  Western  Storage  Co.  v. 
Glasner,  169  Mo.  38. 

«  Dagnall  v.  Wigley,  11  East,  43; 
Dryfus  v.  Burnes,  53  Fed.  410;  Holt 
v.  Kirby,  57  Ark.  251;  Martin  v. 
Adams,  66  Ark.  10;  Pottle  v.  Lowe, 
99  Ga.  576,  59  Am.  St.  Rep.  246;  West 
v.  Equitable  Mfg.  Co.,  112  Ga.  377,  81 
Am.  St.  Rep.  59;  Polk  Co.  Savings 
Bank  v.  Harding,  113  Iowa,  511; 
Smith  v.  Wolf,  55  Iowa,  555;  Secor 
v.  Patterson,  114  Mich.  37;  Thomas 
v.  Miller,  39  Minn.  339;  Davis  v.  Slo- 
man,  27  Neb.  877;  Leipziger  v.  Van 
Saun,  64  N.  J.  Eq.  37;  Coster  v.  Dil- 
worth,  8  Cow.  (N.  Y.)  299;  Crane  v. 
Hubbel,  7  Paige  (N.  Y.),  413;  Guard- 
ian Mut.  L.  Ins.  Co.  v.  Kashaw,  66 
N.  Y.  544;  Terminal  Bank  v.  Dub- 
roff,  66  Misc.  100;  New  England  Mfg. 
Security  Co.  v.  Baxley,  44  S.  C.  81; 
Fay  v.  Lovejoy,  20  Wis.  407;  Ottille  v. 
Waechter,  33  Wis.  252. 


1567 


§    2002] 


THE  LAW  OF  AGENCY 


[COOK-  iv 


a  broker,  who  is  not  the  agent  of  the  lender,  to  procure  a  loan  for  him, 
the  commissions  paid  to  the  broker  cannot  be  charged  against  the  len- 
der to  make  the  loan  usurious.50  In  order  to  affect  the  lender,  the  agent 
must  be  the  lender's  agent,  and  while  of  course  the  courts  will  look  be- 
hind devices  or  subterfuges  designed  to  conceal  the  actual  relation,51  it 
must  still  remain  true  that  the  lender  can  be  charged  with  the  penalties 
of  usury  only  when  he  made  the  loan  in  person  or  through  his  agent.52 
It  must  also  'appear,  as  in  other  cases,  that  what  the  agent  has  done 
was  within  the  scope  of  his  authority,  or  has  subsequently  been  ratified. 
If  the  principal  leaves  the  whole  matter  in  charge  of  a  general  agent, 
and  the  agent  exacts  commissions  or  allowances  which  make  the  rate 
usurious,  it  is  held  in  many  cases  that  the  principal  may  be  chargeable 
with  it.58  If  the  principal  confides  the  loaning  of  the  money  to  the 
agent,  but  expressly  or  by  implication  requires  the  agent  to  get  com- 
pensation, for  the  services  which  he  thus  renders  to  the  lender,  out  of 


Where  the  intermediate  party  ob- 
tains the  money  on  his  own  credit 
only  or  by  adding  his  credit,  and  is 
paid  for  doing  so,  there  is  no  usury. 
In  re  Holmes  Lumber  Co.,  189  Fed. 
178;  Brown  v.  Harrison,  17  Ala.  774; 
Jones  v.  Norton,  9  Ga.  App.  333. 

so  Cox  v.  Mass.  Mut.  Ins.  Co.,  113 
111.  382;  Haldeman  v.  Mass.  Mut.  Ins. 
Co.,  120  111.  390;  Secor  v.  Patterson, 
114  Mich.  37;  Thomas  v.  Miller,  39 
Minn.  339. 

siLukens  v.  Hazlett,  37  Minn.  441; 
Sherwood  v.  Roundtree,  32  Fed.  113; 
France  v.  Munro,  138  Iowa,  1,  19  L. 
R.  A.  (N.  S.)  391;  McFarland  v. 
Carr,  16  Wis.  259.  See  Hare  v.  Win- 
terer, 64  Neb.  551.  At  the  same  time, 
as  is  pointed  out  in  Merck  v.  Ameri- 
can Mortg.  Co.,  79  Ga.  213,  "Implica- 
tions of  agency  are  easily  over- 
strained, misapplied  or  otherwise 
abused." 

The  borrower  may  pay  an  attorney 
for  services  rendered  in  the  way  of 
examining  or  clearing  up  his  title, 
removing  incumbrances,  etc.,  with- 
out tainting  the  transaction  with 
usury,  even  though  the  attorney  be 
one  selected  by  the  lender.  But  the 
courts  will  inquire  into  the  transac- 
tion, and  if  it  is  but  a  shield  to  cover 
what  is  really  a  bonus  for  the  loan, 


the  transaction  will  be  held  usurious. 
Sanders  v.  Nicolson,  101  Ga.  739; 
Gannon  v.  Scottish  American  Mfg. 
Co..  106  Ga.  510. 

S-.ich  charges  may  not  be  exacted 
under  the  special  statute  in  New 
York.  Section  314  of  the  Banking 
Law  of  1909.  London  Realty  Co.  v. 
Riordan,  207  N.  Y.  264. 

52  In  Scruggs  v.  Scottish  Mfg.  Co., 
54  Ark.  566,  a  loan  company  was  held 
not  responsible  where  its  agent,  with- 
out   the    authority    of   the  company, 
appointed  a  sub-agent  who  exacted  a 
commission  for  himself,   which  ren- 
dered the  loan  usurious. 

53  Stephens  v.  Olson,  62  Minn.  295. 
See  Hall  v.  Maudlin,  58  Minn.  137,  49 
Am.  St.  Rep.  492;   Horkan  v.  Nesbit, 
58   Minn.   487;    Western   Storage  Co. 
v.  Glasner,  169  Mo.  38;  Austin  v.  Har- 
rington, 28  Vt.  130;   Rogers  v.  Buck- 
ingham, 33  Conn.  81;  Meers  v.  Stevens, 
106   111.   549;    France  v.   Munro,   138 
Iowa,  1,  19  L.  R.  A.  (N.  S.)  391.     But 
so  far  as  any  of  these  cases  hold  that 
an    agent    having   general   authority 
to    loan    money,  tout   only   at  lawful 
rates,    affects    his    principal    by    de- 
manding   usurious    rates,    they    are 
contrary  to  the  weight  of  authority, 
as  will  be  seen  in  the  following  sec- 
tion. 


I568 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    2003 


the  charges  which  he  makes  to  the  borrower,  and  this  charge  makes  the 
rate  usurious,  it  is  held  in  many  cases  that  the  lender  may  be  held  re- 
sponsible, even  though  he  receives  no  portion  of  such  commissions.54 
A  fortiori  would  this  be  true  where  the  principal  requires  the  agent  to 
divide  the  commissions  with  him.55 

§  2003.  But  where  an  agent  is  authorized  to  loan  for  legal 

interest  only,  and,  without  the  knowldcge  or  consent  of  the  principal, 
exacts  from  the  borrower  a  usurious  interest  for  the  agent's  own  pri- 
vate benefit,  and  the  principal  does  nothing  subsequently  to  ratify  the 
act,  it  is  held  in  many  cases,  largely  influenced  by  the  New  York  de- 
cisions, that  the  usury  will  not  affect  the  principal.58  These  cases  pro- 
ceed upon  the  theory  that  the  employment  of  the  agent  in  the  particu- 
lar case  is  to  accomplish  the  result  by  legal  methods  only,  and  that 
therefore  the  principal  cannot  be  held  responsible  for  an  usurious  ex- 
action by  his  agent  unless  he  has  authorized  or  ratified  it.  As  has  been 
seen  in  many  cases,  however,  the  principal  is  often  held  responsible 
in  other  fields  for  the  illegal  acts  of  his  agent,  committed  while  acting 
within  the  general  scope  of  his  authority,  even  though  it  may  be  eri- 
. 

**  Thompson  v.  Ingram,  51  Ark.  for  his  services  is  material  upon  the 
546;  Vahlberg  v.  Keaton,  51  Ark.  534, 
14  Am.  St.  Rep.  73,  4  L.  R.  A.  462; 
Clarke  v.  Havard,  111  Ga.  242,  51  L. 
R.  A.  499  (distinguishing  McLean  v. 
Camak,  post} ;  Avery  v.  Creigh,  35 
Minn.  456  (distinguishing  Acheson  v. 
Chase,  28  Minn.  211);  Kemmitt  v. 
Adamson,  44  Minn.  121;  Hall  v. 
Maudlin,  58  Minn.  137,  49  Am.  St. 
Rep.  492;  Horkan  v.  Nesbitt,  58  Minn. 
487;  Carpenter  v.  Lamphere,  70  Minn. 
542;  Fowler  v.  Equitable  Trust  Co., 
141  U.  S.  384,  35  L.  Ed.  786;  Siegel- 
man  v.  Jones,  103  Mo.  App.  172; 


France  v.  Munro,  138  Iowa,  1,  19  L. 
R.  A.  (N.  S.)  391;  New  England  Mtg. 
Security  Co.  v.  Gay,  33  Fed.  636; 
Hare  v.  Winterer,  64  Neb.  551;  Meers 
v.  Stevens,  11  111.  App.  138  (affirmed 
in  106  111.  549);  Payne  v.  Newcomb, 
100  111.  611,  39  Am.  Rep.  69;  Am- 
mondson  v.  Ryan,  111  111.  506;  Texas 
Loan  Agency  v.  Hunter,  13  Tex.  Civ. 

App.    402;     Brown    v.    Johnson,    

Wash.  ,   134   Pac.   590.     See  also, 

American  Mtg.  Co.  v.  Woodward,  83 
S.  Car.  521. 

The  fact  that  the  principal  knows 
that  he  is  paying  bis  agent  nothing 


question  whether  he  did  not  expect 
the  agent  to  exact  compensation  from 
the  borrower.  Western  Storage  Co. 
v.  Glasner,  169  Mo.  38;  Little  v. 
Hooker  Steam  Pump  Co.,  122  Mo. 
App.  620,  228  Mo.  673.  To  same  ef- 
fect: Hare  v.  Winterer,  supra;  Payne 
v.  Henderson,  106  Ky.  135. 

BB  Pottle  v.  Lowe,  99  Ga.  576,  59 
Am.  St.  Rep.  246. 

56  Rogers  v.  Buckingham,  33  Conn. 
81;  McCall  v.  Herrin,  118  Ga.  522; 
Boardman  v.  Taylor,  66  Ga.  638;  Mc- 
Lean v.  Camak,  97  Ga.  804;  Cox  v. 
Life  Ins.  Co.,  113  111.  382;  Chicago 
Fire  Proofing  Co.  v.  Park  Nat.  Bank, 
145  111.  481;  Boylston  v.  Bain,  90  111. 
283;  Mass.  Mut.  Life  Ins.  Co.  v. 
Boggs,  121  111.  119;  Richards  v. 
Purdy,  90  Iowa,  502,  48  Am.  .St.  Rep. 
458;  Greenfield  v.  Monaghan,  85  Iowa, 
211;  Gokey  v.  Knapp,  44  Iowa,  32; 
Brigham  v.  Myers,  51  Iowa,  397,  33 
Am.  Rep.  140;  Acheson  v.  Chase,  28 
Minn.  211;  Jordan  v.  Humphrey,  31 
Minn.  495;  Stein  v.  Swensen,  44 
Minn.  218;  Mackey  v.  Winkler,  35 
Minn.  513  (but  see  Robinson  v. 
Blaker,  85  Minn.  242,  89  Am.  St.  Rep. 


99 


1569 


§    2004] 


THE  LAW  OF  AGENCY 


[BOOK  rv 


tirely  clear  that  the  principal  intended  that  lawful  methods  only  should 
be  adopted,  and  some  cases  have  applied  that  doctrine  to  this  case.157 

§  2004.  Liability  by  ratification. — The  question  whether 

the  principal,  by  subsequently  accepting  the  benefits  of  the  loan,  thereby 
ratifies  the  usurious  exaction  made  by  his  agent  is  one  over  which  the 
authorities  are  very  much  in  conflict.  As  has  been  seen  in  an  earlier 
chapter,  in  order  to  establish  a  ratification  it  is  generally  held  essential 
that  the  agent  in  performing  the  act  in  question  purported  to  act  as 
agent  for  the  person  whose  ratification  is  in  question.  It  is  also  ordi- 
narily essential  that  the  person  sought  to  be  charged  by  the  ratification, 
must  at  the  time  of  the  alleged  ratification  have  had  full  knowledge  of 
all  the  material  facts.  Applying  the  rule  first  referred  to,  it  is  held  in 
a  number  of  cases  that  if  the  agent,  without  the  knowledge  or  consent 
of  his  principal,  exacts  the  sum  alleged  to  make  the  loan  usurious,  in 
his  own  name  and  on  his  own  account,  the  conditions  for  ratification 
are  not  present,  and  the  fact  that  the  principal  takes  the  benefit  and 
seeks  to  enforce  the  contract  of  borrowing  made  as  authorized,  even 
though  he  may  then  have  learned  of  the  unauthorized  exaction,  does 

not  amount  to  a  ratification.     Tins  doctrine  was  early  established  in 

r,  ,-.    n> 

541);  Muir  v.  Newark  Savings  Insti., 
1  C.  E.  Green  (N.  J.),  Eq.  537;  Man- 
ning v.  Young,  28  N.  J.  Eq.  568;  Gray 
v.  Van  Blarcom,  29  Id.  454;  Nichols 
v.  Osborn,  41  Id.  92;  Lane  v.  Wash- 
ington L.  I.  Co.,  46  Id.  316;  Forbes  v. 
Baaden,  31  Id.  381;  Condit  v.  Bald- 
win, 21  N.  Y.  219,  78  Am.  Dec.  137; 
Bell  v.  Day,  32  N.  Y.  165;  Fellows  v. 
Longyor,  91  N.  Y.  324;  Van  Wyck 
v.  Watters,  81  N.  Y.  352;  Baldwin  v. 
Doying,  114  N.  Y.  452;  Lyon  v.  Simp- 
son, 12  Daly  (N.  Y.),  56;  Stillman  v. 


Northrup,  109  N.  Y.  473;  Silverman 
v.  Katz,  120  N.  Y.  Supp.  790;  Barger 
v.  Taylor,  30  Ore.  228;  Williams  v. 
Bryan,  68  Tex.  593;  Baxter  v.  Buck, 
10  Vt.  548;  Franzen  v.  Hammond, 
136  Wis.  239,  128  Am.  St.  Rep.  1079, 
19  L.  R.-  A.  (N.  S.)  399;  Whaley  v. 
American,  etc.,  Co.,  74  Fed.  73;  Call 
v.  Palmer,  116  U.  S.  98,  29  L.  Ed.  559; 
Eddy  v.  Badger,  8  Biss.  (U.  S.  C.  C.) 
238,  Fed.  Gas.  No.  4276. 

57  Thus  in  Philo  v.  Butterfield,  3 
Neb.  256,  the  court  says:  "It  is  a  set- 
tled rule  of  law  which  will  not  be 
questioned,  that  in  all  cases  where  a 


person  employs  another  as  his  agent 
to  loan  money  for  him,  and  places 
the  funds  in  the  hands  of  the  agent 
for  such  purposes,  the  principal  is 
bound  by  the  acts  of  his  agent;  and 
if  the  agent  charges  the  borrower  of 
such  money  unlawful  interest,  or 
even  demands  and  receives  from  the 
borrower  a  bonus  for  such  loan,  and 
appropriates  it  to  his  own  individual 
use,  either  with  or  without  the 
knowledge  of  his  principal,  the  prin- 
cipal is  affected  by  the  act  of  his 
agent,"  and  this  doctrine  is  reaf- 
firmed in  later  cases.  Cheney  v. 
White,  5  Neb.  261,  25  Am.  Rep.  487; 
Cheney  v.  Woodruff,  6  Neb.  151;  Olm- 
stead  v.  New  England  Mortgage  Se- 
curity Co.,  11  Neb.  487;  Cheney  v. 
Eberhardt,  8  Neb.  423;  Anderson  v. 
Vallery,  39  Neb.  626;  Hare  v.  Hooper, 
56  Neb.  480;  Hare  v.  Winterer,  64 
Neb.  551;  Griswold  v.  Dugane,  148 
Iowa,  504,  seems  to  go  upon  this  the- 
ory. Robinson  v.  Blaker,  85  Minn. 
242,  89  Am.  St.  Rep.  541,  seems  to  be 
in  the  same  line,  though  the  theory 
of  the  case  is  not  clear. 

1570 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    2005 


the  Court  of  Appeals,  in  New  York,  and  though  in  the  first  cases  there 
was  very  vigorous  dissent,  it  seems  to  have  become  firmly  established 
there.58  The  same  doctrine  has  also  been  adopted  in  other  states.59 

§  2005.  Where,  however,  a  certain  amount  is  loaned,  but 

the  note  or  other  security  is  taken  for  a  larger  amount,  to  include  the 
amount  of  the  agent's  commission,  the  principal's  action  upon  the  note 
or  other  security  to  recover  the  amount  thereof,  after  he  knew  that  the 
commission  had  been  so  included,  has  been  held  even  in  New  York  to 


ss  The  leading  case  is  Condit  v. 
Baldwin,  21  N.  Y.  219,  78  Am.  Dec. 
137.  There  Baldwin,  desiring  a  loan 
of  $400  upon  his  note  with  sureties, 
ppplied  to  one  M  to  see  if  he  could 
procure  it  for  him  and  agreed  to  com- 
pensate him  for  his  services.  M  ap- 
plied to  W  who  was  the  general  loan 
agent  of  the  plaintiff  who  resided  in 
New  Jersey.  W  said  he  had  the 
money  to  loan  but  preferred  to  loan 
upon  bonds  and  mortgages  because 
in  that  event  he  could  get  a  fee  for 
drawing  the  papers  and  investigating 
the  title.  M  thereupon  said  to  W  that 
if  W  would  make  the  loan  in  this 
case  he  should  have  $25,  as  an  attor- 
ney fee.  W  consented  and  made  the 
loan  and  paid  the  $400  to  M  who  there- 
upon turned  it  over  to  defendant. 
Defendant  asked  M  how  much  his 
charges  were  for  procuring  the 
money  and  M  replied  $40,  which 
Baldwin  paid.  Of  this  M  paid  W  $25. 
The  note  was  drawn  at  the  highest 
rate  of  lawful  interest.  Plaintiff  did 
not  know  that  W  had  received  the 
$25  until  she  came  to  enforce  the  pay- 
ment of  the  note  when  usury  was 
interposed  as  a  defense.  The  major- 
ity of  the  court  held  that  there  was 
no  authority  to  demand  the  $25  and 
that  the  plaintiff  by  seeking  to  en- 
force the  note,  did  not  ratify  it.  The 
$25  was  not  demanded  by  W  as  the 
plaintiff's  agent  but  on  his  own  per- 
sonal account,  and  "when  the  agent 
did  not  assume  to  act  for  another  but 
acted  for  himself  and  his  own  bene- 
fit, a  subsequent  ratification  does  not 
bind  the  principal."  Comstock,  C.  J., 
delivered  a  dissenting  opinion,  with 
which  two  judges  concurred.  His 


contention  was  that  the  whole  matter 
constituted  but  one  transaction.  That 
the  agent  said  in  substance:  "I  will 
lend  you  the  $400  if  besides  the  legal 
interest  which  you  pay  to  my  princi- 
pal, you  will  pay  me  the  sum  of  $25." 
That  this  was  all  one  entire  contract 
and  that  the  plaintiff,  if  she  adopted 
any  of  it,  must  assume  responsibility 
for  the  whole.  A  substantially  simi- 
lar case  was  Bell  v.  Day,  32  N.  Y.  165, 
where  Condit  v.  Baldwin  was  fol- 
lowed by  a  divided  court.  Denio,  J., 
who  had  dissented  in  Condit  v.  Bald- 
win, now  followed  it  on  the  ground 
of  stare  decisis.  Other  New  York 
cases  are:  Estevez  v.  Purdy,  66  N.  Y. 
446;  Stillman  v.  Northrup,  109  N.  Y. 
473;  Jones  v.  Gay,  139  N.  Y.  Supp. 
158. 

5»  See  also,  Call  v.  Palmer,  116  U. 
S.  98,  29  L.  Ed.  559;  Hall  v.  Maudlin, 
58  Minn.  137,  49  Am.  St.  Rep.  492; 
Richards  v.  Bippus,  18  App.  (D.  C.) 
293;  Franzen  v.  Hammond,  136  Wis. 
239,  128  Am.  St.  Rep.  1079,  19  L.  R. 
A.  (N.  S.)  399. 

In  Hall  v.  Maudlin,  58  Minn.  137, 
49  Am.  St.  Rep.  492,  the  court  said: 
"It  perhaps  would  have  been  more  in 
harmony  with  the  principles  of  the 
law  of  agency,  and  have  more  effec- 
tually prevented  evasions  of  the 
usury  laws,  had  the  courts,  at  the 
start,  adopted  the  views  of  Comstock, 
J.,  in  his  dissenting  opinion  in  Con- 
dit v.  Baldwin,  21  N.  Y.  219,  and  held 
that  where  an  agent  exacts  more  than 
the  legal  rate  of  interest  the  contract 
is  an  entirety,  and  if  the  principal 
adopts  it  he  must  adopt  it  as  a  whole, 
with  all  its  vices;  that  if  the  agent 
has  exceeded  his  authority  the  prin- 


1571 


§  2005] 


TTM-:  LAW  OF  AGKNCY  [B(X)K    IV 


lie  such  a  ratification  or  adoption  as  to  make  the  principal  responsible.60 
Where  the  added  amount  was  exacted  for  the  principal's  benefit  and 
not  for  the  agent's,  the  case  is  one  which  admits  of  ratification.61  So 
where  the  agent  takes  the  security  in  his  own  name,  as  principal,  upon 
usurious  interest,  the  borrower  supposing  him  to  be  the  principal,  the 
real  principal,  if  he  seeks  to  avail  himself  of  the  security,  will  be  bound 
by  the  usury.6* 
. 

cipal  is  not  bound  by  it,  but  may  re-  by  himself."  Followed  in  Schwarz  v. 

Sweitzer,  202  N.  Y.  8. 

In  Trimble  v.  Thorson,  80  Iowa, 
246,  it  is  said:  "If  the  agent,  without 
authority,  professes  to  take  a  bonus 
in  the  name  of  his  principal  which  is 
in  excess  of  the  legal  rate  of  interest, 
and  the  principal  accepts  the  benefits 
of  the  agency,  he  makes  the  illegal 
act  .his  own." 

In  Richards  v.  Bippus,  18  App.  (D. 
C.)  293,  the  plaintiff's  husband,  in 
making  a  loan  for  her,  took  the  high- 
est legal  interest  and  also  a  commis- 
sion which  was  included  in  the  note. 
This  amount  the  plaintiff  agreed  to 
pay  to  her  husband  when  collected. 
The  court  held  that  she  could  not  re- 
cover on  this  note,  as  it  included  the 
commission,  and  thereby  gave  notice 
to  the  plaintiff  that  her  agent  had  ex- 
acted a  bonus,  which,  being  thus 
taken  by  him  with  the  knowledge  of 
the  plaintiff,  rendered  the  whole  note 
usurious.  See  also,  Lewis  v.  Wil- 
loughby,  43  Minn.  307. 

6i  In  Stephens  v.  Olson,  62  Minn. 
295,  plaintiffs'  cashier,  against  their 


pudiate  the  whole,  and  recover  back 
his  money,  but  that  the  principal 
must  either  disavow  the  dealing,  or 
take  all  the  consequences." 

In  Nye  v.  Swan,  49  Minn.  431,  an 
agent  authorized  to  purchase  land, 
loaned  the  plaintiff,  the  owner  of  the 
land,  the  money  which  had  been  in- 
trusted to  him  for  the  purpose  of  pur- 
chasing it.  This  loan  was  made  with- 
out the  knowledge  of  his  principal, 
and  was  made  at  a  usurious  rate  of 
interest,  and  was  secured  by  a  deed 
of  conveyance,  absolute  in  form,  but 
intended  as  security  for  the  loan. 
The  plaintiff  brought  this  action  to 
cancel  the  deed;  but  it  was  held  that 
since  the  defendant  had  never 
claimed  anything  under  it  as  a  mort- 
gage but  only  as  an  absolute  deed,  he 
had  not  ratified  the  act,  and  could 
avail  himself  of  it  as  security  for  the 
money  actually  loaned  and  legal  in- 
terest. Compare  Leipziger  v.  Van 
Saun,  64  N.  J.  Eq.  37.  See  also,  Jor- 
dan v.  Humphrey,  31  Minn.  495. 

eo  Thus  in  Bliven  v.  Lydecker,  130 
N.  Y.  102,  it  is  said,  after  referring 
to  Condit  v.  Baldwin,  supra,  "But 
where,  as  in  this  case,  an  agent  au- 
thorized to  lend,  but  not  to  take 
usury,  lends  the  money  of  his  princi- 
pal at  a  usurious  rate  and  both  the 
sum  lent  and  the  usury  exacted  are 
secured  by  the  same  instrument, 
which  the  principal,  knowing  that  it 
is  for  a  larger  amount  than  the  sum 
loaned,  without  explanation  accepts, 
and  has  the  benefit  of,  he  adopts,  rati- 
fies, and  is  bound  by  the  act  of  his 
agent  the  same  as  if  it  had  been  done 


instructions,  exacted  usurious  inter- 
est, and  included  such  interest  in  the 
note,  taken  in  the  plaintiffs'  name. 
The  plaintiffs  learned  of  this  before 
they  brought  suit  on  the  note.  Held, 
that  the  notes  were  usurious  in  their 
hands. 

To  same  effect,  see  McNeely  v. 
Ford,  103  Iowa,  508,  64  Am.  St.  Rep. 
195. 

02  Erickson  v.  Bell,  53  Iowa,  627, 
36  Am.  Rep.  246;  Click  v.  Bramer, 
78  Iowa,  568. 


I57 


. 


CHAP.  VJ          LIABILITY  OF  PRINCIPAL  TO  THIRD   PARTIES       [§§  2OC)6,  2OO7 


b.  Criminal  or  Penal  Liability. 

§  2006.  Principal's  criminal  liability  for  agent's  criminal  or  penal 
acts.— But  it  is  not  only  in  a  civil  action  that  the  principal  may  be 
made  liable  for  the  criminal  or  penal  acts  of  his  agent ;  he  may  be  held 
criminally  liable  also  under  certain  circumstances.  Thus  the  principal 
is  unquestionably  so  liable,  in  greater  or  less  degree,  where  he  is  pres- 
ent and  co-operates  with  the  agent  or  encourages,  aids  or  abets  him; 
or  where,  though  not  present,  he  expressly  or  impliedly  commands,  en- 
courages or  incites  the  doing  of  the  act.63  He  would  be  so  liable  if 
he  directed  the  doing  of  an  act  which  was  in  itself  a  crime,  or  which 
necessarily  involved  or  required  the  commission  of  a  crime.64  But  as  a 
general  rule  he  cannot  be  held  criminally  liable  for  the  act  of  his  agent 
committed  without  his  knowledge  or  consent.85 

§  2007.  Penal  acts.- — There  is,  however,  a  class  of  cases,  as  has 
been  seen,  where,  by  statutory  enactment,  the  doing  of  a  certain  act 
otherwise  perhaps  innocent  or  indifferent,  or  at  the  most  not  criminal, 
is  expressly  prohibited  under  a  penalty.  Of  this  class  are  many  of  the 
statutes  in  the  nature  of  police  regulations  which  impose  penalties  for 


as  See  Bishop  on  Grim.  Law,  §  649. 

64  See  Bishop  on  Crim.  Law,  §§  649- 
651;  State  v.  Smith,  78  Me.  260,  57 
Am.  Rep.  802. 

In  a  number  of  cases  in  which  un- 
lawful sales  of  liquor,  etc.,  have 
been  made  by  agents  or  servants  with 
the  knowledge,  connivance  or  co- 
operation of  the  principal,  he  has 
been  held  liable.  See  Lewis  v.  State, 
21  Ark.  209;  State  v.  Skinner,  34 
Kan.  256;  Loeb  v.  State,  6  Ga.  App. 
23;  Cox  v.  State,  3  Old.  Crim.  Rep. 
129;  United  States  v.  Burch,  1 
Cranch  (U.  S.  C.  C.),  36,  Fed.  Cases, 
No.  14,682;  Kittrell  v.  State,  89  Miss. 
666. 

So  where  there  was  evidence  that 
the  principal  intended  the  sales  to  be 
made,  though  he  gave  instructions 
not  to  make  them.  Com.  v.  Cough- 
lin,  182  Mass.  558. 

The  master  is  clearly  responsible 
criminally  for  a  sale  made  by  his  com- 
mand or  authority.  State  v.  Falk,  51 
Kan.  298;  State  v.  Skinner,  34  Kan. 
256;  State  v.  Wiggin,  20  N.  H.  449; 
Martin  v.  State,  30  Neb.  507;  Collins 
v.  State,  34  Tex.  Cr.  95. 


65  Commonwealth  v.  Nichols,  10 
Mete.  (Mass.)  259,  43  Atn.  Dec.  432; 
Commonwealth  v.  Putnam,  4  Gray 
(Mass.),  16;  Somerset  v.  Hart,  12 
Q.  B.  Div.  360;  Patterson  v.  State,  21 
Ala.  571;  State  v.  Society  for  Preven- 
tion of  Cruelty,  47  N.  J.  L.  237;  Gaioc- 
chio  v.  State,  9  Tex.  Cr.  App.  387; 
People  v.  Parks,  49  Mich.  333. 

A  principal  cannot  lawfully  be  ar- 
rested under  a  statute  permitting  ar- 
rest "where  defendant  has  been  guilty 
of  a  fraud  In  contracting  the  debts" 
for  frauds  committed  without  his 
knowledge  or  authority  by  his  agent 
in  purchasing  goods  for  him.  Hath- 
away v.  Johnson,  55  N.  Y.  93,  14  Am. 
Rep.  186.  See  also,  Jaffray  v.  Jen- 
nings, 101  Mich.  515,  25  L.  R.  A.  645. 

Where  an  essential  ingredient  of 
the  statutory  offense  is  keeping  in- 
toxicating liquor  with  intent  to  sell 
contrary  to  law,  the  guilty  intent  of  a 
servant  who  sells  in  violation  of  the 
instructions  of  his  master,  cannot  be 
imputed  to  the  master.  State  v. 
Hayes,  67  Iowa,  27. 


1573 


TTTF.  LAW  OF  AGENCY  [BOOK    IV 


their  violation,  often  irrespective  of  the  question  of  the  intent  to  vio- 
late them ;  the  purpose  being  to  require  a  degree  of  diligence  for  the 
protection  of  the  public  which  shall  render  violation  exceedingly  im- 
probable, if  not  impossible.88  Similar  to  these  statutes  were  many  of 
the  well  settled  doctrines  of  the  common  law,  as  for  example,  the  law 

porting  a  slave  on  its  steamboat, 
though  the  persons  in  charge  of  its 
business  had '  no  knowledge  of  the 
fact.  A  case  determined  on  the  same 
principle  is  Queen  v.  Bishop,  5  Q.  B. 
Div.  259.  If  one's  business  is  the  sale 
of  liquor,  a  sale  made  by  his  agent  in 
violation  of  the  law  is  prima  facie 
evidence  of  his  authority;  Common- 
wealth v.  Nichols,  10  Met.  259,  43  Am. 
Dec.  432;  and  in  Illinois  the  princi- 
pal is  held  liable  though  the  sale  by 
his  agent  was  in  violation  of  instruc- 
tions. Noecker  v.  People,  91  111/494. 
In  Connecticut  it  has  been  held  no 
defense,  in  a  prosecution  for  selling 
intoxicating  liquor  to  a  common 
drunkard,  that  the  seller  did  not 
know  him  to  be  such.  Barnes  v. 
State,  19  Conn.  398.  It  was  held  in 
Faulks  v.  People,  39  Mich.  200,  33 
Am.  Rep.  374,  under  a  former  stat- 
ute, that  one  should  not  be  convicted 
of  the  offense  of  selling  liquors  to  a 
minor  who  had  reason  to  believe  and 
did  believe  he  was  of  age;  but  I 
doubt  if  we  ought  so  to  hold  under 
the  statute  of  1881,  the  purpose  of 
which  very  plainly  is,  as  I  think,  to 
compel  every  person  who  engages  in 
the  sale  of  intoxicating  drinks  to 
keep  within  the  statute  at  his  peril. 
There  are  many  cases  in  which  it  has 
been  held,  under  similar  statutes, 
that  it  was  no  defense  that  the  seller 
did  not  know  or  suppose  the  pur- 
chaser to  be  a  minor;  State  v.  Hart- 
flel,  24  Wis.  60;  McCutcheon  v.  Peo- 
ple, 69  111.  601;  Farmer  v.  People,  77 
111.  322;  Ulrich  v.  Commonwealth,  6 
Bush.  400;  State  v.  Cain,  9  W.  Va. 
559;  Commonwealth  v.  Emmons,  98 
Mass.  6;  Redmond  v.  State,  36  Ark. 
58,  38  Am.  Rep.  24;  and  in  Common- 
wealth v.  Finnegan,  124  Mass.  324, 
the  seller  was  held  liable,  though  the 
minor  had  deceived  him  by  falsely 


«a  In  People  v.  Roby,  52  Mich.  577, 
50  Am.  Rep.  270,  Cooley,  C.  J.,  says: 
"I  agree  that  as  a  rule  there  can  be 
.no  crime  without  a  criminal  intent; 
but  this  is  not  by  any  means  a  uni- 
versal rule.  One  may  be  guilty  of 
the  high  crime  of  manslaughter  when 
his  only  fault  is  gross  negligence; 
and  there  are  many  other  cases  where 
mere  neglect  may  be  highly  criminal. 
Many  statutes,  which  are  in  the  na- 
ture of  police  regulations,  as  this  is, 
impose  criminal  penalties  irrespec- 
tive of  any  intent  to  violate  them; 
the  purpose  being  to  require  a  degree 
of  diligence  for  the  protection  of  the 
public  which  shall  render  violation 
impossible.  Thus,  in  Massachusetts, 
a  person  may  be  convicted  of  the 
crime  of  selling  intoxicating  liquor 
as  a  beverage,  though  he  did  not 
know  it  to  he  intoxicating;  Common- 
wealth v.  Bo.ynton,  2  Allen,  160;  and 
of  the  offense  of  selling  adulterated 
milk,  though  he  was  ignorant  of  its 
being  adulterated.  Commonwealth  v. 
Farren,  9  Allen,  489;  Commonwealth 
v.  Holbrook,  10  Allen,  200;  Common- 
wealth v.  Waite,  11  Allen,  264,  87  Am. 
Dec.  711;  Commonwealth  v.  Smith, 
103  Mass.  444.  See  State  v.  Smith,  10 
R.  I.  258.  In  Missouri  a  magistrate 
may  be  liable  to  the  penalty  for  per- 
forming the  marriage  ceremony  for 
minors  without  the  consent  of  par- 
ents or  guardians,  though  he  may 
suppose  them  to  be  of  the  proper  age. 
Beckham  v.  Nacke,  56  Mo.  546.  When 
the  killing  and  sale  of  a  calf  under  a 
specified  age  is  prohibited,  there  may 
be  a  conviction  though  the  party  was 
ignorant  of  the  animal's  age.  Com- 
monwealth v.  Raymond,  97  Mass.  567. 
See  The  King  v.  Dixon,  3  M.  &  S.  11. 
In  State  v.  Steamboat  Co.,  13  Md. 
181,  a  common  carrier  was  held  lia- 
ble to  the  statutory  penalty  for  trans- 


1574 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    2OO8 

of  libels  and  nuisances.  As  to  these,  it  is  often  said  to  be  the  duty  of 
the  principal  to  see  to  it  that  such  statutes  are  not  violated  by  his  agents 
in  the  course  of  their  employment.  For  what  they  may  do  outside  of 
the  employment,  he  is,  of  course,  not  responsible  ;87  but  if  the  prohibited 
act  be  done  by  them  in  the  course  of  their  employment,  he  must  respond. 
This  is  particularly  true  in  those  cases  where  the  principal  confides,  in 
a  greater  or  lesser  degree,  the  conduct  and  management  of  his  business 
to  his  agents.  He  selects  his  own  agents,  it  is  argued,  and  has  the 
power,  as  well  as  the  duty,  to  control  them;  and  if,  by  reason  of  his 
lack  of  oversight  or  their  own  carelessness  or  unfaithfulness,  the  pro- 
hibited act  is  done,  he  should  be  held  accountable.  He  therefore  can- 
not relieve  himself  from  responsibility  for  the  manner  in  which  his  pur- 
poses are  carried  out,  by  turning  over  the  management  of  his  business 
to  agents. 

§  2008.  Illustrations. — Instances  of  these  principles  may 

be  found  in  the  case  of  the  publication  of  libels,  the  smuggling  of  goods, 
the  sale  of  unwholesome  or  adulterated  food,  the  erection  or  continu- 
ance of  nuisances,  the  transportation  of  forbidden  goods,  the  transac- 
tion of  business  without  a  license,  and  the  like.  Frequent  illustrations 
are  also  found  in  the  statutes  regulating  the  traffic  in  intoxicating  liq- 
uors. 

Thus  booksellers  and  publishers  have  been  held  criminally  liable  for 
publications,  issued  from  their  establishment,  in  the  regular  course  of 

'4          •«::•-;•,'; 

pretending  he  was  sent  for  the  liquor  Cas.  1152,  31  L.  R.  A.  (N.  S.)  467,  and 

by  another  person.     So  a  person  has  Com.  v;  Sacks,  214  Mass.  72,  100  N. 

been    held    liable    to    a    penalty    for  E.  1019,  43  L.  R.  A.  (N.  S.)  1. 

keeping  naphtha  for  sale  under  an  as-  See  also,  City  of  Spokane  v.  Pat- 

sumed   name,   without  guilty  knowl-  terson,  46  Wash.  93,  123  Am.  St.  Rep. 

edge,  the    statute    not   making   such  921,  8  L.  R.  A.  (N.  S.)  1104;  State  v. 

knowledge   an   ingredient   of  the   of-  Constantine,  43  Wash.  102,  117  Am. 

fense.    Commonwealth  v.  Wentworth,  St.  Rep.  1043;    State  v.  Kittelle,  110 

118  Mass.  441.     Other  cases  might  be  N.  Car.  560,  28  Am.  St.  Rep.  698,  15 

cited,  and  there  is  nothing  anomalous  L.  R.    A.    694;    City    of    Paducah  v. 

in  these.    A  person  may  be  criminally  Jones,     126     Ky.     809;     Redgate     v. 

liable  for  adultery  with  a  woman  he  Haynes,  1  Q.  B.  Div.  89. 

did  not  know  to  be  married:   Fox  v.  As  to  liability  of  principal  for  stat- 

State,  3  Tex.  App.  329,  30  Am.  Rep.  utory   penalty   under    an   automobile 

144;    or  for  carnal  knowledge   of  a  act,  see  Nicholas  v.  Kelley,  159  Mo. 

female  under  ten  years  of  age  though  App.  20. 

he  believed  her  to  be  older.     Queen  ^  Sales  made  by  a  mere  caretaker 

v.  Prince,  L.  R.  2  Cr.  Cas.  154;  State  who  had  no  authority  to  sell  at  all 

v.  Newton,  44  Iowa,  45.     And  other  are  not  punishable.     Ollre  v.   State, 

similar    cases    might    be    instanced."  57  Tex.  Cr.  App.  520. 

There   are   similar   enumerations   in  So  of  sales  of  liquors  not  kept  for 

Com.  v.  Mixer,  207  Mass.  141,  20  Ann.  sale  by  one  who  had  no  authority  to 

1575 


§    2008] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


business,  although  the  particular  act  of  sale  or  publication  was  done 
without  their  knowledge ;  *8  a  trader  has  been  held  liable  to  a  penalty 
for  the  illegal  act  of  his  agent  in  harboring  and  concealing  smuggled 
goods,  although  the  principal  was  absent  at  the  time ; fl9  a  baker  has 
been  held  liable  to  a  criminal  charge  for  selling  adulterated  bread,  al- 
though the  adulteration  was  put  in  by  his  servant,  and  although  he 
did  not  know  that  it  was  used  in  improper  quantities ; 70  the  directors 
of  a  gas  company  have  been  held  liable  to  an  indictment  for  a  nuisance 
created  by  their  superintendent,  acting  under  a  general  authority  to 
manage  the  works,  though  they  were  personally  ignorant  of  the  partic- 
ular plan  adopted,  and  although  it  was  a  departure  from  the  original 
and  understood  method,  which  they  supposed  him  to  be  following ; 71  a 
saloonkeeper  has  been  held  criminally  responsible  for  not  keeping  his 
saloon  closed  upon  Sunday,  though  it  appeared  that  it  was  opened  by 


sell.  Partridge  v.  State,  88  Ark.  267, 
129  Am.  St.  Rep.  100,  20  L.  R.  A.  (N. 
S.)  321. 

es  Rex  v.  Walter,  3  Esp.  21;  Rex 
v.  Gutch,  1  Moo.  &  M.  433.  But  see 
Queen  v.  Holbrook,  3  Q.  B.  Div.  60, 
as  to  the  effect  of  the  statutes  limit- 
ing such  liability. 

In  State  v.  Armstrong,  106  Mo.  395, 
27  Am.  St.  Rep.  361,  13  L.  R.  A.  419, 
the  principal  was  held  liable  in  a 
criminal  prosecution  for  a  publica- 
tion by  his  agent,  where  it  appeared 
that  he  knew  of  and  tacitly  approved 
the  act. 

«9  Attorney  General  v.  Bidden,  1 
Cromp.  &  Jer.  220. 

See  also,  Attorney  General  v.  Rid- 
dle, 2  Cromp.  &  Jer.  493. 

Same  rule  applied  in  State  v.  Balti- 
more, etc.,  S.  Co.,  13  Md.  181,  under  a 
statute  forbidding  the  transportation 
of  slaves. 

70  Rex  v.  Dixon,  4  Camp.  12.  Same, 
under  statute  against  adulterating 
milk.  Brown  v.  Foot,  66  L.  T.  (N. 
S.)  649,  17  Cox's  Cr.  C.  509.  Where 
an  agent  sells  oleomargarine  for 
dairy  butter,  in  violation  of  statute, 
the  principal  is  liable  although  he 
had  instructed  the  agent  to  sell  all 
goods  for  just  what  they  were,  and 
not  to  sell  one  thing  as  a  substitute 
for  something  else.  Groff  v.  State, 

1576 


171  Ind.  547,  17  Ann.  Gas.  133.     See 
also,  Com.  v.  Warren,  160  Mass.  533. 

A  master  was  sued  on  a  penal  stat- 
ute for  selling  skimmed  milk.  The 
act  was  done  by  the  defendant's  serv- 
ant, the  defendant  being  present  on 
the  farm  at  the  time.  Held,  that 
since  the  statute  used  the  word 
"knowingly"  the  defendant  must  have 
authorized  the  sale  to  be  liable,  but 
here  the  plaintiff,  by  the  above  facts, 
had  established  a  prima  facie  case 
which  defendant  failed  to  rebut. 
Verona  Central  Cheese  Co.  v.  Mur- 
taugh,  50  N.  Y.  314.  Where  a  servant 
sold  lard  without  the  proper  label  In 
violation  of  a  statute,  it  was  held  in 
a  prosecution  of  the  master  that  it 
was  error  to  exclude  evidence  that 
he  had  expressly  forbidden  that  act. 
The  master  could  only  be  held  where 
he  had  authorized  the  offense.  Kear- 
ley  v.  Tonge,  60  L.  J.  (Magist.  Gas.) 
159,  17  Cox's  Cr.  Gas.  328. 

Master  liable  where  his  servant 
gave  "short  weight"  in  violation  of 
statute.  Com.  v.  Sacks,  214  Mass. 
72,  43  L.  R.  A.  (N.  S.)  1. 

71  Rex  v.  Medley,  6  C.  &  P.  292. 
See  also,  Barnes  v.  Akroyd,  L.  R.  7 
Q.  B.  474  (a  case  of  smoke  nuisance). 
Queen  v.  Stephens,  L.  R.  1  Q.  B.  702 
(a  case  of  putting  obstructions  in  a 
stream). 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


his  clerk,  without  his  knowledge  or  consent,  but  while  he  was  on  the 
premises ; 72  for  sales  to  minors  and  drunkards,73  and,  in  a  variety  of 
cases,  depending-  more  or  less  upon  the  peculiarity  of  statutory  phrase- 


"  People  v.  Roby,  52  Mich.  577,  50 
Am.  Rep.  270;  People  v.  Kriesel,  136 
Mich.  80,  4  Ann.  Gas.  5;  People  v. 
Lundell,  136  Mich.  303;  Lehman  v. 
Dist.  of  Columbia,  19  App.  Cases  (D. 
C.)  217;  City  of  Paducah  v.  Jones, 
126  Ky.  809.  Likewise  was  the  prin- 
cipal liable  for  his  servants  keeping 
open  after  hours  although  it  was 
done  without  the  principal's  knowl- 
edge. Pulver  v.  State,  83  Neb.  446; 
Reismier  v.  State,  148  Wis.  593. 

The  contrary  view  is  held  in  Ar- 
kansas. Beane  v.  State,  72  Ark.  368. 
See  also,  People  v.  Utter,  44  Barb. 
(N.  Y.)  170;  Moore  v.  State,  64  Neb. 
557.  Compare  State  v.  Burke,  15  R. 
I.  324. 

TS  In  the  following  cases  the  statute 
prohibiting  the  sale,  read,  "Any  per- 
son selling,"  etc.  Carroll  v.  State, 
G3  Md.  551  (in  which  the  defendant 
was  held  guilty  of  a  sale  made  to  a 
minor  by  his  agent  without  his 
knowledge  or  authority).  State  v. 
Shorten,  93  Mo.  123  (in  which,  under 
similar  circumstances,  the  defendant 
was  held  not  guilty  of  an  unauthor- 
ized sale  made  to  a  common  drunk- 
ard by  his  agent);  see  also,  Lehman 
v.  District  of  Columbia,  19  App.  Cases 
(D.  C.),  217  (a  sale  made  on  Sunday 
by  a  servant).  Under  a  statute,  "No 
person  shall  knowingly  sell,"  the  pro- 
prietor of  a  saloon  was  held  liable 
for  a  sale  made  to  an  intoxicated 
person  without  his  knowledge  and 
during  his  absence  from  the  saloon. 
O'Donnell  v.  Commonwealth,  108  Va. 
882. 

In  the  following  cases,  the  defend- 
ant was  held  guilty  under  a  broad 
statute  which  provided  for  conviction 
for  a  sale  made  by  "any  person,  by 
himself  or  another,"  or  a  statute  of 
similar  effect.  State  v.  McConnell,  90 
Iowa,  197;  McCutcheon  v.  People,  69 
111.  606.  See  also,  Noecker  v.  People, 
91  111.  494  (a  sale  made  by  a  servant 
without  a  license);  Loeb  v.  State,  75 


Ga.  258;  Snider  v.  State,  81  Ga.  753, 
12  Am.  St.  Rep.  350;  Van  Valkin- 
burgh  v.  State,  102  Ark.  16  (solicit- 
ing orders  in  prohibition  territory). 
But  see  Johnson  v.  State,  83  Ga.  553. 

In  State  v.  McCance,  110  Mo.  398, 
under  a  statute  providing  that  the 
act  of  the  agent  shall  be  deemed  the 
act  of  the  master,  it  was  held  that 
proof  of  a  sale  by  a  clerk  only  oper- 
ated to  shift  to  the  defendant  the 
burden  of  proving  the  lack  of  knowl- 
edge or  authority.  See  also,  State  v. 
Weher,  111  Mo.  204;  State  v.  Reiley, 
75  Mo.  521  (sales  made  without  a  li- 
cense); State  v.  Fagan,  1  Boyce  (24 
Del.),  45.  And  apparently  contra, 
State  v.  McGinnis,  38  Mo.  App.  15. 
See  also,  People  v.  Parks,  49  Mich. 
333,  which  limited  such  a  statute  to 
cases  where  the  master  knew  of  or 
authorized  the  sale;  also,  People  v. 
Hughes,  86  Mich.  180.  But  in  People 
v.  Longwell,  120  Mich.  311,  the  court 
distinguished  the  two  preceding 
cases  on  the  ground  that  they  were 
decided  on  an  earlier  statute;  and 
construed  a  later  statute  (reading, 
any  person  who  "himself  or  by  his 
agent,  clerk  or  employee,"  etc.)  to 
impose  a  liability  on  the  master  for 
sales  made  by  such  agent,  clerk  or 
employee,  regardless  of  the  fact 
whether  he  knew  of  such  sale  or  had 
authorized  it. 

In  Reismier  v.  State,  148  Wis.  593, 
a  proprietor  was  held  on  an  instruc- 
tion to  the  jury  as  follows:  "the  per- 
son who  takes  out  a  license  to  run  a 
saloon  business  assumes  all  respon- 
sibility for  having  it  run  according 
to  law;  that  if  any  one,  who  is  found 
acting  contrary  to  law,  is  not  their 
representative,  the  court  views  it  that 
that  is  an  affirmative  defense  that 
the  defense  should  make  —  should 
show  that  the  person  was  an  inter- 
loper and  not  a  representative  of  the 
owner  of  the  place." 

• 


1577 


§    2008] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


ology,  for  other  acts  done  by  his  servants  or  agents  in  violation  of  the 
statutory,  prohibitions; 74  a  master  carrying  on  operations  involving 
blasting  has  been  held  liable  to  the  penalties  imposed  by  a  statute,  where 
blasting  is  done  by  his  servants  without  taking  prescribed  precautions, 
even  though  the  failure  to  comply  with  the  statute  was  in  direct  viola- 


In  re  Berger,  84  Neb.  128,  held  that 
the  principal  was  liable  unless  he 
could  affirmatively  show  that  the 
sales  (to  minors)  were  made  con- 
trary to  his  express  commands. 

But  in  State  v.  Crawford,  151  Mo. 
App.  402,  it  was  held  that  the  princi- 
pal, to  rebut  a  prima  facie  case,  need 
not  show  that  the  act  was  contrary 
to  express  commands  but  need  show 
only  non-assent  to  the  act  of  the 
agent,  where  the  act  was  permitting 
liquor  to  be  drunk  on  the  premises 
of  a  drug  store. 

In  several  statutes,  the  sale  by  the 
party  or  "by  his  servant  or  agent"  is 
expressly  forbidden.  Thus  Com.  v. 
Sacks,  214  Mass.  72,  100  N.  E.  1019, 
43  L.  R.  A.  (N.  S.)  1;  Com.  v.  War- 
ren, 160  Mass.  533;  People  v.  Long- 
well,  supra. 

74  For  cases,  generally,  holding  the 
principal  liable  for  unlawful  sales 
made  by  his  servant,  without  his 
knowledge  or  authority,  and  even 
against  his  express  instructions,  see 
Mogler  v.  State,  47  Ark.  109;  Edgar 
v.  State,  45  Ark.  356;  Waller  v.  State, 
38  Ark.  656  (sale  made  by  co-part- 
ner) ;  Walters  v.  State,  174  Ind.  545; 
State  v.  Anderson,  127  La.  1041;  Peo- 
ple v.  Longwell,  120  Mich.  311;  State 
v.  Kittelle,  110  N.  C.  560,  28  Am.  St. 
Rep.  698,  15  L.  R.  A.  694  (but  see 
State  v.  Neal,  133  N.  C.  689;  Cumber- 
ledge  v.  State,  7  Okla.  Cr.  102;  State 

v.  Weiss,  62  Oreg.  ,  128  Pac.  448; 

State  v.  Gilmore,  80  Vt.  514,  16  L.  R. 
A.  (N.  S.)  786,  13  Ann.  Gas.  321; 
State  v.  Nichols,  67  W.  Va.  659,  33  L. 
R.  A.  (N.  S.)  419;  State  v.  Constan- 
tine,  43  Wash.  102,  117  Am.  St.  Rep. 
1043;  Olson  v.  State,  143  Wis.  413; 
Comm'rs  of  Police  v.  Cartman,  [1896] 
1  Q.  B.  655.  Same,  under  statute 
against  so  distributing  samples  of 


medicine  that  children  might  get 
them.  State  v.  Cray,  85  Vt.  99,  36  L. 
R.  A.  (N.  S.)  630. 

For  cases  holding  the  contrary  doc- 
trine on  the  same  point,  see  Barnes 
v.  State,  19  Conn.  398;  Lathrope  v. 
State,  51  Ind.  192;  Hipp  v.  State,  5 
Blackf.  (Ind.)  149,  33  Am.  Dec.  463; 
Thompson  v.  State,  45  Ind.  495; 
Comm.  v.  Briant,  142  Mass.  463,  56 
Am.  Rep.  707;  Comm.  v.  Stevens,  153 
Mass.  421,  25  Am.  St.  Rep.  647,  11  L. 
R.  A.  357;  Comm.  v.  Joslin,  158  Mass. 
482,  21  L.  R.  A.  449;  State  v.  Baker, 
71  Mo.  475;  State  v.  McGrath,  73  Mo. 
181;  State  v.  Shortell,  93  Mo.  123; 
Kittrell  v.  State,  89  Miss.  666;  Moore 
v.  State,  64  Neb.  557. 

For  cases  holding  than  an  innocent 
principal  is  not  liable  to  the  penalty 
prescribed  by  a  statute  for  selling 
liquor  without  a  license,  or  liquor  to 
be  consumed  on  the  premises  or  in 
small  quantities,  and  the  like,  the  sale 
being  made  without  his  knowledge  or 
consent,  see  Siebert  v.  State,  40  Ala. 
60;  Wreidt  v.  State,  48  Ind.  579; 
Comm.  v.  Hayes,  145  Mass.  289;  State 
v.  McGrath,  73  Mo.  181;  State  v.  Neal, 
133  N.  C.  689;  Comm.  v.  Nichols,  10 
Mete.  (Mass.)  259,  43  Am.  Dec.  432 
(followed  in  Comm.  v.  Wachendorf, 
141  Mass.  270,  a  case  of  sale  after 
hours).  Contra:  Riley  v.  State,  43 
Miss.  397;  State  v.  Denoon,  31  W.  Va. 
122;  State  v.  Dow,  21  Vt.  484:  See 
also,  Noecker  v.  People,  91  111.  494; 
State  v.  Reiley,  75  Mo.  521. 

It  is  held,  in  some  jurisdictions, 
that  proof  of  a  sale  made  by  a  clerk 
in  a  saloon  owned  by  the  defendant, 
raises  a  presumption,  or  as  sometimes 
put,  "makes  a  prima  facie  case,"  of 
the  defendant's  guilt,  but  it  is  compe- 
tent for  him  to  show  that  such  sale 
was  forbidden.  Comm.  v.  Nichols,  10 


1578 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    2OOO, 


tion  of  his  directions ; T5  a  principal  causing  samples  of  medicine  to  be 
distributed  has  been  held  responsible  for  the  violation  of  a  statute  for- 
bidding doing  so  under  such  circumstances  that  children  might  become 
possessed  of  them,  even  though  the  act  was  done  in  violation  of  his 
specific  instructions.76 

§  2009.  Contrary  holdings. — On  the  other  hand,  the  prin- 
cipal has,  in  a  variety  of  cases,  been  held  not  liable  in  the  absence  of 
anything  to  show  his  own  personal  default.  Thus,  where  a  master  was 
sued  in  debt  on  a  penal  statute  for  cutting  timber,  and  it  was  shown 
that  the  master  had  cautioned  his  servants  not  to  cut  on  any  other  per- 
son's land,  he  was  held  not  liable.  The  court  said  that  in  order  to 
charge  the  master  it  must  be  proved  that  he  wilfully  caused  the  act  to 
be  done.77  This  holding  was  followed  in  a  later  case.78  In  another 
case  a  master  was  prosecuted  for  having  given  credit  to  a  student  at 
Yale  College  in  violation  of  a  statute.  It  appeared  that  the  credit  had 
been  extended  by  the  defendant's  barkeeper  in  direct  disregard  of  de- 
fendant's instructions.  The  defendant  was  acquitted  in  spite  of 'the 
fact  that  he  had  subsequently  ratified  his  servant's  act.79  Again,  under 


Mete.  (Mass.)  259,  43  Am.  Dec.  432; 
State  v.  McCance,  110  Mo.  398;  State 
v.  Stamper,  159  Mo.  App.  382;  Kirk- 
wood  v.  Autenreith,  21  Mo.  App.  73; 
State  v.  Wentworth,  65  Me.  234,  20 
Am.  Rep.  688;  Comm.  v.  Perry,  148 
Mass.  160;  Pullwood  v.  State,  67 
Miss.  554;  Anderson  v.  State,  22  Ohio, 
305;  Rooney  v.  Augusta,  117  Ga.  709. 
Compare  Parker  v.  State,  4  Ohio  St. 
564.  But  see,  to  effect  that  one  sale 
will  not  raise  such  a  presumption, 
State  v.  Mahoney,  23  Minn.  181. 

75  Spokane  v.  Patterson,  46  Wash. 
93,  123  Am.  St.  Rep.  921,  8  L.  R.  A. 
(N.  S.)  1104. 

Principal  may  be  convicted  for  act 
of  his  agent  in  giving  an  unstamped 
receipt  for  money  (received  by  the 
agent  for  his  principal)  in  violation 
of  a  stamp'  act.  Ex  parte  Turnbull,  21 
New  South  Wales  L.  R.  414. 

76  State  v.  Cray,  85  Vt.  99,  36  L.  R. 
A.  (N.  S.)  630. 

Corporations. — The  question  of  the 
penal  liability  of  corporations  for  the 
acts  of  their  servants  and  agents  has 
arisen  in  many  cases,  some  of  which, 
though  outside  the  general  scope  of 
this  work,  may  be  referred  to  for  il- 


lustration. Thus,  see  New  York  Cen- 
tral, etc.,  R.  Co.  v.  United  States,  212 
U.  S.  481,  53  L.  Ed.  613  (prosecution 
for  giving  rebates) ;  Commonwealth 
v.  Pulaski  Agr.,  etc.,  Ass'n,  92  Ky. 
197  (permitting  gambling);  Stand- 
ard Oil  Co.  v.  Commonwealth  (Ky.), 
55  S.  W.  8  (peddling  without  a  li- 
cense); State  v.  White  Oak  R.  Co., 
Ill  N.  Car.  661  (obstructing  stream 
by  felling  timber  into  it) ;  State  v. 
Passaic  Agr.  Society,  54  N.  J.  L.  260 
(keeping  disorderly  house) ;  Com- 
monwealth v.  New  Bedford  Bridge,  68 
Mass.  (2  Gray)  339  (obstructing  nav- 
igable stream);  State  v.  Portland,  74 
Me.  268,  43  Am.  Rep.  586  (polluting 
stream);  State  v.  Security  Bank,  2 
S.  Dak.  538  (usury);  State  v.  Atchi- 
son,  71  Tenn.  (3  Lea)  729,  31  Am. 
Rep.  663  (libel);  State  v.  Baltimore, 
etc.,  R.  Co.,  15  W.  Va,  362,  36  Am. 
Rep.  803  (Sabbath  breaking).  There 
are  many  others. 

77  State  v.  Bacon,  40  Vt.  456. 

78  Commonwealth    v.    Junkin,    170 
Pa.  194,  31  L.  R.  A.  124. 

7»  Hall  v.  Norfolk  &  W.  R.  Co.,  44 
W.  Va.  36,  67  Am.  St.  Rep.  757,  41  L. 
R.  A.  669. 


1579 


§§    2010,  201 1]  T&E   LAW  OF  AGENCY  [BOOK    IV 

an  ordinance  prohibiting  the  driving  of  wagons  on  the  sidewalk,  an 
employer  was  held  not  liable  criminally,  where  his  teamster,  who  was 
a  competent  man,  drove  the  employer's  team  on  the  sidewalk  to  enable 
himself  to  more  easily  unload  his  wagon  in  the  prosecution  of  his  mas- 
ter's service,  the  master  having  no  knowledge  that  the  servant  intended 
to,  or  did,  so  violate  the  ordinance.80  So  where  bankers  Were  indicted 
under  a  statute  forbidding  the  receipt  of  deposits  while  a  bank  was  in- 
solvent,, the  money  having  been  taken  in  by  the  cashier,  an  instruction 
that  evidence  tending  to  show  that  the  defendants  were  ignorant  of 
that  fact  and  had  prohibited  such  action  was  immaterial,  was  held  to 
be  error.81  So  it  has  been  held  that  a  railroad  company  is  not  liable  for 
the  statutory  penalty  for  an  overcharge  in  freight  or  passenger  rates, 
where  the  charge  was  made  by  a  conductor  and  the  act  was  neither  au- 
thorized nor  approved  by  the  company.82 

8.  Matters  relating  to  Procedure. 

§  2010.  Joinder  of  principal  and  agent  in  one  action. — Although 
the  principal  or  master  may  be  liable  for  the  torts  of  his  servant  or 
agent  within  the  rules  laid  down  in  the  preceding  sections,  it  is  also 
true,  as  has  been  seen  in  a  previous  chapter,83  that  the  agent  or  servant 
is  himself  liable,  in  a  great  variety  of  cases,  to  the  person  injured  by  his 
misconduct.  Whether  these  two  liabilities  can  be  enforced  in  a  joint 
action  depends  upon  a  variety  of  considerations.  If  the  principal  or 
master  is  present  or  participating  in  the  wrongful  act,  he  and  his  serv- 
ant or  agent  may  undoubtedly  be  joined  as  wrongdoers.  The  same 
would  doubtless  be  true  also  where,  though  not  personally  present,  he 
directs  the  particular  act  or  subsequently  ratifies  it. 

§  201 1.  Weight  of  authority  permits  joinder. — Where, 

however, .  there  was  no  direction,  ratification  or  participation  on  the 
part  of  the  principal,  and  it  is  sought  to  charge  him  simply  upon  the 
doctrine  of  respondeat  superior,  the  question  whether  a  joint  action  can 
be  maintained  against  the  principal  and  the  agent  to  recover  for  the 
agent's  negligence  is  involved  in  some  dispute.  It  is  held  in  some  cases 
that  a  joint  action  cannot  be  maintained.84  The  liability  of  the  agent  is 

But  compare  City  of  Hammond  v.  si  Satterfield  v.  Western  Union  Tel. 

New  York,  etc.,  Ry.  Co.,  5  Ind.  App.  Co.,  23  111.  App.  446. 

526,  cited  supra,  in  §  2000.  82  Morse  v.  State,  6  Conn.  9. 

so  Gushing  v.   Dill,  2   Scam.    (111.)  ss  See  ante,  §  1452  et  seq. 

460.  s*  Bailey  v.  Bussing,  37  Conn.  349; 

See  also,  Smith  v.  Causey,  22  Ala.  McNemar  v.  Cohn,  115  111.  App.  31; 

568;  Williams  v.  Hendricks,  115  Ala.  Campbell  v.  Portland  Sugar  Co.,   62 

277,  67  Am.  St.  Rep.  32,  41  L.  R.  A.  Me.  552,  16  Am.  Rep.  503;  Parsons  v. 

650.  Winchell,  5  Cush.  (Mass.)  592,  52  Am. 

1580 


CHAP.    VJ  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    2OI2 


based  upon  his  actual  wrongdoing :  the  liability  of  the  principal  arises 
merely  from  the  policy  of  the  law.  Liabilities  based  upon  such  radi- 
cally different  theories  as  these  cannot,  it  is  held  in  these  cases,  be  en- 
forced in  one  action.  The  weight  of  authority,  however,  is  clearly  the 
other  way,  and  permits  the  principal  and  the  agent  to  be  joined  in  the 
same  action  at  the  option  of  the  plaintiff.85 

§  2012.  Master  cannot  be  held   if  servant  not  liable. — 

Where  the  master  is  joined  with  the  servant  in  an  action  based  wholly 
upon  the  servant's  negligence  or  misconduct,  the  master  cannot  be  held 
unless  there  is  a  cause  of  action  against  the  servant,  and  the  acquittal 


Dec.  745;  Mulchey  v.  Methodist  So- 
ciety, 125  Mass.  487;  Clark  v.  Fry,  8 
Ohio  St.  358,  72  Am.  Dec.  590. 

Case  for  deceit  in  the  nature  of  a 
conspiracy  cannot  be  maintained 
against  principal  and  agent  jointly, 
for  the  unauthorized  fraudulent  acts 
of  the  agent  alone.  Page  v.  Parker, 
40  N.  H.  47. 

85  Southern  Ry.  Co.  v.  Reynolds, 
126  Ga.  657;  Southern  Ry.  Co.  v.  Griz- 
zle, 124  Ga.  735,  110  Am.  St.  Rep.  191; 
Shearer  v.  Evans,  89  Ind.  400;  In- 
diana Nitroglycerin  Co.  v.  Lip- 
pincott  Glass  Co.  (Ind.  App.),  72 
N.  E.  183;  Dowell  v.  Chicago,  etc., 
Ry.  Co.,  83  Kan.  562;  New  Ellerslie 
Fishing  Club  v.  Stewart,  123  Ky.  8,  9 
L.  R.  A.  (N.  S.)  475;  Illinois  Cent. 
Ry.  Co.  v.  Coley,  121  Ky.  385,  1  L.  R. 
A.  (N.  S.)  370;  Illinois  Cent.  Ry.  Co. 
v.  Houchins,  121  Ky.  526,  123  Am.  St. 
Rep.  205,  1  L.  R.  A.  (N.  S.)  375; 
Hewett  v.  Swift,  3  Allen  (Mass.), 
420;  Mayberry  v.  Nor.  Pac.  Ry.  Co., 
100  Minn.  79,  10  Ann.  Gas.  754,  12  L. 
R.  A.  (N.  S.)  675;  McGinnis  v.  Chi- 
cago, etc.,  Ry.  Co.,  200  Mo.  347,  118 
Am.  St.  Rep.  661,  9  Ann.  Cas.  656,  9 
L.  R.  A.  (N.  S.)  880;  Gardner  v. 
Southern  Ry.  Co.,  65  S.  C.  341; 
Schumpert  v.  Southern  Ry.  Co.,  65  S. 
C.  332,  95  Am.  St.  Rep.  802;  Able  v. 
Southern  Ry.  Co.,  73  S.  C.  173;  Parlin 
v.  Miller,  25  Tex.  Civ.  App.  190; 
Howe  v.  Northern  Pac.  Ry.  Co.,  30 
Wash.  569,  60  L.  R.  A.  949;  McHugh 
v.  Northern  Pac.  Ry.  Co.,  32  Wash. 
30;  Melse  v.  Alaska  Comm.  Co.,  42 
Wash.  356;  same  case,  affirmed  in  207 


U.  S.  583;  Lightner  v.  Brooks,  2 
Cliff.  (U.  S.  C.  C.)  287  (Mass.),  Fed. 
Cas.  No.  8,344. 

Principal  and  agent  can  be  joined 
in  tort  action  for  agent's  misrepre- 
sentations. Willard  v.  Key,  83  Neb. 
850. 

The  question  whether  the  master, 
for  example  a  railroad  company,  sued 
jointly  with  its  servant  for  the  lat- 
ter's  negligence,  can  remove  the  case 
from  a  state  to  a  federal  court,  has 
been  involved  in  many  cases,  and 
more  or  less  conflicting  decisions 
have  been  rendered.  The  rule  laid 
down  by  the  Supreme  Court  of  the 
United  States,  which  is  of  course  the 
final  arbiter  in  the  matter,  seems  to 
be  that  in  the  absence  of  proof  of 
fraudulent  or  collusive  joinder  in  or- 
der to  prevent  removal,  the  cause 
cannot  be  removed  where  the  plead- 
ings, upon  their  face,  at  the  time  the 
application  for  removal  is  made,  state 
a  joint  cause  of  action,  even  though 
upon  the  trial  the  plaintiff  may  not 
be  able  to  establish  such  a  cause  of 
action.  Alabama  Great  Southern  Ry. 
Co.  v.  Thompson,  200  U.  S.  206; 
Wecker  v.  Nat'l  Enameling,  etc.,  Co., 
204  U.  S.  176,  51  L.  Ed.  430;  Chesa- 
peake &  Ohio  Ry.  Co.  v.  Dixon,  179 
U.  S.  131,  45  L.  Ed.  121;  Offner  v. 
Chicago  &  E.  Ry.  Co.,  148  Fed.  201; 
Mclntyre  v.  Southern  Ry.  Co.,  131 
Fed.  985;  Shaffer  v.  Union  Brick  Co., 
128  Fed.  97;  Helms  v.  Northern  Pac. 
Ry.  Co.,  120  Fed.  389;  Warax  v.  Cin- 
cinnati, etc.,  Ry.  Co.,  72  Fed.  637; 
Beuttel  v.  Chicago,  etc.,  Ry.  Co.,  26 

581 


§§    '2013,2014]  THE   LAW  OF  AGENC*  tfTIJ  [BOOK    IV 

of  the  servant  must  lead  to  the  discharge  of  the  master  also.88  So, 
where  the  master  is  sued  alone  in  such  a  case,  he  may  show  in  justifi- 
cation that  the  servant  could  not  have  been  held  liable,  and  in  that  event 
the  master  would  ordinarily  be  exonerated.87  And  after  a  judgment 
upon  the  merits  in  favor  of  the  agent,  the  principal  can  not  be  held.88 

§  2013.  The  measure  of  damages  against  the  principal — Compen- 
sation.— Where  the  principal  or  master  is  found  to  be  liable  for  the 
wrongful  act  of  his  agent  or  servant,  the  measure  of  damages  is  ordi- 
narily full  compensation  for  the  injury  inflicted.  This  will  include  not 
only  compensation  for  loss  of  property  or  property  rights,  for  expenses 
incurred  or  disbursements  made,  and  compensation  for  physical  pain 
and  suffering,  but  also  compensation  for  mental  suffering,  pain  of 
mind,  humiliation  and  disgrace. 

§  2014.  Exemplary  damages. — When  such  compensation 

has  been  awarded,  it  would  seem  that  the  injured  party  had  recovered 
all  the  compensation  to  which  he  could  justly  and  equitably  be  entitled. 
In  some  states,  however,  juries  are  permitted  to  award,  in  addition  to 
this  compensation,  what  are  commonly  called  exemplary  or  punitive 
damages,  in  cases  in  which  the  injury  was  inflicted  under  circumstances 
indicating  malice,  wantonness  or  oppression.  It  is  freely  conceded  that 
these  circumstances  may  properly  be  taken  into  consideration  in  deter- 
rriining  the  extent  of  the  actual  injury  received,  and  no  objection  can 
be  found  to  allowing  compensation  for  the  additional  injury  so  inflicted. 
When,  however,  it  is  suggested  that,  after  this  full  compensation  has 
been  awarded,  additional  sums  may  be  assessed  against  the  defendant, 
by  way  of  punishment  or  example,  and  that  these  added  sums  may  be 
given  to  the  plaintiff,  who  by  the  hypothesis  has  already  been  awarded 
full  compensation  for  the  injury  that  has  been  done  him,  a  question  is 
raised  upon  which  members  of  both  the  bench  and  the  bar  have  been 

Fed.  50;   Southern  Ry.  Co.  v.  Grizzle,  Horgan   v.    Boston    El.    Ry.    Co.,  208 

124  Ga.  735,  110  Am.  St.  Rep.  191;   II-  Mass.  287. 

linois  Cent.  Ry.  Co.  v.  Coley,  121  Ky.  »»  See  Lake  Shore,  etc.,  Ry.  Co.  v. 

385,  1  L.  R.  A.   (N.  S.)   370;    Illinois  Goldberg,   2  111.  App.  228;    Anderson 

Cent.  Ry.  Co.   v.   Houchins,  121  Ky.  v.  West  Chicago  St.  R.  Co.,  200  111. 

526,  123  Am.  St.  Rep.  205,  1  L.  R.  A,  329;   Emery  v.  Fowler,  39  Me.  326,  63 

(N.   S.)    375;    Able  v.   Southern  Ry.  Am.  Dec.  627;  Chicago,  etc.,  R.  Co.  v. 

Co.,  73  S.  C.  173.  Hutchins,  34  111.  108;  Castle  v.  Noyes, 

se  Bradley    v.    Rosenthal,    154    Cal.  14  N.  Y.  329. 

420,  129  Am.  St.  Rep.  171;  McGinnis  See  also,  Phillips  v.  Jamieson,  51 

v.  Chicago,  etc.,  R.  Co.,  200  Mo.  347,  Mich.  153;    Moore  v.  Richardson,  100 

118    Am.    St.    Rep.    661;    Doremus  v.  111.  App.  134;    American  Exp.  Co.   v. 

Root,  23  Wash.  710,  54  L.  R.  A.  649.  Des  Moines  Nat.  Bank,  146  Iowa,  448; 

87  New    Orleans,    etc.,    R.    Co.    v.  Bridges  v.  McAlister,  106  Ky.  791. 
Jopes,  142  U.  S.  18,  35  L.  Ed.  919; 

1582 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES  [§    2OI5 

sharply  in  conflict,  and  it  is  believed  to  be  the  better  opinion  that  ex- 
emplary damages  as  thus  denned  are  indefensible  in  legal  principle.89 
It  is  freely  to  be  conceded,  however,  that  many  courts  award  them. 

If  they  are  to  be  awarded  at  all,  it  would  seem  that,  however  much 
they  may  be  justified  against  the  guilty  servant  or  agent  himself,  they 
should  not  be  awarded  against  the  principal  or  master  unless  it  can  be 
shown  that  in  some  way  he  also  has  been  guilty  of  the  wrongful  mo- 
tives upon  which  such  damages  are  based.  It  seems  hard  enough 
against  an  innocent  principal  or  master  that  he  should  be  compelled 
to  pay  compensatory  damages  for  the  wrongful  act  of  his  servant  or 
agent,  without  adding  thereto  punishment  for  that  of  which  he  is  in 
fact  actually  innocent,  and  the  cases  which  are  believed  to  be  the  best 
considered  have  adopted  this  view. 

§  2015.  Exemplary  damages  not  allowed. — The  rule  of 

these  cases  was  well  stated  by  Church,  C.  J.,  of  the  New  York  Court 
of  Appeals,  as  follows :  "For  injuries,  by  the  negligence  of  a  servant 
while  engaged  in  the  business  of  the  master,  within  the  scope  of  his 
employment,  the  latter  is  liable  for  compensatory  damages;  but  for 
such  negligence,  however  gross  or  culpable,  he  is  not  liable  to  be  pun- 
ished in  punitive  damages  unless  he  is  also  chargeable  with  gross  mis- 
conduct. Such  misconduct  may  be  established  by  showing  that  the 
act  of  the  servant  was  authorized  or  ratified,  or  that  the  master  em- 
ployed or  retained  the  servant,  knowing  that  he  was  incompetent,  or, 
from  bad  habits,  unfit  for  the  position  he  occupied.  Something  more 
than  ordinary  negligence  is  requisite ;  it  must  be  reckless  and  of  a  crim- 
inal nature,  and  clearly  established.  Corporations  may  incur  this  lia- 
bility as  well  as  private  persons.  If  a  railroad  company,  for  instance, 
knowingly  and  wantonly  employs  a  drunken  engineer,  or  switchman,  or 
retains  one  after  knowledge  of  his  habits  is  clearly  brought  home  to  the 
company,  or  to  a  superintending  agent  authorized  to  employ  and  dis- 
charge him,  and  injury  occurs  by  reason  of  such  habits,  the  company 
may  and  ought  to  be  amenable  to  the  severest  rule  of  damages ;  but  I 
am  not  aware  of  any  principle  which  permits  a  jury  to  award  exem- 
plary damages  in  a  case  which  does  not  come  up  to  this  standard,  or  to 
graduate  the  amount  of  such  damages  by  their  views  of  the  propriety  of 
the  conduct  of  the  defendant,  unless  such  conduct  is  of  the  character 
before  specified."  90 

so  One  of  the  recent  cases,  in  which  (589.     See   also,   Greeley,   etc.,   R.   R. 

may  be  found  the  arguments  on  both  Co.  v.  Yeager,  11  Colo.  345. 

sides    of    this    question,    is    Spokane  »°  Cleghorn  v.  New  York  Cent.  R. 

Truck  &  Dray  Co.  v.  Hoefer,  2  Wash.  R.  Co.,  56  N.  Y.  44,  15  Am.  Rep.  375. 

45,  26  Am.  St.  Rep.  842,  11  L.  R.  A.  "The    rule    is,"    says     Somerville, 


§  2015] 


THE   LAW   OF   AGENCY 


[BOOK    TV 


This  view  and  this  language  were  approved  by  the  Supreme  Court 
of  the  United  States,  in  a  later  case,  which  has  since  been  regarded  as 
the  leading  case  on  this  side  of  the  question.91 

It  has  been  thought  in  some  cases  that  the  award  of  exemplary  dam- 
ages might  be  justified  in  actions  against  a  corporate  master  or  prin- 


J.,  in  Burns  v.  Campbell,  71  Ala.  271, 
292,  "that,  where  several  defendants 
are  sued  in  tort  for  damages,  the  mal- 
ice or  other  evil  motive  of  one  can 
not  be  matter  of  aggravation,  or 
ground  for  vindictive  damages 
against  the  other.  Wood's  Mayne  on 
Damages,  p.  594,  §  624.  Hence,  prin- 
cipals are  not  generally  held  liable 
for  such  damages  by  reason  of  the 
evil  motive  of  an  agent,  unless  the 
act  of  the  agent  was  fully  ratified 
with  a  knowledge  of  its  malicious, 
aggravating,  or  grossly  negligent 
character;  or  these  matters  of  ag- 
gravation were  probably  consequent 
on  the  doing  of  the  wrongful  act  or- 
dered by  the  principal;  or  unless  the 
agent  was  employed  with  a  knowl- 
edge of  his  incompetency.  Lienkauf 
v.  Morris,  66  Ala.  406,  415;  Pollock 
v.  Gantt,  69  Ala.  373,  44  Am.  Rep. 
519;  Kirksey  v.  Jones,  7  Ala.  622; 
Field's  Law  Damages,  §§  86,  87; 
Wood's  Mayne  on  Dam.,  p.  57,  §  48; 
Carmichael  v.  W.  and  L.  Railway  Co., 
13  Ir.  L.  R.  313." 

»i  Lake  Shore,  etc.,  Ry.  Co.  v.  Pren- 
tice, 147  U.  S.  101,  37  L.  Ed.  97. 

To  same  effect:  see  Norfolk,  etc., 
Co.  v.  Miller,  98  C.  C.  A.  453, 
174  Fed.  607;  Pollock  v.  Gantt, 
69  Ala.  373,  44  Am.  Rep.  519; 
Mendelsohn  v.  Anaheim  Lighter 
Co.,  40  Cal.  657;  Turner  v.  North 
Beach,  etc.,  R.  R.  Co.,  34  Cal.  594; 
Page  v.  Yool,  28  Colo.  464;  Maisen- 
backer  v.  Concordia  Society,  71  Conn. 
369,  71  Am.  St.  Rep.  213;  Hay  wood  v. 
Hamm,  77  Conn.  158;  Woodward  v. 
Ragland,  5  App.  D.  C.  220;  Branti- 
gam  v.  While,  73  111.  561;  but  see 
Fentz  v.  Meadows,  72  111.  540;  Becker 
v.  Dupree,  75  111.  167;  Patterson  v. 
Waldman,  20  Ky.  L.  Rep.  514;  Keene 
v.  Lizardi,  8  La,  26;  Rouse  v.  Metro- 
politan St.  Ry.  Co.,  41  Mo.  App.  298; 

f 


Ackerson  v.  Erie  R.  Co.,  32  N.  J.  L. 
254;  Fisher  v.  Metropolitan  El.  R. 
Co.,  34  Hun  (N.  Y.),  433.  Compare, 
Crane  v.  Bennett,  177  N.  Y.  106,  101 
Am.  St.  Rep.  722;  Moore  v.  Atchison, 
etc.,  Ry.  Co.,  26  Okla.  682;  Chicago, 
etc.,  Ry.  Co.  v.  Newburn,  27  Okla.  9, 
30  L.  R.  A.  (N.  S.)  432;  Oliver  v. 
North  Pac.  Transp.  Co.,  3  Ore.  84; 
Sullivan  v.  Oregon  R.,  etc.,  Co.,  12 
Ore.  392,  53  Am.  Rep.  364;  Hogan  v. 
Providence,  etc.,  R.  R.  Co.,  3  R.  I.  88, 
62  Am.  Dec.  377;  Staples  v.  Schmid. 
18  R.  I.  224,  19  L.  R.  A.  824;  Nash- 
ville, etc.,  R.  R.  Co.  v.  Starnes,  9 
Heisk.  (Tenn.)  52,  24  Am.  Rep.  296; 
Hays  v.  Houston,  etc.,  R.  R.  Co.,  46 
Tex.  272;  Houston,  etc.,  Ry.  Co.  v. 
Cowser,  57  Tex.  293;  Texas  Trunk  R. 
Co.  v.  Johnson,  75  Tex.  158;  Western 
Union  Tel.  Co.  v.  Brown,  58  Tex.  170, 
44  Am.  Rep.  610;  Willis  &  Bros.  v. 
McNeill,  57  Tex.  465;  Ricketts  v. 
Chesapeake,  etc.,  R.  Co.,  33  W.  Va. 
433,  25  Am.  St.  Rep.  901,  7  L.  R.  A. 
354;  Eviston  v.  Cramer,  57  Wis.  570; 
Craker  v.  Chicago,  etc.,  Ry.  Co.,  36 
Wis.  657,  17  Am.  Rep.  504. 

Exemplary  damages  may  be  had 
where  the  principal  later  with  knowl- 
edge approved  the  conduct.  Kilpat- 
rick  v.  Haley,  13  C.  C.  A.  480,  66  Fed. 
133. 

As  to  whether  knowingly  retaining 
the  agent  in  service  after  the  wrong- 
ful act  will  be  a  ratification,  see  New 
Orleans,  etc.,  R.  R.  Co.  v.  Burke,  53 
Miss.  200,  24  Am.  Rep.  689;  Bass  v. 
Chicago,  etc.,  Ry.  Co.,  42  Wis.  654,  24 
Am.  Rep.  437;  Perkins  v.  Missouri, 
etc.,  R.  R.  Co.,  55  Mo.  201;  Ricketts  v. 
Chesapeake,  etc.,  R.  Co.,  33  W.  Va. 
433,  25  Am.  St.  Rep.  901,  7  L.  R.  A. 
354. 

That  retention  in  service  aggra- 
vates the  damage,  see  Gasway  v.  At- 
lanta, etc.,  Ry.  Co.,  58  Ga.  216. 

584 


CHAP.    V]  LIABILITY  OF  PRINCIPAL  TO  THIRD  PARTIES 


[§    2Ol6 


cipal  when  they  could  not  be  in  the  case  of  an  individual.92     But  the 
cases  above  referred  to  have  repudiated  such  a  distinction. 

§  2016.  Exemplary  damages  allowed. — As  has  been  al- 
ready pointed  out,  however,  there  is  a  large  and  apparently  growing 
list  of  cases  in  which  the  distinction  above  referred  to  has  not  pre- 
vailed, and  in  which  the  principal  or  master,  and  especially  a  corporate 
principal  or  master,  has  been  held  subject  to  exemplary  damages  for 
the  wilful,  wanton  or  malicious  acts  of  the  servant  or  agent,  even 
though  the  principal  or  master  was  personally  free  from  fault.98 

.8102  3 


»2  See  for  example, — this  list  does 
not  purport  to  be  exhaustive — Jeffer- 
son County  Savings  Bank  v.  Eborn, 
84  Ala.  529;  Mobile,  etc.,  R.  R.  v. 
Seales,  100  Ala.  368;  Citizens'  Street 
Ry.  v.  Steen,  42  Ark.  321;  Western, 
etc.,  Tel.  Co.  v.  Eyser,  2  Colo.  141; 
Ford  v.  Charles  Warner  Co.,  1  Marvel 
(Del.),  88;  Flannery  v.  Baltfmore, 
etc.,  R.  R.  Co.,  4  Mack.  (Dist.  of  C.) 
Ill  (case  of  assault  while  plaintiff 
was  a  passenger  on  the  defendant's 
train);  Singer  Mfg.  Co.  v.  Holdfodt, 
86  111.  455,  29  Am.  Rep.  43;  Jefferson- 
ville,  etc.,  Co.  v.  Rogers,  38  Ind.  116, 
10  Am.  Rep.  103  (where  a  conductor 
assaulted  a  passenger  on  the  defend- 
ant's train);  Wheeler,  etc.,  Co.  v. 
Boyce,  36  Kan.  350,  59  Am.  Rep.  571; 
Louisville,  etc.,  R.  R.  Co.  v.  Kelly's 
Administratrix,  100  Ky.  421  (by  stat- 
ute); Lexington  Ry.  Co.  v.  Cozine, 
23  Ky.  L.  Rep.  1137  (where  conductor 
assaulted  a  passenger  on  defendant's 
train);  Goddard  v.  Grand  Trunk  Ry. 
Co.,  57  Me.  202,  2  Am.  Rep.  39  (where 
the  plaintiff,  a  passenger,  was  as- 
saulted by  the  defendant's  brake- 
man;  there  was  an  implied  ratifica- 
tion of  the  act  in  this  case) ;  Peter- 
sen  v.  Western  U.  Tel.  Co.,  75  Minn. 
368,  74  Am.  St.  Rep.  502,  43  L.  R.  A. 
581;  Perkins  v.  Missouri,  etc.,  R.  R., 
55  Mo.  201  (where  P,  a  passenger, 
was  assaulted  by  one  of  defendant's 
servants);  Haehl  v.  Wabash  E.  R. 
Co.,  119  Mo.  325;  Atlantic,  etc.,.  Co.  v. 
Dunn,  19  Ohio  St.  162,  2  Am.  Rep. 
382  (where  defendant's  conductor  as- 
saulted the  plaintiff,  a  passenger); 
Western  U.  Tel.  Co.  v.  Smith,  64 


Ohio  St.  106;  Quinn  v.  South  Caro- 
lina Ry.  Co.,  29  S.  C.  381,  1  L.  R.  A. 
682;  Davis  v.  Chesapeake,  etc.,  Ry. 
Co.,  61  W.  Va.  246,  9  L.  R.  A.  (N.  S.) 
993. 

93  See  for  example  (this  list  does 
not  purport  to  be  exhaustive) :  Citi- 
zens' St.  R.  Co.  v.  Steen,  42  Ark.  321; 
Gasway  v.  Atlanta,  etc.,  R.  Co.,  58 
Ga.  216;  St.  Louis,  etc.,  R.  Co.  v. 
Dalby,  19  111.  352;  Singer  Mfg.  Co. 
v.  Holdfodt,  86  111.  455,  29  Am.  Rep. 
43;  Wabash,  etc.,  Ry.  Co.  v.  Rector, 
104  111.  296;  Jeffersonville  R.  R.  Co. 
v.  Rogers,  38  Ind.  116,  10  Am.  Rep. 
103;  Wheeler,  etc.,  Mfg.  Co.  v.  Boyce, 
36  Kan.  350,  59  Am.  Rep.  571;  Louis- 
ville, etc.,  R.  Co.  v.  Ballard,  85  Ky. 
307,  7  Am.  St.  Rep.  600;  Chesapeake, 
etc.,  R.  Co.  v.  Dodge,  23  Ky.  L.  Rep. 
1959,  66  S.  W.  606;  City  Transfer  Co. 
v.  Robinson,  12  Ky.  L.  Rep.  555; 
Hawkins  &  Co.  v.  Riley,  17  B.  Monroe 
(Ky.),  101;  Hanson  v.  European, 
etc.,  Ry.  Co.,  62  Me.  84,  16  Am.  Rep. 
404;  Goddard  v.  Grand  Trunk  Ry. 
Co.,  57  Me.  202,  2  Am.  Rep.  39;  Bal- 
timore, etc.,  Turnpike  Road  v.  Boone, 
45  Md.  344;  Phila.,  etc.,  R.  Co.  v. 
Larkin,  47  Md.  155,  28  Am.  Rep.  442; 
New  Orleans,  etc.,  R.  Co.  v.  Hurst,  36 
Miss.  660,  74  Am.  Dec.  785;  Chicago, 
etc.,  R.  R.  Co.  v.  Scurr,  59  Miss.  456, 
42  Am.  Rep.  373;  Southern  Express 
Co.  v.  Brown,  67  Miss.  260,  19  Am. 
St.  Rep.  306;  New  Orleans,  etc.,  R.  R. 
Co.  v.  Burke,  53  Miss.  200,  24  Am. 
Rep.  689;  Porsee  v.  Alabama,  etc., 
R.  R.  Co.,  63  Miss.  66,  56  Am.  Rep. 
801;  Doss  v.  Missouri,  etc.,  R.  R.  Co., 
59  Mo.  27,  21  Am.  Rep.  371;  Travers 


100 


1585 


§§    2017,  2Ol8]  THE  LAW  OF  AGENCY  [BOOK    IV 

§  2017.  Unsatisfied  judgment  against  agent  no  bar  to  action 
against  principal. — It  is  the  general  rule  in  the  United  States  that 
an  unsatisfied  judgment  against  one  of  two  wrongdoers,  is  not  a  bar 
to  obtaining  a  judgment  for  the  same  wrong  against  the  other.9*  In 
accordance  with  this  rule,  a  judgment  obtained  against  an  agent  for 
a  fraud  committed  by  him  while  acting  within  the  scope  of  his  agency, 
and  which  remains  wholly  unpaid,  is  held  to  be  no  bar  to  an  action  by 
the  same  plaintiff  against  the  agent's  principal  to  recover  damages  for 
the  same  fraud.95 

§  2018.  Principal  or  master  liable  although  other's  negligence 
also  contributed. — And  finally,  the  principal  or  master  may,  in  ac- 
cordance with  well-settled  rules,  be  held  liable  for  the  actionable  mis- 
conduct of  his  servant  or  agent,  although  the  negligence  of  third  per- 
sons or  the  agents  or  servants  of  third  persons  also  contributed  to  cause 
the  injury.96 

v.  Kansas  Pac.  R.  R.  Co.,  63  Mo.  421;  Haley    v.    Mobile    R.    Co.,    7    Baxter 

Canfleld  v.  C.  R.  I.  &  P.  Ry.  Co.,  59  (Tenn.),  239;    Louisville,  etc.,  R.  R. 

Mo.  App.  354;  Atlantic,  etc.,  Ry.  Co.  Co.  v.   Garrett,   8  Lea    (Tenn.),  438, 

v.  Dunn,  19  Ohio  St.  162,  2  Am.  Rep.  41   Am.  Rep.   640;    Fell  v.   Northern 

382;     Hazard    v.     Israel,    1    Binney  Pac.  R.  R.  Co.,  44  Fed.  248;  Cowen  v; 

(Pa.),   240,   2   Am.    Dec.   438;    Phila.  Winters,  37  C.  C.  A.  628,  96  Fed.  929 

Traction  Co.  v.  Orbaun,  119  Pa.  37;  (affirming  90  Fed.  99). 

Palmer  v.  Railroad,  3  S.  C.  580,  16  94  See    discussion    of    the    general 

Am.    Rep.    750;     Spellman    v.    Rich-  question  in  Note  in  58  L.  R.  A.  410 

mond,  etc.,  R.  R.  Co.,  35  S.  C.  475,  28  et  seq. 

Am.  St.  Rep.  858;    Samuels  v.  Rich-  »» Maple  v.   Railroad  Co.,  40  Ohio 

mond,  etc.,  R.  R.  Co.,  35  S.  C.  493,  28  St.  313,  48  Am.  Rep.  685. 

Am.  St.  Rep.  883;   Rucker  v.  Smoke,  86  See  Firor  v.  Taylor,  116  Md.  69. 

37  S.  C.   377,  34  Am.   St.  Rep.  758; 

I586 


.  i     i 
OOI 


ffiqbnhq  ni 

' 


. 


! 

THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE  AGENT. 


CHAPTER  VI. 

'• 


§  2019.  What  here  involved.  2038. 

2020. 


I.    IN   CONTRACT. 


In   general — Right   of   action 

in  principal  alone. 
2021. .  Considerations       affect-          2039. 

ing  this  rule. 

2022.  How  cases  may  be  classified.          2040. 

2023.  Agent  may  sue  when  princi- 

pal  has   clothed    him    with          2041, 
title  or  authority  for  that 
purpose. 

2024.  Agent   may   sue  on   contract          2043. 

made  with  him  personally. 

2025.  .  Undisclosed  principal.  2044. 

2026.  .  Disclosed  principal. 

2027.  When  agent  only  can  sue. 

2028.  Statutes    requiring    suit    by          2045. 

real  party  in  interest. 

2029.  .  Assignees    of   bankrupt          2046. 

agent.  2047. 

2030-2032.  Illustrations  of  rule  per-          2048. 
mitting  agent  to  sue. 

2033.  Agent  may  sue  when  he  has 

a  beneficial  interest.  2049. 

2034.  .  What  meant  by  rule. 

2035.  2036.  .  What  interest  suf-          2050. 

fices. 

2037.  Although     agent     may     thus 
sue,  principal  may  usually 
sue  or  control  action. 
' 

§  2019.  What  here  involved. — The  questions  relating  to  the 
rights  of  agents  against  third  persons  are  chiefly  of  two  general  kinds, 
namely,  r.  the  right  of  the  agent  to  enforce  contracts,  and  2.  to  sue 
for  torts.  They  will  be  separately  considered  under  those  two  headings. 

1587 


Action  on  sealed  contract,  ne- 
gotiable instrument,  or  con- 
tract made  with  agent  per- 
sonally must  be  in  agent's 
name. 

Agent's  rights  depend  upon 
the  contract. 

Right  of  assumed  agent  to 
show  himself  principal. 

2042.  .  1.  Where  he  con- 
tracted for  a  named  princi- 
pal. 

.  2.  Where  he  contracted 

for  an  unnamed  principal. 

Agent  may  recover  money 
paid  by  him  under  mistake 
or  illegal  contract. 

What  defenses  open  to  third 
person. 

.  Set-off. 

.  Admissions — Discovery. 

What  damages  agent  may  re- 
cover on  contract. 

II.    IN  TORT. 

Agent  may  sue  for  personal 
trespass. 

When  agent  may  sue  for  in- 
juries to  principal's  prop- 
erty. 


§    2020] 


THE   LAW  OF  AGENCY 


[BOOK  iv 


I.    IN    CONTRACT. 

§  2020.  In  general — Right  of  action  in  principal  alone. — Tt  is  or- 
dinarily the  function  and  the  duty  of  an  agent  in  his  contractual  deal- 
ings for  his  principal,  to  act  not  only  for  and  on  account  of  his  princi- 
pal, but  in  the  principal's  name.  Where  the  contract  is  express  and 
formal,  and  particularly  where  it  is  in  writing,  there  is  ordinarily  no 
difficulty  in  determining  whether  this  requirement  has  been  complied 
with.  Even  though  the  dealings  are  not  express  and  formal,  the  func- 
tion and  the  duty  of  the  agent  are  still  the  same,  and  there  is  a  constant 
presumption  that  a  known  agent,  acting  as  such,  intends  to  impose  the 
obligations  of  the  contract  upon  the  principal  and  secure  its  advantages 
to  him.  The  effect  of  the  proper  discharge  of  the  agent's  duty  in  such 
cases,  therefore,  is  to  invest  the  principal  with  the  right  to  all  the  bene- 
fits and  advantages  which  result  from  it,  to  invest  him  with  the  legal  in- 
terest in  the  contract,  and  to  clothe  him  with  the  power  to  bring  all 
necessary  actions  to  enforce  the  contract.  As  a  general  rule,  therefore, 
where  the  contract  is  thus  made  for  and  on  account  of  the  principal 
and  in  his  name,  and  the  agent  has  no  beneficial  interest  in  the  con- 
tract, the  right  of  action  upon  the  contract  is  in  the  principal  alone  and 
the  agent  cannot  sue  upon  it.1 


i  Evans  v.  Evans,  3  Ad.  &  El.  132; 
Buckbee  v.  Brown,  21  Wend.  (N.  Y.) 
110;  Garland  v.  Reynolds,  20  Me.  45; 
Commercial  Bank  v.  French,  21  Pick. 
(Mass.)  486,  32  Am.  Dec.  280;  Med- 
way  Cotton  Manufactory  v.  Adams,  10 
Mass.  360;  Gunn  v.  Cantine,  10  Johns. 
(N.  Y.)  387;  Chin  Kem  You  v.  Ah 
Joan,  75  Cal.  124;  Moses  v.  Ingram, 
99  Ala.  483;  Chamberlain  v.  Ainter, 
1  Colo.  App.  13;  Fay  v.  Walsh,  190 
Mass.  374;  Morton  v.  Stone,  39  Minn. 
275;  Denver  Produce  Co.  v.  Taylor, 
73  Miss.  702;  Whitehead  v.  Potter,  26 
N.  Car.  257;  Davenport  v.  Ash,  121 
La.  209;  Hearshy  v.  Hichox,  12  Ark. 
125;  United  States  v.  Burrell  Const. 
Co.,  3  U.  S.  Dist.  Hawaii,  332;  Oil- 
man v.  German  Lith.  Stone  Co.,  

Ky.  ,  153  S.  W.  996;  Wurzburg  v. 

Webb,  19  Nov.  Sco.  414;  Abbott  v. 
Atlantic  Refin.  Co.,  4  Ont.  L.  R.  701 
(a  good  case). 

"Prime  facie,"  says  Blackburn,  J., 
in  Fisher  v.  Marsh,  6  B.  &  S.  411 
"when  an  agent  makes  a  contract  for 


a  person  named,  the  principal  and 
not  the  agent  is  considered  as  mak- 
ing the  contract." 

An  agent  who  ships  by  the  carload 
the  goods  of  several  principals  to  a 
foreign  commission  merchant  for 
sale,  with  the  understanding  that 
the  proceeds  of  each  owner's  goods, 
less  the  commissions,  shall  be  re- 
mitted directly  to  him,  the  names 
and  quantities  received  from  each 
owner  being  separately  entered  on 
the  shipping  bill,  and  each  owner's 
goods  also  being  marked  in  his  own 
name,  cannot  maintain  an  action  in 
his  own  name  against  the  commis- 
sion merchant  for  damages  caused  by 
delay  in  selling  the  goods,  even 
though  the  shipment  was  made  in  the 
agent's  name.  The  contract  is  not 
to  be  found  in  the  mere  act  of  ship- 
ment, but  from  all  the  facts  and  cir- 
cumstances of  the  case.  So  consid- 
ered, it  was  held  that  the  contract 
was  not  made  either  in  the  name  of 
the  agent  as  principal  or  as  the  rep- 


CHAP.  Vl]  LIABILITY  OF  THIRD   PERSONS  TO  AGENT  [§    2O2I 

All  common-law  rules  respecting  the  party  who  may  maintain  an  ac- 
tion, however,  must  now  be  considered  in  the  light  of  the  statutory  pro- 
visions now  found  in  a  large  number  of  the  states  that  every  action 
shall  be  prosecuted  by  the  real  party  in  interest,  subject  to  such  excep- 
tions as  the  particular  statute  may  make. 

§  2021.  Considerations  affecting  this  rule. — But  it  has 

been  seen  that,  notwithstanding  the  fact  that  the  agent  has  authority, 
and  is  expected  to  bind  the  third  person  with  whom  he  deals,  to  the 
principal,  yet,  through  failure  to  disclose  his  principal,  or  to  use  apt 
and  appropriate  language  or,  from  a  deliberate  intention  to  deal  with 
the  agent  exclusively,  the  result  of  the  negotiation  may  be  that  the  third 
person  has  assumed  obligations,  either  prima  facie  or  exclusively,  to 
the  agent  alone.  It  may  thus  happen  that  the  legal  interest  in  the  con- 
tract will  be,  or  will  appear  to  be,  in  the  agent  alone,  and,  in  accordance 
with  the  well-settled  rule  that  an  action  upon  a  contract  is  to  be  brought 
in  the  name  of  the  party  in  whom  the  legal  interest  in  the  contract  is 
vested,  the  right  of  action  may  be  either  in  the  agent  alone,  or  it  may 
be  subject  to  an  action  by  the  agent  or  the  principal.  This  question  as 
to  the  agent's  right  of  action  may  arise  under  a  variety  of  circum- 
stances. Thus  the  contract  may  be  (a)  an  unwritten  one,  or  it  may 
be  (b)  a  written  contract,  and  if  in  writing,  it  may  be  (c}  under  seal. 
So  in  his  negotiation  the  agent  may  have  acted  (a)  as  the  agent  of  a 
known  principal,  or  (b)  he  may  have  disclosed  the  fact  of  his  agency, 

resentative  of  undisclosed  principals.  ett    (Tex.    Civil    App.),    145     S.    W, 

Denver  Produce  &  Commission  Co.  v.  1046. 

Taylor,  73  Miss.  702.  After  termination  of  the  agency. — 

Where  goods  sold  by  the  principal  Where    an    agent   had    deposited    his 

are  shipped   to   an   agent   merely  to  principal's  money  in  a  bank  in  the 

deliver   them,  the  agent   cannot  sue  name  of  "A.  J.  Miller,  Agent,"  it  was 

in  his  own  name  for  the  price.    Phil-  held  that,  whether  he  could  or  could 

lips  v.  Henshaw,  5  Cal.  509.  not  have  sued  for  it  while  his  agency 

A  person  who  has  made  a  demand  continued,  he  certainly  could  not  do 
upon  a  railroad,  as  agent  for  prospec-  so  after  his  agency  had  been  ter- 
tive  passengers,  that  the  railroad  minated  by  the  principal's  bank- 
shall  furnish  them  with  a  train,  can-  ruptcy.  Miller  v.  State  Bank,  57 
not  maintain  an  action  for  the  rail-  Minn.  319. 

road's   refusal   to   furnish   the   train.  Where  an  order  is  declared  to  be 

Atchison,  etc.,  Ry.  Co.  v.  Tiedt,  116  given    by    a    principal    through    an 

C.  C.  A.  168,  196  Fed.  348,  40  L.  R.  A.  agent,  the  contract  is  with  the  prin- 

(N.  S.)   848.  cipal,    and    the    agent    cannot    sue. 

A    mere    broker    who    has    simply  Goldschmldt  v.   MacDonald,   9   N.   S. 

quoted   a  price   for   goods   and   thus  Wales,  State  R.  693. 

led  to  a  purchase  directly  from  the  A  mere  clerk  or  agent  who  sells  his 

principal,    can    not   sue    on    the   con-  principal's  goods  in  the  ordinary  way 

tract.    San  Jacinto  Rice  Co.  v.  Lock-  cannot  sue  for  the  price.     Hearshey 

v.  Hichox,  12  Ark.  125. 

1589 


§§    2O22,  2O23]  THE   LAW  OP  AGENCY  [BOOK   IV 

but  concealed  the  name  of  his  principal,  or  (c)  he  may  have  bargained 
as  the  real  principal.  In  doing  so,  he  may  have  acted  (a)  with  the  ex- 
press or  implied  authority  of  his  principal  to  keep  the  principal  con- 
cealed, or  (&)  against  the  principal's  express  or  implied  desire.  So 
the  contract  upon  which  the  question  arises  may  be  (a)  fully  executed, 
or  (6)  partially  executed,  or  (c)  wholly  executory.  There  may,  of 
course,  also  be  cases  in  which,  though  the  contract  was  not  originally 
made  with  the  agent  at  all,  the  principal  may  since  have  clothed  the 
agent  with  an  authority  or  a  title  to  sue. 

§2022.  How  cases  may  be  classified. — Four  classes  of  cases  are 
r  ; 

thus  suggested : — 

First.  The  ordinary  case  in  which  as  the  result  of  formal  or  informal 
dealings  the  contract  has  been  made  on  the  account  and  in  the  name  of 
the  principal.  Here,  as  has  just  been  seen,  the  principal  alone  may  or- 
dinarily sue. 

Second.  Cases  in  which  although  the  agent  acted  as  such,  and  in 
behalf  of  the  principal,  the  contract  was  made  in  the  agent's  own  name. 
Here,  as  will  be  presently  seen,  either  the  agent  or  the  principal  may 
ordinarily  sue  (sealed  and  negotiable  instruments  ordinarily  excepted) 
though  the  principal's  right  to  sue  is  usually  paramount. 

Third.  Cases  in  which  the  agent  in  the  given  case  did  not  act  as 
agent  at  all,  but  as  principal.  Here  he  is  the  only  party  to  the  contract 
on  his  side  and  he  only  and  not  the  principal  may  sue. 

Fourth.  Cases  in  which  the  principal  has  attempted  to  vest  the  agent 
with  a  power  to  sue,  irrespective  of  how  the  right  of  action  arose. 

Each  of  these  cases  may  justify  consideration. 

§  2023.  Agent  may  sue  when  principal  has  clothed  him  with  title 
or  authority  for  that  purpose. — In  the  first  place  it  may  be  noticed 
that  the  power  of  the  agent  to  sue  is  not  necessarily  confined  to  the 
cases  in  which  the  agent  was  originally  a  party  to  the  contract.  If 
the  principal,  having  contract  rights,  assign  the  contract  to  the  agent 
in  such  a  way  as  to  vest  in  him  'the  legal  title,2  in  a  state  wherein  the 
assignee  of  a  chose  in  action  may  sue  in  his  own  name;  or  if  the  prin- 
cipal, having  bonds  or  notes  or  other  negotiable  instruments,  endorse 

2  Where    a    judgment    paid    by    a  to  an  agent  for  collection.    Cottle  v. 

surety   is   assigned   to   an   agent  for  Cole,   20   Iowa,   481.     Where   an   ac- 

collection,  the  agent  is  the  real  party  count  is  assigned  for  collection  the 

in  interest  and  can  collect  the  judg-  assignee   can  sue  in  his  own   name 

ment.     Searing  v.  Berry,  58  Iowa,  20.  under  the  New  York  code.     Sheridan 

Likewise  where  one  in  whose  favor  v.  Mayor,  68  N.  Y.  30;  Contra:  Brown 

judgment  has  been  rendered  assigns  v.  Ginn,  66  Ohio  St  316. 

1590 


CHAP.  VI  ] 


LIABILITY  OF  THIRD   PERSONS  TO  AGENT 


[§    2023 


and  deliver  them  to  the  agent  so  as  to  vest  in  him  the  legal  title,3  the 
agent  may  sue  in  his  own  name.  The  test  of  the  sufficiency  of  the 
agent's  right  to  sue  in  such  cases  seems  to  be  whether  his  title  is  suffi- 
cient to  protect  the  other  party  in  responding  to  the  agent's  claim.4 
The  fact  that  the  agent's  recovery  is  to  be  for  the  benefit  of  the  princi- 
pal, and  that  therefore  the  principal  is  the  real  party  in  interest  would 
not  ordinarily  defeat  the  agent's  action,  under  the  ordinary  statutes  re- 
quiring the  action  to  be  brought  in  the  name  of  the  real  party  in  in- 
terest since  most  of  the  statutes  contain  exceptions  which  are  deemed 


3  The  cases  upon  the  subject  cannot 
all  be  reconciled.  In  Bell  v.  Tilden, 
16  Hun  (N.  Y.),  346,  where  a  draft 
endorsed  in  blank  to  the  principals 
was  sent  to  an  agent  for  collection  it 
was  held  that  this  did  not  pass  the 
legal  title  and  the  agent  could  not 
sue.  Iselin  v.  Rowlands,  30  Hun  (N. 
Y.),  488,  is  similar.  Hays  v.  Hat- 
horn,  74  N.  Y.  486,  held  that  mere 
possession  of  note  endorsed  in  blank 
was  not  sufficient  to  enable  agent  to 
sue.  He  must  have  the  right  of  pos- 
session, and  ordinarily  be  the  legal 
owner.  But  where  it  is  clear  that  the 
legal  title  has  passed  though  for  the 
purpose  of  collection,  the  agent  can 
sue.  Hunter  v.  Allen,  106  N.  Y.  App. 
Div.  557.  In  Leach  v.  Hill,  106  Iowa, 
171,  where  a  check  had  been  en- 
dorsed to  a  bank  and  a  guaranty 
made  by  third  persons  that  it  would 
be  paid,  the  cashier,  as  such,  was  al- 
lowed to  sue  upon  the  contract  under 
the  Iowa  code.  Note  endorsed  in 
blank  for  collection  passes  sufficient 
legal  title  to  enable  agent  to  sue. 
Boyd  v.  Corbitt,  37  Mich.  52;  O'Brien 
v.  Smith,  1  Black  (66  U.  S.),  99,  17 
L.  Ed.  64;  Abell  Note  Co.  v.  Hurd,  85 
Iowa,  559;  Second  Nat.  Bank  v.  Bank 
of  Alma,  99  Ark.  386;  White  v.  Stan- 
ley, 29  Ohio  St.  423;  Smith  v.  Bayer, 
46  Ore.  143,  114  Am.  St.  Rep.  858  (un- 
der a  statute) ;  Spofford  v.  Norton,  126 
Mass.  533;  Roberts  v.  Parrish,  17 
Ore.  583;  Wintermute  v.  Torrent,  83 
Mich.  555;  Brigham  v.  Gurney,  1 
Mich.  349;  Watkins  v.  Plummer,  93 
Mich.  215;  Benjamin  v.  Early,  123 
Mtch.  93;  Cummings  v.  Kohn,  12  Mo. 


App.  585;  Wilson  v.  Tolson,  79  Ga. 
137;  Mauron  v.  Lamb,  7  Cow.  174. 
Where  municipal  bonds,  transferable 
by  delivery,  are  handed  over  to  an 
agent  to  collect,  he  may  sue  in  his 
own  name.  Village  of  Kent  v.  Dana, 
100  Fed.  56;  Salmon  v.  Rural  Ind. 
School  Dist.,  125  Fed.  235. 

Where  the  paper  is  not  negotiable, 
the  rule  would  not  apply.  Mitchell  v. 
St.  Mary,  148  Ind.  111. 

It  seems  that  in  North  Carolina  a 
mere  transferee  for  collection  can  not 
sue.  Abrams  v.  Cureton,  74  N.  C. 
523;  Boykin  v.  Bank  of  Fayetteville, 
118  N.  C.  566;  Martin  v.  Mask,  158 
N.  C.  436,  41  L.  R.  A.  (N.  S.)  641. 

On  the  other  hand  in  Massachu- 
setts it  is  said:  "It  is  not  necessary 
that  the  plaintiff  in  a  suit  upon  a 
promissory  note  should  have  the  legal 
title  or  beneficial  interest  in  the  note, 
nor  indeed  that  he  should  have  any 
title  or  interest  in  it."  National  Pem- 
berton  Bank  v.  Porter,  125  Mass.  333, 
28  Am.  Rep.  235. 

A  bank  to  which  a  draft  with  bill 
of  lading  attached  has  been  made 
payable  for  collection,  may  sue  in  its 
own  name  its  correspondent  bank  for 
the  latter's  default  which  causes  lia- 
bility on  part  of  plaintiff  bank  to  the 
owner  of  the  draft.  Second  Nat. 
Bank  v.  Bank  of  Alma,  99  Ark.  386. 

*  In  Sheridan  v.  Mayor,  68  N.  Y.  30, 
supra,  the  court  said:  "It  is  enough 
if  the  plaintiff  has  the  legal  title  to 
the  demand,  and  the  defendant  would 
be  protected  in  a  payment  to  or  re- 
covery by  the  assignee."  Same  state- 
ment in  Hunter  v.  Allen,  supra. 


1591 


§    2O24]  THE   LAW  OF  AGENCY  (BOOK    IV 

to  cover  such  a  case.5  A  mere  agent  for  collection,  however,  not  hav- 
ing been  vested  with  the  legal  title,  would  have  no  right  to  sue  in  a 
state  wherein  the  action  must  be  in  the  name  of  the  real  party  in  in- 
terest.6 

It  has,  nevertheless,  been  held  in  several  cases, — statutes  requiring 
action  by  the  real  party  in  interest  not  being  involved — that  the  prin- 
cipal may  confer  authority  upon  an  agent  to  sue  for  and  recover  claims 
belonging  to  the  principal  in  the  agent's  own  name.7 

§  2024.  Agent  may  sue  on  contract  made  with  him  personally. — 
Where  the  contract  is  made  with  the  agent  as  such  but  in  such  form 
as  to  appear  to  be  made  with  him  personally,  whether  as  a  result  of  an 
omission  to  disclose  the  fact  of  the  agency  or  the  name  of  the  princi- 
pal, or  of  a  failure  to  use  apt  and  sufficient  language  to  bind  the  princi- 
pal, the  agent  is,  as  has  been  seen,  personally  liable  upon  the  contract, 
even  though  the  principal  also  may  in  many  cases  be  liable  upon  it. 
And  this  obligation  is  reciprocal, — the  other  party  is  bound  to  the 
agent,  and  in  the  latter  vests  a  legal  interest  in  the  contract,  and,  con- 
sequently, a  right  of  action  upon  it,  though  his  recovery  is,  of  course, 
ordinarily  for  the  benefit  of  his  principal.  It  is,  therefore,  a  general 
rule  that  where  a  contract,  whether  written  or  unwritten,  entered  into 
on  account  of  the  principal,  is,  in  its  terms,  made  with  the  agent  per- 

' 

s  See  Cottle  v.  Cole,  20  Iowa,  481;  In  his  own  name  would  have  the 
Village  of  Kent  v.  Dana,  100  Fed.  56;  same  effect  as  res  adjudicate,  as 
Leach  v.  Hill,  106  Iowa,  171:  Abell  though  the  action  had  been  brought 
Note  Co.  v.  Kurd,  85  Iowa,  559;  Sal-  in  the  name  of  the  principal.  In 
mon  v.  Rural  Ind.  School  Dist.,  and  Frazier  v.  Willcox,  4  Rob.  (La.)  517, 
other  cases,  supra.  the  same  holding  was  made.  The 

Some  of  the  cases  hold  that  the  one  court  said :  "A  power  to  sue,  to  col- 
who  has  the  legal  title  is  for  this  lect  a  debt,  to  give  an  acquittance, 
purpose  the  real  party  in  interest;  may  be  deputed,  an  and  action  may 
others  treat  him  as  the  trustee  of  an  be  maintained  in  the  name  of  the 
express  trust  within  that  exception.  agent  as  well  as  in  that  of  the  prin- 

«  See  Bell  v.  Tilden;  Iselin  v.  Row-  cipal  when  power  is  given  to  that  ef- 
lands;  Hays  v.  Hathorn,  supra;  feet.  The  debtor  will  be  protected  if 
Barkley  v.  Wolfskehl,  25  N.  Y.  Misc.  the  power  to  receive  is  sufficient." 
420;  Brown  v.  Ginn,  66  Ohio  St.  316.  In  Varney  v.  Hawes,  68  Me.  442,  the 

7  In  Eggleston  v.  Coif  ax,  4  Martin  court  said :  "We  know  of  no  rule  of 
(La.),  N.  S.  481,  an  agent  authorized  law  which  prohibits  a  man  from 
to  collect  a  claim  due  to  his  principal  mortgaging  to  an  agent  in  order  to 
was  held  entitled  under  the  power  of  procure  credit  from  his  principal,  or 
attorney  filed  with  the  petition,  but  which  should  prevent  the  agent  to 
not  given  in  the  report,  to  maintain  whom  such  mortgage  was  given  from 
an  action  in  his  own  name.  The  enforcing  the  same  as  the  trustee  of 
court  held  there  was  no  objection  to  his  principal."  To  same  effect:  Close 
his  maintaining  the  action  in  his  ca-  v.  Hodges,  44  Minn.  204. 
pacity  as  agent,  and  that  a  judgment 

1592 


CHAP.  Vl] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2025 


sonally,  the  agent  may  sue  upon  it  at  law.8  At  the  same  time,  as  will 
be  seen  hereafter,  by  what  are,  in  many  cases,  wholly  anomalous  rules, 
the  principal  (who  is  the  real  party  in  interest  although  not  named  as 
such)  has  also  a  right  of  action  upon  the  contract  which  usually  is  par- 
amount to  that  of  the  agent,  so  that  if  the  principal  sues  the  agent  may 
not. 

The  cause  of  action  is  alternative  and  not  joint,  and  it  is  therefore 
not  ordinarily  proper  for  the  principal  and  agent  to  join  as  plaintiffs.9 

§  2025.  Undisclosed  principal. — This  rule  is  of  frequent 

application  in  the  case  of  the  agent  of  an  undisclosed  principal.10  In 


s  Fisher  v.  Marsh,  6  B.  &  S.  411; 
Kennedy  v.  Gouveia,  3  Dowl.  &  R. 
503;  Parker  v.  Winlow,  7  El.  &  Bl. 
942;  Button  v.  Marsh,  L.  R.  6  Q.  B. 
361;  Grisby  v.  Nance,  3  Ala.  347;  Bird 
v.  Daniel,  9  Ala.  302;  Goodman  v. 
Walker,  30  Ala.  482,  68  Am.  Dec.  134; 
Shelby  v.  Burrow,  76  Ark.  558,  6  Ann. 
Cas.  554,  1  L.  R.  A.  (N.  S.)  303;  Pot- 
ter v.  Yale  College,  8  Conn.  51;  Sharp 
v.  Jones,  18  Ind.  314,  81  Am.  Dec.  359; 
Brown  v.  Sharkey,  93  Iowa,  157; 
United  States  Tel.  Co.  v.  Gildersleve, 
29  Md.  232,  96  Am.  Dec.  519;  Colburn 
v.  Phillips,  13  Gray  (Mass.),  64;  Buf- 
fum  v.  Chadwick,  8  Mass.  103;  Bor- 
rowscale  v.  Boswarth,  99  Mass.  378; 
Van  Staphorst  v.  Pearce,  4  Mass. 
258;  Harp  v.  Osgood,  2  Hill  (N.  Y.), 
216;  Ludwig  v.  Gillespie,  105  N.  Y. 
653;  Alsop  v.  Caines,  10  Johns.  (N. 
Y.)  396;  Albany  &  Rensselaer  Co.  v. 
Lundberg,  121  U.  S.  451,  30  L.  Ed. 
982;  Doe  v.  Thompson,  22  N.  H.  217. 

In  Rowe  v.  Rand,  111  Ind.  206, 
Niblack,  J.,  lays  down  the  rule  as  fol- 
lows: "An  agent  may  sue  in  his  own 
name:  First,  When  the  contract  is  in 
writing,  and  is  expressly  made  with 
him,  although  he  may  have  been 
known  to  act  as  agent.  Secondly, 
When  the  agent  is  the  only  known 
or  ostensible  principal  and  is,  there- 
fore, in  contemplation  of  law  the  real 
contracting  party.  Thirdly,  When,  by 
the  usage  of  trade,  he  is  authorized  to 
act  as  owner  or  as  a  principal  con- 
tracting party,  notwithstanding  his 
well  known  position  as  agent  only. 
But  this  right  of  an  agent  to  bring 


an  action,  in  certain  cases  in  his  own 
name,  is  subordinate  to  the  rights  of 
the  principal,  who  may,  unless  in 
particular  cases,  where  the  agent  has 
a  lien  or  some  other  vested  right, 
bring  suit  himself,  and  thus  suspend 
or  extinguish  the  right  of  the  agent." 

In  Short  v.  Spackman,  2  B.  &  Ad. 
962,  the  plaintiffs,  brokers,  bought 
goods  of  defendant,  on  account  of  and 
by  the  authority  of  H.  The  purchase 
was  made  in  their  own  names,  but  the 
defendant  was  notified  that  there  was 
an  unnamed  principal.  The  plaintiffs 
afterwards,  under  a  general  authority 
from  H,  contracted  in  their  own 
names  for  a  resale  of  the  goods.  H 
repudiated  the  whole  tranasction,  in 
which  plaintiffs  acquiesced.  Held, 
H's  repudiation  was  no  objection  to 
plaintiff's  recovery  for  the  damages 
sustained  by  not  being  able  to  carry 
out  their  contract  of  resale. 

In  Equity.  —  Under  the  general 
equitable  rule  that  actions  shall  be 
prosecuted  by  the  real  parties  in  in- 
terest, a  mere  agent  having  only  a 
legal  interest,  could  not  sue.  See 
Fry  on  Specific  Performance,  §  264; 
Morton  v.  Stone,  39  Minn.  275.  Other- 
wise, where  he  has  a  beneficial  inter- 
est. Hills  v.  McMunn,  232  111.  488. 
See  also,  Thweatt  v.  Jones,  30  C.  C. 
A.  636,  87  Fed.  268. 

9  Stephens  v.  First  Nat.  Bank,  

Tex.  Civ.  App. ,  146  S.  W.  620;  Ab- 
bott v.  Atlantic  Refining  Co.,  4  Ont. 
L.  R.  701. 

10  Sims  v.   Bond,   5   B.   &  Ad.  389; 
Lapham  v.  Green,  9  Vt.  407;  Colburn 


§§    2O26,2O27]  THE   LAW  OF  AGENCY  [iJOOK    IV 

1833,  Denman,  C.  J.,  said :  "It  is  a  well  established  rule  of  law  that 
where  a  contract,  not  under  seal,  is  made  with  an  agent  in  his  own 
name  for  an  undisclosed  principal,  either  the  agent  or  the  principal 
may  sue  upon  it."  "  In  such  a  case  the  agent  is  the  ostensible  party  to 
the  contract ;  the  other  party  may  hold  him  liable  upon  it,  although,  as 
has  been  seen,  the  principal  may  also  usually  be  held  liable  when  dis- 
covered ;  and,  as  such  ostensible  party,  the  agent  may  enforce  the  con- 
tract, subject  in  most  cases,  as  will  be  seen,  to  a  paramount  right  in  the 
principal  to  enforce  it  himself  if  he  so  prefers. 

§  2026.  Disclosed  principal. — But  the  rule  may  also  ap- 
ply although  both  the  fact  of  the  agency  and  the  name  of  the  principal 
were  disclosed.  If  the  fact  that  the  agent  acts  as  such  appears,  but  the 
name  of  the  principal  does  not  appear,  the  action  as  has  been  seen  may 
be  sustained  in  the  name  of  the  agent  as  the  only  party  disclosed  to 
whom  the  promise  is  made.12  And  so,  although  the  name  of  the  prin- 
cipal appears,  this  fact  is  not  conclusive  of  the  absence  of  the  agent's 
power  to  sue.  The  contract  may  nevertheless  in  legal  effect  be  one  in 
terms  with  the  agent.  The  question  here,  as  in  the  cases  that  have  been 
considered,  is,  are  the  words  used  in  respect  to  the  principal  descriptive 
of  the  agent  merely,  or  do  they  declare  that  the  promise  runs  to  the 
principal  directly.13 

The  contract  in  these  cases  having,  by  the  hypothesis,  been  made  by 
the  .agent  as  such,  the  principal  will  also  ordinarily  have  a  right  to  sue, 
which  is  paramount  to  that  of  the  agent. 

§  2027.  When  agent  only  can  sue. — But  where  the  effect  of  the 
transaction  is  such  that  the  contract  is  made  with  the  agent  not  as  agent 

v.  Phillips,  13  Gray  (Mass.)    64  (cit-  "Clap  v.  Day,  2  Greenl.  (Me.)  305, 

ing  many  cases) ;    Buffington  v.  Me-  11  Am.  Dec.  99;  Cocke  v.  Dickens,  4 

Nally,  192  Mass.  198;  Alsop  v.  Caines,  Yerger    (12  Tenn.),  29,  26  Am.  Dec. 

10    Johns.    (N.    Y.)   396;   Ludwig    v.  214;   Buffum    v.    Chadwick,    8    Mass. 

Gillespie,  105  N.  Y.  653;  Gray  v.  Pub.  103. 

Co.,  2    N.    Y.    Misc.    260;    Manett    v.  An  equitable  action  for  specific  per- 

Simpson,     61     Hun     (N.    Y.),     620;  formance  of  the  contract  cannot  be 

United  States  Tel.  Co.  v.  Gildersleve,  maintained  by  the  agent.     Morton  v. 

29  Md.  232,  96  Am.  Dec.  519;    Stock-  Stone,  39  Minn.  275,  except  where  he 

barger  v.  Sain,  69  111.  App.  436;  Hew-  has    a    beneficial    interest.      Hills  v. 

itt  v.  Torson,  124  111.  App.  375;  Stew-  McMunn,  232  111.  488. 

art  v.   Gregory,  9   N.   Dak.   618;    Na-  is  See  Considerant  v.  Brisbane,  22 

tional  Bank  v.  Molting,  94  Va.  263;  N.  Y.  389;  Albany  &  Rensselaer  Co.  v. 

Neal  v.  Andrews  (Tex.  Civ.  App.),  60  Lundberg,  121  U.    S.   451,   30  L.  Ed. 

S.  W.  459.  892,  and  cases  cited;    Leach  v.  Hill, 

In  Simmons  v.  Wittmann,  113  Mo.  106   Iowa,  171.     But  a  mere  broker 

App.  357,  the  court  put  the  decision  contracting  for  a  disclosed  principal 

on  both  common  law  and  statute.  cannot  sue  upon  the  contract.   Fairlie 

11  In  Sims  v.  Bond,  supra.  v.  Fenton,  L.  R.  5  Ex.  169. 

1594 


CHAP.  VI] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2028 


but  as  principal  and  as  the  only  principal,  there  the  agent  alone  may 
sue.13a 

So,  though  the  name  of  a  principal  may  have  been  disclosed,  but 
such  principal  is,  by  reason  of  legal  incapacity,  legal  nonexistence,  and 
the  like,  unable  to  sue,  the  action  may  be  maintained  by  the  agent 
whenever  he  can  be  deemed  to  be  a  party  to  the  contract. 

Actions  upon  sealed  and  negotiable  instruments  must  also,  as  will  be 
seen,  be  brought  in  the  name  of  the  agent. 

§  2028.  Statutes  requiring  suit  by  real  party  in  interest. 

— The  agent's  right  to  sue  in  these  cases  is  not  usually  defeated  by  the 
statutory  provisions  found  in  many  of  the  states  that  actions  shall  be 
brought  in  the  name  of  the  real  party  in  interest ;  since  these  statutes 
either  contain  express  exceptions,  or,  under  the  right  of  a  trustee  of 
an  express  trust  to  sue,  provide  such  comprehensive  definitions  of  such 
a  trustee  as  to  include  an  agent  who  has  made  a  contract  for  his  prin- 
cipal.14 

' 

isaElbinger  Actien-Gesellschaft  v.  Close  v.  Hodges,  44  Minn.  204;  Hud- 
Claye,  L.  R.  8  Q.  B.  313. 

i*  The  'New  York  statute  provides 
as  follows:  "Every  action  must  be 
prosecuted  in  the  name  of  the  real 
party  in  interest.  ...  A  trustee 
of  an  express  trust  .  .  .  may  sue 
without  joining  with  him  the  person 
for  whose  benefit  the  action  is 
brought.  A  person  with  whom,  or 
for  whom,  or  in  whose  name  a  con- 
tract is  made  for  the  benefit  of  an- 
other, is  a  trustee  of  an  express  trust, 
within  the  meaning  of  this  section." 
The  statutes  in  the  other  states  are 
substantially  similar.  Under  these 
statutes  it  is  held  that  the  agent  may 
sue.  Hollingsworth  v.  Moulton,  53 
Hun,  91;  Coffin  v.  Grand  Rapids  Co., 
61  N.  Y.  Super.  Ct.  51;  Gray  v.  Jour- 
nal of  Finance  Pub.  Co.,  2  Misc.  260; 
Melcher  v.  Kreiser,  28  N.  Y.  App.  Div. 
362;  Schipper  v.  Milton,  51  N.  Y.  App. 
Div.  522;  Crouch  v.  Wagner,  63  N.  Y. 
App.  Div.  526;  Considerant  v.  Bris- 
bane, 22  N.  Y.  389;  Simons  v.  Witt- 
mann,  113  Mo.  App.  357;  Still- 
well  v.  Hamm,  97  Mo.  579;  Wolfe 
v.  Mo.  Pac.  Ry.  Co.,  97  Mo.  473, 
10  Am.  St.  Rep.  331,  3  L.  R.  A.  539; 
Simon  v.  Trummer,  57  Ore.  153; 
Cremer  v.  Wimmer,  40  Minn.  511;  ' 


son  v.  Archer,  4  S.  D.  128;  Brannon 
v.  White  Lake  Tp.,  17  S.  D.  83;  Abell 
Note  Co.  v.  Kurd,  85  Iowa,  559; 
Owen  v.  Harriott,  47  Ind.  App.  359; 
Faust  v.  Goodnow,  4  Colo.  App.  352; 
Jenkins  v.  Wilkinson,  113  N.  C.  532; 
McLaughlin  v.  First  Nat.  Bank,  6 
Dak.  406;  Braithwaite  v.  Power,  1 
N.  D.  455.  The  rule  in  the  federal 
courts  is  the  same  as  in  the  state 
where  the  statute  prevails.  Albany 
&  Rensselaer  Co.  v.  Lundberg,  121  U. 
S.  451,  30  L.  Ed.  982.  In  the  follow- 
ing cases  the  court  rested  its  decision 
both  on  the  common  law  and  on  the 
statute.  McLaughlin  v.  First  Nat. 
Bk.  of  Deadwood,  6  Dak.  406;  Con- 
siderant v.  Brisbane,  22  N.  Y.  389; 
Melcher  v.  Kreiser,  28  N.  Y.  App.  Div. 
362.  In  Ward  v.  Ryba,  58  Kan.  741, 
it  was  held  that  such  a  statute  did 
not  authorize  an  action  of  replevin 
by  an  agent  in  his  own  name,  to  re- 
cover possession  of  his  principal's 
goods  taken  from  his  possession, 
there  being  no  allegation  of  any  spe- 
cial interest  or  right  to  possession  in 
the  agent. 

Under  the  Idaho  statute,  see  Law- 
yer v.  Post,  47  C.  C.  A.  491,  109  Fed. 
512. 


1595 


§§    2029,  2030]  THE   LAW   OF   AGENCY  [BOOK    IV 

§  2029.  Assignees  of  bankrupt  agent. — Where,  though 

the  contract  was  made  in  his  name  so  that  he  may  sue  upon  it,  the 
agent  has  no  beneficial  interest  of  his  own  in  the  subject  matter,  his 
right  to  sue  does  not,  upon  his  bankruptcy,  pass  to  his  assignees,  and 
the  agent  may  still  sue  in  his  own  name.15 

§  2030.  Illustrations  of  rule  permitting  agent  to  sue. — These 
principles  under  which  the  agent  is  permitted  to  sue  are  of  frequent 
application  to  the  case  of  commercial  paper.  Thus  upon  a  note  or  bill 
payable  to  "A.  B.,  agent,"  or  to  "A.  B.,  agent  of  C.  D.,".  or  to  "A.  B., 
trustee,"  or  to  "A.  B.,  executor,"  etc.,  that  is  to  say  where  the  promise, 
under  established  rules,18  is  deemed  to  be  made  to  A.  B.  personally, 
that  which  follows  his  name  being  regarded  as  mere  descriptio  per- 
sona or  to  "A.  B.,  for  the  use  of  C.  D.,"  the  action  may  be  maintained 
in  the  name  of  A.  B.17 

The  same  rule  applies  to  a  promise  made  to  "A.  B.,  cashier,"  or  "A. 
B.,  president  of  C.  D.  Company."  In  such  cases  the  action  may  be 
brought  in  the  name  of  the  officer,  although  it  is  now  generally  held 
that  the  corporation  also  may  sue.18 

But  where  the  promise  is  made  to  the  "agent  of  C.  D.,"  or  the  "cash- 
ier of  the  E.  Bank,"  or  to  the  "treasurer  of  the  F.  Co.,"  and  the  like, 
the  name  of  the  agent  or  officer  not  being  disclosed,  it  is  usually  re- 
garded as  made  to  the  principal  directly.19 

In  the  case  of  banks,  at  least,  it  is  also  usually  so  regarded  although 

the  officer's  name  appears,  followed  by  his  official  title. 
• 

. 
Tn  North  Carolina,  in  order  to  be      v.  Laffan,  2  Spears   (S.  C.),  424,  42 

regarded  as  the  trustee  of  an  express  Am.  Dec.  376;  Alston  v.  Heartman,  2 

trust,  the  agent  must  show  that  the  Ala.  699;  Luster  v.  Robinson,  76  Ark. 

contract  was  made  in  his  name,  by  255;  Horah    v.    Long,  4    Dev.   &  Bat. 

the  authority   of   the   principal,   and  (N.  C.)  274,  34  Am.  Dec.  378. 

for  the  benefit  of  the  latter.     Martin  is  Pairfield     v.     Adams,     16     Pick. 

v.  Mask,  158  N.  C.  436,  41  L.  R.  A.  (Mass.)    381;    Johnson   v.   Catlin,   27 

(N.  S.)  641.  Vt.  87,  62  Am.  Dec.  622.  That  princi- 

15  Rhoades  v.  Blackiston,  106  Mass.  pal  also  may  sue,  see  Baldwin  v. 

334,  8  Am.  Rep.  332.  Bank  of  Newbury,  1  Wall.  (U.  S.) 

is  See  ante,  §  1145.  234,  17  L.  Ed.  534;  First  Nat.  Bank 

IT  Clap  v.  Day,  2  Greenl.  (Me.)  305,  v.  Hall,  44  N.  Y.  395,  4  Am.  Rep.  698; 

11  Am.  Dec.  99;  Buffum  v.  Chadwick,  Garton  v.  Union  City  Bank,  34  Mich. 

8  Mass.  103;   Goodman  v.  Walker,  30  279;     Barney    v.    Newcomb,  9    Gush. 

Ala.  482,  68  Am.  Dec.  134;   Pierce  v.  (Mass.)   46;   Rutland,  etc.,  R.  R.  Co. 

Robie,  39  Me.  205,  63  Am.  Dec.  614;  v.  Cole,  24  Vt.  33. 

Rutland,  etc.,  R.  R.  Co.   v.   Cole,   24  is  Commercial  Bank  v.  French,  21 

Vt    33;    Cocke   v.    Dickens,    4   Yerg.  Pick.   (Mass.)   486,  32  Am.  Dec.  280; 

(Tenn.)    29,   26   Am.   Dec.   214;    Van  Ewing  v.  Medlock,  5  Port.  (Ala.)  82; 

Staphorst    v.    Pearce,    4    Mass.    258;  Alston  v.  Heartman,  2  Ala.  699;  Har- 

Shepherd  v.  Evans,  9  Ind.  260;  Rose  .per  v.  Ragan,   2   Blackf.    (Ind.)    39; 

1596 


CHAP.  Vl] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2031 


§  2031.  Further  illustrations. — So  where  an  agent  carries 

on  business  for  his  principal  and  appears  to  be  the  proprietor  and  sells 
goods  as  the  apparent  owner,  he  can  sustain  an  action  in  his  own  name 
for  the  price.20  And  where  the  principal  carries  on  business  in  the 
name  of  the  agent,  actions  may  be  sustained  in  the  name  of  the  agent 
upon  contracts  made  to  him  in  that  name.21  So  where  an  agent  ships 
goods,  taking  the  bill  of  lading  in  his  own  name,  he  may  sue  upon  the 
contract  of  carriage  for  damages  arising  from  a  breach  of  it.22  So  one 
who  describes  himself  as  agent,  acting  for  a  named  principal,  but  who 
personally  makes  the  covenants,  may  maintain  an  action  in  his  own 
name  against  the  other  party  upon  the  covenants.23  And  a  broker  may 
in  his  own  name  maintain  an  action  against  a  telegraph  company  for 
a  breach  of  contract  to  transmit  an  order,  made  in  his  own  name, 
though  on  behalf  of  his  principal,  for  the  purchase  or  sale  of  goods ; 24 
an  agent  who,  having  sold  his  principal's  land,  remits  the  money  by 
express,  under  a  contract  made  in  his  own  name,  may  maintain  an  ac- 
tion against  the  express  company  for  a  loss  of  the  money  through  its 


Crawford  v.  Dean,  6  Id.  181;  Vermont 
Central  R.  R.  Co.  v.  Clayes,  21  Vt.  30; 
Pigott  v.  Thompson,  3  Bos.  &  P.  147. 

20  Gardiner  v.   Davis,   2  Car.  &  P. 
49;  Dancer  v.  Hastings,  4  Bing.  2. 

21  Alsop   v.   Caines,   10   Johns.    (N. 
Y.)    396. 

22  Dunlap   v.   Lambert,   6   Cl.   &  P. 
600;    Joseph  v.  Knox,   3  Camp.   320; 
Blanchard  v.  Page,   8  Gray    (Mass.), 
281;  Hooper  v.  Chicago,  etc.,  Ry.  Co., 
27  Wis.  81,  9  Am.  Rep.   439;    South- 
ern Express  Co.  v.  Craft,  49  Miss.  480, 
19  Am.  Rep.  4;  Finn  v.  Western  R.  R. 
Co.,  112  Mass.  524,  17  Am.  Rep.  128; 
Carter  v.   Sou.   Ry.   Co.,   Ill   Ga.   38, 
50  L.  R.  A.  354;    Richmond,  etc.,  D. 
R.  Co.  v.  Bedell,  88  Ga.  591;  St.  Louis, 
etc.,  Ry.  Co.  v.  Cumbie,  101  Ark.  172; 
Cantwell   v.    Pacific    Express   Co.,    58 
Ark.  487.     An  agent  who  has  made 
a  contract  in  his  own  name  for  the 
receipt  of  goods  and  their  shipment 
from  a  certain  place  and  with  whom 
the  carrier  has  dealt  as  owner  may 
maintain  an  action  against  the  car- 
rier upon  the  contract.    Georgia  S.  & 
F.  Ry.  Co.  v.  Marchman,  121  Ga.  235. 


But  a  mere  agent  of  the  consignee, 
not  a  party  to  the  contract,  cannot 
sue.  Thompson  v.  Fargo,  49  N.  Y. 
188,  10  Am.  Rep.  342;  Krulder  v. 
Ellison,  47  N.  Y.  36,  7  Am.  Rep.  402. 

23  Potts  v.  Rider,  3  Ohio   70.  17  Am. 
Dec.  581.    This  was  an  action  of  cov- 
enant.    Upon  a  written  but  unsealed 
contract  made  between  "Gustaf  Lund- 
berg,  agent  for  N.  M.  Hoglund's  Sons 
&  Co.,"  and  "Albany  and  Rensselaer 
Iron    &    Steel    Co.,"    signed    "Gustaf 
Lundberg,"   "Albany  and   Rensselaer 
Iron  &  Steel  Co.,"  Lundberg  may  sue 
in  his  own  name,  at  least  under  the 
New  York  code.   Albany  &  Rensselaer 
Co.  v.  Lundberg,  121  U.  S.  451,  30  L. 
Ed.  982;    (citing  Kennedy  v.  Gouveia, 
3  D.  &  R.  503;    Parker  v.  Winlow,  7 
E.  &  B.  942;    Dutton  v.  Marsh,  L.  R. 
6  Q.  B.  361;    Buffum  v.  Chadwick,  8 
Mass.  103;    Packard  v.  Nye,  2  Mete. 
(Mass.)    47;    distinguishing  Gadd    v. 
Houghton,  1  Ex.  Div.  357;   and  Oel- 
ricks  v.  Ford,  23  How.  (U.  S.)  49,  16 
L.  Ed.  534.] 

24  United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md.  232,  96  Am.  Dec.  519. 


1597 


§2032] 


THE  LAW  OF  AGENCY 


[BOOK   IV 


negligence ; 2B  and  one  who  has  insured  property  as  agent  may  sue  in 
his  own  name  to  recover  upon  the  policies.26 

§  2032.  Further   illustrations. — An    agent   who   sells   his 

principal's  goods,  not  merely  as  agent  but  in  his  own  name  as  prin- 
cipal, may  sue  the  purchaser  for  the  price,27  or  for  refusing  to  per- 
form the  contract.28  Upon  a  contract  for  the  shipment  of  goods  made 
by  the  agent  in  his  own  name,  the  agent  may  sue  to  recover  dam- 
ages for  the  carrier's  failure  to  carry  the  goods  at  the  agreed  rate.29 
An  agent  who  has  in  his  own  name  leased  land  for  his  principal  may 
sue  to  recover  the  rent  reserved.30  An  agent  who  has  performed 
services  for  another,  e.  g.  the  threshing  of  grain,  in  pursuance  of  a 
contract  made  in  his  own  name,  may  sue  to  recover  the  agreed  com- 
pensation.81 An  agent  entrusted  with  the  control  and  management 
of  money  for  the  purpose  of  loaning  it  and  who  has  made  a  loan 
and  taken  securities  in  his  own  name,  may  sue  in  his  own  name  to 
recover  the  money  and  enforce  the  securities.32  An  agent  who  has 

25  Snider  v.  Adams  Express  Co.,  77 
Mo.  523.     The  court  said  he  was  a 
trustee  under  an  express  trust. 

26  The  Hamburg-Bremen   Fire   Ins. 
Co.  v.  Lewis,  4  App.  D.  C.  66;  Marine 
Ins.  Co.  v.  Walsh-Upstill  Coal  Co.,  23 
Ohio  Cir.   Ct.  R.  191;    Western,  etc., 
Pipe    Lines    v.    Home    Ins.    Co.,    145 
Pa.    346,  27  Am.    St.    Rep.    703;   Rob- 
erts  v.   Fireman's   Ins.   Co.,   165   Pa. 
55,  44  Am.  St.  Rep.  642;  Deitz  v.  Ins. 
Co:,  31  W.  Va.  851,  13  Am.  St.  Rep. 
909;    Murdock  v.  Ins.  Co.,  33  W.  Va. 
407,  7  L.  R.  A.  572;  Home  Ins.  Co.  v. 
Baltimore   Warehouse   Co.,   93   U.   S. 
527,   23    L.    Ed.    868;    California   Ins. 
Co.  v.  Union  Compress  Co.,  133  U.  S. 
387,  42  L.  Ed.  198;  Provincial  Ins.  Co. 
v.    Leduc,  L.   R.    6   Priv.  Coun.   224; 
Hagedorn  v.  Oliverson,  2  M.  &  S.  485. 
See  also,   Lloyds  v.   Harper,   16  Ch. 
Div.  290. 

Where  he  has  a  special  property  in 
the  goods,  he  has  a  sufficient  interest; 
but  even  where  he  has  not,  he  may 
recover  on  showing  the  principal's 
interest  and  that  the  contract  was 
made  for  him,  if  there  be  nothing  op- 
posed to  that  in  the  terms  of  the  pol- 
icy. Hamburg-Bremen  F.  Ins.  Co.  v. 
Lewis,  supra;  Deitz  v.  Insurance  Co., 
supra. 


27  Keown  v.  Vogel,  25  Mo.  App.  35; 
Stockbarger  v.  Sain,  69  111.  App.  436; 
Coggburn  v.  Simpson,  22  Mo.  351; 
Cunningham  v.  Bennett,  11  W.  Aus. 
L.  R.  133. 

Same  effect:  Owen  v.  Harriott,  47 
Ind.  App.  359,  where  husband  carry- 
ing on  business  as  wife's  agent,  and 
having  sold  goods  for  her  and  taken 
a  note  and  mortgage  in  his  own 
name,  was  held  to  be  entitled  to  sue 
in  his  own  name  to  collect  on  the 
note  and  mortgage. 

2s  Davis  v.  Harness,  38  Ohio  St. 
397;  Tustin  Fruit  Ass'n  v.  Earl  Fruit 
Co.  (Cal.),  53  Pac.  693. 

2»  Colburn  v.  Phillips,  13  Gray 
(Mass.),  64. 

30  Manette  v.  Simpson,  15  N.  Y. 
Supp.  448;  Spence  v.  Wilson,  102  Ga. 
762;  Stott  v.  Rutherford,  92  U.  S. 
107,  23  L.  Ed.  486;  or  bring  action  to 
recover  possession.  Bedford  v.  Kelly, 
61  Pa.  491;  or  sue  upon  an  injunction 
bond  running  to  him.  Simon  v. 
Trummer,  57  Ore.  153. 

si  Hewitt  v.  Torson,  124  111.  App. 
375. 

32  Dawson  v.  Burrus,  73  Ala.  111. 
They  are  trustees  of  an  express  trust. 


1598 


CHAP.  Vl] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2033 


deposited  his  principal's  money  in  a  bank  in  his  own  name  may  main- 
tain an  action  in  his  own  name  to  recover  it.33  And  an  agent  who  has 
made  a  contract  in  his  own  name  for  the  purchase  of  land  may  main- 
tain an  action  against  the  seller  to  recover  damages  for  his  refusal  to 
convey.34 

§  2033.  Agent  may  sue  when  he  has  a  beneficial  interest. — Mr. 
Chitty  lays  down  the  rule  35  which  has  often  been  cited,  that  "when 
an  agent  has  any  beneficial  interest  in  the  performance  of  the  contract, 
as  for  commission,  etc.,  or  a  special  property  or  interest  in  the  subject 
matter  of  the  agreement,  he  may  support  an  action  in  his  own  name 
upon  the  contract,36  as  in  the  case  of  a  factor  or  a  broker,37  or  a  ware- 
houseman or  carrier,38  an  auctioneer,39  a  policy  broker  whose  name  is 
on  the  policy,40  or  the  captain  of  a  ship  for  freight."  41  So  in  another 
English  book,42  in  which,  in  conformity  with  the  rule  of  the  preced- 
ing section,  it  is  laid  down  that  an  agent  may  sue  in  his  own  name  on 
contracts  made  by  him  on  behalf  of  his  principal,  where  the  agent  con- 
tracts personally,  an  additional  class  of  cases  is  also  mentioned  in  which 
the  agent  may  sue,  viz.,  "where,  as  in  the  case  of  factors  and  auction- 


ss  National  Bank  of  Va.  v.  Nolting, 
94  Va.  263;  Goodfellow  v.  First  Nat. 

Bank,  Wash.  ,  129  Pac.  90 

(trustee  of  an  express  trust). 

s*  Cremer  v.  Wimmer,  40  Minn.  511. 
Under  the  Minnesota  code,  if  he  is 
not  the  trustee  of  an  express  trust, 
he  is  a  person  with  whom  a  contract 
has  been  made  for  the  benefit  of  an- 
other. 

sal  Chitty  on  Pleading,  8  (16  Am. 
Ed.). 

ss  Citing  (in  the  Am.  Ed.)  Porter  v. 
Raymond,  53  N.  H.  519;  Treat  v. 
Stanton,  14  Conn.  445;  Barnes  v.  Ins. 
Co.,  45  N.  H.  21;  Underbill  v.  Gibson, 
2  N.  H.  352,  9  Am.  Dec.  82;  Tankers- 
ley  v.  Graham,  8  Ala.  196;  Butts  v. 
Collins,  13  Wend.  (N.  Y.)  139;  Col- 
burn  v.  Phillips,  13  Gray  (Mass.),  64; 
Borrowscale  v.  Bosworth,  99  Mass. 
378,  383. 

37  Citing  Grove  v.  Dubois,  1  T.  R. 
112;  Atkyns  v.  Amber,  2  Esp.  493; 
Williams  v.  Millington,  1  H.  Bl.  81; 
George  v.  Clagett,  7  T.  R.  359;  John- 
son v.  Hudson,  11  East,  180;  Sadler 
v.  Leigh,  4  Camp.  195:  Morris  v. 


Cleasby,  1  M.  &  S.  576;  Sailly  v. 
Cleveland,  10  Wend.  (N.  Y.)  156. 

ss  Citing  Lord  Ellenborough  in 
Martini  v.  Coles,  1  M.  &  S.  140. 

3»  Citing  Williams  v.  Millington,  1 
H.  Bl.  81;  Coppin  v.  Craig,  2  Marsh. 
501;  Farebrother  v.  Simmons,  5  B.  & 
Aid.  333;  Grice  v.  Kenrick,  L.  R.  5 
Q.  B.  340. 

*«  Citing  Park  on  Ins.  403;  Grove 
v.  Dubois,  1  T.  R.  112;  Hagedorn  v. 
Oliverson,  2  M.  &  S.  485;  Garrett  v. 
Handley,  4  B.  &  C.  664;  Gumming  v. 
Forester,  1  M.  &  S.  494;  Mellish  v. 
Bell,  15  East,  4;  Ward  v.  Wood,  13 
Mass.  539;  Lazarus  v.  Commonwealth 
Ins.  Co.,  5  Pick.  (Mass.)  76;  Farrow 
v.  Commonwealth  Ins.  Co.,  18  Id.  53, 
29  Am.  Dec.  564;  Rider  v.  Ocean  Ins. 
Co.,  20  Id.  259;  Williams  v.  Ocean 
Ins.  Co.,  2  Mete.  (Mass.)  303;  Somes 
v.  Equitable  Ins.  Co.,  12  Gray 
(Mass.),  531. 

41  Citing  Shields  v.  Davis,  6  Taunt. 
65;  Brown  v.  Hodgson,  4  Taunt.  189. 

12  Bowstead  on  Agency,  3  Ed.,  400- 
401. 


1599 


§  2034] 


THE   LAW  OF  AGENCY YT1 


[BOOK    IV 


eers,  he  has  a  special  property  in,  or  a  lien  upon  the  subject  matter  of 
the  contract,  or  has  a  beneficial  interest  in  the  completion  thereof." 

§  2034. What  meant  by  rule. — Just  how  much  is  meant 

by  the  rule  in  either  case  is  not  entirely  clear.  If  the  contract  has  been 
made  with  the  agent  personally,  he  needs  no  additional  reason  to  en- 
able him  to  sue.  No  case  has  been  found  which  holds  that  where  the 
contract  is  made  in  the  principal's  name,  the  agent  may  sue  upon  the 
contract  merely  because  he  has  an  interest  in  its  performance,  except 
perhaps  where  he  sues  because  of  the  loss  of  incidental  benefits  per- 
sonal to  himself.43  On  a  contract  made  for  his  benefit,  but  to  which  he 
was  not  a  party,  he  might  or  might  not  be  able  to  sue  according  to 
the  state  in  which  the  question  arose.  If  the  action  were  in  tort  a  spe- 
cial property  might  sustain  an  action,  but  the  question  here  involves 
actions  of  contract  only.  The  rule  might  very  well  mean  that,  in  de- 
termining whether  the  contract  was  made  with  the  principal  or  the 
agent,  under  the  doctrine  laid  down  in  section  2024,  above,  the  fact  that 
the  agent  had  an  interest  may  show  that  the  contract  was  made  with 
him ;  **  or  that  in  applying  the  rule  that  the  action  must  be  brought  in 


43  In  Bleecker  v.  Franklin,  2  E.  D. 
Smith  (N.  Y.),  93,  it  was  held  that 
where  the  terms  of  a  sale  made  by  an 
auctioneer  provided  that  his  fees 
shall  be  paid  to  him  by  the  pur- 
chaser, he  may  maintain  an  action 
f($r  th§rri  against  the  purchaser,  in 
his  own  name.  "This  was  a  promise 
made  exclusively  for  his  benefit.  He 
was  a  party  to  the  consideration,  in 
that  he  rendered  his  services  upon 
that  condition."  So,  in  Livermore  v. 
Crane,  26  Wash.  529,  57  L.  R.  A.  401, 
it  was  held  that  a  real  estate  broker, 
who,  in  pursuance  of  a  contract  made 
Moith  him,  by  a  prospective  purchaser 
to  buy,  procured  a  contract  of  sale  to 
be  entered  into  between  the  owner  of 
land  and  such  prospective  purchaser, 
may  maintain  an  action  for  damages 
against  the  purchaser  for  the  loss  of 
his  commissions  caused  by  the  lat- 
ter's  failure  to  carry  out  such  agree- 
ment, although  he  had  agreed  to  look 
to  the  vendor  for  his  commissions. 
The  cases  of  Cavender  v.  Wadding- 
ham,  2  Mo.  App.  551;  and  Atkinson 
v.  Pack,  114  N.  C.  597,  were  relied 
upon.  In  Evrit  v.  Bancroft,  22  Ohio 
State,  172,  plaintiff,  an  agent  to  sell 


his  principal's  farm  and  receive  as 
commission  all  money  over  a  certain 
price,  and  who  had  entered  into  a 
contract  in  his  own  name  with  de- 
fendant, to  sell  the  land  to  him  at  a 
profit,  was  not  allowed  to  recover  the 
amount  he  would  have  received  had 
defendant  performed.  "In  this  case 
it  appears  from  the  proof  that  the 
farm  was  of  greater  value  than  the 
contract  price;  hence  the  damages 
could  have  been  only  nominal  if  the 
principal  had  sued,  or  if  the  plaintiff 
had  owned  the  farm  he  contracted  to 
sell."  The  loss  of  plaintiff's  compen- 
sation under  his  contract  with  the 
owner  was  not  a  natural  and  proxi- 
mate result  of  the  breach  of  defend- 
ant's contract  with  plaintiff.  In  Tins- 
ley  v.  Dowell,  87  Tex.  23,  plaintiff, 
who  was  to  get  a  commission  from  his 
principal  out  of  the  purchase  price 
of  land,  was  not  allowed  to  recover 
against  the  purchaser  for  the  latter's 
breach  of  contract  to  purchase  from 
the  principal. 

*4  This  idea,  that  a  nominal  party 
may  become  the  real  party  by  reason 
of  some  special  interest,  seems  to  un- 
derlie many  of  the  cases.  Thus  in 


1600 


CHAP.  Vl] 


LIABILITY   OF   THIRD  PERSONS  TO  AGENT 


;§  2034 


the  name  of  the  real  party  in  interest,  the  fact  that  the  agent  has  an  in- 
terest would  enable  him  to  sue  where  an  agent  without  interest  might 
not  be  allowed  to  sue,  although  the  contract  was  nominally  made  with 
him.*5  In  practically  all  of  the  cases  in  which  this  rule  was  originally 
laid*  down,  the  contracts  had  either  been  made  in  the  agent's  name  or 
involved  the  dealings  of  an  agent  like  a  factor,  who  is  impliedly  au- 
thorized to  sell  in  his  own  name  and  is  therefore  given  the  right  to  re- 
cover the  price,  or  who  had  come  under  some  obligation  to  the  princi- 
pal, like  the  factor  who  sells  under  a  del  credere  commission  or  ,the 
auctioneer  who  has  given  credit  for  the  price  without  authority,  and 
who  is  given  the  right  of  action  for  the  price  in  order  that  he  may  re- 
coup himself.*6  All  these  cases  seem  in  fact  to  be  referable  to  the  rule 


Porter  v.  Raymond,  53  N.  H.  519,  526, 
the  court  says,  "The  authorities  seem 
uniform  that,  where  the  nominal 
promisee  is  an  agent  and  has  a  bene- 
ficial interest  in  the  performance  of 
the  contract  or  a  special  property  in 
the  subject-matter  of  the  agreement, 
the  legal  interest  and  right  of  action 
is  In  him." 

«  Thus,  for  example,  in  New  York, 
where  there  are  many  cases  holding 
that  a  mere  agent,  having  no  interest 
and  not  within  the  statute  as  the 
trustee  of  an  express  trust,  cannot 
sue  (see  Barkley  v.  Wolfskehl,  25 
Misc.  420;  Bell  v.  Tilden,  16  Hun, 
346;  Iselin  v.  Rowlands,  30  Hun,  488; 
Hays  v.  Hathorn,  74  N.  Y.  486),  it  is 
also  held  that  an  auctioneer  has  such 
a  special  property  or  interest  in  the 
subject-matter  of  the  sale  that  he 
may  sue  in  his  own  name.  Minturn 
v.  Main,  7  N.  Y.  220. 

4«  The  case  most  frequently  cited  to 
sustain  this  proposition  is  Williams 
v.  Millington,  1  H.  Bl.  81.  In  this 
case  the  plaintiff,  an  auctioneer,  had 
sold  goods  upon  the  premises  of  the 
owner,  who  was  described  as  such  in 
the  announcement  of  the  sale  and  the 
catalogue  of  the  goods.  The  defend- 
ant bought  certain  of  the  goods  and 
they  were  placed  in  his  cart.  De- 
fendant thereupon  put  into  the  hands 
of  the  plaintiff  a  sum  of  money  rep- 
resenting part  of  the  price  and  a  re- 
ceipt for  a  debt  which  he  claimed  the 


owner  owed  him  covering  the  rest  of 
the  price,  and  immediately  drove  off 
with  the  goods.  The  owner  refused 
to  recognize  the  receipt  as  part  payr 
ment  and  the  plaintiff  thereupon  paid 
him  the  amount  represented  by  it. 
Plaintiff  then  brought  this  action  of 
assumpsit  to  recover  from  the  de- 
fendant such  amount.  It  was  held 
that  the  action  might  be  maintained. 
Lord  Loughborough,  C.  J.,  put  the 
case  upon  the  ground,  "that  an  auc- 
tioneer has  a  possession  coupled  with 
an  interest  in  goods  which  he  is  em- 
ployed to  sell,  not  a  bare  custody  like 
a  servant  or  shopman.  There  is  no 
difference  whether  the  sale  be  on  the 
premises  of  the  owner  or  in  a  public 
auction  room;  for  on  the  premises  of 
the  owner,  an  actual  possession  is 
given  to  the  auctioneer  and  his  serv- 
ants, not  merely  an  authority  to  sell. 
I  have  said  a  possession  coupled  with 
an  interest;  but  an  auctioneer  has 
also  a  special  property  in  him  with 
a  lien  for  the  charges  of  the  sale,  the 
commission  and  the  auction  duty 
which  he  is  bound  to  pay.  In  the 
common  course  of  auctions  there  is 
no  delivery  without  actual  payment. 
If  it  be  otherwise  the  auctioneer 
gives  credit  to  the  vendee  entirely  at 
his  own  risk."  Heath,  J.,  said,  "the 
possession  is  in  the  auctioneer  and 
it  is  he  who  makes  the  contract;  if 
they  should  be  stolen  he  might  main- 
tain trespass  or  an  indictment  for 


IOI 


1601 


§  2035] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


already  given- which  permits  the  agent  to  sue  where  he  has  contracted 
personally. 

Nevertheless,  this  rule  is  constantly  repeated  in  the  books  and  a  ref- 
-erence  to  the  cases  which  have  been  wholly  or  partially  based  upon  it 
may  be  desirable.  -J>%bL 

§  2035.  What  interest  suffices. — Under  this  rule  it  has 

been  held  that  a  mere  interest  in  commissions  to  be  earned  in  case  the 
contract  made  between  his  principal  and  the  other  party  is  performed 
would  not,  of  itself,  be  sufficient,47  but  the  rule  must  be  limited  to  those 
cases  in  which  the  agent  has  a  lien  upon,  or  a  special  property  in,  the 
subject-matter.*8  In  pursuance  of  this  rule  it  has  been  held  that  cot- 
ton factors  who  have  sold  cotton  consigned  to  them  may,  in  their  own 
names,  recover  the  damages  resulting  from  a  breach  of  the  contract  by 


larceny;  he  therefore  has  a  special 
property  in  them,  which  is  all  that  is 
necessary  to  support  this  action." 
Wilson,  J.,  concurred  with  some  hesi- 
tation. He  said,  "I  think  the  verdict 
right  because  the  defendant  having 
contracted  with  the  plaintiff  for  the 
goods  shall  not  be  permitted  to  say 
that  the  plaintiff  had  no  right  to  con- 
tract." He  was  evidently  of  opinion 
that  the  contract  was  one  which 
might  be  regarded  as  having  been 
made  in  the  plaintiff's  name  and 
therefore  he  was  entitled  to  sue 
upon  it. 

In  Grove  v.  Dubois,  1  T.  R.  112,  the 
contract  of  insurance  was  made  in 
the  name  of  a  del  credere  broker.  In 
Atkyns  v.  Amber,  2  Esp.  493,  the 
plaintiff,  a  factor,  to  whom  timber 
had  been  given  to  sell  and  pay  a  debt 
due  him  from  principal,  was  allowed 
to  recover  on  a  contract  made  in  his 
name.  In  Williams  v.  Millington,  1 
H.  Bl.  81,  an  auctioneer  was  allowed 
to  recover  for  goods  sold  at  the  dis- 
closed principal's  house.  In  Johnson 
v.  Hudson,  11  East,  180,  a  factor  re- 
covered for  goods  sold.  It  does  not 
distinctly  appear  whether  he  was  the 
nominal  party.  In  Sadler  v.  Leigh,  4 
Camp.  195,  the  factor  was  the  nomi- 
nal party.  In  Morris  v.  Cleasby,  1  M. 
&  S.  576,  the  plaintiff  was  a  del 
credere  broker  with  an  undisclosed 
principal. 


In  Coghlan  v.  McKay,  8  Austr.  L.  R. 
155,  24  Austr.  L.  Times,  13,  it  was 
held  that  a  del  credere  agent  who  has 
sold  goods  on  credit  cannot  sue  the 
purchaser  either  for  goods  sold  and 
delivered,  or  for  money  paid  to  the 
purchaser's  use,  but  that  his  proper 
course  would  be  to  sue  in  the  name 
of  his  principal  for  goods  sold  and  de- 
livered. 

An  agent  who  sells  goods  on  com- 
mission and  guarantees  payment  on 
all  his  sales,  acquires  thereby  no 
interest  in  the  claim,  is  not  a  trustee 
of  an  express  trust,  and  cannot  sue 
in  his  own  name  for  the  price.  Chap- 
man v.  McLawhorn,  150  N.  C.  166. 

47  Fairlie   v.    Fenton,   L.   R.    5   Ex. 
169;    Tinsley   v.    Dowell,    87   Tex.    23 
(real   estate   broker,   who  has   nego- 
tiated a  sale  of  land  where  he  is  to 
receive  a  commission  and  a  share  of 
the  excess  above  a  certain  sum,  can- 
not recover    for    his    loss    from  the 
buyer  who   refuses   to   complete  the 
purchase     and     thus     prevents     the 
broker    from    earning    his    commis- 
sions);    San    Jacinto    Rice    Co.    v. 
Lockett   (Tex.  Civ.  App.),  145  S.  W. 
1046   (same  effect);    Chapman  v.  Mc- 
Lawhorn, 150  N.  Car.  166  (del  credere 
commission  agent  can  not  sue). 

48  United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md.  232,  96  Am.  Dec.  519. 


1602 


CHAP.  VI ] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2035 


the  buyer,  although  they  may  be  bound  to  pay  the  damages,  when  re- 
covered, to  their  consignors.  The  factors  "have  a  special  property  in 
the  cotton,"  and  "have  a  lien  upon  it  for  their  commissions,  which  com- 
missions attach  on  the  very  damages  they  may  recover,  and  would  be 
increased  thereby.'' 49  So  a  broker  may  sue  in  his  own  name  for  the 
breach  of  contract  to  transmit  a  telegraph  message  sent  by  him,  and 
directing  the  sale  of  property  of  his  principal,  in  which  the  broker  has 
a  special  interest  and  for  the  sale  of  which  he  is  entitled  to  a  commis- 
sion.50 And  agents,  e.  g.,  forwarding  merchants,  who  have  a  special  in- 
terest in  goods  by  reason  of  advances  made  for  freight  upon  them  and 
who  have  delivered  them  to  another  carrier  for  further  transportation,, 
may  maintain  an  action  in  their  own  names  against  the  latter  carrier  by 
whose  negligence  they  were  injured.51 

So  an  auctioneer,  by  virtue  of  his  lien  and  his  responsibility  to  his 
principal,  has  such  a  special  property  in  the  goods  or  other  personal 
property  sold  by  him  that  he  may  maintain  an  action  for  the  price, 
though  they  were  sold  as  the  goods  of  a  named  principal.52  A  fortiori 
is  this  true  where,  by  the  terms  of  the  sale,  the  purchase  price  is  to  be 
paid  to  him.53 


«  Groover  v.  Warfield,  50  Ga.  644. 

so  United  States  Tel.  Co.  v.  Gilder- 
sieve,  supra. 

si  Steamboat  Co.  v.  Atkins,  22  Pa. 
522.  To  the  same  effect  is  Wolfe  v. 
Mo.  Pac.  Ry.  Co.,  97  Mo.  473,  10  Am. 
St.  Rep.  331,  3  L.  R.  A.  539. 

52  Minturn    v.    Main,  7    N.    Y.    220 
(even  though  he  had  been  paid  his 
commissions  and  advances);  Hulse  v. 
Young,  16  Johns.  (N.  Y.)  1;  Seller  v. 
Block,  19  Ark.  566;   Robinson  v.  Rut- 
ter,  4  El.  &  Bl.  954. 

53  "in  case  of  real  estate,   he  can 
have   no   such   special  property,   and 
would  not  ordinarily  be  held  entitled 
to  receive  the  price."     But  when  the 
terms  of  the  sale  provide  for  the  pay- 
ment of  a  deposit  to  him  before  the 
delivery  of  the  deed,  "he  stands,  in 
relation  to  such  deposit,  in  the  same 
position  as  he  does  to  the  price  of 
personal  property  sold  and  delivered 
by    him."     Thompson    v.    Kelly,    101 
Mass.  291,  3  Am.  Rep.  353. 

In  Pinkham  v.  Benton,  62  N.  H. 
687,  plaintiff,  an  attorney,  had  sev- 
eral claims  in  his  hands  for  collec- 
tion and  among  these  claims  a  cer- 

1603 


tain  judgment.  He  had  made  ad- 
vances to  his  client  relying  upon  the 
collection  of  these  several  claims  for 
reimbursement.  In  this  situation  de- 
fendant applied  to  plaintiff  to  pur- 
chase the  judgment.  Plaintiff  replied 
that  he  must  obtain  his  client's  con- 
sent, and  having  done  so,  sold  the 
judgment  to  defendant.  No  formal 
conveyance  was  entered  into,  but  the 
plaintiff  charged  the  amount  upon  his 
books  to  the  defendant.  Defendant 
not  having  paid  any  one  for  the  judg- 
ment, plaintiff  brings  this  action  to 
recover  the  agreed  price.  It  was  held 
that  he  might  maintain  the  action. 
The  judgment  was  put  upon  two 
grounds,  viz.:  first,  that  the  defend- 
ant's promise  was  made  to  plaintiff 
personally  by  his  client's  consent; 
and  secondly,  that  "plaintiff  had  an 
interest  or  property  in  the  subject- 
matter  of  it."  If  he  had  such  an  in- 
terest or  property,  it  must  have  been 
by  virtue  of  some  general  lien  for  the 
balance  of  his  account,  or  a  special 
lien  upon  the  judgment  for  his  serv- 
ices in  procuring  it. 


§§    2036,2037]  THE   LAW   OF   AGENCY  .[BOOK    IV 

So  a  factor  has  such  a  special  property  as  will  enable  him  to  sue  for 
the  price  of  the  goods  he  sells."4  But  a  mere  broker,  who  has  ordinarily 
neither  possession  nor  special  property  and  who  has  no  other  interest 
than  a  right  to  commissions  in  case  the  contract  negotiated  by  him  is 
performed,  cannot  maintain  an  action,  as  has  already  been  seen.55 

§  2036.  The  agent  of  an  insurance  company,  through 

whom  a  policy  has  been  issued  to  a  third  person,  has  thereby  no  such 
interest  as  will  enable  him  to  sue  the  insured  for  the  premium.58  But 
where  the  agent  extends  a  credit  for  the  premium  to  the  insured,  and 
becomes  himself  liable  to  the  company  for  the  amount,  he  is  said  to 
be  subrogated  to  the  company's  right  to  the  premium  and  may  recover 
it  from  the  insured.57 

§  2037.  Although  agent  may  thus  sue  principal  may  usually  sue 
or  control  action.-— As  has  .already  been  suggested,  however,  the 
agent  is  not  the  only  party  who  may  maintain  the  action;  for,  as 
will  be  more  fully  seen  in  the  following  chapter,  it  is  a  well-settled 
rule  that  when  a  contract,  not  negotiable  or  under  seal,  is  made  by  an 
agent  for  his  principal,  even  though  the  latter  were  not  disclosed,  the 
principal  who  is  thus  the  real  party  in  interest,  and  who  may  be  held 
liable  upon  the  contract,  may  usually  sue  upon  it  instead  of  the  agent. 
And  this  right  of  the  principal  to  sue  upon  the  contract  ordinarily  takes 
precedence  over  that  of  the  agent ;  the  principal  being  always  at  liberty 
to  interfere  and  bring  the  action  in  his  own  name  to  the  exclusion  of 
the  agent's  right,58  except  where  the  agent,  by  lien  or  otherwise,  has 

"4  Graham    v.    Duckwall,    8    Bush  He  may,  of  course,  recover  where 

(Ky. ),    12;    Johnson    v.    Hudson,  11  he  pays  the  premium  at  the  request 

East,  180;   Beardsley  v.  Schmidt,  120  of  the  insured.     Cobb  v.  Keith,  110 

Wis.  405,  102  Am.  St.  Rep.  991;   For-  Ala.  614.          .(.*£ 

ter  v.  Schendel,  25  N.  Y.  Misc.  779;  But  a  merely  voluntary  payment  of 

Ladd  v.  Arkell,  37  N.  Y.  Super.  35.  the  premium  by  the  agent  without  re- 

es  Fairlie   v.   Fenton,   L.   R.   5   Ex.  quest  by  the  insured  and  without  ob- 

169;  White  v.  Chouteau,  10  Barb.  (N.  ligation    to    the    company,    gives    no 

Y.)    202;    Tinsley  v.  Dowell,  87  Tex.  right  to  sue.    Ross  v.  Rubin,  25  N.  Y. 

23;    San  Jacinto  Rice  Co.  v.  Lockett  Misc.  479. 

(Tex.  Civ.  App.),  145  S.  W.  1046;  see  ss  1  Chitty  on  Pleadings,  9;   Morris 

also,    Buckbee  v.    Brown,    21    Wend.  v.  Cleasby,  1  M.  &  Sel.  576;  Bickerton 

(N.  Y.)  110.  v.  Burrell,  5  M.  &  Sel.  383;  Vischer  v. 

ssLounsbury  v.  Duckrow,  22  N.  Y.  Yates,  11  Johns.  (N.  Y.)  23;  Yates  v. 

Misc.  434.  Foot,  12  John.    (N.  Y.)    1;    Kelley  v. 

ST  See   Waters   v.    Wandless    {Tex.  Munson,  7  Mass.  318,  324;   Corliea  v. 

Civ.  App.),  35  S.  W.  184;    Gillett  v.  Gumming,  6  Cow.  (N.  Y.)  181;  Borrow- 

Insurance  Co.,  39  111.  App.  284;   Har-  scale  v.  Bosworth,  99  Mass.  378;  Lud- 

rison  v.   Birrell,   58   Ore.   410;    Bang  wig  v.  Gillespie,  105  N.  Y.  653;   Con- 

v.  Farmville  Ins.  Co.,  2  Fed.  Gas.,  p.  siderant  v.  Brisbane,   22  N.  Y.   389; 

585,  No.  838;   Willey  v.  Fidelity  Co.,  Schaefer   v.    Henkel,    75   N.   Y.    378; 

77  Fed.  961.  Rowe  v.  Rand,  111  Ind.  206. 

1604 


CHAP.  VI ]  LIABILITY  OF  THIRD  PERSONS  TO  AGENT  [§    2038 

an  interest  or  estate  in  the  subject-matter  of  the  action  which  would 
be  impaired  if  the  principal  were  allowed  to  sue.  Thus,  for  example, 
if  a  factor  has  a  lien  upon  the  proceeds  of  goods  sold  by  him  to  secure 
him  for  advances  made  to  his  principal,  the  principal  would  not  be  per- 
mitted to  destroy  the  factor's  security  by  recovering  the  proceeds  upon 
which  the  factor's  lien  attached.59  The  right  of  the  agent  in  such  a 
case  to  sue  exists  notwithstanding  any  settlement  with  the  principal,00 
unless  the  agent  has  not  been  prejudiced  by  the  settlement,61  or  unless 
he  has  estopped  himself  from  setting  up  his  claim.62  Obviously,  if  the 
agent's  claim  has  been  otherwise  satisfied  by  the  principal,  the  principal 
may  recover.63 

It  will  be  evident  that  the  interest  here  referred  to  which  will  pre- 
vent the  action  by  the  principal,  is  not  necessarily  the  same  interest 
which  has  been  referred  to  in  the  preceding  section  as  entitling  the 
agent  to  sue. 

§  2038.  Action  on  sealed  contract,  negotiable  instrument,  or  con- 
tract made  with  agent  personally  must  be  in  agent's  name. — But 
where  a  contract  under  seal  is  made  by  the  agent  in  his  own  name, 
there,  in  accordance  with  technical  rules,  the  agent  alone  is  the  party 
in  whose  name  a  recovery  upon  it  can  be  had.64 

So,  for  other  reasons  which  have  often  been  pointed  out,  it  is  the 
ordinary  rule  that  actions  upon  negotiable  instruments  made  in  the 
agent's  name  only  cannot  be  enforced  by  the  principal  in  his  own 
name.65 

59  The  leading  case  is  Drinkwater  »o  Robinson  v.  Rutter,  4  El.  &  Bl. 

v.   Goodwin,    1   Cowp.   251.     Here   a  954. 

factor  made  advances  to  his  principal  ei  See  Holmes  v.  Tutton,  5  El.  &  Bl. 

in  reliance  upon  the  security  of  the  65;    Grice  v.  Kenrick,  L.  H.  5  Q.  B. 

proceeds  of  goods  which  the  princi-  340. 

pal  put  in  the  hands  of  a  factor.    Be-  02  see  Coppin  v.  Walker,  7  Taunt, 

fore  these  advances  were  repaid  the  237. 

principal  became  insolvent  and  both  ea  Moline    Malleable    Iron    Co.    v. 

his    assignees    and    the    factor    de-  York  Iron  Co.,  27  C.  C.  A.  442,  83  Fed. 

manded  payment  from  the  purchaser  66;    Grice  v.  Kenrick,  L.  R.  5  Q.  B. 

of  the  goods.    The  purchaser  paid  the  340;    Merrill  v.  Thomas,  7  Daly   (N. 

factor  and  was  sued  in  this  action  by  Y.),  393. 

the  assignees  of  the  principal.    Held,  G4  Schack   v.   Anthony,   1   Maule   & 

they  were  not  entitled  to  recover.    To  Sel.  573;  Berkeley  v.  Hardy,  5  B.  &  C. 

same  effect,  where  defendant  sought  355;    Dancer  v.  Hastings,  4  Bing.  2; 

to  set  off  a  claim  against  the  princi-  Cleary  v.  Heyward,  123  N.  Y.  Supp. 

pal  in  an  action  by  the  agent  who  334;  Buge  v.  Newman,  61  N.  Y.  Misc. 

had  made  advances  to  more  than  the  84,  132  App.  Div.  928. 

value    of    the    goods    sold    by    him.  ee  See   2    Daniels,    Neg.    Inst.    Sec. 

Young  v.  Thurber,  91  N.  Y.  388.    See  1187 
also,  Beardsley  v.  Schmidt,  .120  Wis. 
405,  102  Am.  St.  Rep.  991. 

1605 


§§    2O39>  2O40]  THE   LAW   OF   AGENCY  [BOOK    IV 

So,  as  will  be  more  fully  seen  in  the  following  chapter,  if  the  con- 
tract were  one  made  with  the  agent  as  principal  and  not  as  agent, — as 
where  between  a  known  principal  and  the  agent,  the  other  party  elects 
to  deal  with  the  agent  alone, — the  principal,  having  no  interest  in  the 
contract,  cannot  sue  upon  it. 

§  2039.  Agent's  rights  depend  upon  the  contract. — The  liability 
of  third  persons  to  an  agent,  upon  a  contract  made  with  him,  is  to  be 
ascertained  by  that  contract  alone,  and  cannot  be  enlarged  by  reference 
to  any  agreement  between  the  agent  and  the  principal  by  which  their 
mutual  rights  are  to  be  determined.66 

§  2040.  Right  of  assumed  agent  to  show  himself  principal. — The 
question  of  the  right  of  one  who  has  contracted  in  the  character  of  an 
agent  to  throw  off  this  character  and  show  himself  to  be  the  real  prin- 
cipal in  the  transaction,  is  one  attended  with  no  little  difficulty.  Every 
man  has  the  right  to  determine  for  himself  with  whom  he  will  deal, 
and  he  cannot  have  another  person  thrust  upon  him  without  his  con- 
sent. It  may  be  of  importance  to  him  to  know  who  is  to  perform  the 
contract,  as  when  he  contracts  with  another  to  paint  a  picture,  or  write 
a  book,  or  furnish  articles  of  a  particular  kind,  or  relies  upon  the  char- 
acter or  qualities  of  an  individual,  or  has  reasons  why  he  does  not 
wish  to  deal  with  a  particular  party.  In  all  these  cases,  he  may  select 
the  person  to  whom  he  will  entrust  the  performance,  and,  having  se- 
lected one,  he  cannot  be  compelled,  against  his  will,  to  accept  perfor- 
mance from  another.67 

It  is  obvious,  also,  that  an  attempt  to  enforce  the  performance  of  a 
contract  which  is  purely  executory,  involves  different  considerations 
than  an  endeavor  to  recover  from  a  third  person  the  stipulated  re- 
turn for  a  performance  fully  executed  by  or  on  behalf  of  the  agent. 
Equally  manifest  is  it  that  the  fact  whether  the  agent  assumed  to  act 
for  a  named,  or  for  an  unnamed  principal,  is  an  important  element. 
These  considerations  suggest  a  division  of  the  question  thus :  The  right 
of  an  assumed  agent  to  show  himself  to  be  the  real  principal :  I.  Where 
he  contracted  for  a  named  principal  and  the  contract  is,  (a)  executory, 
or  (&)  executed.  2.  Where  he  contracted  for  an  unnamed  principal 
and  the  contract  is,  (a)  executory,  or,  (b)  executed. 

68  Evrit  v.  Bancroft,  22  Ohio  St.  379,  32  L.  Ed.  246;  King  v.  Batterson, 

172.  See  Tinsley  v.  Dowell,  87  Tex.  13  R.  I.  117,  120,  43  Am.  Rep.  13; 

23.  Lansden  v.  McCarthy,  45  Mo.  106; 

«T  Boston  Ice  Co.  v.  Potter,  123  Boulton  v.  Jones,  2  H.  &  N.  564; 

Mass.  28,  25  Am.  Rep.  9;  Arkansas  Schmaling  v.  Thomlinson,  6  Taunt. 

Smelting  Co.  v.  Belden  Co.,  127  U.  S.  147. 

1606 


CHAP.  Vl] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2041 


§    2041. 


i.  Where  he  contracted  for  a  named  principal. — 


(a). — A  person  who  has  assumed  as  the  agent  of  a  named  principal, 
to  pledge  the  performance  of  that  principal  to  a  third  person,  cannot, 
while  the  contract  remains  unperformed,  insist  upon  substituting  him- 
self as  the  real  principal,  without  the  consent  of  the  other  party,  in 
any  case  in  which  it  may  reasonably  be  considered  that  the  skill,  ability 
or  solvency  of  the  named  principal  was  a  material  ingredient  in  the 
contract.68  If  A  contracts  with  B  as  the  assumed  agent  of  C  for  the 
personal  services  of  C,  B  cannot,  by  offering  to  perform  the  contract 
himself,  recover  the  stipulated  compensation  from  A.  This  principle  is 
too  plain  to  require  illustration. 

(&). — A  person  who  has  assumed,  as  the  agent  of  a  named  principal, 
to  pledge  the  performance  of  that  principal  to  a  third  person,  may,  if 
the  contract  has  been  performed  by  himself  as  principal  with  the  knowl- 
edge and  express  or  implied  consent  of  such  third  person,  compel  per- 
formance to  himself  on  the  part  of  such  third  person,  although  personal 
considerations  may  have  entered  into  the  making  of  the  contract ;  but 
where  such  personal  considerations  are  involved,  he  can  not  recover  if 
the  performance  by  himself  as  principal  has  been  without  the  knowledge 
or  consent  of  the  other  party.89  If  A  contracts  with  B  for  the  personal 


«8  Eayner  v.  Grote,  15  M.  &  W.  359; 
Schmaltz  v.  Avery,  16  Ad.  &  El.  (Q. 
B.)  655.  "In  many  such  cases  such 
as,  for  instance,  the  case  of  contracts 
in  which  the  skill  or  solvency  of  the 
person  who  is  named  as  the  princi- 
pal may  reasonably  be  considered  as 
a  material  ingredient  in  the  contract, 
it  is  clear  that  the  agent  cannot  then 
show  himself  to  be  the  real  principal, 
and  sue  in  his  own  name;  and  per- 
haps it  may  be  fairly  urged  that  this, 
in  all  executory  contracts,  if  wholly 
unperformed,  or  if  partly  performed 
without  the  knowledge  of  who  is  the 
real  principal,  may  be  the  general 
rule."  Alderson,  B.,  in  Rayner  v. 
Grote,  supra,  at  p.  365. 

"8  In  Rayner  v.  Grote,  15  M.  &  W. 
359,  it  was  held  that  where  the  plain- 
tiff made  a  written  contract  for  the 
sale  of  goods,  in  which  he  described 
himself  as  the  agent  of  A,  and  the 
buyer  accepted  and  paid  thje  price  of 
a  portion  of  the  goods,  and  then  had 
notice  that  the  plaintiff  was  himself 
the  real  principal  in  the  transaction, 


and  not  the  agent  of  A,  the  plaintiff 
might  sue  in  his  own  name  for  the 
non-acceptance  of  and  non-payment 
for  the  residue  of  the  goods.  In 
Schmaltz  v.  Avery,  16  Q.  B.  (N.  S.) 
655,  a  charter  party  was  stated  to 
be  by  defendant  of  one  part,  "and 
G.  S.  &  Co.  (agents  of  the  freighter) 
of  the  other,"  and  containing  a  mem- 
orandum as  follows:  "This  charter 
being  concluded  on  behalf  of  another 
party,  it  is  agreed  that  all  responsibil- 
ity on  the  part  of  G.  S.  &  Co.  shall 
cease  as  soon  as  the  cargo  is 
shipped."  G.  S.  &  Co.  were  proved  to 
be  the  plaintiff.  Held,  that  notwith- 
standing the  terms  of  the  charter 
party,  plaintiff  might  prove  that  he 
was  the  freighter,  and  his  own  prin- 
cipal, and  recover  in  his  own  name. 
In  Mudge  v.  Oliver,  1  Allen  (83 
Mase.),  74,  it  was  held  that  one  who 
buys  goods  at  a  shop  which  has  been 
occupied  by  his  debtor,  under  the  sup- 
position that  he  was  dealing  with 
him,  but  was  told  before  leaving  the 
shop  that  plaintiff  had  become  the 


1607 


§    2042] 


THE   LAW   OF   AGENCY 


[BOOK    IV 


services  of  C,  and  B  offers  to  perform  and  does  perform  as  being  him- 
self C,  with  the  knowledge  and  without  the  dissent  of  A,  hence  with 
A's  implied  consent,  B  may  recover  of  A  the  stipulated  compensation ; 
but  not  if  the  performance  was  without  the  knowledge,  hence  without 
the  express  or  implied  consent,  of  A. 

§  2042.  Whether,  where  the  contract  cannot  reasonably 

be  considered  to  have  been  entered  into  from  any  consideration  of  per- 
sonal skill,  solvency  or  other  personal  reason,  it  is  competent  for  one 
who  has  contracted  as  the  assumed  agent  of  a  named  principal,  to  show 
himself  to  be  the  real  principal,  and  recover  upon  the  contract,  whether 
executed  or  executory,  is  not  clear  from  doubt.  It  has  been  intimated 
in  one  or  two  cases,70  that  this  might  be  done  if  notice  of  the  true  state 
of  the  case  were  given  to  the  other  party  before  the  action  was  begun, 
but  no  case  has  been  discovered  in  which  this  precise  question  was  pre- 
sented for  adjudication,  and  no  satisfactory  reason  is  apparent  which 
will  permit  one,  who,  in  express  terms,  has  made  another  than  himself 
the  party  to  the  contract,  by  any  mere  notice  to  change  the  essential  na- 
ture of  the  agreement,  or  be  permitted  to  recover  as  a  party  when  he  has 
in  terms  made  himself  not  a  party.71  The  true  rule  would  seem  to  be 


owner  and  was  selling  on  his  own 
account,  and  made  no  objection,  but 
retained  the  goods,  was  liable  for  the 
price.  In  Orcutt  v.  Nelson,  67  Mass. 
(1  Gray),  536,  an  order  sent  by  mail 
for  goods  was  filled  by  the  successor 
in  business  of  the  person  to  whom  it 
was  sent,  and  the  goods  were  ac- 
cepted, and  freight  paid  by  him  who 
ordered  them,  with  knowledge  that 
the  order  had  been  filled  by  such  suc- 
cessor. Held,  that  this  indicated  his 
assent  to  the  change  and  that  he  was 
liable  for  the  price.  Barnes  v.  Shoe- 
maker, 112  Ind.  512,  is  to  the  same  ef- 
fect. In  Bullock  v.  Ueberroth,  121 
Mich..  293,  it  was  held  that  where  D. 
A.  Bullock  sues  on  a  written  order 
for  goods,  purporting  to  have  been 
taken  by  him  as  agent  for  D.  A.  Bul- 
lock &  Co.,  he  must  either  show  that 
he  was  doing  business  under  that 
name,  or  that  the  order  had  been  as- 
signed to  him. 

See  also,  Eggleston  v.  Boardman, 
37  Mich.  14;  Boston  Ice  Co.  v.  Potter, 
123  Mass.  28,  25  Am.  Rep.  9;  Win- 


Chester  v.  Howard,  97  Mass.  303,  93 
Am.  Dec.  93. 

70  Bickerton  v.  Burrell,  5  Maule  & 
Sel.  383;  Foster  v.  Smith,  2  Cold. 
(Tenn.)  474,  88  Am.  Dec.  604. 

TI  Bickerton  v.  Burrell,  supra,  is 
the  leading  case  in  this  connection. 
There  no  notice  had  been  given,  and 
it  was  held  that  the  action  could  not 
be  maintained,  but  some  of  the  judges 
intimated  that  their  opinions  would 
have  been  otherwise  if  such  notice 
had  been  given.  Mr.  Bowstead  ex- 
presses the  opinion  that  the  agent 
may  probably  sue  in  all  cases  where 
the  identity  of  the  contracting  party 
is  not  a  material  element  in  the  mak- 
ing of  the  contract,  provided  he  gives 
notice  to  the  other  contracting  party 
before  action  that  he  is  the  real  prin- 
cipal. Bowstead  on  Agency,  3  ed., 
401.  He  relies  upon  Bickerton  v. 
Burrell,  supra.  Professor  Huffcut 
was  apparently  of  the  same  opinion. 
Huffcut  on  Agency,  2  ed.,  259,  also 
relying  on  Bickerton  v.  Burrell.  Sir 
F.  Pollock  (Cont.  Ill),  referring  to 


1608 


CHAP.  Vl]  LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2043 


rhat  it  cannot  be  done  in  any  case,  while  the  contract  remains  executory, 
and  that,  if  it  can  be  done  where  the  contract  is  executed,  it  can  only  be 
to  the  extent  that  the  execution,  by  the  assumed  agent  as  the  real  prin- 
cipal, has  been  with  the  knowledge  and  consent  of  the  other  party.72 

§  2043.  2.  Where  he  contracted  for  an  unnamed  princi- 
pal.— Where  the  contract  is  entered  into  by  the  assumed  agent  as 
agent  for  an  unnamed  principal,  no  personal  considerations  can  ordina- 
rily arise,  because  since  no  particular  principal  is  named  or  known,  no 
particular  elements  of  skill,  solvency  or  ability  are  involved.73  In  most 


Bickerton  v.  Burrell,  says:  "This 
leaves  it  doubtful  what  would  have 
been  the  precise  effect  of  the  plaintiff 
giving  notice  of  his  real  position  be- 
fore suing;  but  the  modern  cases 
seem  to  show  that  it  would  only  have 
put  the  defendant  to  his  election  to 
treat  the  contract  as  a  subsisting  con- 
tract between  himself  and  the  plain- 
tiff, or  to  repudiate  it  at  once."  He 
refers  to- the  case  of  Fellowes  v.  Lord 
Gwydyr,  1  Sim.  63;  affirmed,  1  Russ. 
&  M.  83,  wherein  one  who  had  a  con- 
tract as  agent  for  a  named  principal 
was  granted  specific  performance  of 
it  in  equity,  the  court  acting  upon 
the  theory  that  it  was  just,  since  the 
defendant  did  not  show  that  he  had 
been  prejudiced  in  any  way.  Sir 
Frederick  Pollock  expresses  the  opin- 
ion that  this  case  is  not  the  law.  It 
was  criticised  by  Gibson,  C.  J.,  in 
Fisher  v.  Worrall,  5  Watts  &  Serg. 
(Pa.)  478.  And  Archer  v.  Stone,  be- 
fore North,  J.,  78  L.  T.  Rep.  34,  is  op- 
posed, though  the  facts  in  that  case 
were  somewhat  different. 

72  In  Whiting  v.  Crawford  Co.,  93 
Md.  390,  a  broker,  without  authority, 
undertook  to  make  a  contract  in  be- 
half of  a  named  principal,  to  sell  cer- 
tain goods  to  defendant.  Later  the 
broker's  want  of  authority  was  dis- 
covered, and  defendant  said  that  he 
would  hold  the  broker  liable  upon 
the  contract.  Afterwards  the  broker, 
upon  his  own  credit,  obtained  from 
the  seller  named  in  the  contract  a 
quantity  of  the  goods  which  were 
delivered  to  and  accepted  by  the  de- 
fendant. In  an  action  by  the  broker 

I 


in  his  own  name  to  recover  the  price 
of  the  goods  so  delivered,  held,  that 
the  broker  could  recover.  The  court 
relied  upon  Rayner  v.  Grote,  supra, 
and  also  quoted  from  Woodyatt  on 
Agency,  106,  a  statement,  that  "it 
seems  that  even  though  the  profess- 
ing agent  names  a  principal,  he  will 
still  be  exclusively  entitled  to  sue 
and  be  liable,  if  the  other  party, 
though  knowing  who  the  real  princi- 
pal is,  nevertheless  partly  performs 
or  accepts  part  performance  of  the 
contract." 

Compare  such  cases  as  New  York 
Brokerage  Co.  v.  Wharton,  143  Iowa, 
61,  where  it  is  held  that  where  it  ap- 
pears that  the  apparent  principal 
was  only  an  agent,  the  real  principal 
cannot  have  specific  performance  of 
the  contract. 

73  it  is  indeed  possible,  as  is 
pointed  out  in  Schmaltz  v.  Avery,  16 
Q.  B.  655,  that  the  other  party  may 
have  been  contented  to  take  any  prin- 
cipal other  than  the  person  who 
posed  as  agent  and  may  have  relied 
on  the  terms  of  the  contract,  indicat- 
ing that  the  latter  was  an  agent  only, 
being  willing  to  accept  any  one  else, 
be  he  who  he  might,  as  principal. 
(Compare  Kayton  v.  Barnett,  116  N. 
Y.  625.)  In  Schmaltz  v.  Avery,  one 
who  had  made  a  charter  party  de- 
scribing himself  as  "agent  of  the 
freighter,"  was  permitted  to  show 
that  he  himself  was  the  freighter, 
and  to  enforce  the  contract  on  his 
own  account.  The  court,  after  using 
the  language  which  has  been  substan- 
tially quoted  above,  namely,  that  the 
609 


§  2043] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


of  such  cases,  the  words  referring  to  a  principal  would,  in  accordance 
with  established  rules,  be  regarded  as  mere  descriptio  personae  or  be 
rejected  as  surplusage.  In  such  a  case,  the  third  person  must  be  deemed 
to  be  liable  to  some  one,  and,  as  no  one  else  is  designated,  it  must  be  pre- 
sumed that  he  is  liable  to  the  person  who  in  fact  sustained  the  relation 


other  party  might  have  been  relying 
upon  there  being  some  other  person 
as  principal,  though  he  did  not  know 
or  ask  who  he  was,  proceeded  as  fol- 
lows:  "After  all,  therefore,  the  ques- 
tion is  reduced  to  this:   whether  we 
are  to  assume  that  the  defendant  did 
so  rely  on  the  character  of  the  plain- 
tiff as  agent  only,  and  would  not  have 
contracted  with  him  as  principal  if 
he  had  known  him  so  to  be,  and  are 
to  lay  it  down  as  a  broad  rule  that  a 
person   contracting  as   agent  for  an 
unknown  and  unnamed  principal  is 
precluded  from  saying,  I  am  myself 
that  principal.     Doubtless  his  saying 
so  does  in  some  measure  contradict 
the   written   contract,   especially   the 
concluding  cause,  which  says:   'This 
charter    being    concluded    on    behalf 
of  another  party,'  etc.;   for  there  was 
was  no  such  other  party.     It  may  be 
that    the    plaintiff    entered    into  the 
charter  party  for  some  other  party, 
who   had    not   absolutely    authorized 
him  to  do  so,  and  afterwards  declined 
taking  it;    or  it  may  be  that  he  in- 
tended originally  to  be  the  principal; 
in    either    case    the    charter    party 
would  be,   strictly   speaking,   contra- 
dicted;   yet  the   defendant   does  not 
appear  to  be  prejudiced;    for,  as  he 
was  regardless  who  the  real  freighter 
was,  it  should  seem  that  he  trusted 
for  his    freight    to    his    lien    on  the 
cargo.    But  there  is  no  contradiction 
of  the  charter  party  if  the  plaintiff 
can  be  considered  as  filling  two  char- 
acters,  namely,  those    of   agent   and 
principal.     A   man    cannot   in  strict 
propriety    of   speech    be   said    to   be 
agent  to  himself,  yet,  In  a  contract 
of  this  description,  we  see  no  absurd- 
ity in  saying  that  he  might  fill  both 
characters;  that  he  might  contract  as 
agent  for  the  freighter,  whoever  that 


freighter  might  turn  out  to  be,  and 
might  adopt  that  character  of 
freighter  himself  if  he  chose." 

In  Harper  v.  Vigers,  [1909]  2  K.  B. 
549,  plaintiffs  describing  themselves 
as  "agents  for  owners,"  made  a 
written  contract  with  defendant  to 
furnish  him  a  ship  to  carry  a 
cargo  at  a  certain  rate.  Plain- 
tiffs were  not  at  that  time  the 
agents  of  any  ship  owner,  and  were 
in  fact  making  a  speculative  contract 
on  their  own  account.  They  then 
went  to  a  certain  ship  owner  and,  de- 
scribing themselves  as  "agents  for 
merchants,"  made  a  contract  for  the 
use  of  his  ship  to  carry  the  cargo  in 
question  at  a  lower  rate.  The  cargo 
was  duly  carried  and  plaintiffs  sued 
to  recover  the  agreed  rate  from  de- 
fendant. There  were  two  defenses 
urged:  (1)  That  plaintiffs  could  not 
maintain  the  action,  and,  (2)  That  in 
any  event  they  could  not  recover 
more  than  they  had  paid  the  ship 
owner.  Both  objections  were  over- 
ruled, it  being  said  that  there  was  no 
distinction  between  this  case  and 
Schmaltz  v.  Avery,  supra. 

In  Rodliff  v.  Dallinger,  141  Mass.  1, 
55  Am.  Rep.  439,  it  is  said  by  Holmes, 
J.:  "There  is  no  rule  of  law  that 
makes  it  impossible  to  contract  with 
or  sell  to  an  unknown  but  existing 
party.  And  if  the  jury  find  that  such 
a  sale  was  the  only  one  purported  to 
be  made,  the  fact  that  it  failed  does 
not  turn  it  into  a  sale  to  the  party 
conducting  the  transaction.  Schmaltz 
v.  Avery,  16  Q.  B.  655,  only  decides 
that  a  man's  describing  himself  in  a 
charter  party  as  'agent  of  the 
freighter'  is  not  sufficient  to  preclude 
him  from  alleging  that  he  is  the 
freighter.  It  does  not  hint  that  the 
agent  could  not  be  excluded  by  ex- 


1610 


CHAP.  Vl] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2044 


of  principal  in  the  transaction,  and  this  principal  may  as  well  be  the 
assumed  agent  as  a  stranger.  In  either  event,  the  rights  of  the  third 
,  person  are  not  impaired,  because  he  has  contracted  to  answer  to  any 
one  who  might  be  entitled.74 

In  cases  of  this  nature,  it  is  immaterial  whether  the  claim  be  made 
while  the  contract  remains  executory  or  after  it  is  fully  executed.  The 
.other  party  is,  of  course,  entitled  to  be  informed  as  to  who  the  real  prin- 
cipal is,  whether  the  agent  or  a  stranger,  that  he  may  have  opportunity 
to  avail  himself  of  any  rights  which  he  may  have  against  such  principal. 

§  2044.  Agent  may  recover  money  paid  by  him  under  mistake  or 
illegal  contract. — Where  an  agent,  in  dealings  between  himself  and 
a  third  person,  pays  out  the  money  of  his  principal  to  such  third  person 
under  a  mistake  of  fact,  or  for  a  consideration  which  fails,  or  as  the  re- 
sult of  fraud  or  misconduct  of  the  payee,75  or  where  he  pays  it  upon  a 


press  terms,  or  by  the  description  of 
the  principal,  although  insufficient  to 
identify  the  individual  dealt  with,  as 
happened  here;  still  less,  that  in 
favor  of  third  persons  the  agent 
would  be  presumed  without  evidence 
to  be  the  undisclosed  principal,  al- 
though expressly  excluded." 

In  Sharman  v.  Brandt,  L.  R.,  6  Q. 
B.  720,  on  a  contract  of  sale  of  goods 
within  the  Statute  of  Frauds,  a 
broker  who  had  signed  a  memoran- 
dum as  broker  for  a  principal  not 
named,  undertook  to  sue  upon  the 
contract  in  his  own  name.  It  was 
held  that  the  action  could  not  be 
maintained.  If  the  contract  were  to 
be  deemed  a  contract  made  on  his 
own  account,  the  memorandum,  un- 
der the  case  of  Wright  v.  Dannah,  2 
Camp.  203,  was  insufficient,  because 
the  agent  to  sign  must  be  a  third  per- 
son. Moreover,  "the  note  does  not 
describe  the  true  contract  as  to  the 
parties,  which  it  must  do;  for  it  de- 
scribes a  contract  between  the  broker 
on  behalf  of  unnamed  principals  as 
sellers,  and  the  defendants  as  pur- 
chasers; whereas,  in  reality,  the 
plaintiff  now  says,  the  contract  was 
between  the  broker  as  principal  and 
the  defendants." 

In  Paine  v.  Loeb,  37  C.  C.  A.  434, 
96  Fed.  164,  plaintiffs,  brokers  in  Du- 


,,    • 

luth,  purported  by  letter  and  tele- 
gram to  be  making  a  contract  with 
unnamed  parties  to  purchase  bonds  of 
defendant,  a  New  York  broker. 
Through  all  the  correspondence  they 
maintained  the  appearance  of  dealing 
with  local  buyers  and  excluded  per- 
sonal responsibility.  Having  finally 
closed  a  contract  for  the  purchase  of 
the  bonds  at  less  than  they  were 
worth,  they  declared  themselves  the 
buyers,  and  sought  to  recover  dam- 
ages from  defendant  who  had  refused 
to  deliver  the  bonds.  Held,  that  they 
could  not  recover.  They  could  not. 
said  the  court,  recover  as  agents  be- 
cause they  had  no  principal.  They 
might  have  recovered  as  the  real 
principals  "had  they  not  contracted 
that  they  should  not  stand  in  the 
place  of  principals  by  exacting  an 
agreement  that  they  should  bear  none 
of  the  responsibilities  of  principals." 

™  See  Schmaltz  v.  Avery,  and  cases, 
supra. 

75  Lord  Mansfield  laid  down  the 
rule  in  an  early  case  as  follows: 
"Where  a  man  pays  money  by  his 
agent,  which  ought  not  to  have  been 
paid,  either  the  agent,  or  principal, 
may  bring  an  action  to  recover  it 
back.  The  agent  may,  from  the  au- 
thority of  the  principal;  and  the  prin- 
cipal may,  as  proving  it  to  have  been 


1611 


§  2044] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


contract  which  subsequently  proves  to  be  illegal,  if  the  agent  was  ig- 
norant of  its  illegality  at  the  time,76  he  may  sue  for  and  recover  it  in  his 
^own  name.  Such  an  action  is  ordinarily  the  only  remedy  by  which  an 
agent,  who  has  parted  with  his  principal's  money  under  a  mistake  of 
fact,  and  for  which  he  is  answerable  to  his  principal,  can  reimburse  him- 
self.77 

In  such  cases,  however,  as  will  be  seen,  the  principal,  being  the 
party  to  whom  the  money  belongs  and  for  whose  benefit  it  is  to  be 
recovered,  may  ordinarily  sue  instead  of  the  agent.78 

Thus  an  agent  who,  not  being  authorized  to  exchange  money  of  his 
principal  in  his  hands,  has  so  exchanged  it  and  received  in  exchange 

paid   by    his    agent."     Stevenson   v.      memorandum  of  agreement,  in  which 

Mnrtimpr.    P.OWTV    SOK        This    r>ase    Is        hfi    wan    rlPsr>Hhpri    aa   tVio    a<rpnt    nf    P 


Mortimer,  Cowp.  805.  This  ease  is 
followed  in  Holt  v.  Ely,  1  El.  &  Bl. 
795.  Here  money  was  placed  in  plain- 
tiff's hands,  out  of  which  he  was  di- 
rected to  satisfy  certain  acceptances; 
defendant  falsely  represented  to 
plaintiff  that  he  held  one  such  accept- 
ance, and  thereby  induced  plaintiff  to 
pay  him  the  amount  out  of  the  fund. 
Held,  that  plaintiff  might  maintain 
money  had  and  received  against  de- 
fendant. In  Colonial  Bank  v.  Ex- 
change Bank  of  Yarmouth,  L.  R.  11 
App.  Cases,  84,  the  plaintiff,  a  West 
Indian  bank,  being  under  instruc- 
tions from  R  to  remit  his  moneys  to 
a  bank  at  Halifax,  thrpugh  the  mis- 
take of  its  agents  paid  them  to  a  New 
York  bank  for  transmission  to  the 
defendants,  Nova  Scotia  bankers, 
who,  on  being  advised  thereof,  deb- 
ited the  New  York  bank  and  credited 
R  in  account  with  the  amount  thereof, 
and  being  afterwards  advised  of  the 
mistake  claimed  to  retain  and  apply 
the  money  on  R's  account  with  them. 
Held,  that  on  being  advised  of  the 
mistake  the  defendants  were  bound  to 
correct  it,  and  that  the  plaintiff  bank 
had  a  sufficient  interest  in  the  moneys 
by  reason  of  its  liability  to  R  for 
breach  of  his  instructions,  to  recover 
them  as  moneys  received  to  their  use. 
In  Langstroth  v.  Toubnin,  3  Stark. 
145,  L  purporting  to  act  as  agent  of  P, 
bid  in  an  estate  sold  by  the  defend- 
ant at  a  public  auction,  and  signed  a 


he  was  described  as  the  agent  of  P. 
P  afterwards  repudiated  the  con- 
tract; and  after  notice  of  that  fact  to 
the  vendor,  L  paid  the  deposit  money, 
according  to  the  condition  of  the  sale. 
Upon  its  turning  out  that  the  title 
was  defective,  L  was  held  entitled  to 
recover  the  deposit  in  his  own  name. 

TS  Oom  v.  Bruce,  12  East,  225.  In 
this  case  an  insurance  had  been  ef- 
fected on  goods  from  a  port  in  Russia 
to  London,  by  an  agent  residing*  in 
London,  for  a  Russian  subject.  The 
insurance  was  in  fact  made  after  the 
commencement  of  hostilities  between 
Russia  and  England,  but  before 
knowledge  of  it  reached  London,  and 
after  the  ship  had  sailed  and  been 
confiscated.  Held,  that  the  agent, 
having  effected  the  insurance  without 
knowledge  of  its  illegality,  was  en- 
titled to  recover  back  the  premium 
paid. 

Where  the  statute  gives  a  right  of 
recovery  to  the  "party  aggrieved,"  to 
recover  money  on  a  bet,  and  an  agent 
has  staked  his  principal's  money,  the 
action  must  be  brought  by  the  princi- 
pal. Donahoe  v.  McDonald,  92  Ky. 
123. 

TT  Kent  v.  Bornstein,  12  Allen 
(Mass.),  342;  Parks  v.  Fogleman,  "97 
Minn.  157,  114  Am.  St.  Rep.  703,  4 
L.  R.  A.  (N.  S.)  363. 

TS  Stevenson  v.  Mortimer,  Cowp. 
805. 


CHAP.  VlJ 


LIABILITY   OF  THIRD  PERSONS  TO  AGENT 


[§    2045 


a  worthless  counterfeit  bill,  may  maintain  an  action  in  his  own  name 
to  recover  the  money  paid  out  by  him.79 

But  an  agent  who  has  carelessly  or  mistakenly  sold  the  property 
of  his  principal,  entrusted  to  him  for  sale,  for  less  than  the  proper 
price,  the  purchaser  not  being  in  fault,  cannot  recover  of  such  pur- 
chaser the  difference  between  the  selling  price  and  the  real  price,  al- 
though the  agent  may  have  paid  such  difference  to  his  principal  in 
the  settlement  of  the  mistake.80 

§  2045.  What  defenses  open  to  third  person. — "Where  the  agent 
sues  in  his  own  name,"  says  Mr.  Evans,81  "the  defendant  may  avail 
himself  of  all  defenses  which  would  be  good  at  law  and  in  equity : — 

"(a)  As  against  the  agent  who  is  the  plaintiff  on  the  record,82  or 

"(&)  As  against  the  principal  for  whose  use  the  action  is  brought, 
provided,  of  course,  a  principal  exists."  8S 


™  Kent  v.  Bornstein,  supra.  In 
such  a  case  it  is  not  necessary  to  ten- 
der back  the  worthless  bill  before 
bringing  the  action. 

so  Hungerford  v.  Scott,  37  Wis.  341. 

si  Swell's  Evans  on  Agency,  387. 

sa  in  Gibson  v.  Winter,  5  B.  &  Ad. 
96,  it  was  held  that  where  a  policy 
of  insurance  under  seal  was  effected 
in  the  name  of  a  broker,  and  the  prin- 
cipal brought  covenant  in  the  brok- 
er's name,  and  the  defendants  pleaded 
payment  to  the  plaintiff  according  to 
the  policy,  and  the  proof  was,  that 
after  the  loss  happened,  the  assurers 
paid  the  amount  to  the  broker  by  al- 
lowing him  credit  for  premiums  due 
from  him  to  them,  it  was  held  that 
although  this  was  not  payment  as 
between  the  assured  and  assurers,  it 
was  a  good  payment  as  between  the 
plaintiff  on  the  record  and  the  de- 
fendants; and,  therefore,  an  answer 
to  the  action.  See  also,  Leeds  v. 
Marine  Ins.  Co.,  6  Wheat.  (U.  S.) 
565,  5  L.  Ed.  332. 

In  the  case  of  Bauerman  v.  Rade- 
nius,  7  D.  &  E.  663,  it  was  held  that, 
in  an  action  in  the  name  of  the  agent 
for  the  principal's  benefit,  an  admis- 
sion of  the  agent  is  admissible  evi- 
dence. 

»s  in  Grice  v.  Kenrick,  L.  R.,  5  Q. 
B.  340,  the  plaintiff,  an  auctioneer, 
was  employed  by  W  to  sell  goods  by 


auction.  W  was  indebted  to  the  de- 
fendant, and  before  the  sale  it  was 
agreed  between  W  and  the  defendant 
that  any  goods  the  defendant  might 
buy  at  the  auction  should  go  in  pay- 
ment of  his  claim  against  W.  The 
plaintiff  had  no  notice  of  this  agree- 
ment at  the  time  of  the  sale.  The  de- 
fendant bought  goods  at  the  sale,  and 
the  plaintiff  allowed  him  to  take 
them  away  on  the  faith  of  his  pay- 
ing for  them,  but  the  defendant  sup- 
posed he  was  taking  them  in  pursu- 
ance of  his  agreement  with  W.  The 
day  after  the  sale  the  plaintiff  paid 
W  part  of  the  proceeds  of  the  sale. 
Afterwards  the  defendant  informed 
the  plaintiff  of  the  agreement  between 
the  defendant  and  W;  and  after  this 
notice,  the  plaintiff,  on  the  demand 
of  W,  paid  over  to  him  the  balance 
due  on  the  sale,  after  deducting  his 
commission  and  charges  as  auc- 
tioneer. The  plaintiff  then  sued  the 
defendant  for  the  amount  of  his  pur- 
chases at  the  sale.  Held,  that  the 
plaintiff  could  not  recover. 

In  Holden  v.  Rutland  R.  R.  Co.,  73 
Vt.  317,  the  court,  laying  down  the 
rule  "that  if  the  action  is  brought  by 
the  agent  in  his  own  name  the  de- 
fendant may  avail  himself  of  those 
defenses  which  are  good  against  the 
agent  who  is  the  plaintiff  on  the  rec- 
ord; also  of  any  defense  that  would 


1613 


§  2046] 


THF,   LAW   OF   AGENCY 


[BOOK    IV 


§  2046.  •  Set-off. — So  far  as  the  matter  of  set-off  is  con- 
cerned, set-off  being  the  creature  of  statute,  much  depends  upon  the 
precise  language  of  the  statute.  The  English  statute  provided  "that 
where  there  are  mutual  debts  between  the  plaintiff  and  the  defendant" 
one  may  be  set-off  against  the  other.  Under  this  statute  it  was  held, 
that  in  order  to  enable  the  debt  to  be  set-off  it  must  be  a  debt  due  to 
the  defendant  from  the  plaintiff,  and,  therefore,  that  a  debt  due  from 
the  plaintiff's  principal  could  not  be  set-off ; 8*  and  other  cases  have 
involved  a  similar  ruling.85  On  the  other  hand  there  are  cases  holding 
that  the  right  of  set-off  does  not  depend  upon  the  technical  identity 
of  the  parties,  but  upon  their  identity  in  interest;  and,  therefore,  that 
where  the  agent  sues  in  reality  for  the  principal's  benefit  a  debt  due 
from  the  principal  to  the  defendant  may  be  set-off.86  Such  a  set-off, 


lie  good  against  the  principal  in 
whose  interest  the  action  is  brought," 
held,  that,  where  the  agent  of  an 
undisclosed  principal  had  bought  a 
mileage  book  on  the  defendant  rail- 
road and  had  sued  in  case  for  the  al- 
leged negligence  of  the  ticket  agent 
in  inserting  the  name  of  the  pur- 
chaser, whereby  the  plaintiff  had 
been  denied  the  right  to  use  the 
ticket  which  he  had  borrowed  from 
his  principal  and  had  been  ejected 
from  the  train,  the  railroad  company 
might  make  the  defense  against  the 
plaintiff  that  the  principal  had  in  the 
meantime  made  or  consented  to  the 
making  of  a  fraudulent  alteration  of 
the  ticket  by  inserting  the  name  of 
an  additional  party  in  violation  of 
the  terms  of  the  ticket. 

In  Bierce  v.  State  Nat.  Bank,  25 
Okla.  44,  in  an  action  by  a  national 
bank  upon  a  note,  the  defendant 
sought  to  show  that  the  bank  was 
merely  agent  of  the  original  payee, 
and  to  recover  against  the  bank  a 
claim  which  defendant  held  against 
the  payee,  greater  in  amount  than  the 
amount  due  upon  the  note.  Held, 
that  no  such  claim  could  be  allowed. 

Brokers  suing  in  their  own  names 
to  recover  the  price  of  stock  for 
which  they  have  negotiated  the  sale 
are  affected  by  the  principal's  fraud 
which  induced  the  purchase.  Leo  v. 
McCormack,  186  N.  Y.  330. 


84  Isberg  v.  Bowden,  8  Ex.  852.  In 
Tagart  v.  Marcus,  36  Weekly  Rep. 
469,  it  was  held  that  in  an  action  of 
trover  and  for  goods  sold  and  deliv- 
ered, a  defendant  cannot  set-off  a 
claim  for  unliquidated  damages 
which  he  has  against  a  third  party 
on  another  transaction,  although  the 
third  party  happens  to  be  the  plain- 
tiff's principal. 

ss  For  example,  see  Alsop  v.  Caines, 
10  Johns.  (N.  Y.)  396,  a  case  decided 
under  the  Act  of  1801,  giving  a  right 
of  set-off  "if  two  or  more  persons 
dealing  together  be  indebted  to  each 
other." 

3«  In  Bliss  v.  Sneath,  103  Cal.  43, 
under  a  statute  confining  the  right 
to  claims  held  by  the  defendant 
against  the  plaintiff,  a  claim  existing 
against  the  plaintiff's  principal  was 
held  to  be  available.  The  rule  quoted 
in  the  text  from  Evans  on  Agency 
was  quoted  and  relied  upon.  In  Hay- 
den  v.  Alton  National  Bank,  29  111. 
App.  458,  under  a  very  general  stat- 
ute permitting  set-off  of  claims  or 
demands  of  the  defendant  against  the 
plaintiff,  it  was  held  that  where  an 
agent  who  had  deposited  his  princi- 
pal's money  in  a  bank  in  the  name  of 
"A,  agent,"  sued  to  recover  it,  the 
bank  might  set-off  a  claim  which  it 
held  against  the  agent's  principal. 


1614 


CHAP.  Vl]  LIABILITY  OF  THIRD  PERSONS  TO  AGENT       [§§  2047-2049 

however,  as  has  been  already  seen,  would  not  be  allowed  where  the 
agent,  e.  g.,  a  factor  making  advances  to  his  principal  upon  the  se- 
curity of  goods  and  their  proceeds,  has  a  lien  or  interest  which  would 
be  defeated  or  impaired  by  the  set-off.*17 

§  2047.  Admissions — Discovery. — Admissions  made  by 

the  principal  have  been  held  to  be  available  to  the  defendant  where  the 
action  was  for  the  principal's  benefit  though  brought  in  the  agent's 
name ; 88  and  it  has  also  been  held  that  where  the  agent  of  a  foreign 
principal  residing  abroad  brings  an  action  in  his  own  name  on  a  con- 
tract made  with  him  as  agent,  the  defendant  is  entitled  to  discovery  to 
the  same  extent  as  if  the  principal  were  a  party  to  the  action,  and  to 
have  the  action  by  the  nominal  plaintiff  stayed  until  such  discovery  is 
made.89 

§  2048.  What  damages  agent  may  recover  on  contract. — Where 
the  action  is  brought  by  the  agent  upon  the  contract  which  he  has 
made,  he  may,  unless  the  principal  intervenes,  recover  the  full  meas- 
ure of  damages  for  its  breach,  in  the  same  manner  as  though  the  ac- 
tion had  been  brought  by  the  principal.90  The  fact  that  the  damages, 
when  recovered,  will  belong  to  the  principal  does  not  affect  this  right.91 

But  where  the  principal  intervenes,  the  agent,  when  permitted  to  sue 
at  all,  can  only  recover  to  the  extent  of  his  special  interest,  by  virtue 
of  which  the  action  is  maintained. 

II. 

IN  TORT. 

§  2049.  Agent  may  sue  for  personal  trespass. — For  all  trespasses 
and  injuries  committed  by  third  persons  to  the  agent  personally  in  the 

87  Young  v.  Thurber,  91  N.  Y.  388.  466,  where  it  is  said  there  can  be  no 

Nor  by  the  principal's  fraud  where  discovery    against    a    person    not    a 

the  agent  was  not  a  party  to  it.    Leo  party  to  the  record  though  charged 

v.  McCormack,  186  N.  Y.  330.  to  be  the  sole  party  in  interest. 

ss  Smith    v.    Lyon,    3    Camp.    465;  »°  Groover  v.  Warfleld,  50  Ga.  644; 

Welstead  v.  Levy,  1  Mood.  &  R.  138.  United  States  Tel.  Co.  v.  Gildersleve, 

s»  Willis  v.   Baddeley,    [1892]    2   Q.  29  Md.  232,  96  Am.  Dec.  519;   Joseph 

B.  324.     This  case  was  distinguished  v.   Knox,   3   Camp.   320;    Gardiner  v. 

and  not  followed  in  Nelson  v.  Nelson  Davis,  2  C.  &  P.  49;  Dancer  v.  Hast- 

Line,     [1906]    2    K.    B.    217,  on    the  ings,  4  Bing.  2. 

ground  that  in  the  latter  case  the  Conversely,  the  agent  ordinarily 
plaintiffs  were  not  merely  nominal  cannot  recover  more  than  the  princi- 
parties  suing  for  the  benefit  of  the  pal  could  recover  if  the  action  were 
real  parties  in  interest  from  whom  brought  in  his  name.  Evrit  v.  Ban- 
discovery  was  sought,  but  were  par-  croft,  22  Ohio  St.  172. 
ties  who  had  a  real  and  substantial  81  Groover  v.  Warfield,  supra; 
interest  of  their  own  in  the  action.  United  States  Tel.  Co.  v.  Gildersleve, 
Compare  Queen  v.  Glyn,  7  Cl.  &  Fin.  supra. 


THE   LAW   OF  AGENCY 


[BOOK    IV 


course  of  his  employment,  the  agent  may  sue  and  recover  in  his  own 
name.  In  a  proper  case  the  principal  might  recover  his  damages  also. 

Thus  an  agent,  selling  goods  upon  commission,  may  recover  dam- 
ages from  a  third  person  for  a  libel  upon  him  in  reference  to  the  sub- 
ject-matter of  his  agency,  by  reason  of  which  he  lost  customers  and 
was  deprived  of  the  natural  gains  and  profits  of  the  business.92 

So  an  agent,  under  the  same  circumstances  as  any  other  person, 
may  recover  damages  against  one  who  interferes  with  the  relation  be- 
tween himself  and  his  principal.*3 

§  2050.  When  agent  may  sue  for  injuries  to  principal's  property. 
— The  custody  by  a  mere  servant  of  his  master's  goods  is  ordinarily 
deemed  to  be  so  far  the  possession  of  the  master,  as  to  give  the  serv- 
ant no  right  of  action  against  one  who  disturbs  that  possession ;  °4  but 
where  the  party  in  possession  of  the  goods  is  one  to  whom  possession 
has  been  confided  and  who  is  therefore  responsible  for  them,  or  who 


»2  Weiss  v.  Whittemore,  28  Mich. 
366. 

»3  Perkins  v.  Pendleton,  90  Me.  166, 
60  Am.  St.  Rep.  252;  Chipley  v.  At- 
kinson, 23  Fla.  206,  11  Am.  St.  Rep. 
367  (defendant  procured  the  dis- 
charge of  plaintiff  whose  contract  of 
employment  was  terminable  at  will) ; 
Moran  v.  Dunphy,  177  Mass.  485,  83 
Am.  St.  Rep.  289,  52  L.  R.  A.  115  (an- 
other case  of  employment  at  will); 
Loughery  v.  Huxford,  206  Mass.  324 
(deals  chiefly  with  question  of  dam- 
ages); Curran  v.  Galen,  152  N.  Y.  33, 
57  Am.  St.  Rep.  496,  37  L.  R.  A.  802 
(defendants  were  a  voluntary  labor 
organization  which  had  plaintiff  dis- 
charged by  virtue  of  a  contract,  with 
plaintiff's  employer,  not  to  employ 
non-union  men) ;  Ruddy  v.  United  As- 
sociation of  Journeymen  Plumbers, 
etc.,  79  N.  J.  L.  467  (plaintiff  was  dis- 
charged because  of  a  threat  to  his 
employer  by  the  agent  of  defendant 
union);  De  Minico  v.  Craig,  207 
Mass.  593  (plaintiff,  as  foreman,  was 
distasteful  to  defendants,  who  struck, 
thereby  procuring  his  dismissal); 
Lopes  v.  Connolly,  210  Mass.  487,  38 
L.  R.  A.  (N.  S.)  986  (the  plaintiff 
was  discharged  because  of  representa- 
tions to  his  employer  by  the  defend- 
ant that  the  plaintiff  was  indebted  to 


him,  whereas  it  was  another  of  the 
same  name). 

But  in  O'Brien  v.  Western  Union 
Tel.  Co.,  62  Wash.  598,  it  was  held 
that  the  plaintiff  could  not  maintain 
an  action  for  wrongful  dismissal 
where  defendant  leased  its  wires  to 
his  employer  upon  condition  that  no 
one  should  be  employed  on  the  line 
who  was  not  satisfactory  to  the  de- 
fendant company. 

As  to  his  right  to  an  injunction 
against  a  strike  by  the  union  to  pro- 
cure his  discharge,  see  Kemp  v.  Divi- 
sion, etc.,  255  111.  213. 

a*  Faulkner  v.  Brown,  13  Wend. 
(N.  Y.)  63;  Tuthill  v.  Wheeler,  6 
Barb.  (N.  Y.)  362;  Gillett  v.  Ball,  9 
Pa.  13. 

In  Chatfield  v.  Clark,  123  Ga.  867, 
it  was  held  that  a  mere  caretaker  or 
agent  of  property,  having  no  bene- 
ficial interest  in  it,  cannot  in  his  own 
name  maintain  an  action  to  enjoin  a 
proceeding  brought  by  persons  who 
claim  to  own  the  property. 

In  Galveston,  etc.,  Ry.  Co.  v.  Stock- 
ton, 15  Tex.  Civ.  App.  145,  it  was  held 
that  one  who  has  possession  of  land 
only  as  agent,  cannot  recover  for  an 
injury  caused  by  fire. 

See  also,  Carroll  v.  McKale,  111 
Mich.  348. 


1616 


CHAP.  VI  ] 


LIABILITY  OF  THIRD  PERSONS  TO  AGENT 


[§    2050 


otherwise  has  a  special  property  or  interest  in  them,  the  rule  is  differ- 
ent. Thus. an  agent  who  is  in  possession  of  his  principal's  goods  as  a 
bailee,  or  who  has  a  special  property  or  interest  therein,  as  in  the  case 
of  a  factor,  may  maintain  an  action  in  his  own  name  against  any  per- 
son who  wrongfully  injures  or  converts  the  goods,95  though  such  per- 
son were  the  absolute  owner.98 

So  an  agent  to  whom  goods  have  been  shipped  over  the  lines  of  a 
common  carrier,  and  who  has  by  advances  or  otherwise  acquired  some 
special  property  or  interest  in  them,  may,  though  not  originally  a  party 
to  the  contract  of  carriage,  maintain  actions  in  tort  against  the  car- 
rier for  losses  sustained  by  reason  of  the  latter's  misconduct  in  keep- 
ing, carrying  or  delivering  the  goods  in  violation  of  the  carrier's  duty 
as  such.97 


95  Moere  v.  Robinson,  2  B.  &  Ad. 
817;  Robinson  v.  Webb,  11  Bush 
(Ky.),  464;  Beyer  v.  Bush,  50  Ala. 
19;  Fitzhugh  v.  Wiman,  9  N.  Y.  559; 
Little  v.  Fossett,  34  Me.  545,  56  Am. 
Dec.  671;  Harker  v.  Dement,  9  Gill 
(Md.),  7,  52  Am.  Dec.  670;  Triplett 
v.  Morris,  18  Tex.  Civ.  App.  50; 
Brown  v.  Shaw,  51  Minn.  266. 

An  agent  entrusted  with  money  to 
pay  the  expenses  of  a  traveling  com- 
panion, may  recover  for  the  loss  of  it 
through  the  negligence  of  a  sleeping 
car  company  while  in  his  possession. 
Pullman  Car  Co.  v.  Gavin,  93  Tenn. 
53,  42  Am.  St.  Rep.  902,  21  L.  R.  A. 
298. 

In  Douglas  v.  Wolf,  6  Kan.  88,  It 
was  held  that  an  agent  who  buys 
bonds  for  another  in  his  own  name, 
may  maintain  replevin  in  his  own 
name  for  the  recovery  of  them.  But 
this  was  distinguished  in  Ward  v. 
Ryba,  58  Kan.  741,  where  it  was  held 
that  an  agent  who  has  taken  in  his 
own  name  a  bill  of  sale  of  goods  in 
payment  of  a  debt  due  to  his  princi- 
pal, cannot,  under  a  general  allega- 
tion of  ownership  in  himself,  main- 
tain replevin  in  his  own  name  against 
creditors  of  the  debtor  who  levied 
upon  the  goods.  He  had  no  property 
in  the  goods  and  was  not  the  trustee 
of  an  express  trust. 

»«  Little  v.  Fossett,  supra;  White  v. 
Webb,  15  Conn.  302. 


»7  Ober  v.  Indianapolis,  etc.,  R.  Co., 
13  Mo.  App.  81.  See  also,  Louisville, 
etc.,  R.  Co.  v.  Allgood,  112  Ala.  163. 

In  Missouri  Pac.  Ry.  Co.  v.  Peru, 
etc.,  Implement  Co.,  73  Kan.  295,  117 
Am.  St.  Rep.  468,  9  Ann.  Cas.  790,  6 
L.  R.  A.  (N.  S.)  1058,  machines  were 
shipped  by  the  manufacturer  to  an 
agent,  who  had  already  negotiated  a 
sale  of  them  and  was  to  have  his 
commissions  from  the  proceeds. 
Through  the  negligent  delay  of  the 
carrier,  the  defendant,  the  sale  was 
lost,  and  the  agent  thereby  lost  his 
commissions.  It  was  held  that  the 
agent  had  such  a  special  property  in 
these  goods  that  he  was  entitled  to 
damages  for  this  delay;  and  that, 
since  the  damages  in  this  case  were 
greater  than  the  charges  for  freight, 
the  railroad  was  not  justified  in  re- 
fusing delivery  without  payment  of 
the  freight.  This  refusal  amounted 
to  a  conversion,  for  which  the  agent 
could  recover  the  full  value  of  the 
goods,  being  accountable  to  his  prin- 
cipal for  the  latter's  share. 

In  Grinnell  v.  111.  Cent.  Ry.  Co.,  109 
Minn.  513,  26  L.  R.  A.  (N.  S.)  437, 
it  was  held  that  an  agent  to  whom 
perishable  goods  were  consigned  for 
sale,  without  any  definite  contract 
and  without  making  any  advances, 
had  no  such  special  property  as  to  en- 
able him  to  sue  for  negligent  injury 
of  the  goods  in  the  transit. 


I O2 


1617 


§  2050] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


As  to  all  persons  except  the  owner,  or  those  claiming  under  him,  the 
agent  may  ordinarily  recover  the  full  value  of  the  goods ; os  but  as 
against  such  owner,  or  those  claiming  under  him,  he  can  recover  only 
to  the  extent  of  his  interest.09  The  defendant  who  has  disturbed  the 
agent's  possession  will  not  be  permitted  to  set  up  the  rights  of  a  third 
party  in  defense,  unless  he  can  show  that  he  acted  under  the  author- 
ity of  such  third  party.1  Where,  however,  such  an  agent  is  not  in  pos- 
session, he  may,  if  he  can  show  that  he  is  entitled  to  immediate  pos- 
session, recover  from  one  who  wrongfully  denies  him  the  right.2  As 


In  Boston  &  Me.  Ry.  Co.  v.  Warrior 
Mower  Co.,  76  Me.  251,  the  manufac- 
turer of  mowing  machines  sent  them 
by  common  carrier  consigned  to  an 
agent  who,  in  pursuance  of  the  con- 
tract between  them,  was  to  pay  the 
freight  and  sell  the  machines  for  a 
commission.  The  carrier  negligently 
delayed  delivery  of  the  machines  un- 
til after  the  close  of  the  season  and 
sales  were  lost  in  consequence.  The 
agent  sued  the  carrier  at  law  for 
damages,  whereupon  the  carrier  filed 
this  bill  of  interpleader.  In  passing 
upon  the  bill  the  court  said  that  un- 
til the  damages  were  assessed  and  the 
facts  were  more  fully  before  the  court 
it  could  decree  no  distribution  of  the 
damages,  but  that  the  agent  had  a 
special  interest  in  the  property,  that 
such  special  interest  would  entitle 
him  to  sue  at  law  and  in  his  own 
name  to  recover  for  himself  whatever 
damages  he  had  sustained,  and  for 
his  principal  whatever  damages  his 
principal  had  sustained. 

In  Whaley  v.  Atlantic  Coast  Line 
R.  Co.,  84  S.  Car.  189,  the  court  says 
that  "a  consignee  has  no  cause  of  ac- 
tion against  a  carrier  for  failure  to 
deliver  goods  consigned  for  sale  by 
him  as  agent  of  the  consignor,  the 
title  being  in  the  consignor,"  but  in 
Thomas  v.  Atl.  Coast  Line  R.  Co.,  85 
S.  Car.  537,  34  L.  R.  A.  (N.  S.)  1177, 
where  the  carrier  had  required  the 
payment  of  freight  by  the  consignee 
and  had  considered  him  responsible 
for  the  goods,  held  that  the  consignee 
must  be  taken  "as  a  consignee  for 


value  or  as  one  who  had  incurred  loss 
and  liability  as  consignee,"  and  there- 
for must  be  a  proper  party  to  sue 
the  carrier  for  a  shortage. 

In  Burritt  v.  Rench,  4  McLean,  325, 
Fed.  Cas.  No.  2,201,  the  plaintiffs  to 
whom  goods  were  consigned  for  sale 
made  advances  on  them  to  the  con- 
signor. Part  of  the  goods  were  di- 
verted by  the  carrier  upon  a  wrong- 
ful order  of  the  consignor,  and  the 
rest  were  delivered  to  the  plaintiffs 
in  a  damaged  condition.  Held,  that 
the  carrier  was  liable  for  the  full 
value  of  all  of  the  goods  minus  the 
value  of  the  damaged  part  actually 
delivered,  and  that  out  of  this 
amount  the  plaintiffs  could  recover 
the  amount  of  their  advances  with 
interest. 

as  Little  v.  Fossett,  34  Me.  545,  56 
Am.  Dec.  671;  Harker  v.  Dement,  9 
Gill  (Md.),  7,  52  Am.  Dec.  670;  Me- 
chanics', etc.,  Bank  v.  Farmers',  etc., 
Bank,  60  N.  Y.  40;  Pomeroy  v.  Smith, 
17  Pick.  (Mass.)  85;  Cullen  v. 
O'Hara,  4  Mich.  132;  Finn  v.  Western 
R.  R.  Co.,  112  Mass.  524,  17  Am.  Rep. 
128. 

»9  Little  v.  Fossett,  supra ;  White 
v.  Webb,  15  Conn.  302;  Ingersoll  v. 
Van  Bokkelin,  7  Cow.  (N.  Y.)  670; 
Davidson  v.  Gunsolly,  1  Mich.  388; 
Burk  v.  Webb,  32  Mich.  173;  Tread- 
well  v.  Davis,  34  Cal.  601,  94  Am.  Dec. 
770;  Schley  v.  Lyon,  6  Ga.  530. 

i  Harker  v.  Dement,  9  Gill  (Md.), 
7,  52  Am.  Dec.  670;  Duncan  v.  Spear, 
11  Wend.  (N.  Y.)  54. 

aCooley  on  Torts,  443-447. 


1618 


CHAP.  Vl]  LIABILITY  OF  THIRD  PERSONS  TO  AGENT  [§    2050 

against  a  mere  wrongdoer,  he  would  in  this  case  as  in  the  other,  be 
entitled  to  recover  the  full  value  of  the  goods;8  but  as  against 'the 
owner,  or  one  claiming  under  him,  only  to  the  extent  of  his  special 
property.4  A  recovery  of  the  full  value  by  the  one  who  has  a  special 
property  will  be  a  bar  to  a  further  action  by  the  principal.5 

»  See  cases  in  note  98,  supra.  etc.,  Implement  Co.,  supra;  Denver, 

*  See  cases  In  note  99,  supra.  etc.,  R.    Co.    v.    Frame,   6   Colo.  382; 

e  Missouri    Pac.    Ry.    Co.    v.    Peru,      Green  v.  Clarke,  12  N.  Y.  343. 

1619 


Jaird 


-u. 


.,tflt«?j>  ririv;  S3 


-otrv 


CHAPTER  VII. 

THE  DUTIES  AND    LIABILITIES  OF  THIRD  PERSONS  TO  THE 

PRINCIPAL. 


§  2051.  In  general. 

2052.  The  rule  stated. 

1.  Right  to  Sue  on  Contracts  Made 
by  Agent. 

a.  The  Disclosed  Principal. 

2053.  In  general. 

2054.  May  sue  on  contracts  in  the 

name  of  the  principal. 

2055.  May  usually  sue  on  contracts 

made  in  his  behalf  but  in 
agent's  name. 

2056.  May   sue  on   contracts  made 

on  his  account  without  au- 
t  h  o  r  i  t  y  but  subsequently 
ratified. 

2057.  .  But  principal  must  take 

contract  as  he  finds  it. 

2058.  Defenses  of  other  party  based 

upon  dealings  with  agent. 

6.  The  Undisclosed  Principal. 

2059.  May  sue  on   contracts  made 

in  his  behalf  but  in  agent's 
name. 

2060. .  One  of  several  undis- 
closed principals  cannot  sue 
on  entire  contract. 

2061.  .  One  of  several  appar- 
ently joint  parties  may  show 
himself  to  be  the  real  prin- 
cipal. 

2062. .  Right  of  one  who  con- 
tracted as  agent  to  show 
himself  to  be  the  real  prin- 
cipal. 

2063. .  What  actions  included. 

2064.  Exceptions.  Instruments 


under  seal. 
2065.  .  Negotiable  instruments. 

1620 


2066.  .  Principal's  remedies 

here — Rescission  —  Enforce- 
ment of  trust. 

2067.  How  when  contract  involves 

elements  of  personal  trust 
and  confidence. 

2068.  .  What   contracts   do   in- 
volve personal  elements. 

2069.  .  Contracts  of  suretyship. 

2070.  2071.    Principal    cannot    sue 

where  terms  of  contract  ex- 
clude him  or  where  con- 
tract is  solely  with  agent 
personally. 

2072.  Principal's    right    of    action 

usually  superior  to  agents. 

2073.  Principal's    rights    governed 

by  the  contract. 

2074.  When  principal  subject  to  de- 

fenses which  could  have 
been  made  against  agent — 
a.  Those  arising  out  of 
terms  of  contract  itself. 

2075.  2076.    .    b.    Payment    to 

agent. 

2077,  2078.  c.  Set-off  of  claims 

against  agent. 

2079.  .  Limitations  of  rule. 

2080.  .  Performance  by  agent. 

2081.  .  Release  by  agent. 

2082.  .  Assignment  by  agent. 

2083.  Repudiation  of  unauthorized 

contract  by  other  party. 

2084.  How    principal    affected    by 

agent's  fraud. 

2085.  How  principal  affected  by  no- 

tice to  or  knowledge  of  his 
agent. 

2086.  Principal's  action  —  Measure 

of  damages. 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


2087.  Third   person   cannot  set  up 

agent's  want  of  authority  to 
dispute  principal's  right. 

2.  Right  to  Recover  Money  Paid  or 
Used  by  Agent. 

2088.  In  general. 

a.  Money    Wrongly    Paid    on    Princi- 
pal's Account. 

2089.  Right      to      recover     money 

wrongly  paid  on  principal's 
account. 

6.  Money  Wrongfully  Appropriated  to 

Agent's  Uses. 

2090-2094.  Principal's  right  to  re- 
cover money  wrongfully  dis- 
posed of  by  agent  on  agent's 
account. 

2095-2100.     .      Illustrations  — 

Bank  deposits. 
2101-2103.  .  Other  illustrations. 

2104.  .    Further  illustrations — 

Restrictive  indorsements. 

3.  Right  to  Recover  Property. 

2105,  2106.  In  general. 

2107.  Principal's  title  cannot  be  di- 

vested except  by  Ms  con- 
sent or  voluntary  act. 

2108.  Recovery     of     property     dis- 

posed of  by  agent  in  excess 
of  authority. 

2109.  Recovery  of  property  wrong- 

fully disposed  of  by  one  al- 
leged to  be  ostensible  agent 
or  owner. 

2110.  Possession     as     evidence     of 

ownership  or  authority. 
2111. .      Money   —    Negotiable 

paper. 
2112-2114.     Possession   confided  to 

recognized  sales  agent. 

2115.  Possession   coupled   with    in- 

dicia of  ownership. 

2116.  .       Principal     may     lose 

through  agent's  fraud. 

2117.  .  But   other   party   must 

have    acted    in    good    faith 
and    with    reasonable    pru- 
dence. 

2118. .  Illustrations  —  Picker- 
ing v.  Busk. 

J62I 


.  McNeil    v.    The    Tenth 

National  Bank. 
.    Commercial    Bank    v. 

Armsby. 
.  Calais  Steamboat  Co.  v. 


2122. 
2123. 


2124. 
2125. 

2126. 
2127. 


Van  Pelt. 

.  Nixon  v.  Brown. 

.  Other  cases  —  Title  put 

in  agent's  name  —  Instru- 
ments delivered  in  blank. 

.  Limitations     on     d  o  c  - 


2130. 
2131. 


trine  in  general. 

.  Limitations  on  rule  of 

McNeil  v.  Tenth  National 
Bank. 

.  Notice  of  principal's 

right  from  descriptive 
words  in  document. 

.  Rule  of  McNeil  v. 

Tenth  National  Bank  does 
not  apply  to  ordinary  chat- 
tels. 

Possession  under  the  Factor's 
Acts. 

Principal  may  recover  his 
property  appropriated  to 
payment  of  agent's  debts  or 
seized  by  agent's  creditors. 

Right  to  recover  securities 
wrongfully  released. 

Right  to  recover  property 
wrongfully  sold  to  third  per- 
son for  the  agent's  benefit. 


4.  Right  to  Recover  for  Torts. 

2132.  Principal  may  recover  for  in- 

juries   to    his    interests    by 
third  person's  torts. 

2133.  For  enticing  agent  away. 

2134.  For    preventing    agent    from 

performing. 

2135.  For  personal  injury  to  agent 

causing  loss  of  service. 

2136.  Third    person    not    liable    to 

principal  for  agent's  fraud 
or  neglect. 

5.  Remedies  for  Double  Dealing. 

2137.  How  when  third  person  con- 

spires with  agent. 

2138.  2139.  How  when  agent  in  se- 

cret   employment    of    the 
other  party. 


§§    2051,2052]  THE  LAW  OF  AGENCY  [BOOK   IV 

2140.  One  of  two  principals  not  Ha-  ment    respecting    property 

ble  to  other  for  defaults  of  rights  against  agent  in  ac- 

their  common  agent.  tion  to  which  he  was  not  a 

6.  Conclusiveness   upon  Principal  of 

Judgment  against  Agent.  2142«  •  Otherwise    as    to    con- 

2141.  Principal  not  bound  by  judg-  tract  ri£hts- 
;»q  eUJT-               lyrflO  . i-jbfr&">  ; 

§  2051.  In  general. — The  profits,  benefits  and  advantages  result- 
ing from  the  agency  belong  to  the  principal.  To  secure  them  to  him 
was  the  object  for  which  tHe  agency  was  created,  and  it  is  therefore 
his  right,  not  only  as  against  the  agent,  but  as  against  third  persons 
who  have  dealt  with  the  agent  as  such,  to  obtain  and  enjoy  them. 
The  right,  however,  is  based  upon  the  agent's  acts  and  contracts,  and 
is  limited  by  them.  The  principal  can  not  avail  himself  of  the  advan- 
tages of  these  acts  and  contracts,  and  relieve  himself  of  the  responsi- 
bilities attaching  to  them.  What  is  said  or  done  by  the  agent  within 
the  scope  of  his  authority  is,  as  has  been  seen,  binding  upon  the  princi- 
pal. What  is  said  or  done  by  the  agent  without  the  scope  of  his  au- 
thority, is  as  has  been  seen,  not  binding  upon  the  principal,  unless  rati- 
fied and  approved  by  him.  Such  subsequent  ratification  is  equivalent 
to  precedent  authorization.  One  of  the  most  unequivocal  evidences 
of  such  ratification  has  been  seen  to  be  the  fact  that  the  principal,  with 
knowledge  of  the  facts,  appropriates  to  himself  the  benefits  of  the 
agent's  unauthorized  acts  or  contracts.  These  general  principles  are 
essential  to  be  borne  in  mind  in  considering  the  questions  involved  in 
the  subject  of  this  chapter. 

§  2052.  The  rule  stated. — Keeping  in  mind  these  principles  it 
may  be  said  that,  subject  to  certain  exceptions  and  modifications  which 
grow  out  of  them  and  which  will  be  fully  dealt  with  in  the  following 
sections,  the  principal  is  entitled  to  demand,  receive  and  recover 
from  third  persons  all  the  rights,  profits,  benefits  and  advantages 
based  upon  or  growing  out  of  his  agent's  dealings  with  them,  in  the 
same  manner  and  to  the  same  extent  as  though  the  same  dealings  had 
been  had  with  him  in  person.1 

These  rights,  profits,  benefits  and  advantages  may  be  sought  under 
such  circumstances  as  to  involve : 

1.  The  principal's  right  to  sue  on  contracts  made  by  his  agent. 

2.  His  right  to  recover  money  paid  or  used  by  the  agent. 

3.  His  right  to  recover  his  property. 

4.  His  right  to  recover  for  torts  to  person  or  property. 

i  See  Story  on  Agency,  §  418.  See,  generally,  the  cases  cited  in  the  fol- 
lowing sections. 

1622 


CHAP.  VII ]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2053-2055 

5.  His  remedies  for  double  dealing  between  the  agent  and  third  per- 
sons. 

6.  The  conclusiveness  of  judgments  against  the  agent. 

1.  Right  to  Sue  on  Contracts  made  by  Agent. 

a.  The  Disclosed  Principal. 

§  2053.  In  general. — The  question  of  the  right  of  a  disclosed 
principal  to  sue  upon  contracts  made  by  his  agent  presents  the  normal 
aspect  of  the  matter.  It  has  at  least  three  phases :  The  right  of  a  dis- 
closed principal  to  sue  upon  an  authorized  contract  made  in  his  name. 
The  right  of  a  disclosed  principal  to  sue  upon  a  contract  made  by  his 
authority,  but  in  his  agent's  name.  The  right  of  a  disclosed  principal 
to  sue  upon  a  contract  made  in  his  name  by  one  who  acted  as  agent 
without  authority,  but  whose  act  the  alleged  principal  has  ratified  or 
seeks  to  ratify. 

§  2054.  May  sue  on  contracts  made  in  name  of  principal. — The 
principal's  right  to  sue  upon  contracts  made  by  the  agent  in  the  name, 
and  for  the  benefit  and  advantage  of  the  principal  is,  of  course,  un- 
questioned.2 Here  the  principal  is  the  nominal,  as  well  as  the  real 
party  in  interest,  and  is  as  much  entitled  to  enforce  the  contract  as 
though  it  had  been  executed  by  him  in  person.  It  has  been  seen  to  be 
the  general  duty  of  the  agent,  authorized  to  execute  a  contract  in  be- 
half of  his  principal,  to  so  execute  it  that  it  shall  be  in  fact,  what  it 
was  intended  it  should  be, — a  contract  running  from  and  to  the  princi- 
pal as  the  party  in  interest.  Where  this  duty  has  been  performed,  the 
principal's  right  is  clear. 

The  same  rule,  of  course,  applies  to  the  great  number  of  informal 
contracts,  usually  not  reduced  to  writing,  where  the  agent  is  known  to 
be  negotiating  for  a  disclosed  principal.  These  contracts  bind  the  prin- 
cipal and  are  enforceable  by  him,  unless  it  is  clear  that  the  dealing  was 
with  the  agent  personally  to  the  exclusion  of  the  principal. 

§  2055.  May  usually  sue  on.  contracts  made  in  his  behalf  but  in 
agent's  name. — The  principal  may  also  ordinarily  sue  on  contracts, 
not  negotiable  or  under  seal,  made  on  his  account  but  in  the  name  of 
the  agent.  Such  a  right,  as  will  be  seen  in  the  following  sections,  is 
constantly  recognized  in  the  case  of  an  undisclosed  principal,  and  this 
case  differs  from  that  only  in  the  fact  that  it  may  be  contended  that, 
where  the  principal  and  agent  are  both  known  at  the  time  of  the  con- 

2  Sharp  v.  Jones,  18  Ind.  314,  81  N.  Y.  Misc.  529;  Rand  v.  Moulton,  72 
Am.  Dec.  359;  Cochran  v.  MacRae,  49  N.  Y.  App.  Div.  236. 

1623 


§  2055] 


tract,  the  making  of  a  contract  in  the  agent's  name  is  evidence  of  an 
intention  to  deal  with  the  agent  only  in  which  case  the  principal  could 
not  sue.  But  as  has  been  seen  in  an  earlier  section,*  no  conclusive  pre- 
sumption is  necessarily  to  be  drawn  from  that  fact,  and  the  cases  are 
very  numerous  in  which  orders,  proposals,  and  informal  contracts  of 
all  kinds,  though  nominally  in  the  name  of  the  agent,  are  really  on  ac- 
count of  and  with  the  principal.  In  such  cases,  as  has  been  seen,  the 
principal  is  liable  and  he  may  also  sue.*  Parol  evidence  is  admissible 


s  See  ante,  §§  1424,  1713. 

4  See  Weidner  v.  Hoggett,  1  Com. 
PI.  Div.  533  (where  a  principal  was 
permitted  to  sue  upon  a  contract  for 
loading  a  ship  made  with  his  agent); 
Morris  v.  Wilson,  5  Jurist  N.  S.  168 
(where  the  principal  was  allowed  to 
enforce  specific  performance  of  an 
offer  made  to  his  agent  to  purchase 
certain  leasehold  premises,  fixtures 
and  furniture);  Bateman  v.  Phillips, 
15  East,  272  (where  the  principal  was 
allowed  to  sue  upon  a  promise  ad- 
dressed to  his  attorney);  Rea  v. 
Barker  (C.  C.),  135  Fed.  890  (where 
a  disclosed  principal  was  permitted 
to  enforce  a  written  contract  made  in 
the  agent's  name  but  which  defend- 
ant knew  was  made  on  the  principal's 
account;  and  to  same  effect,  Moline 
Malleable  Iron  Co.  v.  York  Iron  Co., 
83  Fed.  66);  Bay  ley  v.  Onondaga  Co. 
Mut.  Ins.  Co.,  6  Hill  (N.  Y.),  476,  41 
Am.  Dec.  759  (where  a  corporation 
was  allowed  to  sue  on  a  contract 
made  with  the  directors,  as  such) ; 
Caldwell  v.  Meshew,  44  Ark.  564 
(where  equitable  relief  in  the  nature 
of  declaring  principal  to  be  owner  of 
notes  made  in  agent's  name  and  for 
foreclosure  of  mortgage  incident 
thereto  was  granted);  Schmucker  v. 
Higgins-Roberts  Grain  Co.,  28  Okla, 
721  (where  an  undisclosed  principal 
Tras  allowed  to  recover  on  a  written 
contract  for  the  sale  of  grain,  signed 
by  the  agent  in  the  agent's  name); 

Pecos,  etc.,  Ry.  Co.  v.  Scurlock,  

Tex.  Civ.  App.  ,  136  S.  W.  1181 

(where  the  principal  was  allowed  to 
recover  for  an  indebtedness,  although 
evidenced  by  a  check  made  payable 
to  the  order  of  the  plaintiff's  agent). 


In  Hendrick  v.  Lindsay,  93  U.  S. 
143,  23  L.  Ed.  855,  where  the  defend- 
ant promised  to  indemnify  one 
surety,  a  joint  surety,  who  joined  in 
the  surety  bond  with  the  promisee, 
was  held  to  be  included  in  the  bene- 
fit of  an  action  on  the  promise  and 
was  allowed  to  recover  in  assumpsit, 
though  he  was  not  named  In  the 
agreement. 

In  Gulf,  etc.,  Ry.  Co.  v.  Stanley,  89 
Tex.  42,  an  action  on  a  contract  for 
the  shipment  of  cattle,  the  principal 
was  allowed  to  sue,  although  there 
were  written  contracts  signed  in  the 
agent's  name. 

In  Lamson,  etc.,  Co.  v.  Russell,  112 
Mass.  387,  the  plaintiff,  a  corporation, 
was  permitted  to  sue  upon  a  contract 
which  named  the  plaintiff  as  one  of 
the  parties  to  it  but  which  was  signed 
by  plaintiff's  agents  in  their  own 
names  with  nothing  to  indicate  that 
they  were  acting  for  the  plaintiff. 

See  also,  Webb  v.  Sharman,  34  U.  C. 
Q.  R  410;  Rice  v.  Savery,  22  Iowa, 
470. 

In  Vermont  the  principal  has  been 
permitted  to  sue  upon  negotiable 
paper.  Rutland,  etc.,  R.  Co.  v.  Cole, 
24  Vt.  33,  and  cases  cited. 

Principal  cannot  sue  where  contract 
made  with  agent  only. — But  where  it 
is  found  that  the  contract  was  made 
with  the  agent  only  as  the  other 
party  to  it,  the  principal  can  not  sue 
in  his  own  name  upon  it  at  law.  El- 
binger  Actien-Gesellschaft  v.  Claye, 
L.  R.  8  Q.  B.  313.  Here  the  fact  that 
the  principal  was  known  to  be  a  for- 
eigner, was  held  to  raise  a  presump- 
tion that  the  contract  was  with  the 
agent  only. 


1624 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§2056,2057 

in  such  a  case  to  prove  the  fact  and  the  nature  of  the  principal's  in- 
terest. The  action  might  often  be  brought  by  the  agent  himself,  but 
unless  the  agent  has  some  interest  of  his  own,  as  seen  in  the  precedin'g 
chapter,  the  principal's  right  to  sue  would  take  precedence  of  that  of 
his  agent.  The  principal  in  this  case  may  usually,  it  is  said,5  sue  ei- 
ther in  his  own  name  or  in  the  name  of  the  agent,  though  he  may  run 
the  risk  of  defences  good  against  the  agent  if  he  adopts  the  latter 
method.  He  may  doubtless  also  in  such  a  case  be  required  to  indem- 
nify the  agent  against  costs,  where  this  is  necessary  to  protect  the 
agent. 

Although  the  two  situations  are  sometimes  confused,  the  plaintiff's 
right  to  sue  does  not  depend  upon  the  theory  of  a  beneficiary  suing 
upon  a  contract  made  for  his  benefit,  but  upon  the  doctrines  of  agency. 

§  2056.  May  sue  on  contracts  made  on  his  account  without  au- 
thority but  subsequently  ratified. — So  also,  as  has  been  seen  in  an 
earlier  chapter,  where  a  contract  has  been  made  on  account  of  and 
in  the  name  of  a  principal  but  without  his  authority,  the  principal  may, 
by  the  weight  of  authority,  -ratify  the  contract,  at  least  if  he  does  so. 
before  the  other  party  has  repudiated  it,  and  then  enforce  it  against  the 
other  party.6  This  subject  has  been  so  fully  considered  in  its  proper 
place  that  nothing  more  is  necessary  here  than  to  call  attention  to  it 
as  one  of  the  cases  in  which  a  disclosed  principal  may  enforce  con- 
tracts. 

By  the  weight  of  authority,  as  has  been  seen,  though  not  universally, 
an  undisclosed  principal  cannot  ratify  and  enforce  a  contract,7  and 
clearly  one  who  was  a  stranger  to  the  transaction  and  for  whom  the 
alleged  agent  did  not  purport  to  act  cannot  ratify  or  adopt  the  contract 
as  his  own  and  then  enforce  it  against  the  other  party.8 

§  2057.  —  But  principal  must  take  contract  as  he  finds  it. — 

But  if  the  principal  in  such  a  case  would  ratify  and  enforce  a  contract 
made  without  authority  by  his  agent,  he  must  take  the  contract  as  he 
finds  it.  He  cannot  enforce  it  as  it  ought  to  have  been  made  but  was 
not  made.  And  the  fact  that  the  other  party,  when  he  made  the  con- 
tract with  the  agent,  knew  that  the  latter  was  exceeding  his  authority, 
is  immaterial.  The  principal  may  repudiate  the  contract  on  that 
ground  if  he  will,  but  if  he  desires  to  enforce  it  he  must  ratify  the  de- 

8  Wright  on   Principal  and  Agent         T  See  ante,  §  377. 
(2d  ed.),  p.  347.  «  See  ante,  §   386;    In  re  Roanoke 

e  See  ante,  §  509:   Brooks  v.  Cook,      Furnace  Co.,  166  Fed.  944. 
141   Ala.    499;    Fleming   v.    Bank   of 
New  Zealand,  [1900]  App.  Cas.  577. 

1625  r  . 


§§    2058,  2059]  THE  LAW  OF  AGENCY  [BOOK    IV 

partures  from  authority  through  which  only  the  contract  was  brought 
about.9 

'  §  2058.  Defences  of  other  party  based  upon  dealings  with  agent. 
— A  principal  who  seeks  to  enforce  contractual  rights  against  third 
persons,  whether  those  rights  accrued  through  dealings  with  the  agent 
or  not,  will  frequently  be  met  by  defenses  of  various  sorts — payments, 
waivers,  releases,  set-offs,  counterclaims,  unperformed  conditions,  and 
the  like — which  the  other  party  contends  have  enured  to  him  through 
dealings  with  the  principal's  agent.  These  claims,  thus  made  by  way 
of  defense,  must  usually  be  based  upon  the  same  considerations  and 
be  established  by  the  same  sort  of  proof,  as  if  they  had  been  made  the 
foundation  of  affirmative  action  against  the  principal. 

Thus  if  the  principal  demands  payment  of  an  undoubted  claim  against 
the  other  party,  and  is  met  with  the  plea  that  it  has  already  been  paid 
to  the  plaintiff's  agent,  the  other  party  must  be  prepared  to  prove  not 
only  that  he  paid  it  to  an  agent  but  to  an  agent  of  the  plaintiff  who 
was  authorized  to  receive  it;  so  if  the  other  party  relies  upon  a  com- 
promise made  with  the  agent,  or  a  release. given  by  the  agent,  or  upon 
an  unperformed  condition  to  which  the  agent  has  attempted  to  bind 
the  principal,  or  upon  the  waiver  of  conditions  by  the  agent,  and  the 
like,  he  must  be  prepared  to  show  that  the  agent  was  authorized  to  do 
the  act  relied  upon,  and  this  burden  rests  upon  him  ordinarily  in  the 
same  way  and  to  the  same  degree  as  though  he  were  suing  affirma- 
tively under  the  same  circumstances.10 

What  is  necessary  to  confer  authority  in  such  cases  has  been  fully 
considered  in  previous  chapters,  and  need  not  be  repeated  here. 

cjrh  jqohi;  10  •/};•••  .!;K 

b.  The  Undisclosed  Principal 

§  2059.  The  undisclosed  principal  may  sue  on  contracts  made 
in  his  behalf  but  in  agent's  name. — It  has  been  seen  in  the  preced- 
ing chapter  that  where  the  agent  contracts  for  the  principal,  but  in  his 
own  name,  the  agent  may,  in  general,  maintain  an  action  upon  the  con- 

9  Fruit  Dispatch   Co.   v.  Roughton-      -Mill  Mfg.  Co.  v.  Vickers,  147  Ky.  396; 
Halliburton  Co.,  9  Ga.  App.  108.  Sumrall  v.  Kitselman,  101  Miss.  783; 

10  Thus  see  Koen  v.  Miller, Ark.  Johns  v.  Jaycox,  67  Wash.  403,  39  L. 

,  150  S.  W.  411;   Key  v.  Goodall,  R.  A.  (N.  S.)  1151;  McFadden  v.  Foll- 

Ala.  App.  ,  60  So.  986;  Oliver  rath,  114  Minn.  85,  37  L.  R.  A.    (N. 

Typewriter  Co.  v.  United  Pub.  Ass'n,  S.)  201;  Walker  v.  Hale,  92  Neb.  829, 

133  N.  Y.  Supp.  478;  Everdell  v.  Car-  139  N.  W.  658;    Walker  v.  Rudd,  92 

rington,  154  N.  Y.  App.  Div.  500,  139  Neb.  839,  139  N.  W.  662;  Clow-Schaaf 

N.  Y.  Supp.  119;  City,  etc.,  Homes  Co.  Lumber  Co.  v.  Kass, S.  Dak.  , 

v.  Marrow,  133  N.  Y.  Supp.  968;  Case  138  N.  W.  1120. 

1626 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2059 


tract  against  the  other  party.  But  this  right  to  sue  has  also  there  been 
seen  to  be  subservient  to  the  principal's  superior  right  to  maintain  the 
action  in  his  own  name  upon  all  simple  contracts.  By  force  of  a  rule 
heretofore  seen  to  be  an  anomalous  one,  such  contracts,  though  made 
in  the  agent's  name  without  the  disclosure  of  his  principal,  are  binding 
upon  the  principal,  and  actions  may  be  maintained  upon  them  by  the 
other  party  against  him  when  discovered.  Being  thus  liable  upon 
them,  it  is  said  that  he  should  be  entitled  to  reciprocal  rights  against 
the  other  party.  And  such  is  the  general  rule.  All  simple  non-nego- 
tiable contracts,  whether  written  or  unwritten,  made  by  the  agent  in 
the  execution  of  his  agency,  though  made  in  his  own  name  without  dis- 
closing his  principal  or  the  fact  of  the  agency,  and  although  the  agent 
acted  under  a  del  credere  commission,  may  be  enforced  by  the  princi- 
pal, whether  he  be  foreign  or  domestic,  by  appropriate  actions  brought 
in  his  own  name.11  In  order  to  maintain  an  action  it  is,  of  course,  nec- 


11  Western  Union  Tel.  Co.  v.  North- 
cutt,  158  Ala.  539,  132  Am.  St.  Rep. 
38;  Western  Union  Tel.  Co.  v.  Walker, 
158  Ala.  578;  Sellers  v.  Malone- 
Pilcher  Co.,  151  Ala.  426;  Western 
Union  Tel.  Co.  v.  Manker,  145  Ala. 
418;  Southern  Ry.  Co.  v.  Jones,  132 
Ala.  437;  McFadden  v.  Henderson, 
128  Ala.  221;  Powell  v.  Wade,  109 
Ala.  95,  55  Am.  St.  Rep.  915;  Bell  v. 
Reynolds,  78  Ala.  511;  Ruiz  v.  Nor- 
ton, 4  Cal.  355,  60  Am.  Dec.  618; 
Parker  v.  Cochrane,  11  Colo.  363;  Sul- 
livan v.  Shailor,  70  Conn.  733;  Len- 
man  v.  Jones,  33  App.  D.  C.  7;  Pro- 
peller Tow-Boat  Co.  v.  Western  Union 
Tel.  Co.,  124  Ga.  478;  Woodruff  v.  Mc- 
Gehee,  30  Ga.  158;  Central  Ry.  Co.  v. 
James,  117  Ga.  832;  Rice,  etc.,  Malt- 
ing Co.  v.  International  Bank,  185  111. 
422;  Cleveland,  etc.,  Ry.  Co.  v.  Mc- 
Nutt,  138  111.  App.  66;  Stockbarger 
v.  Sain,  69  111.  App.  436;  Young  v. 
Lohr,  118  Iowa,  624;  Harkness  v. 
Western  Union  Tel.  Co.,  73  Iowa,  190, 
5  Am.  St.  Rep.  672;  St.  Louis,  etc., 
Ry.  Co.  v.  Thacher,  13  Kan.  564;  Tutt 
v.  Brown,  5  Littell  (Ky.),  1,  15  Am. 
Dec.  33;  Pitts  v.  Mower,  18  Me.  361, 
36  Am.  Dec.  727;  Baltimore  Coal  Tar 
Co.  v.  Fletcher,  61  Md.  288;  Foster  v. 
Graham,  166  Mass.  202;  Ilsley  v. 
Merriam,  7  Cush.  (Mass.)  242,  54  Am. 


Dec.  721;  Eastern  R.  Co.  v.  Benedict, 

5  Gray  (Mass.),  561,  66  Am.  Dec.  384; 
Huntington  v.  Knox,  7  Cush.  (Mass.) 
371;  Winchester  v.  Howard,  97  Mass. 
303,  93  Am.  Dec.  93;    Hunter  v.  Gid- 
dings,  97  Mass.  41,  93  Am.  Dec.  54; 
Ames  v.    St.    Paul,    etc.,    R.    Co.,  12 
Minn.  412;  Clubb  v.  St.  Louis,  etc.,  R. 
Co.,  136    Mo.    App.    1;     Randolph  v. 
Wheeler,  182  Mo.  145;  Kelly  v.  Thuey, 
143  Mo.  422;   State  v.  O'Neill,  74  Mo. 
App.   134;    Elkins  v.  Boston,  etc.,  R. 
Co.,  19  N.  H.  337,  51  Am.  Dec.  184; 
Talcott  v.  Wabash  R.  Co.,  159  N.  Y. 
461;      Kilpatrick      v.      America-West 
Africa   Trading  Co.,   59   N.   Y.   Misc. 
180;  Wiehle  v.  Safford,  27  Misc.  562; 
Bayley  v.  Onondaga  Co.  Mut.  Ins.  Co., 

6  Hill  (N.  Y.),  476,  41  Am.  Dec.  759; 
Taintor   v.    Prendergast,    3    Hill    (N. 
Y.),  72,  38  Am.  Dec.  618;   Barham  v. 
Bell,  112  N.  Car.  131;  Woolen  Co.  v. 
McKinnon,  114  N.  Car.  661;    Mitchell 
v.  Knudtson  Land  Co.,  19  N.  D.  736; 
Rankin   v.   Elaine   County   Bank,    20 
Okla.    68,  18   L.   R.  A.    (N.   S.)    512; 
Schmucker  v.  Higgins  Grain  Co.,  28 
Okla.  721;  Kitchen  v.  Holmes,  42  Ore. 
252;  Reed  v.  Klaus,  152  Pa.  341;   Gil- 
pin  v.  Howell,  5  Pa.  41,  45  Am.  Dec. 
720;    Girard    v.    Taggart,    5    S.  &  R. 
(Pa.)    19,  9  Am.  Dec.  327;    Battey  v. 
Lunt,  30  R.  I.  1,  136  Am.  St.  Rep.  50; 


1627 


§  2059] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


essary  for  the  principal  to  show  the  fact  of  the  agency  and  that  the 
agent  had  power  to  bind  him  to  the  contract,  else  there  would  be  no 
mutuality  and  consequently  no  contract.12  For  the  purpose  of  show- 
ing that  the  ostensible  party  was  really  but  an  agent,  resort  may  be 
had  to  parol  evidence.18 

Contracts  made  by  sub-agent  are  equally  within  the  rule,  if  the  sub- 
agent  were  so  appointed  as  to  be  deemed  the  agent  of  the  principal.14 


Foster  v.  Smith,  2  Cold.  (Tenn.)  474, 
88  Am.  Dec.  604;  Cole  v.  Utah  Sugar 
Co.,  35  Utah,  148;  Child  v.  Gillis 

Constr.   Co.,  Utah  ,  129   Pac. 

356;  Bertoli  v.  Smith  &  Co.,  69  Vt. 
425;  Arlington  v.  Hinds,  1  D.  Chip. 
(Vt.)  431,  12  Am.  Dec.  704;  Edwards 
v.  Goldlng,  20  Vt.  30;  National  Bank 
of  Virginia  v.  Nolting,  94  Va.  263; 
Oliver  Refining  Co.  v.  Portsmouth, 
etc.,  Co.,  64  S.  E.  56,  109  Va.  513; 
Coulter  v.  Blatchley,  51  W.  Va.  163; 
Block  v.  Meridian,  95  C.  C.  A.  14,  169 
Fed.  516;  Salmon  Falls  Mfg.  Co.  v. 
Goddard,  14  How.  (U.  S.)  446,  14  L. 
Ed.  493;  Ford  v.  Williams,  21  How. 
(U.  S.)  287,  16  L.  Ed.  36;  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank, 
6  How.  (U.  S.)  344,  381,  12  L.  Ed. 
465;  Great  Lakes  Towing  Co.  v.  Mill 
Transp.  Co.,  155  Fed.  11,  22  L.  R.  A. 
(N.  S.)  769;  Morris  v.  Chesapeake, 
etc.,  S.  S.  Co.,  125  Fed.  62;  Darrow  v. 
Home  Produce  Co.,  57  Fed.  463;  Spurr 
v.  Cass,  L.  R.  5  Q.  B.  656;  Mildred  v. 
Hermano,  8  App.  Cases,  874;  Nor- 
folk v.  Worthy,  1  Camp.  337;  Wilson 
v.  Hart,  7  Taunt.  295;  Blckerton  v. 
Burrell,  5  Maule  &  Sel.  383;  Cook  v. 
Aldred,  [1909]  Transv.  L.  R.  150. 

The  rule  allowing  the  undisclosed 
principal  to  sue  does  not  prevail  In 
the  Philippine  Islands.  Castle  v. 
Go'  Juno,  7  Philip.  144. 

The  fact  that  the  agent  acted  tin- 
der a  del  credere  commission  does 
not  affect  the  right.  Hornby  v.  Lacy, 
6  M.  &  S.  166;  Cushman  v.  Snow, 
186  Mass.  169. 

By  statute,  the  rule  does  not  apply 
to  contracts  made  with  war,  navy  and 
interior  departments  of  U.  S.  Cal- 
vary Cathedral  v.  U.  S.,  29  Ct.  Cl.  269. 

The  contract  was  enforced  by  an 


undisclosed  principal  against  an  un- 
disclosed principal,  in  Darrow  v. 
Home  Produce  Co.,  57  Fed.  463. 

In  Mooney  v.  Williams,  3  Com.  Law 
Rep.  (Australia)  1,  (reversing  same 
case,  5  New  South  Wales,  304)  it  was 
held  that,  where  a  person  on  his  own 
account  made  an  offer,  to  which,  after 
he  had  become  agent  for  an  undis- 
closed principal  who  had  acquired 
ownership  of  the  subject  matter, — 
there  was  a  counter  proposition, 
which  he  accepted  really  as  agent, 
the  undisclosed  principal  could  en- 
force the  contract  so  made. 

The  fact  that  the  other  party  sup- 
posed he  was  dealing  with  a  princi- 
pal does  not  affect  the  real  principal's 
right  to  sue.  Hunter  v.  Giddings,  97 
Mass.  41,  93  Am.  Dec.  54. 

12  Ruiz   v.   Norton,   4   Cal.   355,   60 
Am.  Dec.  618;   Hogan  v.  Klabo,  13  N. 
Dak.  319. 

An  alleged  undisclosed  principal 
cannot  sue  if  there  was  no  agency. 
Western  Union  Tel.  Co.  v.  Northcutt, 
158  Ala.  539,  132  Am.  St.  Rep.  38. 

13  Huntington    v.    Knox,     7     Gush. 
(Mass.)   371;    Salmon  Falls  Mfg.  Co. 
v.  Goddard,  14  How.   (U.  S.)   446,  14 
L.   Ed.   493;    Briggs  v.   Munchon,   56 
Mo.  467;  Bank  of  Odessa  v.  Jennings, 
18  Mo.  App.  651;  Oelrichs  v.  Ford,  21 
Md.  489;  Schmucker  v.  Higgins  Grain 
Co.,  28  Okla.  721;   Prichard  v.  Budd, 
22  C.  C.  A.  504,  76  Fed.  710,  and  many 
other   cases   cited   in   the   preceding 
notes. 

i*  But  not  where  the  sub-agent  was 
not  appointed  to  make  contracts  with 
the  express  or  implied  authority  of 
the  principal.  See  Bramwell,  L.  J., 
in  New  Zealand,  etc.,  Co.  v.  Watson, 
7  Q.  B.  Div.  374. 


1628 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2060,  2O6l 

The  right  of  the  principal  does  not  depend  upon  the  theory  of  an 
assignment  express  or  implied,15  and  hence  a  stipulation  against  an 
assignment  of  the  contract  does  not  prevent  the  undisclosed  principal 
from  availing  himself  of  the  contract.16 

Although  this  right  of  the  undisclosed  principal  to  enforce  the  con- 
tract is,  as  has  been  seen,  an  anomaly  in  the  law  of  contracts,  it  is  a 
convenient  short-cut  to  the  real  situation,  and  as  such  is  not  to  be  un- 
necessarily discouraged.  It  harms  no  one  so  long  as  the  equities  and 
defences  of  the  other  party  are  properly  conserved. 

This  right  of  the  undisclosed  principal  to  sue  is  not  generally  rec- 
ognized in  Continental  law,  and  does  not  prevail  in  the  Philippine  Is- 
lands. 

§  2060.  One  of  several  undisclosed  principals  cannot  sue 

on  entire  contract. — Where,  however,  the  undisclosed  principal  is 
merely  one  of  several  interested  in  a  single  and  entire  contract  and 
his  interest  is  not  apportioned, —  as  where  a  factor  has  sold  the  goods 
of  several  principals  in  one  lot, — the  principal  cannot  sue.17  But 
where  the  contract  is  severable,  each  principal  could  sue.18  Where 
the  contract  is  made  for  but  one  of  several  undisclosed  principals,  that 
one  only  may  sue  on  whose  account  the  contract  was  made. 

§  2061.  — -  One  of  several  apparently  joint  parties  may  show 

himself  to  be  the  real  principal. — Where  two  or  more  persons  make 
a  contract,  apparently  as  joint  principals,  as,  for  example,  where  they 
apparently  are  partners,  it  is  held  that  one  of  them  may,  subject  to  the 
general  exceptions  hereafter  referred  to,  show  that  he  was  the  only 

'••hii  ">H  .'ivyiiiijifi!  !>i(V>  7f!95!J!  Kii 

is  The    contrary    is,    indeed,    sug-  152  (one  of  two  tenants  in  common) : 

gested  in  Moore  v.  Vulcanite,  etc.,  Co.,  Delaware,  etc.,  R.  Co.  v.  Thayer,  41 

121  N.  Y.  App.  Div.  667.  111.    App.    192    (contract    cannot    be 

is  Prichard  v.  Budd,  22  C.  C.  A.  504,  split    up);    Cockley    v.    Brucker,    54 

76  Fed.  710.  Ohio  St.  214  (same  effect) ;  Talcott  v. 

Contra,  as  a  matter  of  pleading.  Wabash  R.  Co.,  39  N.  Y.  Misc.  443,  re- 
Harris  v.  Richmond,  etc.,  R.  Co.,  31  trial  of  Talcott  v.  Wabash  R.  Co.,  159 
S.  Car.  87.  N.  Y.  461  (holding  one  of  several 

IT  Roosevelt  v.  Doherty,  129  Mass.  principals  could  not  recover  for  loss 

301,  37  Am.  Rep.  356  (where  an  agent  of   his    goods   mixed    with    those    of 

sold  a  lot  of  glass  in  one  order  for  a  others  in  a  traveling  agent's  trunks 

lump  sum.    The  plate  glass  belonged  which  were  lost  by  defendant's  neg- 

to  the  plaintiff  but  the  price  was  not  ligence,  affirmed   109  App.   Div.  491, 

apportioned);     Midwood    v.    Alaska  but  this  point  not  discussed). 
Packers'  Ass'n,  28  R.  I.  303,  13  Ann.          But  see  St.   Louis,   etc.,   R.   Co.   v. 

Gas.    954    (where    an    agent    buying  Thacher,  13  Kan.  564,  where  the  ac- 

canned  goods  made  a  "lump"  order  tion  was  sustained,  the  question  not 

in  his  own  name  for  several  princi-  having  been  raised  below. 
pals).  is  See  Wilson  Case  Lumber  Co.  v. 

See  also,  Bryant  v.  Wells,  56  N.  H.  Mountain  Timber  Co.,  202  Fed.  305. 

1629 


§  2062] 


THE   LAW   OF   AGENCY 


[BOOK    IV 


party  interested, — that  the  apparent  partner  was  only  his  clerk,  for 
example, — and  enforce  the  contract  on  his  own  account.1" 

§  2062.  Right  of  one  who  contracted  as  agent  to  show 

himself  to  be  the  real  principal. — The  question  whether  one  who 
has  contracted  upon  the  footing  that  he  was  but  an  agent  and  that 
another  person  not  named  was  the  principal,  may  show  that  in  reality 
he  was  himself  the  principal,  and  enforce  the  contract  as  such, — a 
question  germane  to  those  now  being  discussed — has  been  considered 
in  the  preceding  chapter  and  need  not  therefore  be  gone  into  here.20 

As  against  a  third  person  not  a  party  to  the  contract,  e.  g.,  a  con- 
verter of  the  goods,  it  is  held  that  one  who  apparently  bought  as 
agent  for  a  named  principal,  may  show  that  in  this  transaction  he  was 
the  principal,  and  made  use  of  his  apparent  principal  merely  as  an 
agent  through  whom  to  buy  the  goods  on  his  own  account,21 


i»  Spurr  v.  Cass,  L.  R.  5  Q.  B.  Gas. 
656,  relying  upon  Beckham  v.  Drake, 
9  M.  &  W.  79,  as  a  converse  case,  and 
upon  Kell  v.  Nainby,  10  B.  &  C.  20,  as 
analogous. 

20  Ante,  §  2040. 

21  Sloan    v.     Merrill     (1883),     135 
Mass.  17.    This  was  an  action  of  tort, 
for  the  conversion  of  certain  goods, 
brought  against  an  officer  who  had  at- 
tached them  as  the  property  of  the 
Dolphin  Mfg.  Co.     The  plaintiff  was 
the  president  of  that  company   and 
its  agent  and  manager.    He  had  been 
in  the  habit  of  buying  similar  goods, 
through  certain  brokers,  for  the  com- 
pany and  had  never  bought  any  on 
his  own  account.    On  the  occasion  in 
question,  having  some  money  of  his 
own  to  invest,  he  ordered  the  goods 
in    question    through    these    brokers 
who  were   acting   as   selling  brokers 
for  the  Tudor  Company.   He  intended 
to  make  this  purchase  on  his  own  ac- 
count, but  the  brokers  assumed  that, 
on  this  occasion  as  on  others,  he  was 
buying  for  his  company,  and  the  or- 
der was  transmitted  to  and  accepted 
by  the  seller,  the  Tudor  Company,  as 
the   order   of   the    Dolphin    Mfg.    Co. 
The  brokers'  note  named  the  Dolphin 
Company  as  purchaser,  the  bill  was 
made  out  to  it,  and  the  goods  were 
stored  and  insured  in  its  name.    The 


plaintiff  did  not  know  this  until  it 
was  done,  but  did  before  payment. 
When  he  received  the  bill  he  paid  it 
with  his  own  check,  but  did  nothing 
else  to  assert  his  claim  as  owner  un- 
til he  sold  portions  of  the  goods 
again.  He  did  not  change  the  name 
in  which  the  goods  were  stored  or  in- 
sured, regarding  it,  as  he  testified, 
of  no  importance.  Said  Holmes,  J. : 
"On  this  state  of  facts  it  may  be  con- 
ceded that,  so  far  as  the  relations  be- 
tween vendor  and  purchaser  were 
concerned,  the  Tudor  Company  had  a 
right  to  look  to  the  Dolphin  Com- 
pany, and  did  look  to  it  alone.  The 
seller  certainly  had  this  right,  if  the 
plaintiff's  language  to  Moses  and 
Cohen,  interpreted  in  the  light  of  his 
previous  dealings  with  them,  author- 
ized a  sale  to  the  Dolphin  Company, 
whatever  may  have  been  his  meaning 
or  intention.  We  assume,  in  favor  of 
the  defendant,  that  the  seller  had  the 
same  right,  if  there  was  no  sale  un- 
til the  plaintiff  sent  his  check  in  pay- 
ment, and  that  sending  the  check 
without  more,  after  notice  of  the 
form  of  the  transaction,  was  a  rati- 
fication of  it  in  that  form,  and  not 
a  substitution  of  the  plaintiff  as  pur- 
chaser. 

"But  these  concessions  do  not  help 
the  defendant  on  the  question  of  title. 


1 630 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2063 


§    2063. 


What  actions  included. — This  right  to  sue  upon 


the  contract  embraces  every  appropriate  action  by  which  the  rights  of 
the  principal  can  be  protected  under  it,  or  by  which  he  can  secure  to 
himself  the  benefits  and  advantages  which  flow  from  it.  Subject  to 
the  exceptions  to  be  hereafter  noted,  all  rights  and  remedies  are  open 
to  the  principal  as  though  he  were  in  fact,  that  which  he  is  in  contem- 
plation of  law, — the  actual  party  to  the  contract.  Thus  he  may  en- 
force specific  performance  of  the  contract  in  a  proper  case ; 22  or  sue 


Take  it,  first,  that  there  was  no  sale 
until  the  plaintiff  paid,  bearing  in 
mind  that,  in  either  aspect,  the  Tudor 
Company  was  only  interested  to  make 
the  Dolphin  Company  its  debtor,  and 
that,  if  it  got  a  paymaster  with 
whose  credit  it  was  satisfied,  it  was 
not  concerned  whether  the  Dolphin 
Company  purchased  on  its  own  be- 
half, or  had  an  undisclosed  principal 
behind  it.  Then  what  is  the  case? 
The  plaintiff  had  full  power  to  use 
the  name  of  the  company,  and  there- 
fore was  able  to  buy  in  its  name  on 
his  own  behalf  if  he  chose.  The  fact 
that  he  was  the  agent  of  the  com- 
pany to  make  its  contracts  did  not 
prevent  his  using  it  as  an  agent  for 
himself.  And,  whatever  might  have 
been  his  liability  to  the  company,  if 
he  used  the  general  powers  conferred 
upon  him  improperly,  still,  if  such  a 
purchase  had  been  executed  and  he 
had  paid  the  price,  a  stranger  could 
not  successfully  set  up  a  title  in  the 
company  against  him.  Moreover,  the 
character  of  a  given  purchase  in  this 
respect  rested  solely  on  the  private 
intentions  of  the  plaintiff.  For  not 
only  did  it  lie  with  him  to  determine 
whether  the  company  should  buy  as 
principal  or  agent,  and  whether  in 
the  latter  event  he  would  be  the  prin- 
cipal, but,  if  he  determined  that  he 
would  be,  he  was  not  bound  to  dis- 
close himself  to  the  seller.  If  then 
the  case  is  that  the  plaintiff,  having 
only  assented  to  a  sale  to  himself, 
found  that  the  Ineffectual  form  of  a 
sale  to  his  company  had  been  gone 
through  with,  and  thereupon  ratified 
it  as  a  sale  to  himself  through  the 

163 


medium  of  the  Dolphin  Company,  he 
is  to  be  taken  to  have  adopted  the 
name  of  the  Dolphin  Company  for 
the  purposes  of  that  transaction,  just 
as  if  he  had  originally  directed  the 
contract  to  be  made  in  that  form  on 
his  own  behalf,  and  the  sale  stands 
on  the  ordinary  footing  of  a  sale  to 
an  undisclosed  principal. 

"If,  on  the  other  hand,  the  contract 
was  binding  before  the  plaintiff 
knew  of  the  mistake,  and  the  case  is 
that,  in  ordering  a  purchase  for  him- 
self, he  inadvertently  introduced  or 
authorized  the  introduction  of  the 
name  of  his  company  in  such  a  way 
as  to  bind  it,  we  think  that  he  was 
equally  entitled  to  be  regarded  as 
principal  and  owner  .from  the  time 
that  he  executed  the  contract  and 
freed  the  company  from  liability, 
even  if  he  was  not  principal  aft  initio. 
It  would  not  be  a  great  stretch  to  say 
that,  when  the  words  introducing  a 
third  person  into  a  contract  are 
spoken  solely  to  the  end  of  making 
a  contract  on  the  part  of  the  speaker, 
the  contract  is  to  be  regarded  as  made 
with  the  speaker  through  the  third 
person  as  agent,  as  well  when  he  is 
introduced  by  accident  as  when  his 
name  is  intentionally  used." 

22  Randolph  v.  Wheeler,  182  Mo. 
145;  Kelly  v.  Thuey,  143  Mo.  422 
(overruling  s.  c.  102  Mo.  522);  Nich- 
olson v.  Dover,  145  N.  C.  18,  13  L.  R. 
A.  (N.  S.)  167;  Mitchell  v.  Knudtson 
Land  Co.,  19  N.  Dak.  736;  Nichols  v. 
Bealmear,  36  App.  D.  C.  352;  Len- 
man  v.  Jones,  33  App.  D.  C.  7. 

Compare  Cowan  v.  Curran,  216  111. 
598. 


§  2063] 


THE   LAW   OF   AGENCY 


[BOOK    IV 


for  the  breach  of  the  contract.23  He  may  recover  for  goods  sold,  work 
and  labor  done  or  services  rendered  by  his  agent ; 24  or  for  money 
loaned  by  his  agent.23  He  may  recover  the  benefits  of  an  insurance 
effected  for  him  'by  the  latter.26  He  may  demand  and  receive  goods 
purchased  for  him.  though  in  the  agent's  name.27  He  may  recover  upon 
collateral  obligations,  as  upon  a  warranty  of  quality  or  title  made  to 
the  agent.28  Where  an  agent  lends  the  money  of  his  principal  taking 


Enforcing  trust.  Hunter  v.  Rut- 
ledge,  6  Wy.  W.  &  A.  B.  (Victoria) 
331. 

Correcting  judgment. — In  Pennsyl- 
vania, where  a  judgment  for  the  re- 
covery of  land  had  been  taken  in  the 
agent's  name,  his  undisclosed  princi- 
pals were  allowed,  under  a  statute 
permitting  amendments,  to  have  the 
judgment  entry  so  amended  as  to 
appear  to  have  been  obtained  to  their 

use.  Haines  v.  Elfman,  Pa.  , 

84  Atl.  349. 

23  McFadden  v.  Henderson,  128  Ala. 
221;   Powell  v.  Wade,  109  Ala.  95,  55 
Am.    St.    Rep.    915;     Stockbarger    v. 
Sain,  69  111.  App.  436;  Young  v.  Lohr, 
118  Iowa,  624;  Kilpatrick  v.  America 
West    Africa    Trading    Co.,    59    Misc. 
180;   Barham  v.  Bell,  112  N.  C.  131; 
Darrow  v.  Home  Produce  Co.,  57  Fed. 
463;  Block  v.  Mayor  of  Meridian,  169 
Fed.  516;  Eastern  R.  Co.  v.  Benedict, 
5  Gray  (Mass.),  561,  66  Am.  Dec.  384; 
Girard  v.  Taggart,  5  S.  &  R.  (Pa.)  19, 
9  Am.  Dec.  327;  Ford  v.  Williams,  21 
How.  (U.  S.)  287,  16  L.  Ed.  36. 

24  Parker  v.  Cochran,  11  Colo.  363; 
Sullivan    v.    Shailor,  70    Conn.    733; 
Rice,  etc.,    Malting    Co.    v.    Interna- 
tional Bank,  185  111.  422;    Barker  v. 
Garvey,  83  111.  184    (a  building  con- 
tract);   Hey  wood  v.  Andrews,  89  111. 
A.Pp.    195;     Foster    v.    Graham,    166 
Mass.  202;  Wiehle  v.  Safford,  27  Misc. 
562;  Reed  v.  Klaus,  152  Pa.  341;  Ber- 
toli   v.   Smith,   69  Vt.  425;    National 
Bank  of  Va,  v.  Nolting,  94  Va.  263; 
Coulter  v.  Blatchley,  51  W.  Va.  163; 
Great    Lakes    Towing    Co.    v.     Mill 
Transp.  Co.,  155  Fed.  11,  22  L.  R.  A. 
(•N.  S.)   769;    Buchanan  v.  Cleveland 
Linseed  Oil  Co.,  33  C.  C.  A.  351,  91 

163 


Fed.  88;  Ruiz  v.  Norton,  4  Cal.  355, 
60  Am.  Dec.  618;  Tutt  v.  Brown,  50 
Littell  (Ky.),  1,  15  Am.  Dec.  33; 
Pitts  v.  Mower,  18  Me.  361,  36  Am. 
Dec.  727;  Huntington  v.  Knox,  7 
Gush.  (Mass.)  371;  Winchester  v. 
Howard,  97  Mass.  303,  93  Am.  Dec. 
93;  Ilsley  v.  Merriam,  7  Cush. 
(Mass.)  242,  54  Am.  Dec.  721;  Ed- 
wards v.  Golding,  20  Vt.  30;  Salmon 
Falls  Mfg.  Co.  v.  Goddard,  14  How. 
(U.  S.)  446,  14  L.  Ed.  493;  Wilson  v. 
Hart,  7  Taunt.  295;  Merrick's  Es- 
tate, 5  W.  &  S.  (Pa.)  9.  Where  the 
goods  of  several  undisclosed  princi- 
pals have  been  sold  for  a  lump  sum 
with  no  apportionment  of  prices,  one 
of  the  principals  cannot  maintain  an 
action  on  the  contract  for  his  share. 
Roosevelt  v.  Doherty,  129  Mass.  301, 
37  Am.  Rep.  356. 

25  Suit  for  money  loaned;  also  on 
note.  Kitchen  v.  Holmes,  42  Ore. 
252;  Arlington  v.  Hinds,  1  D.  Chip. 
(Vt.)  431,  12  Am.  Dec.  704. 

2«  New  Orleans  Ins.  Co.  v.  Spruance, 
18  111.  App.  576;  DeVignier  v.  Swan- 
son,  1  Bos.  &  Pul.  346,  note;  Brown- 
ing v.  Provincial  Ins.  Co.,  L.  R.  5 
Priv.  Coun.  App.  263;  Mildred  v.  Mas- 
pons,  L.  R.  8  App.  Cases,  874. 

27  in   re  Lemelin,  22   Quebec  Jud. 
Rap.  87. 

28  "in  case    of   a    purchase  or  ex- 
change of  goods  by  an  agent  even  if 
the  principal  be  not  disclosed,  or  the 
bill  of  sale  be  made  to  the  agent  him- 
self, the  property,  immediately  upon 
the  execution  of  the  contract,  rests  in 
the  principal;  and  the  right  of  action 
upon    an    implied    warranty    or    on 
fraudulent   representations   made   to 
the  agent  is  in  the  principal  for  the 
2 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


notes  payable  to  his  own  order  secured  by  mortgages,  the  principal  may 
enforce  or  transfer  the  notes  and  mortgages.29  He  may  maintain  an 
action  against  a  common  carrier  for  injuries,  delays,  etc.,  to  goods  ship- 
ped by  the  agent,30  or  against  telegraph  companies  for  defaults  in  the 
transmission  and  delivery  of  messages.31 

Where  the  statute  of  frauds  is  involved,  the  undisclosed  principal 
may  avail  himself  of  any  contract  or  memorandum  signed  by  the  agent 
or  running  to  the  agent  which  will  satisfy  the  statute.82 


damages  which  ground  the  action 
follow  the  property."  1  Am.  Lead. 
Cas.  643;  Gushing  v.  Rice,  46  Me.  303, 
71  Am.  Dec.  579;  Odessa  Bank  v.  Jen- 
nings, 18  Mo.  App.  651;  Woodruff  v. 
McGehee,  30  Ga.  158. 

29  Caldwell  v.  Meshew,  44  Ark.  564. 
See  also,  State  v.  O'Neill,  74  Mo.  App. 
134. 

so  Southern  Ry.  Co.  v.  Jones,  132 
Ala.  437;  Greek-Amer.  Produce  v.  Illi- 
nois Cent.  R.  Co.,  4  Ala.  App.  377; 
Cleveland,  etc.,  Ry.  Co.  v.  McNutt, 
138  111.  App.  66;  Clubb  v.  St.  Louis, 
etc.,  R.  Co.,  136  Mo.  App.  1;  Morris 
v.  Chesapeake,  etc.,  S.  S.  Co.,  125  Fed. 
62;  Buchanan  v.  Cleveland  Linseed- 
Oil  Co.,  33  C.  C.  A.  351,  91  Fed.  88; 
Darrow  v.  Home  Produce  Co.,  57  Fed. 
463;  St.  Louis,  etc.,  Ry.  Co.  v. 
Thacher,  13  Kan.  564;  Talcott  v.  Wa- 
bash  R.  Co.,  159  N.  Y.  461;  Ames  v. 
St.  Paul,  etc.,  R.  Co.,  12  Minn.  412; 
Elkins  v.  Boston  &  Maine  R.  Co., 
19  N.  H.  337,  51  Am.  Dec.  184;  Foster 
v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am. 
Dec.  604;  New  Jersey  Steam  Nav.  Co. 
v.  Merchants'  Bank,  6  How.  (U.  S.) 
344,  381,  12  L.  Ed.  465;  Gulf,  etc.,  R. 
Co.  v.  Brown  &  Williamson  (Tex.  Civ. 
App.),  86  S.  W.  53;  Central  Ry.  Co.  v. 
James,  117  Ga.  832;  Virginia-Carolina 
Peanut  Co.  v.  Atlantic  Coast  Line  R. 
Co.,  155  N.  C.  148;  Boyes  v.  Moss,  18 
Victor,  L.  R.  225. 

Where  there  are  special  circum- 
stances disclosed  which  enhance  the 
damages,  the  principal  may  prove 
those  circumstances  and  recover  dam- 
ages in  contemplation  of  them.  Vir- 
ginia-Carolina Peanut  Co.  v.  Atlan- 
tic Coast  Line,  supra. 


si  Western  Union  Tel.  Co.  v.  North- 
cutt,  158  Ala.  539,  132  Am.  St.  Rep. 
38;  Western  Union  Tel.  Co.  v.  Walker, 
158  Ala.  578;  Western  Union  Tel.  Co. 
v.  Manker,  145  Ala.  418,  s.  c.  137  Ala. 
292;  Propeller  Tow-boat  Co.  v.  West- 
ern Union  Tel.  Co.,  124  Ga.  478; 
Harkness  v.  Western  Union  Tel.  Co., 
73  Iowa,  190,  5  Am.  St.  Rep.  691; 
Wells  v.  Western  Un.  Tel.  Co.,  144 
Iowa,  605,  24  L.  R.  A.  (N.  S.)  1045. 

Other  actions. — The  principal  may 
also  maintain  replevin.  Woolen  Co. 
v.  McKinnon,  114  N.  C.  661;  or  an  ac- 
tion on  a  bond  conditioned  on  the 
faithful  performance  of  duty  by  an 
employee.  Bayley  v.  Onondaga,  etc., 
Ins.  Co.,  6  Hill  (N.  Y.),  476,  41  Am. 
Dec.  759;  or  recover  back  money  paid 
by  an  agent  where  the  contract  is 
afterward  rescinded  or  fails.  Taintor 
v.  Prendergast,  3  Hill  (N.  Y.),  72,  38 
Am.  Dec.  618;  Gilpin  v.  Howell,  5  Pa. 
41,  45  Am.  Dec.  720;  Norfolk  v. 
Worthy,  1  Camp.  337;  Bickerton  v. 
Burrell,  5  Maule  &  Sel.  383. 

32  In  Kingsley  v.  Siebrecht,  92  Me. 
23,  69  Am.  St.  Rep.  486,  it  is  said: 
"The  statute  of  frauds  does  not 
change  the  law  as  to  the  rights  and 
liabilities  of  principals  and  agents, 
either  as  between  themselves,  or  as 
to  third  persons.  The  provisions  of 
the  statute  are  complied  with  if  the 
names  of  competent  contracting  par- 
ties appear  in  the  writing,  and  if  a 
party  be  an  agent,  it  is  not  necessary 
that  the  name  of  the  principal  shall 
be  disclosed  in  the  writing.  Indeed, 
if  a  contract,  within  the  provisions 
of  the  statute,  be  made  by  an  agent, 
whether  the  agency  be  disclosed  or 


103 


1633 


§  2064] 


THE   LAW   OF   AGENCY 


[BOOK    IV 


Moreover  the  principal  may  avail  himself  of  any  demand  made  or 
notice  given  by  the  agent  material  to  the  action,  and  also,  it  is  held,  of 
any  notice  which  the  "agent  had,  or  of  the  lack  of  any  notice  which  ought 
to  have  been  given  to  the  agent,  but  was  not  given.31' 

The  right  to  enforce  the  contract  includes,  of  course,  the  right  to 
defend  or  justify  under  it,  where  that  is  necessary.84 

§  2064.  Exceptions — Instruments  under  seal. — By  the  weight  of 
authority,  where  not  changed  by  statute,35  this  right  of  the  undisclosed 
principal  to  sue  in  his  own  name  upon  contracts  made  by  his  agent  does 
not  apply  in  the  case  where  the  contract  so  made  was  an  instrument 
under  seal.36  The  reason  assigned  for  this  is  the  technical  one  already 
frequently  referred  to,  that  upon  sealed  instruments  no  one  can  sue 
or  be  sued  who  does  not  appear  on  the  face  of  the  instrument  to  be  a 
party  to  it.  Reference  has  also  been  made  in  various  places  to  another 
distinction  often  insisted  upon,  namely,  that  the  rule  respecting  sealed 
instruments  applies  only  to  instruments  necessarily  under  seal  and  not 
to  those  which  may  happen  to  be  under  seal  but  to  whose  validity  the 
seal  was  not  essential.  Pennsylvania  has  applied  this  distinction  to 
the  case  now  in  question.37  New  York  on  the  other  hand  has  held  in 


not.  the  principal  may  sue  or  be  sued 
as  in  other  cases.  Thayer  v.  Luce,  22 
Ohio  St.  62;  Pugh  v.  Chesseldine,  11 
Ohio,  109,  37  Am.  Dec.  414;  Dykers 
v.  Townsend,  24  N.  Y.  57;  Lerned  v. 
Johns,  9  Allen,  419;  Hunter  v.  Gid- 
dings,  97  Mass.  41,  93  Am.  Dec.  54; 
Williams  v.  Bacon,  2  Gray,  387;  Sal- 
mon Falls  Mfg.  Co.  v.  Goddard,  14 
How.  446,  14  L.  Ed.  493." 

33  Haines  v.  Starkey,  82  Minn.  230, 
where  an  undisclosed  prinpical  was 
allowed  to  recover  because  notice  of 
dissolution    of   partnership    had    not 
been  given  to  his  agent. 

34  See  Federal  Trust  Co.  v.  Coyle,  34 
Okla.  635,  where  in  an  action  on  a 
note  the  maker  was  allowed  to  avail 
himself,    in    defense,    of    a    contract 
made  with  one  found  to  be  his  agent. 

35  Statutes  have  been  passed  in  sev- 
eral  states,    either   abolishing    seals 
altogether  or  changing  their  common 
law  significance. 

sc  Schack  v.  Anthony,  1  M.  &  S. 
573;  Berkeley  v.  Hardy,  8  Dow.  & 
Ry.  102;  Spencer  v.  Field,  10  Wend. 
(N.  Y.)  88;  Schaefer  v.  Henkel,  75 


N.  Y.  378;  Henricus  v.  Englert,  137 
N.  Y.  488;  Spencer  v.  Huntington,  100 
N.  Y.  App.  Div.  463;  Smith  v.  Pierce, 
45  N.  Y.  App.  Div.  628;  Buge  v.  New- 
man, 61  Misc.  84,  132  N.  Y.  App.  Div. 
928;  Cleary  v.  Hey  ward,  123  N.  Y. 
Supp.  334;  Ivy  Courts  Realty  Co.  v. 
Barker,  71  Misc.  460;  Oliver  Refining 
Co.  v.  Portsmouth,  etc.,  Co.,  109  Va. 
513;  Newberry  v.  Newberry,  95  Va. 
119;  Mcllvaine  v.  Lumber  Co.,  105 
Va.  613;  Neely  v.  Stevens,  138  Ga. 
305;  Lynch  v.  Poole,  138  Ga.  303. 

See  also,  Barrett  v.  King,  181  Mass. 
476. 

But  where  the  contract  is  not  in 
fact  sealed,  the  fact  that  it  concludes, 
"Witness  our  hands  and  seals,"  will 
not  bar  the  undisclosed  principal 
from  suing  on  it.  Noel  Const.  Co.  v. 
Atlas  Portland  Cement  Co.,  103  Md. 
209. 

Although  a  principal  may  not  en- 
force a  lease  under  seal  as  such,  the 
lease  may  be  referred  to  for  the  terms 
of  a  subsequent  holding  over.  Ivy 
Courts  Realty  Co.  v.  Barker,  supra. 

37  Lancaster  v.   Knickerbocker   Ice 


1634 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2065 


several  cases  that   the   rule  excluding  the  principal's  action  applies 
whether  the  seal  was  or  was  not  essential.38 

§  2065.  Negotiable    instruments. — Another    exception    to 

the  general  rule  is  thought  to  exist  in  the  case  of  negotiable  instruments 
though  the  authorities  are  by  no  means  uniform.39     The  theory  and 


Co.,  153  Pa.  427.  In  this  case,  the 
court  said:  "It  is  also  well  settled 
that  an  unauthorized  and  unneces- 
sary addition  of  a  seal  to  such  con- 
tract may  be  treated  as  surplusage. 
Deckard  v.  Case,  5  Watts,  22,  30  Am. 
Dec.  287;  Hennessey  v.  The  Western 
Bank,  6  W.  &  S.  300,  40  Am.  Dec.  560; 
Dubois's  Appeal,  38  Pa.  231,  80  Am. 
Dec.  478;  Jones  v.  Homer,  60  Pa. 
214;  Schmertz  v.  Shreeve,  62  Pa.  457, 
1  Am.  Rep.  439;  Cook  v.  Gray,  133 
Mass.  106;  Blanchard  v.  Blackstone, 
102  Mass.  343;  Purviance  v.  Suther- 
land, 2  Ohio  St.  478."  None  of  the 
cases  cited  by  the  court,  however,  in- 
volves the  precise  point  under  dis- 
cussion. 

See  also,  Northern  Nat'l  Bank  v. 
Lewis,  78  Wis.  475. 

ss  Spencer  v.  Huntington,  100  N.  Y. 
App.  Div.  463;  Smith  v.  Pierce,  45 
N.  Y.  App.  Div.  628;  Schaefer  v.  Hen- 
kel,  75  N.  Y.  378;  Elliott  v.  Brady, 
192  N.  Y.  221,  127  Am.  St.  Rep.  898, 
18  L.  R.  A.  (N.  S.)  600. 

Compare  Rand  v.  Moulton,  72  N.  Y. 
App.  Div.  236. 

Cases  holding  that  the  beneficiary 
named  in  a  contract  between  third 
persons  may  sue  upon  it  even  though 
it  were  under  seal  are  often  cited  in 
this  connection.  New  York,  however, 
which  permits  such  an  action  to  be 
brought  (Coster  v.  Mayor,  43  N.  Y. 
399)  does  not  for  that  reason  permit 
the  undisclosed  principal  to  sue. 
Wisconsin  permits  the  beneficiary  to 
sue  on  a  contract  under  seal.  (Mc- 
Dowell v.  Laev,  35  Wis.  171;  Stiter  v. 
Thompson,  98  Wis.  329);  see  also, 
Mize  v.  Barnes,  78  Ky.  506;  Kirk- 
patrick  v.  Peshine,  24  N.  J.  Eq.  206. 

Illinois  permits  it  under  a  statute. 
American  Splane  Co.  v.  Barber,  194 
111!  171.  But  it  has  also  been  held 


that  the  undisclosed  principal  might 
not  sue.  Equitable  Life  Assurance 
Soc.  v.  Smith,  25  111.  App.  471. 

Ohio  has  followed  the  New  York 
and  Wisconsin  rule.  Emmitt  v.  Bro- 
phy,  42  Ohio  St.  82. 

Missouri  permits  the  beneficiary  to 
sue  by  virtue  of  a  statute.  Rogers  v. 
Gasnell,  51  Mo.  466;  State  v.  St. 
Louis,  etc.,  Ry.  Co.,  125  Mo.  596.  The 
same  thing  is  true  in  Oregon. 
Hughes  v.  Oregon,  etc.,  Ry.  Co.,  11 
Ore.  437. 

Utah,  adopting  the  rule  of  a  text, 
which  is  sustained  only  by  these 
beneficiary  cases,  applies  the  same 
doctrine  to  an  undisclosed  principal. 
Cole  v.  Utah  Sugar  Co.,  35  Utah,  148. 

39  That  the  action  cannot  be  main- 
tained. Bowstead  on  Agency  (3d 
ed.),  285;  Tiffany  on  Agency,  308; 
Grist  v.  Backhouse,  20  N.  Car.  362; 
Horah  v.  Long,  id.  274,  34  Am.  Dec. 
378;  Bank  of  U.  S.  v.  Lyman,  20  Vt. 
666,  Fed.  Gas.  No.  924  (the  last  two 
are  cashier  cases  as  to  which  the  law 
is  now  generally  held  otherwise). 
Turnbull  v.  Freret,  5  Martin  N.  S. 
(La.)  703. 

Mr.  Daniel  (§  1187,  Neg.  Inst.) 
does  not  recognize  the  exception. 
See  also,  Note,  12  Am.  Dec.  709. 

Pacific  Guano  Co.  v.  Holleman  (C. 
C.),  12  Fed.  61,  declares  that  by  the 
later  authorities  the  principal  may 
sue. 

McConnell  v.  East  Point  Land  Co., 
100  Ga.  129,  seems  to  have  failed  to 
recognize  the  distinction.  A  more 
general  rule  was  laid  down  In  Nave 
v.  Hadley,  74  Ind.  155,  but  it  was  dic- 
tum. The  note  was  payable  to  the 
cashier  of  a  bank. 

In  Seattle  Nat.  Bank  v.  Emmons, 
16  Wash.  585,  the  Code  requirement 
that  every  action  shall  be  prosecuted 


1635 


§    2066]  THE   LAW  OF  AGENCY  [BOOK    IV 

purposes  of  such  paper  have  been  generally  held  to  require  that  the 
rights  and  liabilities  of  the  parties  to  it  shall  appear  upon  the  instru- 
ment itself.  A  non-negotiable  note,  on  the  other  hand,  is  not  within 
the  exception  and  the  principal  may  sue.40 

In  the  case  of  instruments  payable  to  the  cashiers  of  banks  and  other 
similar  officers  of  corporations,  commercial  usage  has  recognized  a 
distinction.  Such  paper  is  deemed  payable  to  the  bank  or  corporation 
itself,  and  not  to  the  agent  or  officer,  and  actions  may  be  brought  upon 
it  accordingly.*1  The  Negotiable  Instruments  Law  recognizes  this  rule 
and  declares  that  "where  an  instrument  is  drawn  or  indorsed  to  a  per- 
son as  'cashier'  or  other  fiscal  officer  of  a  bank  or  corporation,  it  is 
deemed  prima  facie  to  be  payable  to  the  bank  or  corporation  of  which 
he  is  such  officer."  42 

§  2066.  Principal's  remedies  here — Rescission — Enforce- 
ment of  trust. — It  is  not  to  be  assumed,  however,  that,  because  the 
principal  may  not  enforce  in  his  own  name  the  negotiable  or  sealed  con- 
tract, he  is  therefore  without  a  remedy.  The  hypothesis  is  that  he  is 
the  person  really  entitled,  and  that  the  beneficial  interest,  if  not  the 
legal  title,  is  in  him.  In  many  cases,  as  where  the  agent,  without  au- 
thority, has  accepted  a  written  promise  negotiable  or  under  seal  run- 
ning to  himself  instead  of  to  his  principal  as  it  should  have  been,  the 
principal  by  rescinding  the  act  of  accepting  it  and  tendering  it  back 

In  the  name  of  the  real  party  in  in-  eral  commercial  law  to  be  contrary 

terest  was  held  to  give  the  right  of  to  its  decision,  followed  the  early  case 

action  to  a  party  not  appearing  as  of  Town  of  Arlington  v.  Hinds,  1  D. 

such  on  the  face  of  the  instrument.  Chip  (Vt),  431,  12  Am.  Dec.  704,  and 

It  was  not  strictly  a  case  of  agency.  held    that    an    undisclosed    principal 

Stinson  v.  Sachs,  8  Wash.  391,  does  might  sue  on  a  note  payable  to  his 

not  recognize  the  exception.  agent. 

"National  Life  Ins.  Co.  v.  Allen,          For    cases    involving    cashiers    of 

116  Mass.  398;   Garland  v.  Reynolds,  banks   which,   while   holding   to   the 

20  Me.  45.  same  view,  are,  as  will  be  seen  be- 

See    also,    Chaplin    v.    Canada,    8  low,  in  accord    with    the    prevailing 

Conn.  286.  view,    see    Bank    of    Manchester    v. 

41  Baldwin  v.  Bank  of  Newbury,  1  Slason,  13  Vt.  334;  Farmers'  &  Me- 
Wall.  (U.  S.)  234,  17  L.  Ed.  534;  chanics'  Bank  v.  Day,  13  Vt.  36. 
Pratt  v.  Topeka  Bank,  12  Kan.  570;  For  cases  involving  notes,  etc.,  pay- 
Bank  of  New  York  v.  Bank  of  Ohio,  able  to  public  agents,  see  Dugan  v. 
29  N.  Y.  619;  First  Nat.  Bank  v.  Hall,  United  States,  3  Wheat.  172,  4  L.  Ed. 
44  N.  Y.  395,  4  Am.  Rep.  698;  Water-  362;  United  States  v.  Boice,  2  Mc- 
vllet  Bank  v.  White,  1  Denio  (N.  Y.),  Lean,  352,  Fed.  Gas.  No.  14,619;  State 
608;  Barney  v.  Newcomb,  9  Cush.  v.  Boies,  11  Me.  474;  Irish  v.  Webster, 
(Mass.)  46;  Garbon  v.  Union  City  5  Greenl.  (Me.)  171;  Board  of  Super- 
Bank,  34  Mich.  279.  visors  v.  Hall,  42  Wis.  59. 

In  Rutland,  etc.,  R.  Co.  v.  Cole,  24          «  Sec.  44. 
Vt.  33,  the  court,  admitting  the  gen- 

1636 


CHAP.  VII]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2067 

where  necessary,  might  then  enforce  in  his  own  name  the  original  right 
of  action  which  belonged  to  him.  Where  the  circumstances  will  not 
admit  of  this,  it  would  still  ordinarily  be  true  that  the  contract  itself 
or  the  right  of  action  represented  by  it,  would  be  held  by  the  agent  as 
a  trustee  for  the  principal  and  that  the  principal  by  equitable  proceed- 
ing to  which  the  agent  and  the  other  party  were  joined  could  compel 
the  enforcement  of  the  contract  for  his  benefit.*3 

§  2067.  How  when  contract  involves  elements  of  personal  trust 
and  confidence. — Where  the  contract,  upon  which  the  principal 
seeks  to  recover,  is  one  which  may  reasonably  be  supposed  to  have 
been  made  with  the  agent  in  consideration  of  some  element  of  personal 
trust  and  confidence,  a  difficult  question  is  raised  and  one  analogous 
to  that,  already  discussed  in  the  preceding  chapter,  where  an  assumed 
agent  proposes  to  show  himself  to  be  the  real  principal,  and  to  recover 
upon  a  similar  contract. 

The  fact  that  the  elements  of  trust  or  confidence  moved  from  the 
other  party  alone, — that  he  was  to  do  some  act  involving  personal  con- 
siderations,— could  not  defeat  the  principal's  right  to  sue,  because  it 
would  be  no  hardship,  arid  involve  no  prejudice,  to  the  other  party,  to 
be  required  to  render  his  performance  to  the  real  principal.  But  if, 
on  the  other  hand,  these  elements  moved  from  the  agent, — if  they  in- 
volved the  performance  by  him,  as  a  condition  precedent  to  the  right 
to  sue,  of  some  act  which  must  fairly  be  considered  as  having  been 
stipulated  for  in  contemplation  of  his  personal  skill,  influence  or  sol- 
vency,— a  different  question  is  presented.  And  here  it  would  seem  that 
the  question  whether  the  contract  on  the  part  of  the  agent  was  executed 
or  executory  must  be  the  test. 

For  it  is  certain  that  if  the  doing  of  some  personal  act,  not  yet  done, 

43  A  contract  for  the  purchase  of  for  the  benefit  and  on  behalf  of  a 
land  made  by  an  agent  in  his  own  third  person,  there  is  an  equity  in 
name  vests  the  equitable  title  in  the  that  third  person  to  sue  on  the  con- 
principal,  and  may  be  established  by  tract,  and  the  person  who  has  entered 
him  against  the  agent  and  persons  into  the  contract  may  be  treated  as  a 
claiming  under  him,  although  the  trustee  for  the  person  for  whose  bene- 
agent  be  appointed  merely  by  parol.  fit  it  has  been  entered  into." 
Cave  v.  Mackenzie,  46  L.  J.  Eq.  564.  Notes  and  mortgages  taken  for  the 
Compare,  ante,  §  1192.  principal  but  taken  by  the  agent  in 

In  Lloyd's  v.  Harper,  16  Ch.  Div.  his  own  name  are  the  property  of  the 

290,  309,  it  is  said  by  Fry,  J.:  "It  ap-  principal,  and  he  may  transfer  them 

pears   to  me   from   the   cases   which  without   indorsement   by   the   agent, 

were  cited  in  the  course  of  the  argu-  and  the  transferee  may  sue  in  equity 

ment,   especially   Tomlinson   v.   Gill,  in   his   own   name    to    foreclose   the 

Amb.  330,  and  Lamb  v.  Vice,  6  M.  &  mortgages  and  called  the  debts.  Cald- 

W.  467,  that  where  a  contract  is  made  well  v.  Meshew,  44  Ark.  564. 

1637 


§    2067]  THE  LAW  OF  AGENCY  [BOOK   IV 

is  a  condition  precedent  to  the  right  to  recover,  no  undisclosed  princi- 
pal can  force  his  own  performance  upon  the  other  party  in  substitution 
for  that  of  the  person  for  whose  individual  performance  the  other  party 
had  stipulated.44  If,  for  example,  A  contracts  with  lawyer  B  to  argue 
A's  case  in  court  for  a  stipulated  compensation,  lawyer  C  cannot, 
against  A's  will,  assert  that  B  was  but  his  agent,  and  therefore  insist 
upon  arguing  the  cause  himself  and  recovering  the  compensation.45 
Nor  would  it  make  any  difference  that  other  people  might  think  or 
know  that  C  could  argue  the  case  a  great  deal  better  than  B.  A  having 
employed  B,  has  a  clear  right  to  B's  services.  If,  however,  A  should, 
knowingly  and  without  dissent,  permit  C  to  make  the  argument  in  the 
place  of  B,  A's  right  to  a  personal  argument  from  B  must  be  considered 
to  be  waived.46 

But  if,  on  the  other  hand,  the  contract  (not  being  one  which  ex- 
pressly excludes  any  other  principal  as  will  be  seen  in  the  following 
section)  has  been  fully  performed  on  the  part  of  the  agent,  no  objec- 
tion could  be  made  against  permitting  the  real  principal  to  require  the 
other  party  to  render  performance  to  him.  Thus,  in  the  illustration 
used,  if  B,  who  is  in  reality  C's  agent,  personally  argues  A's  cause  as 
he  agreed,  A  can  suffer  no  hardship  if  C  should  be  permitted  to  recover 

44  Boston    Ice    Co.    v.    Potter,    123  it  was  held  that  a  contract  for  the 

Mass.  28,  25  Am.  Rep.  9;   Boulton  v.  doing  of  certain  mechanical  work,  In 

Jones,  2  H.  &  N.  564;  King  v.  Batter-  this  case  to  repair  curtains,  did  not 

son,  13  R.  I.  117,  43  Am.  Rep.  13.  involve  such  personal  considerations 

See  also,  Arkansas  Smelting  Co.  v.  as  to  prevent  an  undisclosed  princi- 

Belden,  127  U.  S.  379,  32  L.  Ed.  246;  pal  from  suing. 

New  York  Bank  Note  Co  v.  Hamil-  In  Moore  v.  Vulcanite  Portland  Ce- 

ton,  etc.,  Co.,  180  N.  Y.  280;  Cooke  v.  ment  Co.,   121  N.  Y.   App.   Div.   667, 

Eshelby,  12  App.  Gas.  271;  Cornish  v.  where  there  was  a  contract  for  the 

Abington,  4  H.  &  N.  549.  sale  of  a  large  quantity  of  goods,  in- 

In  Birmingham  Matinee  Club  v.  volving  credit,  and  the  negotiations 
McCarty,  152  Ala.  571,  15  Ann.  Gas.  showed  that  the  seller  was  tenacious 
237,  13  L.  R.  A.  (N.  S.)  156,  this  doc-  about  getting  the  credit  of  the  par- 
trine  was  applied  to  defeat  an  action  ticular  persons  with  whom  he  sup- 
by  an  undisclosed  principal  upon  a  posed  he  was  dealing  as  buyers,  it 
contract  made  in  the  name  of  his  al-  was  held  that  other  persons  could 
leged  agent  to  sell  land  and  give  a  not  come  in  and  claim  that  they 
warranty  of  title  against  ihcum-  were  the  undisclosed  principals  in 
brances.  The  court  held  that  the  con-  the  transaction  and  demand  a  deliv- 
tract  so  far  involved  personal  consid-  ery  to  themselves.  The  case  was  put 
erations  that  the  defendant  was  en-  upon  the  ground,  among  others,  of  a 
titled  to  the  warranty  of  the  particu-  personal  trust  and  confidence, 
lar  person  with  whom  the  contract  45  Eggleston  v.  Boardman,  37  Mich, 
was  made.  On  the  other  hand,  in  14. 
Wiehle  v.  Safford,  27  N.  Y.  Misc.  562,  *«  Eggleston  v.  Boardman,  supra. 

1638 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2068 


the  compensation.47  The  right  of  the  other  party  to  make  the  defenses 
against  the  principal  which  he  could  have  made  against  the  agent,  had 
the  latter  brought  the  action,  is  considered  in  a  subsequent  section. 

§  2068.  What  contracts  do  involve  personal  elements. — 

What  the  contracts  are  which  involve  such  personal  elements  as  to 
fall  within  this  rule  cannot  be  definitively  enumerated.  Many  sorts 
will  be  readily  agreed  upon.  Contracts  involving  personal  service  or 
personal  skill  are  within  the  number.  Contracts  directly  involving  per- 
sonal solvency,  credit  or  responsibility  must  also  be  ordinarily  in- 
cluded.4* Executed  contracts  for  the  sale  of  ordinary  chattels  do  not 
fall  within  the  class ; 49  neither  would  executory  contracts  for  the  sale 
of  such  chattels  usually  do  so,  where  by  tender  or  equivalent  act  the 
buyer  was  assured  of  obtaining  the  substance  of  the  thing  bargained 
for.50  Collateral  undertakings,  like  warranties  of  title  or  quality  made 


4-Grojan  v.  Wade,  2  Stark.  443; 
Warder  v.  White,  14  111.  App.  50;  Sul- 
livan v.  Shailor,  70  Conn.  733. 

See  also,  Phelps  v.  Prothero,  16 
Com.  B.  370. 

^  Thus  a  contract  to  loan  money 
to  the  agent  upon  note  and  mortgage 
cannot  be  availed  of  by  an  undis- 
closed principal  who  offers  his  note 
and  mortgage.  Even  though  the  prin- 
cipal offers  to  give  the  mortgage  upon 
the  same  property,  it  cannot  be  as- 
sumed that  the  personal  obligation 
of  the  agent  was  of  no  importance. 
Shields  v.  Coyne,  148  Iowa,  313,  29  L. 
R.  A.  (N.  S.)  472,  Ann.  Cas.  1912  C. 
905. 

•49  In  Rice,  etc.,  Co.  v.  International 
Bank,  86  111.  App.  136  (where  the 
court  disagreed  with  the  decision  of 
Boston  Ice  Co.  v.  Potter,  123  Mass. 
28,  25  Am.  Rep.  9),  the  facts  were 
that  the  plaintiff's  agent  contracted 
to  sell  malt  to  the  defendant,  leading 
the  latter  to  believe  that  he  was  mak- 
ing the  contract  as  principal,  and  was 
the  real  owner;  whereas  it  turned 
out  that  the  contract  was  made  for 
the  plaintiffs;  the  malt  was  deliv- 
ered, and  the  defendants  were  held 
liable  to  the  undisclosed  principal 
for  the  purchase  price. 

In  Kelly,  etc.,  Co.  v.  Barber,  etc., 
Co.,  136  N.  Y.  App.  Div.  22,  the  court 


disagreed  with  Boston  Ice  Co.  v.  Pot- 
ter (123  Mass.  28,  25  Am.  Rep.  9), 
and  the  facts  were:  the  plaintiffs' 
agent  contracted  to  buy  asphalt 
blocks  of  the  defendants;  the  agent 
represented  that  he  was  buying  for 
himself  and  it  appears  that  the  de- 
fendants would  probably  have  re- 
fused to  contract  directly  with  the 
plaintiffs;  the  blocks  were  delivered, 
and  proved  defective;  the  plaintiff 
sued  on  an  implied  warranty;  and 
the  court  held  that,  as  an  undisclosed 
principal  the  plaintiff  should  recover. 

See  also,  Wester  Moffat  Colliery 
Co.  v.  Jeffrey,  [1911]  Scot.  Sess.  Cas. 
346;  Nitro  Powder  Co.  v.  Marx,  148 
N.  Y.  App.  Div.  571. 

BO  In  Hawkins  v.  Windhorst,  87 
Kan.  176,  where  the  court  distin- 
guished it  from  Boston  Ice  Co.  v.  Pot- 
ter (123  Mass.  28,  25  Am.  Rep.  9), 
plaintiff's  agent  entered  into  an  ex- 
ecutory contract  with  the  defendant 
for  the  sale  of  cattle,  representing 
that  he  was  contracting  for  himself 
as  owner;  on  learning  that  the  agent 
had  acted  for  the  plaintiff  who  owned 
the  cattle,  the  defendant  refused  to 
perform.  Held,  since  the  defendant 
is  not  prejudiced  by  having  his  con- 
tract with  the  undisclosed  principal 
instead  of  with  the  agent,  he  is  liable 
to  the  plaintiff. 


1639 


§  2069] 


THE  LAW  OF  AGENCY 


[BOOK   IV 


by  the  agent  upon  the  sale  of  a  chattel,  would  not  be  lost  to  the  buyer 
merely  because  he  was  compelled  to  pay  the  price  to  the  principal.  In 
the  case  of  the  sale  of  land,  however,  where  there  would  be  no  such 
collateral  undertakings  implied  or  subsisting  in  parol,  a  contract  to  pay 
for  land  upon  receiving  a  warranty  deed  of  it  from  the  agent  could  not, 
it  is  held,  be  enforced  by  an  undisclosed  principal,  who  did  not  tender 
such  a  deed.151 

Chattels,  of  course,  may  acquire  a  sort  of  personality,  as  in  the  case 
of  the  so-called  unique  chattel,  and  capacity  to  enforce  a  contract  con- 
cerning such  a  chattel  must  often  be  dependent  upon  capacity  to  con- 
trol it.  Ordinary  chattels,  moreover,  may  acquire  a  personal  flavor, 
as  where  one  is  more  valuable  or  less  valuable  because  it  had  belonged 
to  or  was  made  by  a  certain  person  and  the  like.52 

§  2069.  Contracts  of  suretyship. — A  somewhat  similar 

doctrine  has  been  applied  in  the  case  of  suretyship  where  it  is  held  that 
by  reason  of  the  personal  confidence  and  the  strict  construction  involved 
in  such  cases,  an  undisclosed  principal  cannot  enforce  a  guaranty  run- 
ning to  the  agent  alone,  in  the  absence  of  anything  indicating  an  inten- 
tion on  the  part  of  the  guarantor  to  extend  its  benefits  to  a  possible 
principal.58 


si  Birmingham  Matinee  Club  v.  Me- 
Carty,  152  Ala.  571,  15  Ann.  Cas.  237, 
13  L.  R.  A.  (N.  S.)  156;  Pancoast  v. 
Dinsmore,  105  Me.  471,  134  Am.  St. 
Rep.  582. 

52  Thus  in  Winchester  v.  Howard, 
97  Mass.    303,    93    Am.    Dec.    93,  the 
court  said:  "There  may  be  good  rea- 
sons why  one  should  be  unwilling  to 
buy  a  pair   of  oxen  that  had  been 
owned   or  used     .     .     .     by  a  par- 
ticular person." 

53  in  Barns  v.  Barrow,  61  N.  Y.  39, 
19  Am.  Rep.  247,  a  partnership  was 
not  allowed  to  recover,  on  the  theory 
of  being  an  undisclosed  principal,  on 
a  guaranty  given  to  one  of  the  firm 
in  connection  with  a  sale  of  the  firm's 
goods  by  such  partner,  there  being  no 
evidence  that  the  guarantor  was  in- 
formed at   the   time   of   making  the 
guaranty  that  the  goods  were  to  be 
supplied  by  the  firm. 

In  the  following  cases,  the  same 
general  doctrine  was  recognized,  but 
the  court  admitted  parol  evidence 


tending  to  show  an  intention  that  the 
guaranty  should  extend  for  the  bene- 
fit of  the  principal.  Mitchell  v.  Rail- 
ton,  45  Mo.  App.  273;  Van  Wart  v. 
Carpenter,  21  Up.  Can.  Q.  B.  320; 
Michigan  State  Bank  v.  Peck,  28  Vt. 
200;  Garrett  v.  Handley,  4  B.  &  C.  664. 
See  also,  National  Bank  of  Peoria 
v.  Diefendorf,  90  111.  396,  wherein  the 
court  said:  "The  principle  that  a 
promise  to  an  agent  is  in  law  a  prom- 
ise to  the  principal,  and  that  the 
latter  may  sue  upon  it  in  his  own 
name,  is  not  applied  to  the  prejudice 
of  a  promisor  who  is  ignorant  of  the 
existence  of  that  relation.  It  mani- 
festly cannot  be  applied,  as  attempted 
in  this  case,  in  behalf  of  an  unknown 
principal,  so  as  to  convert  a  promise 
of  indemnity  upon  a  draft,  under- 
stood by  the  promisor  as  made  to  the 
payee,  into  one  as  made  to  the 
drawer,  and  change  the  relation  of 
the  promisor  toward  the  drawer  from 
one  of  guarantor  as  supposed,  into 
that  of  principal  debtor.  An  undis- 


1640 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2O7O 

§  2070.  Principal  cannot  sue  where  terms  of  contract  exclude 
him  or  where  contract  is  solely  with  agent  personally. — The  right 
of  the  principal  to  sue  upon  the  contract  made  by  the  agent  in  his  own 
name  flows  from  the  fact  that  the  agent  made  the  contract  in  reality, 
though  perhaps  this  may  have  been  unknown  to  the  other  party,  as 
the  agent  of  the  principal,  and  by  his  authority ;  and  the  principal  is, 
therefore,  entitled  to  enforce  the  contract,  not  only  upon  the  ground 
that  the  benefits  of  his  agent's  acts  accrue  to  him,  but  also  upon  the 
ground  that  he  is  himself, — when  discovered, — liable  upon  the  contract 
to  the  other  party.  If,  however,  as  is  competent  to  be  done,  the  other 
party  has,  (i)  dealt  with  the  agent  as  being  in  fact  the  principal  and 
upon  terms  in  a  written  contract  which  exclude  the  existence  of  any 
other  principal;  or  (2),  with  knowledge  of  the  agency,  has  elected 
to  deal  with  the  agent  alone,  and  the  agent  has  pledged  his  individual 
credit,  there  it  is  held  that  the  undisclosed  principal  is  not  a  party  to 
the  contract  and  cannot  enforce  it.  To  permit  the  principal  to  enforce 
the  contract  in  the  first  case  is  to  contradict  the  writing;  and,  in  the 
second,  to  deny  to  the  other  party  the  benefit  of  his  choice  of  parties. 
Every  man  has  a  right  to  determine  for  himself  what  parties  he  will 
deal  with,  and  if  the  other  party  has  expressly  dealt  with  the  agent 
as  the  party  to  the  contract,  to  the  exclusion  of  a  principal,  he  cannot 
be  made  liable  to  the  principal.54 

closed  principal  is  not  to  be  brought  ing  that  is  inadmissible.     The  court 

into  a  contract,  thus  to  the  prejudice  said  that  the  doctrine  that  the  undis- 

of    one    dealing    with    an    unknown  closed    principal    may    demand    the 

agent."  benefits  of  a   contract  made  by  his 

s*  In   Humble   v.   Hunter,  12   Q.  B.  agent  "cannot  be  applied  where  the 

(Ad.  &  El.  N.  S.)    310,  the  plaintiff  agent  contracts  as  principal;   and  he 

sued  on  a  charter  party  executed  by  has  done  so  here  by  describing  him- 

her    son,  as    her    agent,  in    his  own  self  as  'owner'  of  the  ship."     . 

name  and  without  disclosing  to  the  "You  have  a  right  to  the  benefit  you 

defendant   that  he  was   such   agent.  contemplate     from     the     character, 

The  contract   read:    "It  is  mutually  credit    and    substance    of    the    party 

agreed  between  C.  J.  Humble,  Esq.,  with  whom  you  contract." 

owner    of   the    good    ship    or   vessel  However  sound  Humble  v.  Hunter 

called  The  Ann,"  etc.     The  court  re-  may  be  in  its  theory,  it  seems  weak 

fused  to  hear  evidence  showing  that  on  the  facts. 

Humble,  the  son,   was  not  the  real  In  Abbott  v.  Atlantic  Refining  Co., 

principal  in  the  transaction,  distin-  4  Ont.  Law.  Rep.  701,  the  plaintiff's 

guishing  it  from   the  ordinary  case  husband  contracted  to  have  the  de- 

of  an  undisclosed  principal  suing  on  fendant  furnish  roofing  for  his  wife's 

a   written    contract,    on    the    ground  house.     In  the  correspondence  which 

that  the  son  in  this  case  expressly  constituted    the    contract,    the    wife 

stipulated  that  he  was  the  owner  of  was  not  mentioned,  and  the  defend- 

the  ship    and    the    principal    in  the  ants  made  their  offer  with  reference 

transaction,  and  evidence  contradict-  to  "your  roof"  In  "your  town,"  and 

1641 


§  2070] 


THE   LAW  OF  AGENCY 


[BOOK    IV 


So  also  where  a  contract  is  made  with  one  as  agent  of  a  certain 
named  principal,  another  person  who  claims  to  be  the  real  but  undis- 
closed principal  cannot  enforce  it.55 


the  plaintiff's  husband  purported  to 
accept  the  offer  to  put  on  "my  roof." 
The  plaintiff  sued  on  the  contract  for 
a  breach  of  a  guarantee  of  the  roof, 
and  was  permitted  to  show  that  the 
contract  was  made  by  her  husband 
as  agent  for  her,  the  court  holding 
that  the  words  used  did  not  necessa- 
rily denote  that  the  agent  was  owner 
but  were  merely  conveniently  descrip- 
tive of  the  subject  matter  of  the  con- 
tract. 

In  Winchester  v.  Howard,  97  Mass. 
303,  93  Am.  Dec.  93,  one  Smith  of- 
fered to  sell  to  defendant  a  pair  of 
oxen.  There  was  evidence  tending 
to  show  that  Smith  expressly  said 
that  he  was  the  owner.  The  defend- 
ant was  to  return  them  within  a  day 
if  he  discovered  that  things  were  not 
as  represented.  Learning  that  plain- 
tiff was  the  actual  owner  and  prin- 
cipal, the  defendant  returned  the 
oxen,  but  the  plaintiff  sued  for  the 


price.  The  court  held  that  he  could 
not  recover.  That  if  the  defendant 
had  said  nothing,  the  plaintiff  could 
have  recovered.  But  the  defendant 
had  a  right,  springing  from  his  abso- 
lute right  to  refuse  to  contract,  to 
elect  with  whom  he  should  deal  or 
from  whom  he  should  buy  oxen. 
That  it  was  for  the  jury  to  deter- 
mine, from  the  facts,  whether  he  had 
exercised  that  right  to  elect  In  ob- 
taining from  Smith  a  statement  that 
he,  Smith,  was  the  owner. 

See  also,  Darrow  v.  Home  Produce 
Co.,  57  Fed.  463;  Cowan  v.  Curran, 
216  111.  598. 

In  New  York  Brokerage  Co.  v. 
Wharton,  143  Iowa,  61,  plaintiff's 
agent  contracted  with  the  defendants 
to  exchange  real  estate  and  a  stock 
of  goods,  owned  by  the  plaintiffs,  for 
real  estate  of  the  defendants;  the 
agent  represented  himself  to  be  the 
principal  and  owner  of  the  goods, 


55  In  Thomas  v.  Kerr,  66  Ky.  619, 
96  Am.  Dec.  262,  an  auctioneer  was 
engaged  in  the  sale  of  the  estate  of  a 
certain  deceased  person,  on  behalf  of 
the  executor.  During  the  sale  the 
plaintiff,  with  the  consent  of  the  ex- 
ecutor, presented  a  horse  of  his  own 
for  sale  through  the  auctioneer,  who 
sold  it  to  the  defendant.  Both  the 
auctioneer  and  the  defendant  be- 
lieved that  the  horse  was  the  prop- 
erty of  the  estate.  When  the  defend- 
ant discovered  whose  the  horse  was, 
he  repudiated  his  purchase,  and  the 
plaintiff  brought  this  action  for  the 
price.  It  was  held  that  the  defend- 
ant had  the  right  to  choose  the  per- 
son from  whom  he  bought  and  upon 
whose  warranty  he  had  to  rely,  and 
since  he  thought  he  was  purchasing 
from  the  estate  and  no  one  else,  he 
could  not  be  held. 

In  Barker  v.  Keown,  67  111.  App. 
433,  the  facts  were  similar  except  that 

1642 


in  this  case  the  auctioneer  consented 
to  present  the  plaintiff's  horse  to- 
gether with  the  property  of  the  es- 
tate. The  defendant,  however,  had 
no  intimation  that  he  was  not  pur- 
chasing the  property  of  the  estate, 
and  as  in  the  above  case  repudiated 
the  sale  as  soon  as  he  discovered  the 
true  state  of  affairs.  This  court  also 
held  that  the  plaintiff  could  not  re- 
cover on  the  ground  that  the  defend- 
ant could  not  have  another  than  the 
person  of  whom  he  thought  and  was 
told  he  was  buying,  i.  e.,  the  estate, 
thrust  upon  him. 

So  in  Henry  v.  Black,  213  Pa.  620, 
where  an  option  had  been  given  to  an 
agent  for  a  certain  principal  and  for 
personal  reasons,  it  was  held  that  an- 
other person  in  whose  behalf  the 
agent  undertook  to  secure  the  per- 
formance of  the  option  could  not  en- 
force it 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2O7I,  2072 


§    2071. 


Merely    making    a    contract,    though    in    writing, 


with  the  agent  believing  him  to  be  the  principal  is,  however,  not  enough 
to  show  that  the  principal  was  excluded  or  that  the  contract  was  made 
with  him  alone.  Such  a  rule  would  defeat  the  whole  undisclosed  prin- 
cipal doctrine. 

Even  if  it  be  conceded  to  be  sound  in  its  own  field,  the  doctrine  of 
Boston  Ice  Co.  v.  Potter,56  which  was  not  a  case  of  agency  at  all,  ought 
not  to  be  unduly  extended  to  this  case.  So  long  as  the  undisclosed 
principal  is  so  freely  held  liable  as  he  is  at  present,  his  correlative  right 
to  enforce  the  contract  ought  not  to  be  too  narrowly  restricted. 

§  2072.  Principal's  right  of  action  usually  superior  to  agent's — 
The  principal's  right  to  bring  the  action  takes  precedence  of  the 
agent's,  and  in  all  cases  where  either  may  sue,  the  principal,  by  giving 
notice  of  his  rights  to  the  other  party  and  demanding  performance  to 


and  though  he  signed  the  contract  in 
the  plaintiffs'  name,  the  defendants 
supposed  that  was  the  name  under 
which  he  did  business.  Held,  the  de- 
fendants had  a  right  to  rescind  be- 
cause of  the  agent's  misrepresenta- 
tion that  the  contract  was  made  with 
him. 

In  Moore  v.  Vulcanite,  etc.,  Co.,  121 
N.  Y.  App.  Div.  667,  the  negotiations 
showed  very  clearly  that  the  defend- 
ant, who  had  agreed  to  supply  cement 
to  the  other  party,  had  had  in  mind 
the  credit  and  responsibility  of  cer- 
tain persons  named.  Later  plaintiff 
sued  for  damages  for  the  breach  of 
the  contract,  claiming  to  be  the  real 
principal.  It  was  held,  citing  Hum- 
ble v.  Hunter  and  Winchester  v. 
Howard,  supra,  that  the  action  could 
not  be  maintained.  The  court  said 
the  case  presented  an  exception  to 
the  general  rule  allowing  the  undis- 
closed principal  to  sue  in  that  here 
the  vendor  had  expressly  refused  to 
make  a  contract  with  any  except  the 
persons  of  his  own  selection.  Noth- 
ing appeared  as  to  the  relative  solv- 
ency of  the  parties  and  there  is  noth- 
ing to  indicate  that  the  alleged  prin- 
cipal had  made  any  tender  of  the 
price  or  offer  to  secure  its  payment. 

In  the  argument  in  Humble  v. 
Hunter  it  was  suggested  by  counsel 

1643 


for  the  plaintiff,  in  reply  to  the  inti- 
mation of  one  of  the  judges  that  the 
general  rule  might  work  hardship  in 
the  care  of  continuing  contracts, 
that  the  rule  allowing  the  principal 
to  sue  "may  perhaps  be  confined  to 
contracts  not  continuing." 

See  also,  Moline  Mall.  Iron  Co.  v. 
York  Iron  Co.,  27  C.  C.  A.  442,  83  Fed. 
66,  where  it  was  urged  that  the  con- 
tract was  with  the  agent  only,  but 
was  held  not  to  be. 

In  Mooney  v.  Williams,  3  Comw.  L. 
Rep.  (Australia)  1,  a  person  who  was 
then  not  an  agent  made  an  offer  to 
sell  property  which  he  did  not  then 
own.  This  offer  was  not  accepted  as 
made.  Later  this  person  became  the 
agent  of  an  undisclosed  principal 
who  had  acquired  the  property. 
Later  a  counter-proposition  was  made 
to  this  agent  for  the  purchase  of  the 
property  which  he  (as  undisclosed 
agent)  accepted.  Held,  that  the  prin- 
cipal could  enforce  the  contract  and 
recover  the  price. 

The  mere  fact  that  the  other  party 
supposed  he  was  dealing  with  a  prin- 
cipal does  not  affect  the  real  princi- 
pal's right  to  sue.  Hunter  v.  Gid- 
dings,  97  Mass.  41,  93  Am.  Dec.  54. 

so  123  Mass.  28,  25  Am.  Rep.  9,  re- 
ferred to  in  a  preceding  section. 


§    2072  J 


THE   LAW  OF  AGENCY 


[BOOK  iv 


himself,  may  cut  off  the  agent's  right  to  sue,67  except  in  those  cases  in 
which  the  agent,  by  lien  or  otherwise,  has  an  interest  or  estate  in  the 
subject  matter  of  the  action.68 

Thus  if  an  agent  sells  goods  of  his  principal  but  in  his  own  name, 
the  principal  may  interpose  before  payment  and  forbid  it  to  be  made 
to  his  agent;  and  a  payment  made  to  the  agent  after  such  notice  will 
not  bind  the  principal.50  The  mere  fact  that  the  agent,  before  the 
principal  intervened,  has  taken  from  the  purchaser  a  promissory  note 
payable  to  the  agent  personally,  will  not  defeat  the  principal's  right.60 
Of  course  -if  the  note  were  negotiable  and  came  into  the  hands  of  a 
boita  fide  holder,  such  a  holder  would  be  protected.  But  if  the  note 
were  not  so  negotiated,  or  if,  by  the  laws  of  the  state,  it  did  not  con- 
stitute payment,  the  principal  might  bring  his  action  upon  the  con- 
tract of  sale,61  but  in  such  a  case  he  should  be  prepared  to  tender  back 
the  note  upon  the  trial. 

After  the  principal  has  interposed  and  given  notice  of  his  claim,  his 
right  to  sue  cannot,  of  course,  be  defeated  or  impaired  by  any  dealings 
between  the  other  party  and  the  agent.62 


57  Sadler  v.  Leigh,  4  Camp.  195; 
Pitts  v.  Mower,  18  Me.  361,  36  Am. 
Dec.  727;  Huntington  v.  Knox,  7 
Gush.  (Mass.)  371;  Warder  v.  White, 
14  111.  App.  50;  Wilson  v.  Groelle,  83 
Wis.  530. 

Mr.  Wright  (Principal  and  Agent, 
2d  ed.,  p.  347)  declares  that  "If  the 
agent  has  commenced  an  action,  the 
principal  can  still  intervene  at  any 
stage,  and  after  his  intervention  the 
right  of  the  agent  to  sue  ceases,"  cit- 
ing Sadler  v.  Leigh,  supra,  which, 
however,  did  not  involve  this  precise 
question. 

ss  Drinkwater  v.  Goodwin,  1  Cowp. 
251;  Hudson  v.  Granger,  5  B.  &  Aid. 
27. 

so  Pitts  v.  Mower,  supra;  Hunting- 
ton  v.  Knox,  supra;  Groelle  v.  Wilson, 
83  Wis.  530. 

6°  A  principal  may  sue  in  his  own 
name  on  a  non-negotiable  promissory 
note,  made  for  his  benefit,  although 
payable  to  his  agent.  National  Life 
Ins.  Co.  v.  Allen,  116  Mass.  398,  cit- 
ing Garland  v.  Reynolds,  20  Me.  45. 

01  Pitts  v.  Mower,  18  Me.  361,  36 
Am.  Dec.  727. 

"When  an  agent  sells  the  goods  of 


his  principal  and  takes  a  promissory 
note  payable  to  himself,  the  princi- 
pal may  interpose  before  payment 
and  forbid  it  to  be  made  to  his  agent; 
and  a  payment  to  the  agent  after  this 
will  not  be  good.  And  the  principal 
may  sue  in  his  own  name  on  the  con- 
tract of  sale,  except  when,  as  with 
us,  it  is  extinguished  by  taking  a  ne- 
gotiable promise."  Pitts  v.  Mower, 
supra, 

Where  a  factor  has  taken  a  non-ne- 
gotiable note  for  the  price,  payable 
to  himself,  and  has  delivered  it  to  the 
principal,  the  latter  may  sue  for  the 
price  in  his  own  name.  Edmond  v. 
Caldwell,  15  Me.  340. 

Where  one  who  bought  goods  on 
credit  of  a  factor  del  credere  was 
summoned  as  a  trustee  in  a  foreign 
attachment,  it  was  held  that,  after 
notice  of  the  principal's  claim,  the 
purchaser  would  not  be  charged  as 
the  trustee  of  the  factor  for  anything 
more  than  the  latter's  commissions. 
Titcomb  v.  Seaver,  4  Greenl.  (Me.) 
542. 

62  Rice,  etc.,  Co.  v.  International 
Bank,  185  111.  422;  McLachlin  v. 
Brett,  105  N.  Y.  391;  Wright  v.  Cabot, 


1644 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2O/3,  2O/4 

§  2073.  Principal's  rights  governed  by  the  contract. — There  are 
many  cases,  as  will  be  seen  hereafter,  in  which  the  principal,  ignoring 
an  unauthorized  contract  made  by  his  agent,  may  recover  money  or 
property  disposed  of  by  the  agent  without  authority.  But  where  the 
principal  undertakes  to  enforce  the  contract  he  must,  of  course,  take 
it  as  he  finds  it,  and  must  be  governed  by  its  terms.  He  clearly  can- 
not enforce  rights  under  it  which  the  contract  did  not  give  to  the 
agent.63  And  for  similar  reasons  he  cannot  enforce  rights  under  the 
contract  unless  he  corresponds  with  the  description  of  the  person  to 
whom  alone  the  contract  gives  the  rights.6* 

§  2074.  When  principal  subject  to  defenses  which  could  have 
been  made  against  agent — a.  Those  arising  out  of  terms  of  contract 
itself. — So  if  the  principal  would  avail  himself  of  the  benefits  of  a 
contract  made  by  an  agent  in  his  own  name  without  disclosing  his 
principal,  he  must  also  assume  the  responsibilities  of  the  contract.  If 
he  sues  upon  the  contract  he  must  take  it  as  it  exists  at  the  time  he 
interposes,  and  subject  to  all  the  rights  under  it  which  the  other  party 
then  possesses  against  the  agent.  In  the  homely  but  expressive  lan- 
guage of  a  learned  judge,  the  principal  must  "step  into  the  shoes  of 
the  agent."  Hence  where  a  third  person,  who  has  entered  into  a  con- 
tract with  the  agent  in  ignorance  of  the  fact  that  he  was  not  the  real 
principal  as  he  assumed  to  be,  is  sued  upon  the  contract  by  the  prin- 
cipal, he  may  avail  himself,  as  against  the  principal,  of  every  defense 
arising  upon  the  terms  of  the  contract  itself,  which  existed  in  his 
favor  against  the  agent  at  the  time  the  principal  first  interposed  and 
demanded  performance  to  himself.65  This  right  is  not  affected  by  the 

89  N.  Y.   570;    Smith  v.  Morrill,   39  agent  would  not  be  entitled  to  receive 

Kan.  665;  Barrett  v.  Bemelmans,  163  the    property,    e.    g.,    stocks    bought 

Pa.  122;   Lancaster  v.  Knickerbocker  through  brokers,  until  he  paid  for  it, 

Ice  Co.,  153  Pa.  427.  the  principal  would  be  subject  to  the 

See  also,  Norcross  v.  Pease,  5  Allen  same  requirement.   Burnham  v.  Eyre, 

(Mass.),    331;     Jones    v.    Witter,    13  123  N.  Y.  App.  Div.  777,  aff'd,  196  N. 

Mass.    304;     Eastman    v.    "Wright,    6  Y.  560. 

Pick.     (Mass.)     316;     Sigourney     v.  04 Where  the  defendant  agreed  to 

Severy,  4  Cush.  (Mass.)  176.  sell  certain  interests  in  land  only  to 

The  fact  that  the  buyer  had  agreed  the  holder  of  a  certain  tax  title,  a 

with  the  agent  to  pay  the  proceeds  principal  who  was  not  the  holder  of 

to  a  third  person, — it  not  appearing  that    tax    title    cannot    enforce    the 

that  he  had  entered  into  any  binding  agreement  to  sell.  The  defendant  had 

contract   with    such    third    person, —  a  perfect  right  to  select  his  grantee, 

does  not  defeat  the  principal's  claim.  Ellsworth  v.  Randall,  78  Iowa,  141,  16 

Rice,  etc.,  Co.  v.  Bank,  supra.  Am.  St.  Rep.  425. 

Compare,    Argenti    v.    Brannan,    5  «*  In    Eldridge    v.    Finninger,     25 

Cal.  351.  Okla.    28,  28    L.    R.    A.    (N.  S.)   227, 

03  Thus  if,  under  the  contract,  the  plaintiff,  George  C.  Eldridge,  was  do- 

1645 


§  2075] 


THE   LAW  OF   AGENCY 


[BOOK  iv 


fact  that  the  agent,  in  thus  entering  into  the  contract  in  his  own  name 
without  disclosing  his  principal,  acted  in  contravention  of  the  express 
directions  of  his  principal.  Neither  is  it  affected  by  the  fact  that  the 
agent  is  doing  what  a  known  agent  would  not  be  permitted  to  do  with- 
out his  principal's  consent,  namely,  using  his  principal's  property  of 
credits  to  pay  the  agent's  personal  debts. 

§  2075.  b.  Payment  to  agent. — With  reference  to  de- 
fences which  do  not  arise  out  of  the  terms  of  the  contract  itself,  and 
which  therefore  the  principal  does  not  affirm  by  seeking  to  enforce  it, 
the  case  is  not  so  clear.  If  the  principal  has  authorized  or  permitted 
the  agent  to  act  in  his  own  name,  and  to  represent  himself  as  the  real 
principal,  he  ought  properly  to  be  subject  to  defences  which  the  other 
party  has  acquired  in  reliance  upon  that  appearance. eB  If  the  princi- 


ing  business  as  the  "Eldridge  Coal 
Co."  He  had  in  his  employment  as 
soliciting  and  sales  agent  one  Lloyd 
Eldridge.  The  defendant,  a  tailor, 
reasonably  believing  that  Lloyd  El- 
dridge was  the  proprietor,  made  a 
contract  with  him  to  receive  from 
him  a  certain  quantity  of  coal  and 
gave  in  payment  a  suit  of  clothes  for 
said  Lloyd  when  he  should  later  or- 
der it.  Defendant  received  the  coal 
and  made  the  clothes  before  he  was 
advised  that  plaintiff  was  the  pro- 
prietor. In  this  action  by  George  C., 
held,  that  he  must  take  the  contract 
as  it  was  made  and  was  subject  to  its 
terms.  It  was  found  as  a  fact  that 
defendant  had  no  reason  to  believe 
that  Lloyd  was  not  the  proprietor. 
There  were  in  the  telephone  directory 
certain  addresses  which  seemed  to 
show  that  he  was  at  least  one  of  the 
proprietors  of  the  business,  though 
they  also  suggested  George  C.  as 
also  a  proprietor.  The  court  relied 
upon  Hook  v.  Crowe,  100  Me.  399,  a 
very  similar  case,  reaching  the  same 
result. 

In  Wiser  v.  Springside  Coal  Mining 
Co.,  94  111.  App.  471,  a  person  now 
alleged  to  be  the  agent  of  plaintiff 
took  an  order  for  coal  from  defend- 
ant who  believed  that  the  agent  was 
the  real  principal  upon  the  under- 
standing that  the  price  of  the  coal 
should  be  applied  upon  a  debt  due 
from  the  agent  to  the  defendant. 


Plaintiff  supplied  the  coal  in  ignor- 
ance of  this  arrangement,  defendant 
received  the  coal  in  actual  ignorance 
of  plaintiff's  interests,  though  it  ap- 
peared that  plaintiff's  teamster  left 
delivery  checks  at  defendant's  house, 
which  checks  defendant  never  saw. 
In  an  action  by  plaintiff  to  recover 
the  price  it  was  held  that  there  could 
be  no  recovery.  The  decision  was 
put  upon  two  grounds:  first,  that  the 
contract  was  purely  a  personal  one 
with  the  agent  and  therefore  the 
principal  could  not  sue;  and,  sec- 
ondly, if  the  principal  sued  upon  the 
contract,  he  must  enforce  it  as  he 
found  it.  It  will  be  observed  that 
this  case  is  different  from  many  of 
the  cases  considered  in  the  following 
section,  for  here  the  method  of  pay- 
ment was  a  term  in  the  contract. 

Peel  v.  Shepherd,  58  Ga.  365,  is  ap- 
parently a  case  of  the  same  sort, 
namely,  a  case  where  the  parties 
agreed  as  a  part  of  the  contract  for 
payment  in  a  particular  manner; 
also,  Henderson  v.  Botts,  56  Mo.  App. 
141;  Dean  v.  Plunkett,  136  Mass.  195, 
was  apparently  a  case  of  the  same 
sort  but  was  not  rested  on  this 
ground.  See  also,  Connally  v.  McCon- 
nell,  1  Penne.  (Del.)  133. 

eo  In  Rosser  v.  Darden,  82  Ga.  219, 
14  Am.  St.  Rep.  152,  the 'court  said: 
"We  think  that  where  a  principal 
agrees  that  the  agency  may  be  con- 
cealed, the  rule  above  announced  ap- 


1646 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2075 

pal  has  not  authorized  or  permitted  the  agent  to  act  in  his  own  name, 
but  has  directed  or  expected  the  agent  to  act  in  the  principal's  name, 
the  principal  ought  not  to  be  bound,  in  the  absence  of  any  element  of 
estoppel,  unless  the  act  be  one  which  would  fall  within  the  actual  or 
presumed  authority  of  the  agent  of  a  disclosed  principal.  If  the  agent 
is  one  who,  like  a  factor,  is  given  the  possession  of  goods  to  sell  and 
who  has  presumptive  authority  to  sell  in  his  own  name  and  to  receive 
payment,  a  payment  made  to  or  a  settlement  made  with  the  agent  be- 
fore the  principal  has  intervened,  should  be  binding  upon  the  princi- 
pal."17 The  fact  that  the  agent  in  such  a  case  was  instructed  to  act 


plies  with  this  qualification,  that 
third  parties  contracting  with  the 
agent  would  be  entitled  to  all  the 
equities  and  all  the  defenses  which 
they  would  have  had  against  the  con- 
cealed agent,  the  same  as  if  they  had 
treated  with  him  as  principal." 

In  Shine  v.  Kennealy,  102  111.  App. 
473,  the  plaintiff  sued  as  undisclosed 
principal  for  services  rendered  in  re- 
pairing a  roof,  contracted  for  through 
an  agent  who  the  defendant  thought 
was  the  principal.  The  defendant 
was  protected  in  a  payment  made  to 
the  agent  while  yet  undisclosed,  on 
the  ground  that  the  plaintiff  had  been 
careless  in  not  informing  defendant 
who  was  the  real  principal. 

And  similarly,  in  Hogen  v.  Klabo, 
13  N.  D.  319,  the  defendant  was  per- 
mitted to  use  the  same  defenses 
against  the  principal  that  he  would 
have  had  against  the  agent  where  the 
agent  made  a  contract  for  threshing 
defendant's  wheat,  in  his  own  name, 
and  was  in  control  of  the  plaintiff's 
machine  when  the  work  was  done. 

In  Lapham  v.  Green,  9  Vt.  407,  the 
plaintiff  employed  two  agents  to  carry 
on  his  general  merchandise  business 
in  their  own  names,  it  being  under- 
stood that  they  were  to  appear  to  be 
the  owners.  The  court  held  that 
while  the  plaintiff  could  sue  on  con- 
tracts made  by  the  agents  ostensibly 
for  themselves,  he  must  be  held  lia- 
ble for  every  defense  that  would  have 
cbtamed  if  the  agents  had  brought 
the  action. 


Burden  of  proof. — In  Hutchinson 
Mfg.  Co.  v.  Henry,  44  Mo.  App.  263, 
it  was  held  that,  where  the  defense 
is  payment  in  good  faith  to  the  agent 
of  an  undisclosed  principal,  the  de- 
fendant has  the  burden  of  making 
good  this  defense,  and  it  ought  to  be 
pleaded  specially. 

Payment  of  mortgage  to  recorded 
"holder,  notwithstanding  unknown  as- 
signment, under  recording  acts,  pre- 
sents a  different  question.  See  Whip- 
pie  v.  Fowler,  41  Neb.  675. 

67  in  Rabone  v.  Williams,  7  T.  R. 
360,  Lord  Mansfield,  C.  J.,  said: 
"Where  a  factor,  dealing  for  a  prin- 
cipal but  concealing  that  principal, 
delivers  goods  in  his  own  name,  the 
person  contracting  with  him  has  a 
right  to  consider  him  to  all  intents 
and  purposes  as  the  principal;  and 
though  the  real  principal  may  appear 
and  bring  an  action  upon  that  con- 
tract against  the  purchaser  of  the 
goods,  yet  that  purchaser  may  set  off 
any  claim  he  may  have  against  the 
factor  in  answer  to  the  demand  of 
the  principal.  This  has  been  long 
settled." 

This  decision  was  followed  in 
George  v.  Clagett,  7  T.  R.  359;  Se- 
menza  v.  Brinsley,  18  C.  B.  (N.  S.) 
467;  Fish  v.  Kempton,  7  C.  B.  687;  Ex 
parte  Dixon,  4  Ch.  Div.  133. 

To  same  effect:  Traub  v.  Milliken, 
57  Me.  63,  2  Am.  Rep.  14;  Locke  v. 
Lewis,  124  Mass.  1,  26  Am.  Rep.  631; 
Dean  v.  Plunkett,  136  Mass.  195;  Du 
Bois  v.  Perkins,  21  Ore.  189;  Tripp, 


1647 


§  2075] 


THE    LAW   OF   AGENCY 


[BOOK  iv 


only  in  the  name  of  his  principal  would  not  be  binding  upon  the  third 
party  who  acted  in  ignorance  of  it.  It  would  be  merely  a  case  of 
private  instructions  in  contravention  of  a  presumptive  authority.68  If 
the  agent  were  one,  like  a  broker,  not  entrusted  with  the  possession  of 
the  property,  and  not  otherwise  caused  to  appear  as  the  real  principal, 
payments  made  to  him  should  not  be  binding  upon  the  principal.69  If 
such  an  agent  should  have  the  possession  of  the  goods  confided  to  him, 
for  the  purpose  of  fulfilling  the  contract,  payments  made  to  him  in 
reliance  on  such  possession,  and  in  ignorance  of  the  principal's  owner- 
ship, should  bind  the  principal,  as  in  the  case  of  the  factor.70 


etc.,  Shoe  Co.  v.  Martin,  45  Kan.  765; 
Eclipse  Wind  Mill  Co.  v.  Thorson,  46 
Iowa,  181;  Bliss  v.  Bliss,  7  Bosw.  (N. 
Y.)  339;  Hogan  v.  Shorb,  24  Wend. 
(N.  Y.)  458;  Copeland  v.  Touchstone, 
16  Ala.  333,  50  Am.  Dec.  181;  Lumley 
v.  Corbett,  18  Cal.  494;  Peel  v.  Shep- 
herd, 58  Ga.  365;  Rosser  v.  Darden, 
82  Ga.  219,  14  Am.  St.  Rep.  152;  Mc- 
Connell  v.  East  Point  Land  Co.,  100 
Ga.  129;  Shine  v.  Kennealy,  102  111. 
App.  473;  Lough  v.  Thornton,  17 
Minn.  253;  Henderson  v.  Botts,  56 
Mo.  App.  141;  Winslow  Bros.  v.  Sta- 
ton,  150  N.  Car.  264;  Hogen  v.  Klabo, 
13  N.  Dak.  319. 

But  compare  Stevenson  v.  Kyle,  42 
W.  Va.  229,  57  Am.  St.  Rep.  854. 

In  Massachusetts,  payment  by  note 
given  to  the  factor  is  within  the  rule. 
West  Boylston  Mfg.  Co.  v.  Searle,  15 
Pick.  225. 

os  Ex  parte  Dixon,  4  Ch.  Div.  133; 
Peel  v.  Shepherd,  58  Ga.  365;  Eclipse 
Wind  Mill  Co.  v.  Thorson,  46  Iowa, 
181. 

69  in  Crosby  v.  Hill,  39  Ohio  St. 
100,  a  broker,  not  in  possession  of 
property,  contracted  in  his  own  name 
to  sell  the  same,  and  notified  the 
owners  of  the  sale.  The  owners,  not 
knowing  that  the  broker  had  con- 
tracted in  his  own  name,  and  without 
authorizing  the  broker  to  receive  pay- 
ment for  them,  delivered  the  same 
to  the  vendee.  It  was  held  that  pay- 
ment by  the  purchaser  to  the  broker, 
under  such  circumstances,  without 
knowledge  of  the  owner's  rights,  did 
not  prevent  the  owners  from  recover- 


ing. The  court  quoted,  in  the  opin- 
ion, from  Baring  v.  Corrie,  2  B.  &  Aid. 
137,  148,  the  following:  "He  [the 
broker]  has  not  the  possession  of  the 
goods,  and  so  the  vendee  cannot  be 
deceived  by  that  circumstance;  and 
besides,  the  employing  of  a  person  to 
sells  goods  as  a  broker  does  not  au- 
thorize him  to  sell  in  his  own  name. 
If  therefore  he  sells  in  his  own  name, 
he  acts  beyond  the  scope  of  his  au- 
thority, and  his  principal  is  not 
bound.  But  it  is  said,  that  by  these 
means,  the  broker  would  be  enabled 
by  his  principal  to  deceive  innocent 
persons.  The  answer,  however,  is  ob- 
vious that  he  cannot  do  so,  unless 
the  principal  delivers  over  to  him  the 
possession  and  indicia  of .  property." 

In  an  action  by  an  undisclosed 
principal  to  recover  the  price  of 
goods  sold  by  an  agent  in  his  own 
name,  the  agent  being  duly  author- 
ized to  sell  but  not  to  sell  in  that 
way,  and  having  no  possession  or  in- 
dicia of  property,  the  buyer  could  not 
set-off  a  debt  of  the  principal.  Berns- 
house  v.  Abbott,  45  N.  J.  L.  531,  46 
Am.  Rep.  789. 

To  the  same  effect,  see  Harrison  v. 
Ross,  44  N.  Y.  Super.  Ct.  230;  Bliss  v. 
Bliss,  7  Bosw.  (N.  Y.)  339;  Hogan  v. 
Shorb,  24  Wend.  (N.  Y.)  458;  Talboys 
v.  Boston,  46  Minn.  144;  Bertoli  v. 
Smith,  69  Vt.  425. 

TO  Bliss  v.  Bliss,  7  Bosw.  (N.  Y.) 
339,  was  a  case  in  which  the  princi- 
pal put  the  goods  into  the  hands  of 
the  agent  for  delivery  under  the  con- 
tract, but  the  right  of  set  off  claimed 


1648 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2076,  2O77 


§    2076. 


-  Although    payment    made    to    the    agent    before 


knowledge  of  the  principal's  rights  may  be  protected  in  pursuance  of 
the  doctrine  of  the  preceding  section,  further  payments  made  after  the 
principal's  intervention  and  demand  of  payment  to  himself  can  usually 
not  be  relied  upon  as  a  defence  to  the  principal's  action.71 

§  2077.  c.  Set  off  of  claims  against  agent. — The  question 

of  set-off,  especially  where  it  does  not  arise  out  of  the  transaction  in 
question,  although  commonly  not  distinguished,  rests  upon  somewhat 
different  ground  from  that  of  payment,  inasmuch  as  it  is  often  easier 
to  discover  a  power  to  receive  payment  which  presumptively  is  for  the 
principal's  benefit,  than  a  power  to  set-off  a  claim  against  the  agent 
which  presumptively  can  rarely  be  for  the  principal's  benefit.72  As  a 
matter  of  fact,  however,  the  right  to  set-off  is  ordinarily  recognized 
by  the  courts  upon  substantially  the  same  facts  as  the  right  to  insist 
upon  a  payment,  that  is  to  say,  there  may  be  set-off  where  the  principal, 
by  entrusting  the  agent,  e.  g.  a  factor,  with  possession  of  the  goods  or 
the  like,  has  caused  or  permitted  him  to  appear  to  be  the  real  principal 
in  the  transaction,  but  not  otherwise.78 


arose  before  that  time  and  nothing 
was  done  in  reliance  upon  that  fact. 

71  Rice,    etc.,    Co.    v.    International 
Bank,     185     111.     422;     Lancaster    v. 
Knickerbocker  Ice  Co.,  153  Pa.  427; 
Barrett  v.  Bemelmans,  163  Pa.  122; 
Bruen   v.   Kansas    City    Agricultural 
Ass'n,  40  Mo.  App.  425;   McLachlin  v. 
Brett,    105  N.    Y.    391;   Henderson    v. 
McNally,  48  N.  Y.  App.  Div.  134,  aff' d, 
no    opinion,  168    N.   Y.    646;    Peel  v. 
Shepherd,  58  Ga.  365. 

Argenti  v.  Brannan  (1855),  5  Cal. 
351,  is  apparently  contra.  The  court 
said:  "The  mere  notice  of  Argenti 
[the  plaintiff]  to  the  defendant  was 
insufficient  to  interrupt  the  comple- 
tion of  the  performance  of  the  con- 
tract. The  defendant  had  the  right 
to  disbelieve  and  disregard  It.  He 
had  assumed  a  liability  to  another. 
His  duty  was  to  fulfill  it,  unless  legal 
steps  had  been  taken  to  prevent  him." 

72  it  is,  of  course,  possible  that  a 
set-off  of  a  claim  against  the  agent 
may  be  found  to  have  been  authorized 
by  the  principal.    In  Stewart  v.  Aber- 
dein,  4  M.  &  W.  211,  there  was  some 
evidence    of   express    authority,    and 


also  evidence  of  a  custom  known  and 
assented  to,  and  a  settlement  between 
the  agent  and  the  defendant  was  sus- 
tained in  an  action  by  the  principal. 
73  Rabone  v.  Williams,  7  T.  R.  360; 
George  v.  Clagett,  7  T.  R.  359;  Se- 
menza  v.  Brinsley,  18  C.  B.  (N.  S.) 
467,  477;  Fish  v.  Kempton,  7  C.  B. 
687;  Ex  parte  Dixon,  4  Ch.  Div.  133, 
Borries  v.  Imperial  Ottoman  Bank, 
L.  R.  9  C.  P.  38;  Mildred  v.  Maspons, 
8  App.  Cases,  874;  Bowmanville  Ma- 
chine Co.  v.  Dempster,  2  Can.  Sup. 
21;  Symon  v.  Brecker,  [1904]  Transv. 
L.  R.  745;  Garden  v.  Allen,  6  Ala. 
187,  41  Am.  Dec.  45;  Frazier  v.  Poin- 
dexter,  78  Ark.  241,  115  Am.  St.  Rep. 
33;  Durant  Lumb.  Co.  v.  Sinclair 
Lumb.  Co.,  2  Ga.  App.  209;  Deane  v. 
American  Glue  Co.,  200  Mass.  459; 
Locke  v.  Lewis,  124  Mass.  1,  26  Am. 
Rep.  631;  Stebbins  v.  Walker,  46 
Mich.  5;  Bernshouse  v.  Abbott,  45  N. 
J.  L.  531,  46  Am.  Rep.  789;  Nichols  v. 
Martin,  35  Hun  (N.  Y.),  168;  Win- 
slow  Bros.  v.  Staton,  150  N.  Car.  264; 
Hogen  v.  Klabo,  13  N.  D.  319;  Belfield 
v.  Nat'l  Supply  Co.,  189  Pa.  189,  69 
Am.  St.  Rep.  799. 


104 


1649 


§  2077] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


As  stated  in  a  recent  case,7*  "It  is  well  settled  by  an  almost  unbroken 
line  of  authorities,  that  if  the  owner  of  goods  intrusts  them  to  an  agent 


But  compare  Stevenson  v.  Kyle,  42 
W.  Va.  229,  57  Am.  St.  Rep.  854. 

In  Frame  v.  The  William  Penn 
Coal  Co.,  97  Pa.  309,  P.  &  M.  were  the 
selling  agents  of  the  coal  company. 
They  sold  coal  in  their  own  names. 
When  th#  coal  was  shipped  the  bill 
of  lading  showed  that  it  was  shipped 
by  the  coal  company,  but  the  ship- 
ment was  made  through  P.  &  M. 
The  coal  company  charged  the  coal 
on  their  books  to  the  real  purchaser, 
but  made  out  the  bills  to  P.  &  M. 
and  charged  them  with  the  coal  and 
that  P.  &  M.  then  sent  out  bills  to  the 
purchaser  in  their  own  name.  Col- 
lections were  ordinarily  made  by  P. 
&  M.,  but  if  they  failed  to  collect,  the 
roal  company  then  undertook  to  col- 
lect. While  business  was  being  car- 
ried on  in  this  method,  coal  was  sold 
and  shipped  to  Frame.  Later  Frame 
ordered  of  P.  &  M.  more  coal,  which 
they  failed  to  ship.  In  an  action 
brought  by  the  coal  company  to  re- 
cover the  price  of  the  coal  shipped, 
Frame  sought  to  set  off  damages  for 
the  non-delivery  of  the  other  coal.  It 
was  Frame's  contention  that  he  dealt 
with  P.  &  M.  in  both  transactions, 
supposing  that  they  were  the  real 
sellers.  The  case  went  off  upon  rul- 
ings as  to  the  admissibility  of  evi- 
dence, but  the  clear  implication  of 
the  case  is  that  if  Frame  dealt  with 
P.  &  M.  as  principals  in  the  transac- 
tion, and  in  ignorance  of  the  coal 
company's  claim,  he  was  entitled  to 
make  the  set-off.  This  conclusion 
seems  tenable  upon  the  ground  that 
the  coal  company  had  permitted  P. 
&  M.  to  appear  to  be  the  real  princi- 
pals in  the  transaction  and  that  the 
claims  sought  to  be  set-off  arose  out 
of  the  very  transaction  in  which  the 
coal  company  permitted  P.  &  M.  to 
appear  to  be  the  principals. 

In  Belfield  v.  National  Supply  Co., 


189  Pa.  189,  69  Am.  St.  Rep.  799,  it 
appeared  that  D.  &  K.  were  carrying 
on  business,  partly  as  jobbers  on 
their  own  account  and  partly  as  sales 
agents  for  other  dealers.  Prior  to 
November,  1896,  D.  &  K.  had  had 
many  dealings  with  defendants,  buy- 
ing of  and  for  them  and  selling  to- 
and  for  them.  In  the  course  of  these 
dealings  they  had  received  various 
orders  for  a  certain  kind  of  goods 
and  these  goods  they  purchased  from 
the  plaintiff.  The  goods  were  shipped 
direct  from  plaintiff's  factory  to  de- 
fendant, the  shipping  receipt  being 
sometimes  given  in  the  name  of 
plaintiff  and  sometimes  in  the  name 
of  D.  &  K.  D.  &  K.  paid  plaintiff  for 
these  goods  and  sold  them  to  defend- 
ant. At  the  beginning  of  November, 
1896,  D.  &  K.  were  indebted  to  defend- 
ant on  various  transactions  to  the 
amount  of  about  $1,500.00.  In  that 
situation  defendant  gave  D.  &  K.  dur- 
ing November  and  December  four 
more  orders  for  goods  of  the  kind 
that,  plaintiff  manufactured.  D.  &  K. 
ordered  these  goods  of  plaintiff,  di- 
recting that  they  be  shipped  and 
charged  to  defendant.  The  goods 
were  shipped  in  three  instalments, 
but  before  they  were  all  shipped  de- 
fendant learned  that  plaintiff  had 
charged  the  goods  directly  to  defend- 
ant and  looked  to  defendant  for  pay- 
ment. Nevertheless  the  defendant  in- 
sisted upon  the  shipment  of  the  re- 
maining goods  and  retained  all  of 
them.  Later  defendant  credited  to 
D.  &  K.  against  the  balance  of 
$1,500.00  owing  from  them,  the 
amount  of  these  last  four  orders,  and 
refused  to  pay  plaintiff,  who  brings 
this  action  for  the  price.  When  these 
goods  were  shipped,  plaintiff  did  not 
know  that  D.  &  K.  were  indebted  to 
defendant  and  intended  to  pay  D.  & 
K.  the  usual  commission  for  making 


74  Baxter  v.  Sherman,  73  Minn.  434, 72  Am.  St.  Rep.  631. 
1650 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2077 


with  authority  to  sell  in  his  own  name,  without  disclosing  the  name  of 
"his  principal,  and  the  agent  sells  in  his  own  name  to  one  who  knows 
nothing  of  any  principal  but  honestly  believes  that  the  agent  is  selling 
on  his  own  account,  he  may  set  off  any  demand  he  may  have  on  the 
agent  against  the  demand  for  the  goods  made  by  the  principal."  This 
set-off  need  not  exist  at  the  time  of  the  sale.  It  is  sufficient  if  it  arise 
before  notice  of  the  real  ownership  of  the  goods.75 


the  sale  to  defendant.  The  court  held 
that  defendant  was  entitled  to  sat- 
isfy their  claim  against  D.  &  K.  by 
crediting  the  amount  of  any  goods 
bought  from  D.  &  K.  before  defend- 
ant learned  that  D.  &  K.  were  simply 
agents  of  plaintiff.  The  court  said: 
"That  defendant  dealt  with  Dick- 
son  &  Kerr  as  principals  is  clear  from 
the  whole  course  of  their  previous 
transactions.  The  fact  that  Dickson 
&  Kerr  also  did  business  as  brokers 
was  immaterial  unless  defendant 
gave  orders  to  them  as  such.  One 
who  gives  an  order  for  goods  to  A 
cannot  have  it  transferred  by  A  to 
B  without  the  buyer's  knowledge  and 
consent.  And  even  if  it  turns  out 
that  A  was  all  the  time  only  agent  for 
B  as  an  undisclosed  principal,  yet 
B's  rights  under  the  cqntract  will  be 
limited  by  the  rights  which  the  buyer 
has  in  good  faith  acquired  against  A 
while  dealing  with  him  as  principal. 
Frame  v.  Coal  Co.,  97  Pa.  309. 
Whether,  therefore,  Dickson  &  Kerr 
be  regarded  as  dealers  on  their  own 
account  who  turned  over  defendant's 
order  to  plaintiff,  or  as  agents  of 
plaintiff,  an  undisclosed  principal, 
the  rights  of  the  parties  were  fixed 
by  the  original  contract  growing  out 
of  the  order,  and  could  not  be 
changed  without  the  introduction  of 
new  facts  and  circumstances.  Dick- 
son  &  Kerr  being  in  debt  to  defend- 
ant on  the  previous  dealings,  defend- 
ant had  the  right  as  against  them  to 
get  its  debt  paid  and  the  accounts 
balanced  by  ordering  goods  from 
them  in  the  regular  course  of  their 
prior  business,  and  if  the  goods  were 
sent,  received  and  charged  by  defend- 


ant before  knowledge  of  any  other 
title  than  that  of  Dickson  &  Kerr, 
the  transaction  was  closed,  and  de- 
fendant was  not  liable  to  plaintiff. 
That  is  a  risk  which  every  undis- 
closed principal  runs  as  against  those 
who  deal  with  his  agent  as  the  real 
owner. 

"But  if  before  the  goods  were  re- 
ceived, the  defendant  had  notice  of 
plaintiff's  ownership,  then  defendant 
was  bound  to  elect  either  to  refuse 
the  goods  or  to  take  them  as  the  prop- 
erty of  plaintiff,  and  keeping  them 
would  be  an  assumption  of  the  lia- 
bility to  pay  plaintiff  for  them, 
whether  it  be  regarded  as  a  ratifica- 
tion of  the  transfer  of  the  order  from 
Dickson  &  Kerr  or  an  acknowledg- 
ment of  the  plaintiff  as  the  true  prin- 
cipal now  disclosed." 

If  this  case  can  be  sustained,  it 
would  seem  that  it  must  be  upon  the 
ground  that  the  plaintiff  knew  from 
the  previous  dealings,  that  defendant 
was  dealing  with  D.  &  K.  as  being 
themselves  the  sellers  of  the  goods, 
and  that  he  did  nothing  in  this  in- 
stance at  the  outset  to  advise  them 
that  he  was  now  dealing  with  defend- 
ant as  defendant's  vendor  rather  than 
the  vendor  of  D.  &  K.  It  is  to  be 
noted,  however,  that  defendant  had 
not  parted  with  anything  or  appar- 
ently changed  position  in  any  way  in 
reliance  upon  anything  the  plaintiff 
had  done. 

"  See  Baxter  v.  Sherman,  73  Minn. 
434,  72  Am.  St.  Rep.  631;  Stebbins  v. 
Walker,  46  Mich.  5;  Frame  v.  Penn 
Coal  Co.,  97  Pa.  309. 

In  Nichols  v.  Martin,  35  Hun  (N. 
Y.),  168,  the  defendant,  who  had  pur- 


1651 


§    2078] 


THE  LAW  OF  AGENCY 


[BOOK  iv 


In  order  to  establish  such  a  set-off  the  defendant  must  show : — 

1.  That  the  contract  was  made  by  a  person  whom  the  plaintiff  had 
intrusted  with  the  possession  of  the  goods  with  power  to  sell  them. 

2.  That  the  person  sold  them  as  his  own  goods  and  in  his  own  name 
as  principal. 

3.  That  the  defendant  dealt  with  him  as,  and  believed  him  to  be,  the 
principal  in  the  transaction,  up  to  the  time  that  the  set-off  accrued.76 

§  2078.  This  right  of  set-off  was  carried  still  further  in  a 

recent  English  case."  It  there  appeared  that  a  policy  of  insurance  had 
been  taken  out  in  the  name  of  B.  &  C.  for  the  benefit  of  all  parties  in- 
terested.78 It  does  not  appear  that  B.  &  C.  had  any  interest  and  the 
policy  was  apparently  delivered  to  the  persons  really  interested.  Later 
a  loss  occurred  and  plaintiffs  were  employed  by  the  owners  to  collect 
the  amount  of  the  insurance.  Plaintiffs  put  the  policy  in  the  hands  of 
B.  &  C.  and  authorized  them  to  collect.  B.  &  C.  not  being  brokers  at 
Lloyd's  where  the  policy  was  issued  employed  defendants,  who  were 
such  brokers,  to  make  the  collection.  Defendants  believed  that  B.  &  C. 
were  the  owners.  At  that  time  B.  &  C.  were  largely  indebted  to  de- 
fendants. Defendants  collected  the  money  and  credited  it  upon  the 
indebtedness  of  B.  &  C.  who  had  become  insolvent.  Plaintiffs  endeav- 


chased  goods  from  plaintiff's  undis- 
closed agent,  bought  for  $5  an  over- 
due note  for  $172,  signed  by  such 
agent,  and  in  this  action  for  the 
price,  seeks  to  set-off  the  amount  due 
from  the  agent  on  the  note.  The 
court  allowed  him  a  set-off  only  for 
the  amount  he  paid  for  the  note, 
namely,  $5,  holding  that  this  prop- 
erly protected  the  equities  of  the  de- 
fendant. 

76  Mr.  Justice  Willes  in  Semenza  v. 
Brinsley,  18  C.  B.  (N.  S.)  467,  477,  as 
modified  by  Brett,  J.,  in  Ex  parte 
Dixon,  4  Ch.  Div.  133. 

In  Talboys  v.  Boston,  46  Minn.  144, 
an  agent  authorized  by  the  plaintiff 
to  solicit  orders  for  coal  upon  com- 
mission, but  who  was  not  entrusted 
with  possession  nor  expected  to  sell 
in  his  own  name,  took  an  order  for 
coal  from  defendant  on  the  under- 
standing that  the  price  should  be  off 
set  against  a  debt  he  already  owed 
defendant,  the  latter  being  ignorant 
of  the  agency  and  supposing  that  the 

1652 


agent  was  acting  on  his  own  account. 
Before  the  coal  was  delivered,  how- 
ever, defendant  learned  the  facts  and 
that  plaintiff  expected  to  be  paid  for 
the  coal,  plaintiff  being  ignorant  of 
the  arrangement  between  the  agent 
and  defendant.  Nevertheless,  defend- 
ant accepted  the  coal.  Held,  that 
plaintiff  could  recover  the  price.  See 
also,  McLachlin  v.  Brett,  105  N.  Y. 
391.  Compare  Wiser  v.  Springside 
Coal  Min.  Co.,  94  111.  App.  471,  where 
the  coal  was  delivered  to  the  buyer 
under  substantially  similar  circum- 
stances, except  that  buyer  had  no  no- 
tice of  seller's  claim  at  time  coal  was 
received,  except  from  the  teamsters' 
checks  left  at  his  house  which  he 
never  saw.  Plaintiff  was  not  per- 
mitted to  recover. 

77  Montagu    v.    Forwood,    [1893]    2 
Q.  B.  350. 

78  This  fact  does  not  appear  in  the 
official  report  but  is  found  in  the  re- 
port in  69  Law  Times  (N.  S.),  371. 


CHAP.  VII]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2O79 

ored  to  recover  the  amount  from  the  defendant,  who  insisted  upon  the 
right  of  set-off,  and  this  right  was  sustained  by  the  court  of  appeal. 
The  court  referred  to  the  well-known  distinction  between  brokers  and 
factors  and  held  that  the  case  was  governed  by  the  rule  laid  down  in 
George  v.  Claggett 79  and  similar  cases.  Lord  Bowen  said  that  he 
thought  the  case  "governed  by  the  principle  of  the  decision  in  George 
v.  Claggett,  by  the  rules  of  common  sense  and  justice,  and  also  by  the 
law  of  estoppel."  That  principle  he  declared  is  not  confined  to  the  sale 
of  goods.  "If  A  employs  B  as  his  agent  to  make  any  contract  for  him, 
or  to  receive  money  for  him,  and  B  makes  a  contract  with  C,  or  em- 
ploys C  as  his  agent,  if  B  is  a  person  who  would  be  reasonably  sup- 
posed to  be  acting  as  a  principal,  and  is  not  known  or  suspected  by  C 
to  be  acting  as  an  agent  for  any  one,  A  cannot  make  a  demand  against 
C  without  the  latter  being  entitled  to  stand  in  the  same  position  as  if 
B  had  in  fact  been  a  principal.  If  A  has  allowed  his  agent  B  to  appear 
in  the  character  of  a  principal,  he  must  take  the  consequences.  Here 
B.  &  C.  were  allowed  by  the  plaintiffs  to  deal  with  the  defendants  as 
if  they  had  been  dealing  on  their  own  account,  and  the  defendants  who 
.  dealt  with  B.  &  C.  are  entitled  to  stand  in  the  position  in  which  they 
would  have  stood  if  B.  &  C.  had  really  been  dealing  as  principals."  80 

§  2079.  Limitations  of  rule. — It  is  obvious  that  this  rule 

subjecting  the  principal  to  defences  is  intended  for  the  protection  of 
third  parties  who  have  acquired  rights  while  dealing  with  the  agent  as 
the  real  principal  in  ignorance  of  any  other,  and  who  would  be  preju- 
diced by  permitting  another  person  to  interpose  and  appropriate  the 
benefits  of  the  dealing  without  recognizing  their  rights.  But  where  the 
reason  of  the  rule  fails,  the  rule  itself  does  not  apply.  Hence  if,  before 
the  right  accrued  which  they  seek  to  apply  against  the  principal,  the 
other  parties  had  knowledge,  or,  what  is  equivalent  to  knowledge,  rea- 
sonable ground  to  believe,  that  the  person  with  whom  they  were  deal- 
ing was  but  an  agent,  as  for  example,  a  mere  broker,  whether  the  prin- 


79  7  T.  R.  359.  owed  him.    The  reason  given  is  that 

so  The    result    in    this   case   seems  when  he  received  the  claim  for  collec- 

rather    startling.      Plaintiffs    have    a  tion  he  supposed  it  to  belong  to  the 

claim   upon  a  non-negotiable  instru-  person  from  whom  he  received  it.    It 

ment  which  they  put  in  the  hands  of  does   not   appear,    however,    that   he 

an  agent  for  collection.     That  agent  parted    with    anything    in    reliance 

entrusts  it  to  a  second,  and  the  sec-  upon  that  belief,  or  altered  his  posi- 

ond  entrusts  it  to  a  third.    The  third  tion  or  held  his  hand  when  he  might 

agent  collects  the  money  and  is  al-  have  collected,  or  in  any  other  way 

lowed  to  set  it  off  against  a  claim  was  misled  to  his  prejudice, 
which    the   second   agent   previously 

1653 


§  2079] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


cipal  was  disclosed  or  not,  the  rights  so  acquired  cannot  be  interposed 
against  the  action  of  the  principal. sl 

In  a  leading  case 82  it  is  said,  "the  buyer  must  be  cautious,  and  not 


si  Cooke  v.  Eshelby,  12  App.  Gas. 
271;  Mildred  v.  Maspons,  8  App. 
Cases,  874;  New  Zealand  Land  Co.  y. 
Rustom,  5  Q.  B.  Div.  474;  Baring  v. 
Corrie,  2  B.  &  Aid.  137;  Pearson  v. 
Scott,  9  Ch.  D.  198;  Blackburn  v. 
Mason,  68  L.  T.  510;  Wood  v.  Arbuth- 
not  Co.,  16  Manitoba,  320;  Wester, 
etc.,  Collier  Co.  v.  Jeffrey,  [1911] 
Scot.  Ses.  Cas.  346;  Moline  Mai.  Iron 
Co,  v.  York  Iron  Co.,  27  C.  C.  A.  442, 
83  Fed.  66;  Frazier  v.  Poindexter,  78 
Ark.  241,  115  Am.  St.  Rep.  33; 
Guilders  v.  Bowen,  68  Ala.  221;  Wein- 
gartner  v.  Missouri  Lbr.,  etc.,  Co.,  19 
Ky.  Law  Rep.  1941,  44  S.  W.  355; 
McLachlin  v.  Brett,  105  N.  Y.  391; 
Wright  v.  Cabot,  47  N.  Y.  Super.  229, 
89  N.  Y.  570;  Hogan  v.  Shorb,  24 
Wend.  (N.  Y.)  458;  Bliss  v.  Bliss,  7 
Bosw.  (N.  Y.)  339;  Nichols  v.  Mar- 
tin, 35  Hun  (N.  Y.),  168;  Mull  v.  In- 
galls,  30  N.  Y.  Misc.  80;  Kent  v.  De 
Coppet,  149  N.  Y.  App.  Div.  589; 
Frame  v.  William  Penn  Coal  Co.,  97 
Pa.  309;  Eclipse  Wind  Mill  Co.  v. 
Thorson,  46  Iowa,  181;  Smith  v.  Mor- 
rill,  39  Kan.  665;  Tripp  Boat,  etc., 
Co.  v.  Martin,  45  Kan.  765;  Winslow 
Bros.  v.  Staton,  150  N.  C.  264;  Stin- 
son  v.  Gould,  74  111.  80;  Squires  v. 
Barber,  37  Vt.  558;  Ilsley  v.  Merriam, 
7  Gush.  (Mass.)  242,  54  Am.  Dec.  721. 

In  McLachlin  v.  Brett,  105  N.  Y. 
391,  the  facts  were  that  at  the  time 
of  the  making  of  an  executory  con- 
tract for  the  sale  and  delivery  of 
lumber  by  H.  &  Co.,  to  defendants, 
the  former  were  indebted  to  the  lat- 
ter, although  the  latter  had  in  their 
hands  some  shooks  belonging  to  H.  & 
Co.,  to  be  sold  on  commission  and 
the  proceeds  applied  to  this  indebted- 
ness. Before  delivery  under  the  con- 
tract, H.  &  Co.  notified  defendants 
that  the  lumber  belonged  to  princi- 
pals for  whom  they  were  acting  as 
agents.  The  shooks  did  not  bring 


enough  to  pay  the  indebtedness,  and 
a  balance  was  left  due  defendants. 
Held,  that  defendants,  having  ac- 
cepted the  lumber  after  such  notice, 
could  not,  in  an  action  by  the  real 
owner  to  recover  the  purchase  price, 
set-off  this  balance  due  them  from 
H.  &  Co.  The  court  held  that  no 
right  of  off-set  arose  at  the  time  of 
making  the  contract,  but  only  at  the 
time  of  delivery;  but  before  delivery 
defendant  had  been  notified  of  the 
true  ownership. 

See  also,  Talboys  v.  Boston,  46 
Minn.  144. 

Notice  to  the  other  party's  agent 
is,  of  course,  notice  to  him.  Stinson 
v.  Gould,  74  111.  80;  Dresser  v.  Nor- 
wood, 17  C.  B.  (N.  S.)  466. 

In  Glick  v.  Bramer,  78  Iowa,  568, 
the  defendants  supposed  they  were 
dealing  with  the  agent  as  the  princi- 
pal. During  the  transactions  some 
notes  were  signed  by  them  which 
were  made  to  the  principal  directly, 
but  they  could  not  read  English  and 
were  told  that  the  notes  ran  to  the 
agent.  There  was  nothing  else  to 
charge  them  with  notice.  Held,  that 
they  were  not  chargeable  with  knowl- 
edge of  the  principal's  existence  or 
rights. 

An  alleged  custom  among  brokers 
that  where  a  city  broker  is  employed 
by  a  country  broker  to  sell  shares 
for  an  undisclosed  principal,  the  city 
broker  may  set-off  against  the  claim 
of  the  principal  a  debt  due  him  by 
the  country  broker,  is  unreasonable, 
and  will  not  bind  the  undisclosed 
principal  unless  with  knowledge  he 
assents  to  it.  Blackburn  v.  Mason, 
68  L.  T.  510. 

82  Miller  v.  Lea,  35  Md.  396,  6  Am. 
Rep.  417. 

Followed  in  Baxter  v.  Sherman,  73 
Minn.  434,  72  Am.  St.  Rep.  631. 

In  Cooke  v.  Eshelby,  12  App.  Cas. 


1654 


CHAP.  VI I J  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2o8o 

act  regardless  of  the  rights  of  the  principal,  though  undisclosed,  if  he 
has  any  reasonable  grounds  to  believe  that  the  party  with  whom  he 
deals  is  but  an  agent.  Hence,  if  the  character  of  the  seller  is  equivo- 
cal,— if  he  is  known  to  be  in  the  habit  of  selling  sometimes  as  princi- 
pal and  sometimes  as  agent,  a  purchaser  who  buys  with  a  view  of  cov- 
ering his  own  debt  and  availing  himself  of  a  set-off,  is  bound  to  inquire 
in  what  character  he  acts  in  the  particular  transaction ;  and  if  the  buyer 
chooses  to  make  no  inquiry,  and  it  should  turn  out  that  he  has  bought 
of  an  undisclosed  principal,  he  will  be  denied  the  benefit  of  his  set-off.83 
If  by  due  diligence  the  buyer  could  have  known  in  what  character  the 
seller  acted,  there  would  be  no  justice  in  allowing  the  former  to  set 
off  a  bad  debt  at  the  expense  of  the  principal."  8*  The  defendant  is  a 
competent  witness  upon  the  question  whether  he  had  such  knowledge 
or  not.85 

Mere  "means  of  knowledge,"  however,  is  not  enough.86  The  fact 
that  the  other  party  might  have  found  out  the  true  situation,  where  he 
had  no  reasonable  ground  for  thinking  investigation  necessary,  will  not 
affect  him. 

If  the  other  party  has  lost  nothing  or  given  up  nothing  on  the  faith 
of  the  agent's  apparent  ownership,  he  can  make  no  defense.87 

§  2080.  Performance  to  agent. — The  considerations 

above  mentioned  must  apply  to  cases  in  which  there  has  been  other 
performance  than  that  of  payment.  If  before  notice  of  the  principal 
intervenes,  the  other  party  has  actually  performed  the  contract  in 
whole  or  in  part  in  accordance  with  its  terms,  as  for  example,  by  de- 
livering property  to  the  agent  which  the  contract  provided  should  be 
delivered  to  him,  and  before  any  other  principal  was  known  in  the 
transaction,  the  real  principal,  if  he  would  enforce  the  contract,  must 
take  it  subject  to  such  performance  as  has  already  been  made  in  pur- 
suance of  its  terms ;  and  even  though  the  performance  were  one  not 
expressly  provided  for  in  the  contract,  still  if  it  be  one  properly  made 
under  such  a  contract  to  such  a  principal  as  the  agent  appears  to  be, 

271,  where  the  defendants  admitted  ss  Citing  Addison  on  Cont.  1191. 

that,  at  the  time  of  dealing,  they  did  s*  Citing  Fish  v.  Kempton,  7  M.  G. 

not  know   and   had   no  belief  as   to  &  S.  687. 

whether   the  agents  were  acting  as  sr,  Frame  v.  Penn  Coal  Co.,  97  Pa. 

agents    or    principals,    the    right    of  309. 

set-off  was  denied.     [In  3  Law  Quar.  sc  Berries     v.     Imperial     Ottoman 

Rev.  359  it  is  said:    "No  doubt  this  Bank,  L.  R.  9  C.  P.  38. 

may  be  a  legitimate  deduction  from  ST  Atlantic  Coast  L.  R.  Co.  v.  Gor- 

the  decided  cases.     Its  weak  point  is  don,  10  Ga.  App.  311. 
that  it  carries  a  step  further  the  re- 
sults of  an  anomaly."] 

1655 


§§    2O8l,  2O82]  THE  LAW  OF  AGENCY  [BOOK    IV 

and  be  made  before  the  other  party  has  reason  to  believe  that  any  other 
principal  exists,  the  undisclosed  principal  should  take  subject  to  it. 

§  2081.  Release  by  agent. — The  same  doctrine  would 

seem  to  apply  where,  before  the  existence  of  the  principal  is  known,  the 
agent  for  a  sufficient  consideration,  (and  here  the  mutual  releases 
would  seem  to  be  a  consideration),  has  released  the  other  party  from 
the  obligation  of  the  contract.  Ordinarily,  of  course,  an  agent  author- 
ized to  make  a  contract  for  a  disclosed  principal,  and  who  has  made 
such  a  contract,  has  no  implied  authority  to  release  the  other  party  from 
it.  This  would  be  true  also  where  the  other  party  knows  there  is  a 
principal,  though  he  does  not  know  who  he  is,  and  where  the  agent 
acts  in  such  a  capacity  as  naturally  to  suggest  the  existence  of  a  prin- 
cipal.*8 

§  2082.  Assignment  by  agent. — Where,  however,  instead 

of  defences  arising  out  of  dealings  between  the  two  apparent  parties 
to  the  contract,  as  in  the  preceding  cases,  there  is  a  conflict  between 
the  principal  and  a  third  person,  different  considerations  are  involved. 
Thus  if  before  the  principal  has  taken  over  the  contract,  the  agent 
undertakes  to  assign  or  transfer  it  to  a  third  person,  may  the  principal 
nevertheless  claim  and  enforce  it  as  against  such  an  assignee?  If  the 
transferee  were  not  a  holder  for  value  without  notice,  there  could  not 
be  much  question.  But  suppose  he  is  such  a  holder.  If  the  agent  be 
regarded  as  a  trustee  holding  the  legal  title  of  an  assignable  thing,  his 
assignment  of  it  to  a  bona  fide  purchaser  would  usually  cut  off  the  bene- 
ficiary's claim.  If  it  be  a  non-assignable  thing — a  mere  chose  in  ac- 
tion,— the  question  whether  the  principal's  interest,  as  a  mere  latent 
equity,  would  prevail  over  even  a  bona  fide  assignee  for  value  would 
be  one  upon  which  there  is  great  conflict  of  opinion.  The  English 

ss  In  Saladin  v.  Mitchell,  45  111.  79,  who  paid  the  agent.  The  defendant, 
it  was  held  that  the  agent  had  no  the  agent  of  the  steamship  company, 
implied  power  to  rescind  the  con-  refunded  the  price  to  the  plaintiff's 
tract,  but  in  that  case  there  was  agent  upon  his  surrender  of  the  re- 
some  evidence  tending  to  show  that  ceipt  for  the  ticket,  before  the  de- 
the  other  party  actually  knew  that  fendant  discovered  that  the  ticket 
there  was  a  principal  and  who  he  had  been  secured  for  the  plaintiff, 
was.  But  even  if  that  was  not  true,  The  plaintiff's  agent  failed  to  restore 
the  other  party  was  obviously  acting  the  money  to  him.  The  court  held 
merely  as  a  broker,  from  which  fact  that  defendant  was  justified  in  deal- 
the  existence  of  a  principal  ought  to  ing  with  the  agent  as  principal,  and 
be  inferred.  that  therefore  the  plaintiff  could  not 

In  Lurie  v.  Public  Bank,  65  Misc.  complain  of  the  cancellation  of  the 

R.  (N.  Y.)  583,  an  agent  purchased  a  ticket, 
steamship    ticket    for    the    plaintiff, 

1656 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2082 


court  protects  the  principal,89  and  this  theory  (though  not  arising  in 
such  a  case)  prevails  in  some  of  the  American  courts.90  Other  Ameri- 
can courts  would  doubtless  protect  the  assignee,91  and  this  seems  to 
be  the  better  view.  If  the  legal  title  to  what  the  agent  acquires  for  the 
principal  is  deemed  to  vest  in  the  principal,  the  transferee  woud  not 
be  protected  unless  authority  could  be  shown  in  the  agent  or  unless  the 
principal  could  be  estopped.92 


89  In  Cave  v.  Mackenzie,  46  L.  J. 
Ch.  564,  37  L.  T.  218,  where  an  agent 
for  undisclosed  principals  entered 
into  a  contract  for  the  purchase  of 
land  and  then  assigned  the  rights 
under  it  to  an  innocent  purchaser 
for  value,  Jessel,  M.  R.,  held  that  the 
principals  were  protected.  "They 
are,  in  fact,  purchasers  through  their 
agent,  and  to  give  them  what  they 
claim  seems  to  be  a  matter  of 
course." 

so  In  Central  Trust  Co.  v.  West 
India  Imp.  Co.,  169  N.  Y.  314,  324,  it 
is  said:  "It  is  the  settled  law  of  this 
State,  .  .  .  that  a  bona  fide  pur- 
chaser for  value  of  a  chose  in  action 
takes  it  subject  not  only  to  the 
equities  between  the  parties,  but  also 
to  latent  equities  in  favor  of.  third 
persons."  See  also,  Bush  v.  Lathrop, 
22  N.  Y.  535;  Schafer  v.  Reilly,  50  N. 
Y.  61;  Trustees  of  Union  College  v. 
Wheeler,  61  N.  Y.  88;  Downer  v. 
South  Royalton  Bank,  39  Vt.  25. 

Other  cases  will  be  found  in  the 
books  on  Equity  and  Trusts. 

In  Johnson  v.  Hayward,  74  Neb. 
157,  12  Ann.  Cas.  800,  5  L.  R.  A.  (N. 
S.)  112,  H.,  an  agent  for  the  purchase 
of  land,  took  title  in  the  name  of  a 
nephew  D.,  who  conveyed  to  the 
agent's  wife  in  trust  for  the  agent. 
Twelve  hundred  dollars  was  then  bor- 
rowed of  one  P.  on  the  security  of  a 
deposit  of  the  title  deed.  A  contract 
of  sale  of  the  land  was  then  nego- 
tiated to  one  M.,  who  paid  $500  on 
the  agreed  purchase  price  of  $2,700; 
M.  then  negotiated  for  a  sale  to  K. 
at  an  advance,  and  K.  paid  M.  $500 
on  the  purchase  price.  The  principal 
now  seeks  a  conveyance  to  himself. 


The  court  below  granted  relief,  pro- 
tecting P.,  M.  and  K.  to  the  extent 
of  their  advances.  The  defendants 
D.,  H.,  M.  and  K.  appealed.  It  was 
held  that  a  parol  agency  was  suffi- 
cient to  sustain  the  trust  and  that 
the  principal  was  entitled  to  recover. 
The  plaintiff  did  not  appeal  from  so 
much  of  the  decree  as  protected  P., 
M.  and  K.;  but  the  court  said  that 
as  to  M.  and  K.  neither  came  under 
the  general  rule  protecting  innocent 
purchasers.  "Neither  of  them  had 
any  legal  title.  Whatever  title  they 
had  was  purely  equitable.  It  is  a 
familiar  rule  of  equity  that  where 
the  equities  are  equal,  that  which  is 
prior  in  point  of  time  shall  prevail. 
.  As  the  plaintiff  was  first  in 
time,  under  the  well  known  maxim 
of  equity,  he  must  be  held  to  be  first 
in  right." 

si  That  he  does  not  take  subject  to 
latent  equities,  see  Starr  v.  Haskins, 
26  N.  J.  Eq.  414;  Sleeper  v.  Chap- 
man, 121  Mass.  404. 

92  in  Edwards  v.  Dooley,  120  N.  Y. 
540,  it  is  held  that  title  to  goods 
bought  vests  directly  in  the  principal 
and  not  in  the  agent  as  trustee.  In 
Kempner  v.  Dillard,  100  Tex.  505, 
123  Am.  St.  Rep.  822,  it  is  held  that, 
where  an  agent  purchased  cattle  for 
an  undisclosed  principal,  using  the 
latter's  money  to  pay  for  them,  and 
then  mingled  them  with  his  own, 
branded  the  calves  with  his  own 
brand,  and  finally  mortgaged  them  to 
a  bona  fide  mortgagee  for  value,  the 
rights  of  the  principal  are  para- 
mount to  those  of  the  mortgagee. 
The  court  held  that  the  title  vested 
in  the  principal  upon  the  purchase, 


1657 


§§    2083,  2084]  THE  LAW  OF  AGENCY  [BOOK   IV 

§  2083.  Repudiation  of  unauthorized  contract  by  other  party. — 
The  ordinary  rules  giving  the  undisclosed  principal  the  right  to  sue 
presuppose  that  the  contract,  though  made  without  disclosing  the  prin- 
cipal, was  a  contract  which  the  agent  was  authorized  to  make.  Where, 
however,  the  contract  actually  made  was  not  the  one  which  the  agent 
was  authorized  to  make,  a  different  situation  presents  itself.  The  prin- 
cipal has  not  authorized  the  contract  which  was  made,  and  the  other 
party  has  not  made  and  perhaps  would  not  have  been  willing  to  make 
the  contract  which  was  authorized.  The  principal  cannot  be  held  upon 
the  contract  made,  because  he  had  not  authorized  it.  May  the  principal 
enforce  it  against  the  other  party  as  made?  It  would  seem  that  he 
cannot,  if  the  other  party  insists  upon  repudiation.  Can  the  principal 
ratify  it  as  made  and  then  enforce  it?  In  England  and  most  of  the 
states,  as  has  been  seen,  there  can  be  no  ratification  by  an  undisclosed 
principal.93  Can  it  be  treated  as  an  offer  by  the  other  party  to  the 
principal,  which  the  latter  may  accept  and  which  he  does  accept  by  at- 
tempting to  enforce  it  ?  There  was  certainly  no  intention  to  make  such 
an  offer,  and  it  is  certainly  anomalous  to  treat  it  as  such. 

§  2084.  How  principal  affected  by  agent's  fraud. — But  not  only 
is  the  principal's  action  thus  subject  to  the  right  of  set-off,  etc.,  which 
existed  as  against  the  agent,  but  it  is  also  subject  to  certain  defenses 
and  equities  growing  out  of  or  based  upon  the  agent's  fraud,  imposi- 

and  that  the  intention  of  the  agent  charged  against  him  in  his  account 

at  that  time  to  defraud  the  principal  and  the  banker  permitted  the  broker 

did  not  alter  this  result.     The  court  to  retain  the  stock  as  security  for  the 

relies  upon  Waldo  v.  Peck,  7  Vt.  434,  account  in  general.    The  hanker  then 

where  an  agent  who  was  authorized  notified  his  customer  that  the  stock 

to    sell   lands    and    receive    payment  had   been   purchased  for  him  as   di- 

therefor  according  to  his  discretion,  rected.     Held,  that  on  the  purchase 

upon  a  sale  thereof  took  a  note  and  by  the  broker  the  title  vested  in  the 

mortgage  in  his  own  name,  and  later  banker     (subject     to     the     broker's 

received  a  horse  in  payment,  which  claim)   and  upon  the  notification  to 

was    seized    by    his    creditor.     Held,  the    customer    title    passed    to    him 

that  the  title  to  the  horse  vested  in  (subject  only  to  the  broker's  claim) 

the   principal   immediately   upon   its  and  would  not  pass  to  the  banker's 

delivery  to  the  agent,  and  that  the  assignee  in  insolvency  upon  a  subse- 

principal      could      maintain      trover  quent    assignment    by    him    for    the 

against  the  creditor.  benefit  of  creditors. 

In  Le  Marchant  v.  Moore,  150  N.  Y.  In  Guggenheime  v.  Youell,  53  Wash. 

209,  a  customer  ordered  his  banker  163,  the   rights  of  a   bona  fide  pur- 

to  buy  certain  stocks  for  him.     The  chaser  from  the  agent  were  sustained 

banker,  without  disclosing  the  name  upon    the    ground    of    estoppel,    the 

of    his    customer,    directed    his    own  principal    having    permitted   him    to 

broker  to    buy    the    stocks    and  the  appear  to  be  the  real  owner, 

broker  did  so.     The  banker  did  not  93  Ante,  §  378. 
pay  the  broker  but  the  amount  was 

1658 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2085 


tion,  misrepresentation  and  misconduct.  As  has  been  stated,  if  the 
principal  would  avail  himself  of  the  advantages  of  the  agent's  acts,  he 
must  also  ordinarily  assume  the  responsibilities.  Hence  it  is  a  rule 
of  general  application,  whether  the  principal  be  disclosed  or  not  at  the 
time  of  entering  into  the  contract,  that  the  principal  who  seeks  to  en- 
force the  contract  is  affected  by,  and  is  subject  to,  every  defense  which 
the  other  party  may  have,  based  upon  such  fraud,  imposition,  misrepre- 
sentation, concealment  or  other  misconduct  of  the  agent  as  is,  either  by 
the  prior  authorization  or  by  this  or  any  other  subsequent  ratification, 
properly  chargeable  to  the  principal  as  having  been  done  or  committed 
by  his  agent,  although  the  principal  himself  may  have  been  entirely  in- 
nocent.84 

§  2085.  How  principal  affected  by  notice  to  or  knowledge  of  his 
agent. — Attention  has  been  given  in  preceding  sections  to  the  ques- 
tion of  the  effect  on  the  principal's  rights  and  obligations  of  notice 


<H  Schultz  v.  McLean,  93  Cal.  329; 
Commercial  Nat.  Bank  v.  Burch,  141 
111.  519,  33  Am.  St.  Rep.  331;  Haskit 
v.  Elliott,  58  Ind.  493;  Du  Souchet 
v.  Butcher,  113  Ind.  249;  Providence 
Jewelry  Co.  v.  Fessler,  145  Iowa,  74; 

Darner  v.  Brown, Iowa,  ,  137 

N.  W.  461;  Billings  v.  Mason,  80  Me. 
496;  Jolly  v.  Huebler,  132  Mo.  App. 
675;  Dodge  v.  Tullock,  110  Mich.  480; 
Johnston  Harvester  Co.  v.  Miller,  72 
Mich.  265,  16  Am.  St.  Rep.  536; 
Bowers  v.  Johnson,  18  Miss.  169; 
Reitman  v.  Fiorillo,  76  N.  J.  L.  815; 
Elwell  v.  Chamberlin,  31  'N.  Y.  611; 
Bennett  v.  Judson,  21  N.  Y.  238;  Nat'l 
Life  Ins.  Co.  v.  Minch,  5s  Thomp.  & 
Cook  (N.  Y.),  545;  Mundorff  v. 
Wickersham,  63  Pa.  87,  3  Am.  Rep. 
531;  Chicago  Cottage  Organ  Co.  v. 
McManigel,  8  Pa.  Super.  Ct.  632; 
Etheridge  v.  Price,  73  Tex.  597;  Cas- 
siday,  etc.,  Co.  v.  Terry,  69  W.  Va. 
572;  Mutual,  etc.,  Ins.  Co.  v.  Seidel, 
52  Tex.  Civ.  App.  278;  Honaker  v. 
Board  of  Education,  42  W.  Va.  170, 
57  Am.  St.  Rep.  847,  32  L.  R.  A.  413; 
Law  v.  Grant,  37  Wis.  548. 

In  McCormick  Harvest.  Mach.  Co. 
v.  Taylor,  5  N.  Dak.  53,  57  Am.  St. 
Rep.  538,  the  agent  of  plaintiff  sold 
a  horse  belonging  to  him  personally, 
to  defendant.  The  defendant  gave 
him  a  note  payable  to  plaintiff, 

1659 


which  the  agent  turned -in  to  plain- 
tiff in  settlement  of  his  agency  ac- 
count, the  plaintiff  understanding  it 
to  be  a  note  for  machinery  of  its 
make  sold  to  defendant.  In  an  ac- 
tion on  the  note,  defendant  was  al- 
lowed to  set  up  a  breach  of  war- 
ranty given  with  the  horse,  the  court 
refusing  to  treat  plaintiff  as  a  bona 
fide  holder  for  value  of  the  note. 

To  similar  effect,  on  similar  facts: 
Johnston  Harvester  Co.  v.  Miller,  72 
Mich.  265,  16  Am.  St.  Rep.  536. 

In  Evans  v.  Crawford  County  Ins. 
Co.,  130  Wis.  198,  118  Am.  St.  Rep. 
1009,  9  L.  R.  A.  (N.  S.)  485,  a  hus- 
band was  held  not  bound  by  the 
fraud  of  his  wife,  acting  as  agent 
ex  necessitate,  in  making  proofs  of 
loss  under  an  insurance  policy,  where 
he  had  not  knowingly  ratified  it. 
Compare  Metzger  v.  Manchester  F. 
Ins.  Co.,  102  Mich.  334. 

Maxim  as  to  "unclean  hands." — For 
a  discussion  of  the  application  of  this 
maxim  to  actions  by  the  principal 
based  upon  the  agent's  dealings,  see 
8  Columbia  Law  Review,  40. 

Doing  equity  when  asking  it. — As 
to  the  obligation  of  the  principal  to 
do  equity  when  seeking  equitable  aid, 
see  Haswell  v.  Standring,  152  Iowa, 
291,  Ann.  Cas.  1913  B.  1326. 


§§  2086,2087] 


THE  LAW  OF  AGENCY 


[BOOK   IV 


given  to  or  knowledge  acquired  by  his  agent.  It  is  not  necessary  to 
repeat  that  discussion  here,  but  it  is  to  be  noted  that,  in  general,  the 
undisclosed  principal  who  would  enforce  the  agent's  contracts  is  as 
much  affected  by  notice  to  or  knowledge  of  his  agent  as  a  disclosed 
principal." 

As  has  also  been  seen,  (§  2063)  the  principal  is  also  entitled  to  the 
benefit  of  notice  given,  or,  where  that  is  material,  to  the  benefit  of  the 
fact  that  notice  had  not  been  given  to  the  agent. 

§  2086.  Principal's  action — Measure  of  damages. — The  principal 
in  suing  may  undoubtedly  avail  himself  of  any  forum  and  of  any  form 
of  action  available  to  him,  even  though  not  the  one  which  the  agent 
might  have  used,  so  long  as  in  doing  so  he  does  not  endeavor  to  enforce 
a  different  contract  from  that  made  by  the  agent.  He  cannot,  however, 
in  general  recover  greater  damages  for  the  breach  of  the  contract  than 
the  agent  could  have  recovered  had  he  brought  the  action.96  And 
wherever  the  damages  depend  upon  personal  considerations,  the  prin- 
cipal who  does  "not  meet  those  personal  considerations  cannot  recover 
damages  based  upon  them.97 

§  2087.  Third  person  can  not  set  up  agent's  want  of  authority 
to  dispute  principal's  right. — Where  performance  by  the  principal  of 


»5  Merrill  v.  Packer,  80  Iowa,  542; 
Henry  v.  Allen,  77  Hun  (N.  Y.),  49 
(reversed,  but  on  another  point,  in 
151  N.  Y.  1,  36  L.  R.  A.  658);  Street 
Lumber  Co.  v.  Sullivan,  201  Mass. 
484,  16  Ann.  Gas.  354. 

88  in  Western  Union  Tel.  Co.  v. 
Kerr,  4  Tex.  Civ.  App.  280,  it  is  said: 
"The  principal  may  sue  for  breach 
of  the  contract  made  for  his  benefit, 
whether  his  existence  and  connection 
with  it  were  disclosed  or  not.  But 
he  cannot,  In  our  opinion,  recover  a 
class  of  damages  affecting  his  person 
which  an  ignorance  of  his  existence 
put  beyond  the  contemplation  of  the 
other  contracting  party." 

To  same  effect:  Pacific  Express  Co. 
v.  Redman  (Tex.  Civ.  App.),  60  S.  W. 
677. 

or  Thus  in  Helms  v.  Telegraph  Co., 
143  N.  Car.  386,  118  Am.  St.  Rep.  811, 
10  Ann.  Cas.  643,  8  L.  R.  A.  (N.  S.) 
249,  a  son  sent  a  message  as  agent 
for  his  father  who  was  undisclosed, 
and  it  was  held  that  the  father  could 
not  recover  substantial  damages  for 


mental  anguish  suffered  in  conse- 
quence of  the  company's  failure  to 
deliver  the  message  promptly. 

See  also,  Poteet  v.  Western  Union 
Tel.  Co.,  74  S.  Car.  491. 

In  Western  Union  Tel.  Co.  v. 
Broesche,  72  Tex.  654,  13  Am.  St.  Rep. 
84C,  because  of  a  different  rule  of 
damages,  it  was  said  that  an  undis- 
closed principal  might  recover  if  the 
terms  of  the  message  disclosed  the 
necessity  for  its  prompt  delivery. 
In  other  words  the  court  in  effect 
held  that  there  was  no  personal  ele- 
ment in  the  contract.  See  also, 
Western  Un.  Tel.  Co.  v.  Northcutt, 
158  Ala.  539,  132  Am.  St.  Rep.  38. 

In  Virginia-Carolina  Peanut  Co.  v. 
Atlantic,  etc.,  R.  R.,  155  N.  Car.  148, 
the  defendant  was  sued  for  dam- 
ages resulting  from  its  failure  to  de- 
liver certain  machinery.  The  court 
held  that  the  plaintiff  could  recover 
substantial  damages,  as  undisclosed 
principal,  since  there  was  nothing  in 
the  contract  which  was  personal  to 
the  agent. 


1660 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2O88,  2089 

the  contract  made  by  the  agent  has  been  accepted  by  the  other  party, 
he  cannot,  when  called  upon  to  perform  on  his  part,  defeat  the  princi- 
pal's right  by  showing  that,  as  between  the  principal  and  the  agent, 
the  contract  was  unauthorized.  Thus  one  who  borrows  money  from 
the  principal's  agent  is  estopped  to  deny  the  agent's  authority  to  lend 
it,  when  called  upon  by  the  principal  for  its  repayment.*8 

So  where  a  contract  has  been  made  by  a  person,  who  knows  of  the 
agency,  with  a  subagent  for  the  principal,  it  is  held  that  the  party  mak- 
ing it-  can  not  defeat  the  principal's  action  upon  it  by  showing  that  the 
appointment  of  the  subagent  was  unauthorized.  Having  dealt  with 
him  as  having  authority,  he  is  estopped  to  deny  it." 

2.  Right  to  recover  Money  paid  or  used  by  Agent. 

§  2088.  In  general. — The  question  of  the  principal's  right  to  re- 
cover money  belonging  to  him  and  paid  out  or  used  by  his  agent  may 
arise  under  two  general  states  of  fact:  (a).  Where  the  agent,  in  the 
attempted  performance  of  a  legitimate  and  authorized  act,  has  paid  out 
the  money  by  mistake,  or  under  coercion,  or  without  consideration; 
and  (b)  Where  the  agent  has,  in  violation  of  his  duty,  paid  out  or  ap- 
plied the  money  of  his  principal  to  the  agent's  own  uses  or  purposes. 

a.  Money  wrongly  paid  on  principal's  account. 

§  2089.  Right  to  recover  money  wrongly  paid  on  principal's  ac- 
count.— The  right  of  the  principal  to  recover  money  paid  by  his 
agent  to  a  third  person  under  a  mistake  of  facts  ;  or  which  was  obtained 
from  the  agent  by  fraud  or  compulsion ;  or  which  was  extorted  from 
him  by  unjust  and  oppressive  proceedings  j1  or  which  was  deposited  by 
him  upon  an  illegal  wager,  or  an  illegal  contract  not  executed ;  or  upon 
a  contract  which  has  been  rescinded ;  or  which  was  paid  by  him  upon  a 
consideration  which  has  failed,  depends  upon  the  same  rules  which 
would  apply  were  the  money  paid  out  by  the  principal  himself  under 
the  like  circumstances,  and  the  principal  may  recover  it  wherever  he 
could  have  recovered  it,  if  paid  by  him  in  person.2 

98  See  Union  Mining  Co.  v.  Rocky  Stevenson  v.  Mortimer,  Cowp.  805; 

Mt.  Nat.  Bank,  2  Col.  248,  s.  c.  96  Ancher  v.  Bank  of  England,  2  Doug. 

U.  S.  640.  637;  Norfolk  v.  Worthy,  1  Campb. 

»9  Mayer  v.  McLure,  36  Miss.  389,  337;  Leigh  v.  American  Brake-Beam 

72  Am.  Dec.  190.  Co.,  205  111.  147;  Demarest  v.  Inhabi- 

1  Holman  v.  Frost,  26  S.  Car.  290.  tants  of  New  Barbadoes,  40  N.  J.  L. 

2  Sadler    v.   Evans,   4   Burr.    1985;  604.      . 

1661 


§    2090]  THE  LAW  OF  AGENCY  [BOOK   IV 

b.  Money  wrongfully  appropriated  to  agent's  uses. 

§  2090.  Principal's  right  to  recover  money  wrongfully  disposed 
of  by  agent  on  agent's  account. — The  cases  of  the  second  class 
present  questions  of  greater  difficulty.  Whenever  the  principal  con- 
fides to  his  agent  money  for  the  accomplishment  of  a  particular  object, 
or  to  be  appropriated  in  a  specified  manner,  and  whenever  money  of 
the  principal  comes  into  the  hands  of  the  agent  which  it  is  his  duty  to 
pay  over  to  his  principal  or  to  apply  in  any  other  designated  manner, 
the  law  impresses  upon  that  money,  for  the  benefit  of  the  principal,  a 
trust  for  the  performance  of  the  object  contemplated  which  can  only 
be  satisfied  by  its  devotion  to  that  object,  unless  the  principal  directs 
it  otherwise.  While  the  money  remains  in  the  hands  of  the  agent,  as 
has  heretofore  been  seen,  he  cannot  shake  off  the  trust  by  any  manner 
or  number  of  alterations  or  changes  in  its  specific  character,  unless  all 
trace  of  it  be  completely  lost,  for  it  is  well  settled  that  equity  will  fol- 
low the  fund  through  any  number  of  transmutations  and  preserve  it 
for  the  owner  as  long  as  it  can  be  identified.3  As  was  said  by  Lord 
Ellenborough,4  "it  makes  no  difference  in  reason  or  law  into  what 
other  form,  different  from  the  original,  the  change  may  have  been 
made,  whether  it  be  into  that  of  promissory  notes  for  the  security  of 
the  money  which  was  produced  by  the  sale  of  the  goods  of  the  princi- 
pal, as  in  Scott  v.  Surman,6  or  into  other  merchandise,  as  in  W'hitecomb 
v.  Jacob ; 6  for  the  product  of  or  substitute  for  the  original  thing  still 

3  Farmers'   &   Mechanics'    Bank   v.  27  Harvard  Law  Review,  125;  Folloic- 

King,  57  Pa.  202,  98  Am.  Dec.  215;  ing  Misappropriated  Property  into  Its 

Van     Alen     v.     American     National  Product,    by    Professor    James    Barr 

Bank,  52  N.  Y.  1;    Central  National  Ames,  19  Harvard  Law  Review,  511. 

Bank  v.  Insurance  Co.,  104  U.  S.  54,  *  In  Taylor  v.  Plumer,  3  M.  &  S. 

26  L.  Ed.   693;    Bills  v.  Schliep,  127  562. 

Fed.    103;     Central    Stock    &    Grain  B  Willes,  400. 

Exchange  v.  Bendinger,  48  C.  C.  A.  si  Salk.  161. 

726,  109  Fed.    926,  56    L.    R.  A.  875;  In  Central  National  Bank  v.  Conn. 

Chapman   v.    Hughes,    134    Cal.  641;  Mut.  L.  Ins.  Co.,  104  U.  S.  54,  26  L. 

Pearce  v.  Dill,  149  Ind.  136;   Steven-  Ed.  693,  Mr.  Justice  Matthews  gives 

son  v.  Kyle,  42  W.  Va.  229,  57  Am.  the   following   review   of   the   cases: 

St.  Rep.  854.  "In  the  case  of  Pannell  v.  Hurley,  2 

Upon  the   general  question  of  the  Col.  C.  C.  241,  the  depositor,  having 

principal's     right     to     follow     trust  two  accounts,  one  in  trust,  the  other 

funds,  see  ante,  §  1350.    See  also,  ar-  in  his  own  name,  drew  his  check  as 

tides  on  Following  Property  in  the  trustee  to  pay  his  private  debt  to  the 

Hands  of  an  Agent  by    Mr.  Spencer  banker.    The  Vice  Chancellor,  Knight 

Brodhurst,  14  Law  Quarterly  Review,  Bruce,  put  the  case  thus:   'Money  is 

272;     The    Right    to    Follow    Money  due  from  A  to  B  in  trust  for  C.    B  is. 

Wrongfully     Mingled      with      Other  indebted  to  A  on  his  own  account. 

Money,  by  Professor  Austin  W.  Scott,  A,  with  knowledge  of  the  trust,  con- 

1662 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2090 


follows  the  nature  of  the  thing  itself,  as  long  as  it  can  be  ascertained 
to  be  such,  and  the  right  only  ceases  when  the  means  of  ascertainment 
fail."  Neither  does  it  matter  in  whose  name  the  legal  title  stands.  If 
the  money  be  converted  into  a  chose  in  action,  the  legal  right  to  it  may 
"have  changed,  but  equity  regards  the  beneficial  ownership. 


curs  with  B  in  setting  one  debt 
against  the  other,  which  is  done 
without  C's  consent.  Can  it  be  a 
question  in  equity  whether  such  a 
transaction  stand?' 

"In  Bodenham  v.  Hoskyns,  2  DeG., 
M.  &  G.  903,  the  principle  was  stated 
to  be  one,  acted  upon  daily  by  courts 
of  equity,  'according  to  which  a  per- 
son who  knows  another  to  have  in 
his  hands  or  under  his  control 
moneys  belonging  to  a  third  person 
cannot  deal  with  those  moneys  for 
his  own  private  benefit,  when  the  ef- 
fect of  that  transaction  is  the  com- 
mission of  a  fraud  upon  the  owner.' 

"In  the  case  of  Ex  parte  Kingston, 
In  re  Gross,  L.  R.  6  Ch.  App.  632,  a 
county  treasurer  had  two  bank  ac- 
counts, one  headed  'Police  Account.' 
Some  of  the  items  to  his  credit  in 
this  account  could  be  traced  as  hav- 
ing come  from  county  funds,  but 
most  of  them  could  not.  The  checks 
which  he  drew  upon  it  were  all 
headed  'Police  Account,'  and  appeared 
to  have  been  drawn  only  for  county 
purposes.  For  the  purposes  of  inter- 
est the,  bank  treated  the  accounts  as 
one  account,  and  the  interest  on  the 
balance  in  his  favor  was  carried  to 
the  credit  of  his  private  account.  The 
manager  of  the  bank  knew  he  was 
county  treasurer,  and  understood  that 
he  had  been  in  the  habit  of  paying 
county  moneys  into  the  bank.  He 
absconded,  his  private  account  being 
overdrawn,  and  the  police  account 
being  in  credit.  It  was  held  that  the 
bank  was  not  entitled  to  set-off  the 
one  account  against  the  other,  but 
that  the  county  magistrates  could  re- 
cover the  balance  standing  to  the 
credit  of  the  police  account.  Sir  W. 
M,  James,  L.  J.,  said:  'In  my  mind 
this  case  is  infinitely  stronger  than 


those  referred  to  during  the  argu- 
ment, in  which  a  similar  claim  on  the 
part  of  bankers  was  disallowed;  for 
in  those  cases  the  bankers  relied  on 
cheques  drawn  by  the  customers;  and 
if  a  banker  receives  from  a  cus- 
tomer, holding  a  trust  account,  a 
cheque  drawn  on  that  account,  he  is 
not  in  general  bound  to  inquire 
whether  that  cheque  was  properly 
drawn.  Here  the  customer  has  drawn 
no  cheque,  and  the  bankers  are  seek- 
ing to  set-off  the  balance  on  his  priv- 
ate account  against  the  balance  in  his 
favor  on  what  they  knew  to  be  a 
trust  account.'  .  ?,  ••' 

"In  the  case  of  Pennell  v.  Deffell,  4 
DeG.,  M.  &  G.  372,  388,  Lord  Jus- 
tice Turner  said:  'It  is,  I  apprehend, 
an  undoubted  principle  of  this  court, 
that  as  between  cestui  que  trust  and 
trustee  and  all  parties  claiming  un- 
der the  trustee,  otherwise  than  by 
purchase  for  valuable  consideration 
without  notice,  all  property  belonging 
to  a  trust,  however  much  it  may  be 
changed  or  altered  in  its  nature  or 
character,  and  all  the  fruit  of  such 
property,  whether  in  its  original  or 
in  its  altered  state,  continues  to  be 
subject  to  or  affected  by  the  trust.' 
In  the  same  case  Lord  Justice  Knight 
Bruce  said,  (p.  388):  'When  a  trus- 
tee pays  trust  money  into  a  bank  to 
his  credit,  the  account  being  a  simple 
account  with  himself,  not  marked  or 
distinguished  in  any  other  manner, 
the  debt  thus  constituted  from  the 
bank  to  him  is  one  which,  as  long  as 
it  remains  due,  belongs  specifically 
to  the  trust  as  much  and  as  effectu- 
ally as  the  money  so  paid  would  have 
done,  had  it  specifically  been  placed 
by  the  trustee  in  a  particular  reposi- 
tory and  so  remained;  that  is  to  say, 
if  the  specific  debt  shall  be  claimed 


1663 


§  2090] 


THE   LAW   OF   AGENCY 


[BOOK   IV 


And  not  only  may  the  principal  follow  his  money,  where  it  has  thus 
been  transformed  into  some  other  specific  thing  or  form,  but  also,  where 
his  money  has  been  mingled  with  other  money  in  a  fund,  he  may  usually, 
to  the  extent  to  which  his  money  has  contributed  to  that  fund,  either 
have  a  lien  or  charge  upon  it,  or,  at  his  option,  treat  the  fund  as  a  trust 
fund  and  have  the  benefit  pro  rata  of  its  transformation  or  increase. 

In  these  respects,  the  situation  is  not  different  from  other  cases  of 
trusts,  and  for  the  fuller  treatment  of  it  reference  must  be  held  to  the 
works  which  deal  with  that  extensive  subject. 


on  behalf  of  the  cestuis  que  trustent, 
it  must  be  deemed  specifically  theirs, 
as  between  the  trustee  and  his  execu- 
tors, and  the  general  creditors  after 
his  death  on  one  hand,  and  the  trust 
on  .the  other.'  He  added  (p.  384) : 
'This  state  of  things  would  not,  I  ap- 
prehend, be  varied  by  the  circum- 
stance of  the  bank  holding  also  for 
the  trustee,  or  owing  also  to  him, 
money  in  every  sense  his  own.' 

"Vice-Chancellor  Sir  W.  Page 
Wood,  in  Frith  v.  Cartland,  2  Hem. 
&  M.  417,  420,  said  that  Pennell  v. 
Deffell  rested  upon  and  illustrated 
two  established  doctrines.  One  was 
that  'so  long  as  the  trust  property 
can  be  traced  and  followed  into  other 
property  into  which  it  has  been  con- 
verted, that  remains  subject  to  the 
trust;'  the  second  is,  'that  if  a  man 
mixes  trust  funds  with  his  own,  the 
whole  will  be  treated  as  the  trust 
property,  except  so  far  as  he  may  be 
able  to  distinguish  what  is  his  own.' 
The  case  of  Pennell  v.  Deffell,  supra, 
was  the  subject  of  comment  by  Fry, 
J.,  in  In  re  West  of  England  and 
South  Wales  District  Bank,  Ex  parte, 
Dale  &  Co.,  11  Ch.  D.  772.  Strongly 
approving  the  decision  in  principle, 
he  felt  bound,  nevertheless,  by  what 
he  considered  the  weight  of  authority, 
not  to  apply  it,  in  the  circumstances 
of  the  case  before  him,  where  there 
had  been  a  mingling  of  trust  money 
with  individual  money.  He  said, 
however:  'Does  it  make  any  differ- 
ence that,  instead  of  trustee  and 
cestui  que  trust,  it  is  a  case  of  fidu- 
ciary relationship?  What  is  a  fidu- 


ciary relationship?  It  is  one  in 
which,  if  a  wrong  arise,  the  same 
remedy  exists  against  the  wrongdoer 
on  behalf  of  the  principal  as  would 
exist  against  a  trustee  on  behalf  of 
the  cestui  que  trust. 

"If  that  be  a  just  description  of  the 
relationship,  it  would  follow  that 
wherever  fiduciary  relationship  ex- 
ists, and  money  coming  from  the 
trust  lies  in  the  hands  of  persons 
standing  in  that  relationship,  it  can 
be  followed  and  separated  from  any 
money  of  their  own.' 

"The  whole  subject  of  this  discus- 
sion was  very  elaborately  and  with 
much  learning  reviewed  by  the  Court 
of  Appeal  in  England,  in  the  very 
recent  case  of  Knatchbull  v.  Hallett, 
In  re  Hallett's  Estate,  13  Ch.  D.  696. 
It  was  there  decided  that  if  money 
held  by  a  person  in  a  fiduciary  char- 
acter, though  not  as  trustee,  has  been 
paid  by  him  to  his  account  at  his 
banker's,  the  person  for  whom  he 
held  the  money  can  follow  it,  and  has 
a  charge  on  the  balance  in  the  bank- 
er's hands,  although  it  was  mixed 
with  his  own  moneys;  and  in  that 
particular  the  court  overruled  the 
opinion  in  Ex  parte  Dale,  supra.  It 
was  also  held  that  the  rule  in  Clay- 
ton's Case,  1  Mer.  572,  attributing  the 
first  drawings  out  to  the  first  pay- 
ments in,  does  not  apply;  and  that 
the  drawer  must  be  taken  to  have 
drawn  out  his  own  money  in  prefer- 
ence to  the  trust  money,  and  in  that 
particular  Pennell  v.  Deffell  was  not 
followed.  The  Master  of  the  Rolls, 
Sir  George  Jessel,  showed  that  the 


1664 


CHAP.  VII ]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2091 


§    20QI. 


And  this  trust  is  not  confined  to  the  period  dur- 


ing1 which  the  money  remains  in  the  possession  of  the  agent,  but  fol- 
lows the  fund  into  the  hands  of  whomsoever  it  may  come,  until  it 
reaches  the  possession  of  one  who  has  an  equity  superior  to  that  of  the 
principal.  Such  an  one  is  a  bona  fide  holder  for  value  without  notice 
of  the  trust.  For  if  the  fund  comes  into  the  hands  of  a  third  person 
who  receives  it  without  consideration  as  a  gift,  or  without  parting 
with  value,  or  with  actual  or  constructive  notice  of  the  trust,  the  prin- 
cipal may  recover  it  from  such  third  person  as  well  as  from  the  agent.7 


modern  doctrine  of  equity,  as  regards 
property  disposed  of  by  persons  in  a 
fiduciary  position,  is  that,  whether 
the  disposition  of  it  be  rightful  or 
wrongful,  the  beneficial  owner  is  en- 
titled to  the  proceeds,  whatever  be 
their  form,  provided  only  he  can 
identify  them.  If  they  cannot  be 
identified  by  reason  of  the  trust 
money  being  mingled  with  that  of 
the  trustee,  then  the  cestui  que  trust 
is  entitled  to  a  charge  upon  the  new 
investment  to  the  extent  of  the  trust 
money  traceable  into  it;  that  there 
is  no  distinction  between  an  express 
trustee  and  an  agent,  or  bailee,  or 
collector  of  rents  or  anybody  else, 
in  a  fiduciary  position,  and  that 
there  is  no  difference  between  invest- 
ments in  the  purchase  of  lands,  or 
chattels,  or  bonds,  or  loans,  or 
moneys  deposited  in  a  bank  account. 
He  adopts  the  principle  of  Lord  Bl- 
lenborough's  statement  in  Taylor  v. 
Plumer,  3  M.  &  S.  562,  that  'it  makes 
no  difference,  in  reason  or  law,  into 
what  other  form  different  from  the 
original,  the  change  may  have  been 
made,  whether  it  be  into  that  of 
promissory  notes  for  the  security  of 
money  which  was  produced  by  the 
sale  of  the  goods  of  the  principal,  as 
in  Scott  v.  Surman  (Willes  400),  or 
into  other  merchandise,  as  in  White- 
comb  v.  Jacob,  1  Salk.  161;  for  the 
product  or  substitute  for  the  original 
thing  still  follows  the  nature  of  the 
thing  itself,  as  long  as  it  can  be  as- 
certained to  be  such,  and  the  right 
only  ceases  when  the  means  of  ascer- 


tainment fail.'  But  he  dissents  from 
the  application  of  the  rule  made  by 
Lord  Ellenborough,  when  the  latter 
added,  'which  is  the  case  when  the 
subject  is  turned  into  money  and  con- 
founded in  a  general  mass  of  the 
same  description;'  for  equity  will 
follow  the  money  even  if  put  into  a 
bag  or  an  undistinguishable  mass,  by 
taking  out  the  same  quantity.  And 
the  doctrine  that  money  has  no  ear- 
mark must  be  taken  as  subject  to  the 
application  of  this  rule.  The  Court 
of  Appeals  had  previously  applied 
the  very  rule  as  here  stated  in  the 
case  of  Birt  v.  Burt,  reported  in  a 
note  to  Ex  parte  Dale  and  Co.,  11 
Ch.  D.  773." 

7  Farmers'  &  Mechanics'  Bank  v. 
King,  siipra;  Van  Alen  v.  American 
National  Bank,  supra;  Central  Na- 
tional Bank  v.  Insurance  Co.,  supra; 
Jaudon  v.  City  Bank,  8  Blatchf.  (II. 
S.  C.  C.)  430,  Fed.  Cas.  No.  7,230; 
Fifth  National  Bank  v.  Village  of 
Hyde  Park,  101  111.  595,  40  Am.  Rep. 
218;  Riehl  v.  Evansville  Foundry 
Ass'n,  104  Ind.  70;  Baker  v.  New 
York  Nat.  Bank,  100  N.  Y.  31,  53  Am. 
Rep.  150:  Bills  v.  Schliep,  127  Fed. 
103;  Central  Stock  &  Grain  Exchange 
v.  Bendinger,  48  C.  C.  A.  726,  109 
Fed.  926,  56  L.  R.  A.  875;  Pearce  v. 
Dill,  149  Ind.  136. 

Money  diverted  can  be  followed  at 
the  suit  of  its  rightful  owner  and 
restoration  made,  where  the  parties 
in  whose  possession  it  is  found  have 
parted  with  no  value  for  it.  Phelan 
v.  Downs,  31  N.  Y.  Misc.  518,  69  N. 


105 


1665 


§§  2092,2093] 


THE   LAW  OF   AGENCY 


[BOOK    IV 


§  2092.  It  is  not  essential  that  notice  shall  come  in  any 

particular  form.  Whatever  reasonably  apprises  the  other  party,  or 
whatever  would  put  a  reasonably  prudent  man  upon  an  inquiry  which 
would  have  disclosed  the  truth,  will  be  sufficient.  Cases  are  numerous, 
for  example,  in  which  the  well  known  character  of  the  agent,  or  his 
situation,  or  the  name  or  title  in  which  he  holds  or  receives  or  attempts 
to  transfer  the  fund,  have  been  held  sufficient.8 

§  2093.  • —  With  reference  to  the  consideration  which  will 

suffice  in  these  cases,  a  comprehensive  rule  is  difficult  to  state.  The 
consideration  which  would  protect  the  taker  of  negotiable  paper  would 
certainly  suffice,  and  since  money  possesses  the  quality  of  negotiability 
in  the  superlative  degree,  it  is  possible  that  a  consideration  which  would 
not  suffice  in  the  case  of  the  negotiable  instrument  might  do  so  in  the 
case  of  money.  New  York,  for  example,  seems  to  make  such  a  dis- 
tinction.* Receiving  the  money  for  a  present  consideration  would 
practically  everywhere  be  protected,  and  in  accordance  with  the  rule 
commonly  prevailing  with  respect  to  negotiable  instruments  it  has  been 
held  in  many  cases  that  one  who  takes  money  in  payment  of  an  ante- 
cedent indebtedness  will  be  protected.10 


Y.  App.  Div.  282,  173  N.  Y.  619; 
American  Sugar  Refining  Co.  v.  Fan- 
ger,  145  N.  Y.  552,  27  L.  R.  A.  757; 
Roca  v.  Byrne,  145  N.  Y.  182,  45  Am. 
St.  Rep.  599. 

Plaintiff  entrusted  money  to  A  to 
build  a  house  on  plaintiff's  land;  and 
A  misappropriated  it  by  using  it  to 
build  for  himself  a  house  on  other 
land,  which  property  finally  came 
Into  the  hands  of  the  defendant.  De- 
fendant and  preceding  owners  had 
notice  of  plaintiff's  rights.  Held,  the 
property  in  the  hands  of  defendant 
Is  subject  to  a  constructive  trust,  and 
a  lien  attaches  in  the  amount  of 
plaintiff's  money  which  went  into 
the  property.  Miller  v.  Himebaugh 
(Tex.  Civ.  App.),  153  S.  W.  338. 

Where  money,  which  does  not  be- 
long to  the  debtor,  is  paid  in  dis- 
charge of  an  existing  debt,  such  pay- 
ment must  be  made  innocently  and 
In  ignorance  of  the  fact  that  the 
money  was  the  property  of  another, 
If  the  payment  is  to  be  good  and  ef- 
fectual as  against  the  true  owner. 
Heidenheimer  v.  Boyd,  15  N.  Y.  App. 


Div.  580;  Mikles  v.  Hawkins,  59  N. 
Y.  App.  Div.  253. 

«  See  post,  §§  2125,  2126. 

» For  example,  compare  the  rule 
respecting  negotiable  paper  as  laid 
down  in  Mayer  v.  Heidelbach,  123  N. 
Y.  332,  9  L.  R.  A.  850,  and  Skinner 
Engine  Co.  v.  Old  Staten  Island  Dye- 
ing Establishment,  12  N.  Y.  Misc.  71, 
with  the  rule  laid  down  in  Stephens 
v.  Board  of  Education,  79  N.  Y.  183, 
35  Am.  Rep.  511,  and  other  New  York 
cases  cited  in  the  following  note. 

10  In  Justh  v.  National  Bank,  56 
N.  Y.  478,  the  court  per  Johnson,  J., 
said:  "In  the  absence  of  trust  or 
agency  I  take  the  rule  to  be,  that  it 
is  only  to  the  extent  of  the  interest 
remaining  in  the  party  committing 
the  fraud  that  money  can  be  followed 
as  against  an  innocent  party  having 
a  lawful  title  founded  upon  consider- 
ation." What  the  court  meant  by 
trust  or  agency  in  this  connection  is 
not  stated,  but  it  is  assumed  to  mean 
an  obvious  trust  or  agency.  He  pro- 
ceeded to  say:  "If  it  has  been  paid 
in  the  ordinary  course  of  business, 


1666 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2094 


§    2094. 


It   is  not  necessary  that  the   third  person  into 


whose  hands  the  trust  fund  may  be  traced,  should  be  an  active  wrong- 
doer, or  that  he  should  have  attempted  to  defeat  the  trust.    It  is  enough 


either  upon  a  new  consideration  or 
for  an  existing  debt,  the  right  of  the 
party  to  follow  the  money  is  gone." 
What  was  said  here  about  the  pay- 
ment of  an  existing  debt  was  dictum; 
and  the  court  also  held  that  if  a  new 
consideration  was  essential,  it  could 
be  found  in  the  surrender  of  securi- 
ties which  had  taken  place  upon  the 
payment.  In  Stephens  v.  Board  of 
Education,  79  N.  Y.  183,  35  Am.  Rep. 
511,  the  court  declared  that  the  doc- 
trine prevailing  in  that  state,  that 
the  transfer  of  negotiable  paper  on 
account  of  an  antecedent  debt  did  not 
make  the  transferee  a  holder  for 
value,  did  not  apply  to  the  case  where 
money  was  received  in  good  faith  in 
payment  of  a  debt.  "It  is  absolutely 
necessary,"  said  the  court,  "for  prac- 
tical business  transactions  that  the 
payee  of  money  in  due  course  of 
business  shall  not  be  put  upon  in- 
quiry at  his  peril  as  to  the  title  of 
the  payor.  Money  has  no  earmark. 
The  purchaser  of  a  chattel  or  a  chose 
in  action  may  by  inquiry,  in  most 
cases,  ascertain  the  right  of  the  per- 
son from  whom  he  has  taken  the 
title.  But  it  is  generally  impractica- 
ble to  trace  the  source  from  which 
the  possessor  of  money  has  derived 
it.  It  would  introduce  great  confu- 
sion into  commercial  dealings  if  the 
creditor  who  receives  moneys  in  pay- 
ment of  a  debt  is  subject  to  the  risk 
of  accounting  therefor  to  a  third  per- 
son who  may  be  able  to  show  that 
the  debtor  obtained  it  from  him  by 
felony  or  fraud.  The  law  wisely, 
from  considerations  of  public  policy 
and  convenience,  and  to  give  security 
and  certainty  to  business  transac- 
tions, adjudges  that  the  possession 
of  money  vests  the  title  in  the  holder 
as  to  third  persons  dealing  with  him 
and  receiving  it  in  due  course  of 
business  and  in  good  faith  upon  a 


valid  consideration.  If  the  consid- 
eration is  good  as  between  the  par- 
ties, it  is  good  as  to  all  the  world." 

In  Newhall  v.  Wyatt,  139  N.  Y.  452, 
36  Am.  St.  Rep.  712,  it  is  said,  per 
Finch,  J.:  "I  think  it  is  well  settled 
that  the  payment  of  money  to  a  cred- 
itor who  receives  it  in  discharge  of 
an  existing  debt  innocently  and 
without  knowledge  or  means  of 
knowledge  that  the  debtor  paying 
had  no  rightful  ownership  of  the 
fund,  is  good  and  effectual  and  does 
not  subject  the  recipient  to  a  recov- 
ery by  the  true  owner."  See  also. 
Dike  v.  Drexel,.  11  N.  Y.  App.  Div. 
77.  In  Merchants  Loan  &  Trust  v. 
Lamson,  90  111.  App.  18,  the  court 
says  that  "even  if  money  transferred 
to  an  honest  taker  was  obtained  by 
the  one  transferring  it  through  a 
felony,  yet  the  honest  taker  who  re- 
ceived it  without  knowledge  of  the 
felony  and  in  due  course  of  business 
will  acquire  good  title  as  against  the 
one  from  whom  it  has  been  stolen." 
The  court  also  applies  the  rule  usu- 
ally prevailing  in  regard  to  the 
transferee  of  negotiable  paper,  that 
mere  grounds  of  suspicion  of  a  de- 
fective title  or  gross  negligence  on 
the  part  of  the  taker  will  not  defeat 
his  title,  unless  there  is  also  bad 
faith.  In  First  Nat.  Bank  v.  Gibert 
123  La.  845,  131  Am.  St.  Rep.  382,  69 
Cent.  L.  Jour.  341,  25  L.  R.  A.  (N.  S.) 
631,  the  case  of  Merchants  Loan  & 
Trust  Co.  v.  Lamson,  supra,  is  ap- 
proved and  followed.  The  decision 
in  First  Nat.  Bk.  v.  Gibert  as  to  the 
facts  showing  the  good  faith  of  the 
taker  is  vigorously  criticized  by  the 
editor  of  the  Central  Law  Journal  at 
page  333  of  the  same  volume. 

In  Thompson  v.  Clydesdale  Bank, 
[1893]  Appeal  Cases,  282,  it  was  said 
by  Lord  Chancellor  Herschell:  "It 
cannot,  I  think,  be  questioned,  that 


1667 


§    2095]  THE   LAW   OF   AGENCY  [BOOK   IV 

•that  he  is  not  a  bona  fide  holder  for  value  without  notice.11  So  it  is  not 
necessary  that  such  third  person  should  have  had  notice  of  the  trust 
character  of  the  fund  at  the  time  it  came  into  his  hands.  If  he  receive 
notice  in  time  to  protect  himself,  it  is  sufficient.12  Neither  is  it  neces- 
sary that  he  should  have  had  any  notice  of  its  trust  character  at  all 

up  to  the  time  that  the  principal  demands  it  of  him,  if  he  acquired  it 

...  . ,      ,.      ,, 

without  consideration.18 

Money  of  the  principal  lost  by  the  agent  in  gambling  may  be  thus 
recovered  by  the  principal,1*  unless  the  principal  were  a  party  to  or 
was  seeking  to  enforce  the  illegal  contract.15 

§  2095.  Illustrations — Bank  deposits. — These  principles 

have  received  illustration  in  a  number  of  cases.  Thus,  in  a  leading 
case  in  the  Supreme  Court  of  the  United  States,  where  the  general 
agent  of  an  insurance  company,  whose  business  it  was  to  collect  and 
remit  to  it  premiums  accruing  within  the  territory  assigned  to  him, 
deposited  such  premiums  from  time  to  time  in  a  bank  to  his  credit  as 
such  "general  agent,"  from  which  he  remitted  to  his  principal  by  check 
twice  a  month,  and  the  bank  knew  that  he  was  such  agent  and  that  the 
fund  so  accumulated  was  made  up  chiefly  of  premiums  due  to  the  com- 
pany, it  was  held  that  the  bank  was  chargeable  with  notice  of  the  com- 
pany's rights  therein,  although  the  agent  had  also  deposited  some  other 
money  therein,  and  that  the  company  might,  in  equity,  enforce  its 

under  ordinary  circumstances  a  per-  tels,  which  are  usually  held  not  to  be 

son,  be  he  banker  or  other,  who  takes  applicable  to  cases  of  this  nature, 
money  from  his  debtor  in  discharge          n  Fifth  Nat.  Bank  v.  Hyde  Park, 

of  a    debt,  is    not   bound    to  inquire  supra;  Stevenson  v.  Kyle,  42  W.  Va. 

into  the  manner  in  which  the  person  229,  57  Am.  St.  Rep.  854. 
so    paying    the    debt    acquired    the          12  Gage   v.   Stimson,   26   Minn.   64; 

money  with  which  he  paid  it.     How-  Bills  v.  Schliep,  127. Fed.  103;    Cen- 

ever  that  money  may  have  been  ac-  tral  Stock  &  Grain  Exchange  v.  Ben- 

qulred  by  the  person  making  the  pay-  dinger,  48  C.  C.  A.  726,  109  Fed.  926, 

ment,  the  person  taking  that  payment  56  L.  R.  A.  875;   Pearce  v.  Dill,  149 

is  entitled  to  retain  it  in  discharge  of  Ind.    136;     Farmers'     &    Mechanics' 

the  debt  which  is  due  to  him."  Bank  v.  King,  supra. 

On   the   other   hand    in    Porter   v.          13  Fifth  Nat.  Bank  v.  Hyde  Park, 

Roseman,  165  Ind.  255,  112  Am.  St.  supra. 

Rep.  222,  6  Ann.  Cas.  718,  the  court          14  Thompson    v.    Hynds,    15    Utah, 

held  that  where  a  salesman  in  a  store  389;    Pierson   v.   Fuhrmann,  1   Colo, 

took  his  employer's  money  and  paid  App.  187;   Mason  v.  Waite,  17  Mass. 

it  to  his  own  creditor  in  satisfaction  560;  Corner  v.  Pendleton,  8  Md.  337; 

Of   his   own   notes,    the   creditor   ac-  Burnham  v.  Fisher,  25  Vt  514. 
quired  no   title  to   the   money,  even          15  See    Cunningham    v.     Fairchild 

though  he  took  it  In  good  faith  and  (Tex.  Civ.  App.),  43  S.  W.  32;  Morris 

without  knowledge  of  the  misappro-  v.  Western  Un.  Tel.  Co.,  94  Me.  423; 

priation.    The  court,  however,  relied  Albertson  v.  Laughlin,  173  Pa.  525,  51 

upon  cases  involving  the  title  to  chat-  Am.  St.  Rep.  777. 

1668 


CHAP.  VII ]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2096 

rights  thereto  against  the  bank  which  claimed  a  lien  upon  the  deposit 
for  a  debt  due  to  it  by  the  agent  in  his  individual  capacity. 

Said  the  court :  "A  bank  account,  it  is  true,  even  when  it  is  a  trust 
fund  and  designated  as  such  by  being  kept  in  the  name  of  the  deposi- 
tor as  trustee,  differs  from  other  trust  funds  which  are  permanently  in- 
vested in  the  name  of  trustees  for  the  sake  of  being  held  as  such;  for 
a  bank  account  is  made  to  be  checked  against,  and  represents  a  series 
of  current  transactions.  The  contract  between  the  bank  and  the  deposi- 
tor is,  that  the  former  will  pay  according  to  the  checks  of  the  latter, 
and  when  drawn  in  proper  form,  the  bank  is  bound  to  presume  that  the 
trustee  is  in  the  course  of  lawfully  performing  his  duty,  and  to  honor 
them  accordingly.  But  when  against  a  bank  account,  designated  as 
one  kept  by  the  depositor  in  a  fiduciary  character,  the  bank  seeks  to 
assert  its  lien  as  a  banker  for  a  personal  obligation  of  the  depositor, 
known  to  have  been  contracted  for  his  private  benefit,  it  must  be  held 
as  having  notice  that  the  fund  represented  by  the  account  is  not  the  in- 
dividual property  of  the  depositor,  if  it  is  shown  to  consist,  in  whole 
or  in  part,  of  funds  held  by  him  in  a  trust  relation."  16 

§  2096.  So  in  a  case  in  New  York  17  it  appeared  that  a 

firm  of  commission  merchants,  who  were  insolvent,  had  deposited  in  a 
bank  in  their  own  name  with  the  word  "agents"  added,  the  proceeds  of 
certain  sales  made  by  them  for  various  principals.  The  deposit  was 
made  in  this  form  for  the  purpose  of  protecting  their  principals,  which 
purpose  was  known  to  the  bank  at  the  time.  Upon  this  deposit,  the 
agents  drew  a  check  in  favor  of  the  plaintiff,  one  of  the  principals,  in 
settlement  of  a  balance  due  him  on  sales  made  by  them.  In  an  action 
brought  by  the  plaintiff  on  the  check,  the  bank  sought,  with  the  con- 
sent of  the  agents,  to  charge  against  this  deposit  an  individual  debt  due 
from  the  agents  to  the  bank,  but  the  court  held  that  this  could  not  be 
done.  "It  is  clear  upon  the  facts,"  said  Andrews,  J.,  "that  the  fund 
represented  by  the  deposit  account  was  a  trust  fund,  and  that  the  bank 
had  no  right  to  charge  against  it  the  individual  debt  of  Wilson  &  Bro. 
(the  agents.)  The  bank  having  notice  of  the  character  of  the  fund, 
could  not  appropriate  it  to  the  debt  of  Wilson  &  Bro.,  even  with  their 
consent,  to  the  prejudice  of  the  cestui  que  trusts.  The  supposed  diffi- 
culty in  maintaining  the  action  arising  out  of  the  fact  that  the  money 
deposited  was  not  the  specific  proceeds  of  the  plaintiff's  goods,  is  an- 
swered by  the  case  of  Van  Alen  v.  American  National  Bank.18  Con- 
is  National  Bank  v.  Insurance  Co.,  17  Baker  v.  New  York  Nat.  Bank, 
104  U.  S.  54,  26  L.  Ed.  693.  100  N.  Y.  31,  53  Am.  Rep.  150. 

is  52  N.  Y.  1. 

1669 


§§    2O97>  2098]  THE   LAW   OF  AGENCY  [BOOK   IV 

ceding  that  Wilson  &  Bro.  used  the  specific  proceeds  for  their  own 
purposes,  and  their  identity  was  lost,  yet  when  they  made  up  the 
amounts  so  used,  and  deposited  them  in  the  trust  account,  the  amounts 
so  deposited  were  impressed  with  the  trust  in  favor  of  the  principals, 
and  became  substituted  for  the  original  proceeds  and  subject  to  the 
same  equities."  The  objection  that  the  deposit  account  represented 
not  only  the  proceeds  of  the  plaintiffs'  goods,  but  also  the  proceeds  of 
goods  of  other  persons,  and  that  the  other  parties  interested  were  not 
before  the  court  and  must  be  brought  in  in  order  to  have  a  complete 
determination  of  the  controversy,  was  held  to  be  not  well  taken.  The 
objection  of  defect  of  parties  was  not  taken  in  the  answer,  and  more- 
over, it  did  not  appear  that  there  were  any  unsettled  accounts  of  Wil- 
son &  Bro.  with  any  other  person  or  persons  for  whom  they  were 
agents.  The  check  operated  as  a  setting  apart  of  so  much  of  the  de- 
posit account  to  satisfy  the  plaintiffs'  claim.  It  did  not  appear  that  the 
plaintiffs  were  not  equitably  entitled  to  this  amount  out  of  the  fund, 
or  that  there  was  any  conflict  of  interest  between  he  plaintiffs  and  any 
other  person  or  persons  for  whom  Wilson  &  Bro.  acted  as  consignees. 
The  presumption,  in  the  absence  of  any  contrary  indication,  was  that 
the  fund  was  adequate  to  protect  all  interests,  and  that  Wilson  &  Bro. 
appropriated  to  the  plaintiffs  only  their  just  share. 

§  2097.  But  where  a  village  treasurer,  who  stated  that 

he  wished  to  use  it  to  pay  warrants  drawn  in  anticipation  of  the  collec- 
tion of  taxes,  borrowed  at  a  bank,  upon  his  own  note  secured  by  his 
own  collaterals,  a  sum  of  money  which  was  placed  to  the  credit  of  his 
account  as  treasurer,  and  most  of  it  drawn  out  in  payment  of  proper 
warrants ;  and  afterwards,  when  the  tax  money  came  in,  the  treasurer 
drew  a  check  upon  his  account  as  treasurer  in  payment  of  the  note 
which  was  thereupon  surrendered  to  him  with  the  collaterals,  it  was 
held  by  the  Supreme  Court  of  Illinois  that  the  village  could  not  recover 
the  amount  of  the  check  from  the  bank,  the  treasurer  having  become  a 
defaulter.  In  this  case,  although  the  public  money  was  thus  appro- 
priated to  the  payment  of  a  debt  private  upon  its  face,  yet  the  bank  as- 
sumed and  had  reason  to  assume,  that  it  was  being  used  to  pay  a  debt 
which  was  in  reality  a  proper  charge  against  the  village.19 

§  2098.  Again  where  an  agent  had  deposited  money  of 

his  principal  in  a  bank,  in  his  own  name,  where  it  was  attached  by  a 
creditor  of  the  agent,  but  the  principal  gave  immediate  notice  of  his 
rights  in  the  fund,  it  was  held  that  the  attaching  creditor  stood  in  no 

"Fifth  National  Bank  v.  Village      of  Hyde  Park,  101   111.  695,  40  Am. 
Rep.  218. 

1670 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


better  situation  than  the  agent,  and  could  recover  only  what  the  agent 
could.  Said  the  court :  "It  is  undeniable  that  equity  will  follow  a  fund 
through  any  number  of  transmutations  and  preserve  it  for  the  owner 
so  long  as  it  can  be  identified.  And  it  does  not  matter  in  whose  name 
the  legal  right  stands.  If  money  has  been  converted  by  a  trustee  or 
agent  into  a  chose  in  action,  the  legal  right  to  it  may  have  been  changed, 
but  equity  regards  the  beneficial  ownership.  It  is  conceded,  for  the 
cases  abundantly  show  it,  that  when  the  bank  received  the  deposits,  it 
thereby  became  a  debtor  to  the  depositor.  The  debt  might  have  been 
paid  in  answer  to  his  checks,  and  thus  the  liability  have  been  extin- 
guished, in  the  absence  of  interference  by  his  principals  to  whom  the 
money  belonged.  But  surely  it  cannot  be  maintained  that  when  the 
principals  asserted  their  right  to  the  money  before  its  repayment  and 
gave  notice  to  the  bank  of  their  ownership  and  of  their  unwillingness 
that  the  money  should  be  paid  to  their  agent,  his  right  to  reclaim  it 
had  not  ceased.  A  bank  can  be  in  no  better  situation  than  any  other 
debtor."  20 


20  Farmers'  &  Mechanics'  Bank  v. 
King,  57  Pa.  202,  98  Am.  Dec.  215. 

Where  a  person  places  money  in  a 
bank  to  his  credit  as  "Agent,"  and 
the  account  is  garnished  by  his  per- 
sonal creditor,  there  is  a  prima  facie 
presumption  of  title  in  the  depositor 
which  is  not  rebutted  by  the  infer- 
ence from  the  form  of  the  deposit, 
that  he  holds  it  as  agent  for  another. 
Silisbee  State  Bank  v.  French,  etc., 
Co.,  103  Tex.  629,  34  L.  R.  A.  (N.  S.) 
1207,  72  Central  Law  Journ.  84; 
Proctor  v.  Greene,  14  R.  I.  42. 

A  real  agency  may  be  shown,  how- 
ever, in  order  to  defeat  the  garnish- 
ment. Des  Moines  Cotton  Mill  Co.  v. 
Cooper,  93  Iowa,  654;  Jones  v.  Bank 
of  the  Northern  Liberties,  44  Pa.  253 
(the  agent  was  held  to  be  a  compe- 
tent witness  to  show  the  agency). 

Where  a  creditor  of  the  principal 
garnishees  the  bank,  and  the  bank 
with  knowledge  of  the  agency  pays 
money  to  the  agent  who  had  an  ac- 
count with  the  bank  as  "agent,"  the 
bank  is  liable  for  the  amount  so  paid, 
to  the  creditor  of  the  principal. 
Ferry  v.  Home  Savings  Bank,  114 
Mich.  321,  68  Am.  St  Rep.  487. 

167 


Where  a  creditor  of  a  person  who 
has  an  account  with  a  bank  as  "P. 
agent,"  garnishees  the  bank  and 
gives  notice  that  he  will  contend  that 
the  account  belongs  to  the  depositor 
personally,  the  bank  pays  out  the 
money  to  the  depositor  at  its  peril. 
Pettey  v.  Dunlap  Hdwe.  Co.,  99  Ga. 
300. 

"Where  a  deposit  standing  in  the 
name  of  a  defendant  is  attached, 
neither  he  nor  the  bank  can  defeat  the 
attachment  by  setting  up  title  in  a 
third  person  who  disclaims  owner- 
ship." Frank  v.  Kurtz,  4  Pa.  Super. 
Ct  233. 

In  a  suit  by  a  bank  against  the  In- 
dorser  of  a  note,  it  appeared  that  the 
maker  had  an  account  with  the  bank 
as  "F.  trustee."  The  court  said  that 
granting  that  the  plaintiff  was  obli- 
gated to  apply  individual  deposits  of 
F.  to  the  payment  of  the  note,  it  was 
not  obligated  to  assume  the  respon- 
sibility of  determining  at  its  peril 
that  the  deposits  in  the  name  of  "P. 
trustee"  were  his  own.  State  Bank 
of  St.  Johns  v.  McCabe,  135  Mich.  479. 

In  Jones  v.  Bank,  etc.,  supra,  it  is 
said  obiter  that  the  word  "agent" 
I 


§  2099] 


THE   LAW   OF  AGENCY  [BOOK    IV 


§    2099. 


Where  an  agent  deposits  money  of  the  principal 


in  a  bank  in  the  name  of  the  principal,  the  agent  can  only  withdraw  it 
again  where  he  has  authority  to  do  so.21  If  the  agent  deposits  it  in  his 
own  name,  the  undisclosed  principal,  as  in  any  other  case,  could  re- 
cover it  from  the  bank,  if  that  were  the  only  question  involved.  The 
bank,  however,  as  in  other  cases  would  be  protected  in  its  dealings  with 
the  agent  with  reference  to  the  money,  so  long  as  it  had  no  notice  of 
the  principal's  interest.22  But  the  bank  would  not  be  protected  in  any 
misappropriation  of  the  money  if  it  knew  or  had  reason  to  believe  that 


•was  notice  to  the  bank  that  the 
money  did  not  belong  to  the  deposi- 
tor personally. 

Even  though  the  money  be  depos- 
ited in  the  agent's  name  with  noth- 
ing to  indicate  agency,  the  principal 
may,  by  notice  before  disclosure  or 
answer  by  the  bank  in  garnishment 
proceedings,  protect  his  interests 
against  garnishment  by  the  agent's 
creditor.  State  Savings  Bank  v. 
Thompson,  88  Kan.  461. 

21  Plaintiff's    clerk,    P.,     deposited 
money,  without  authority,  in  defend- 
ant bank  for  the  plaintiff,  and  took 
certificates  of  deposit  therefor  in  the 
plaintiff's    name.      P.    wrote    in    the 
bank  register,  as  the  signature  upon 
the  indorsement  of  which  the  money 
was  to  be  withdrawn,  "Honig,  by  P." 
Also  without  authority  P.  withdrew 
the  deposits,  turning  back  the  certi- 
ficates.     Plaintiff    then    ratified    the 
deposits  and  brought  suit  on  the  cer- 
tificates.    Held,   plaintiff  can   ratify 
and  recover  on  the  certificates,  with- 
out authorizing  P's  endorsement  of 
the    certificates.      Honig    v.    Pacific 
Bank,  73  Cal.  464. 

22  in  Wood  v.  Boylston  Nat.  Bank, 
129  Mass.  358,  37  Am.  Rep.  366,  where 
an   attorney   was   entrusted   with   a 
note,  endorsed  in  blank,   for  collec- 
tion; and  the  attorney  deposited  it  in 
bank  for  collection,  a  settlement,  be- 
tween the  bank  and  the  assignees  of 
the   attorney  with   reference   to   the 
proceeds,   was    protected    as    against 
the  true  owner  who  appeared  a  year 
later  and  demanded  the  proceeds,  the 


bank  having  no  intimation  that  the 
attorney  was  not  the  true  owner. 

But  in  Burtnett  v.  First  Nat.  Bank, 
38  Mich.  630,  where  an  agent  depos- 
ited his  principal's  money  in  the 
agent's  name  in  a  bank  to  which  the 
agent  was  indebted,  and  the  bank, 
without  the  agent's  knowledge  or  au- 
thority, but  in  ignorance  of  the  real 
ownership,  applied  it  on  the  agent's 
debt,  the  true  owner  was  allowed  to 
recover.  If  this  had  been  done  with 
the  agent's  consent,  said  the  court, 
"there  might  be  room  for  other  con- 
siderations." See  also,  the  cases 
cited  in  the  following  section. 

23  In  Wolffe  v.  The  State,  79  Ala. 
201,  58  Am.  Rep.  590,  it  was  held  that, 
where  state  tax  money  was  deposited 
in  a  bank  by  a  county  tax  collector, 
to  the  credit  of  "I.  H.  V.,  treasurer," 
and  part  of  it  was  checked  out  by 
him  and  used  to  purchase  a  draft  on 
New  York,  the  draft  being  made  to 
himself  as  treasurer,  and  he  indorsed 
the  draft  in  the  same  way  and  deliv- 
ered it  to  Wolffe  in  payment  of  a 
private  debt,  these  facts  were  suffi- 
cient to  charge  Wolffe  with  notice 
that  the  money  was  public  money. 
In  Gerard  v.  McCormick,  130  N.  Y. 
261,  14  L.  R.  A.  234,  one  B.,  a  renting 
and  collecting  agent  of  plaintiffs  in 
charge  of  certain  premises  known  as 
"Glass  Buildings"  deposited  the 
rents  in  a  bank  in  his  name  as 
"Agent  Glass  Buildings."  In  pay- 
ment of  a  private  debt  which  he  owed 
defendant,  B.  drew  a  check  on  the 
bank  signed  "B.,  Agent  Glass  Build- 

1672 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2OOX) 

the  agent  was  so  misappropriating  it.28  "Where  A  deposits  money  to 
the  credit  of  A  'agent',  A's  check  as  agent  ought  to  be  good  authority 
to  the  bank  to  pay,  unless  the  name  of  the  principal  is  disclosed  or  as- 
certained in  some  way.  If  the  name  of  the  principal  be  disclosed,  then 


ings"  and  delivered  it  to  defendant, 
who  thereupon  surrendered  the  se- 
curities. Held,  form  of  check  was 
sufficient  to  put  the  payee  on  inquiry 
as  to  the  agent's  right  to  pay  his  per- 
sonal debt  out  of  the  fund. 

See  also,  Rochester,  etc.,  Co.  v. 
Paviour,  164  N.  Y.  281,  52  L.  R.  A. 
790;  Williams  v.  Dorrier,  135  Pa.  445. 

In  Union  Stock  Yards  Bank  v.  Gil- 
lespie,  137  U.  S.  411,  34  L.  Ed.  724,  a 
bank  received  deposits  from  a  factor, 
under  circumstances  which  clearly 
put  it  on  notice  that  the  money  was 
the  proceeds  of  the  sale  of  property 
belonging  to  the  principal.  Held, 
sufficient  to  protect  the  principal,  and 
that  as  against  him  the  bank  could 
not  use  the  money  to  satisfy  a  gen- 
eral balance  due  to  it  from  the  factor. 

In  the  following  cases  defendants 
were  held  liable  for  unauthorized 
payments  to  agents.  Conklin  v.  Ray- 
mond, 127  N.  Y.  App.  Div.  663,  af- 
firmed without  opinion,  197  N.  Y.  509, 
where  an  agent  opened  a  special  ac- 
count with  defendants,  stockbrokers, 
having  been  refused  permission  to 
open  it  as  trustee,  and  defendants, 
knowing  the  account  was  for  an- 
other, sold  it  out,  and  applied  some 
of  the  proceeds  to  the  agent's  debts; 
Robards  v.  Hamrick,  39  Ind.  App. 
134,  where  a  third  party  deposited 
money  to  the  use  of  the  plaintiff  in 
a  private  bank,  and  the  banker,  with- 
out authority  and  knowing  the  facts 
issued  deposit  slips  to  the  plaintiff's 
husband  and  agent  and  applied  a  part 
of  the  money  to  his  personal  over- 
draft; Bristol  Knife  Co.  v.  First  Na- 
tional Bank,  41  Conn.  421,  19  Am. 
Rep.  517,  where  plaintiff's  messenger 
was  entrusted  with  a  check,  endorsed 
to  defendant  bank  and  enclosed  in  a 
sealed  envelope,  and  though  only  au- 
thorized to  deliver  the  envelope, 


have  the  check  credited,  and  receive 
the  bank  book,  he  tore  open  the  en- 
velope and  presented  the  check,  rep- 
resenting that  he  had  authority  to 
cash  it,  and  was  paid  the  amount  of 
it  (two  judges  dissented);  Bates  v. 
First  Nat.  Bank,  89  N.  Y.  286,  where 
plaintiff  endorsed  checks  in  blank 
and  delivered  them  to  her  husband 
to  deposit  for  her,  and  he  did  so,  the 
amounts  being  thereupon  entered  in 
a  pass  book  in  her  name,  and  the 
husband  afterward  drew  the  money 
out  on  fraudulent  vouchers,  evidence 
of  an  arrangement  between  the  hus- 
band and  the  bank  teller  that  the 
husband  was  to  withdraw  the  money 
by  checks  drawn  by  him  in  the  wife's 
name  was  excluded;  Kerr  v.  People's 
Bank,  158  Pa.  305,  where  one  V.  K., 
brother  and  agent  of  plaintiff,  being 
authorized  to  deposit  money  for 
plaintiff,  did  so,  and  a  pass  book  was 
issued  to  "W.  K.  by  V.  K."  and  later 
V.  K.  checked  out  without  authority, 
signing  either  "W.  K.  by  V.  K."  or 
"W.  K."  (three  judges  dissented); 
Citizens  Bank  v.  Harrison,  127  Ind. 
128,  where  plaintiff's  husband  and 
authorized  agent,  having  sold  her 
wheat,  received  in  payment  a  check 
payable  to  himself  or  bearer  at  de- 
fendant bank,  and  he  delivered  it  to 
F.,  who  offered  to  deposit  a  part  of 
the  amount  of  the  check  to  the  credit 
of  the  plaintiff's  husband,  and  de- 
fendant bank  thereupon  applied  such 
part  on  the  husband's  debts. 

But  the  mere  fact  that  a  bank 
knows  that  a  certain  company,  which 
was  one  of  its  depositors,  was  doing 
business  as  a  commission  company  is 
not  enough  to  charge  it  with  notice 
that  a  check  payable  to  this  company 
and  endorsed  and  deposited  in  its  ac- 
count was  the  proceeds  of  stock  sold 
by  the  company  for  some  one  of  Its 


1673 


§    2IOO] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


only  that  principal  ought  to  have  authority  to  authorize  a  payment  to 
be  made  by  the  bank."  2* 

§  2100.  So  it  has  been  held  that  "a  bank  which  receives 

from  an  agent,  for  deposit  in  his  own  name,  the  money  of  his  princi- 
pal, without  notice  of  the  agency,  is  protected  in  applying  the  money 
to  a  past  due  debt  of  the  depositor  [e.g.,  an  overdraft],  to  the  same  ex- 
tent as  in  paying  it  out  upon  his  checks,  whenever  such  application  is 
authorized  by  the  agent  either  expressly  or  by  legal  implication ;  and 
such  authority  ordinarily  arises  from  the  making  of  a  deposit  without 
other  directions,  where  the  debt  to  which  it  is  applied  is  an  over- 
draft." 25  Results,  however,  which  are  difficult  to  reconcile  with  this 

conclusion  have  been  reached  in  other  cases. 

oJ       -jr. 

customers,  and  that,  therefore,  the 
money  was  the  customer's  money. 
Martin  v.  Kansas  National  Bank,  66 
Kan.  655;  Kimmel  v.  Bean,  68  Kan. 
598,  104  Am.  St.  Rep.  415,  64  L.  R.  A. 
785.  But  compare  Cady  v.  South 
Omaha  National  Bank,  46  Neb.  756, 
idem.  49  Neh.  125. 

In  Thompson  v.  Clydesdale  Bank, 
[1893]  App.  Cases,  282,  it  was  held 
by  the  House  of  Lords  that,  in  the 
case  of  such  an  agent  as  a  stock 
broker,  who  often  advances  money  to 
his  principals,  to  be  reimbursed  out 
of  the  subsequent  sale  of  their  securi- 
ties, the  mere  fact  that  the  bank 
knew  that  funds  deposited  by  him 
were  the  proceeds  of  the  sale  of  se- 
curities, was  not  enough  to  charge  it 
with  notice  that  the  deposit  was  a 
trust  fund,  since  the  broker  might  or 
might  not  owe  the  proceeds  to  his 
principal. 

24  Zane  on  Banks  &  Banking,  §  135. 

Where  a  person  deposits  money  in 
a  bank,  the  account  being  opened  in 
his  name  as  agent,  without  anything 
to  show  for  whom  the  money,  as  be- 
tween the  banJc  and  the  depositor,  be- 
longs to  the  latter,  and  if  the  bank 
pays  it  to  any  one  else,  even  to  the 
alleged  principal,  it  has  the  burden 
of  proving  that  he  was  entitled  to  it 
Patterson  v.  Marine  Nat.  Bank,  130 


Pa.  419,  17  Am.  St.  Rep.  778,  citing 
other  Pennsylvania  cases.     Same  ef- 


fect: German  Bank  v.  Himstedt,  42 
Ark.  62. 

See  also,  Comfort  v.  Patterson,  70 
Tenn.  670;  Laubach  v.  Leibert,  87 
Pa.  55. 

25  Kimmel  v.  Bean,  68  Kan.  598,  104 
Am.  St.  Rep.  415,  64  L.  R.  A.  785. 
(The  quotation  in  the  text  is  the  syl- 
labus by  the  court.)  This  case  con- 
tains a  very  full  discussion  of  the 
cases.  The  judgment  finds  support 
in  Smith  v.  Des  Moines  Nat.  Bank, 
107  Iowa,  628;  though  there  the  past 
due  debt  was  in  the  form  of  a  note 
which  was  surrendered  upon  the  ap- 
plication of  the  deposit  and  the  ap- 
plication was  made  with  the  express 
consent  of  the  depositor.  The  court 
in  the  Kimmel  case  recognizes  Cady 
v.  South  Omaha  Nat.  Bank,  46  Neb. 
756;  same  case,  49  Neb.  125,  as  op- 
posed to  its  conclusion,  though  It 
thinks  that  the  Cady  case  could  be 
distinguished.  It  also  recognizes  as 
opposed,  Davis  v.  Panhandle  Nat.  Bk. 
(Tex.  Civ.  App.),  29  S.  W.  926.  It 
also  undertakes  to  distinguish  a 
large  number  of  other  cases.  Com- 
pare Wood  v.  Boylston  Nat.  Bank  and 
Burtnett  v.  First  Nat  Bank,  cited  in 
the  preceding  section. 

In  Thompson  v.  Clydesdale  Bank, 
supra,  a  broker  who  had  sold  stocks 
for  his  principal  and  received  a 
check  in  payment  deposited  the  check 
in  his  account  with  the  defendant 


1674 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2I.OI,  2IO2 

§  2101.  Other  illustrations. — Where  a  bookkeeper  and 

salesman  embezzled  the  funds  of  his  principal  to  a  large  amount,  and, 
with  the  money,  bought  real  estate  which  he  caused  to  be  conveyed  to 
his  wife,  and  built  a  house  thereon,  the  wife  knowing  the  source  from 
which  her  husband  obtained  the  money,  it  was  held  that  the  principal 
was  entitled  in  equity  to  recover  the  property  so  purchased  with  his 
funds.20 

§  2102  But  where  an  agent  employed  to  collect  money 

and  remit  it  to  his  principal,  loaned  it  to  defendants  to  whom  he  was 
indebted  personally  in  an  amount  larger  than  the  sum  loaned,  without 
informing  them  that  the  money  was  not  his,  it  was  held  that  defend- 
ants had  a  legal  right  to  appropriate  it  to  the  payment  of  the  agent's 
debt  to  them,  and  that  the  principal  could  not  recover  it  of  them,  even 
after  notice  that  it  did  not  belong  to  the  agent.27  "The  only  question," 
said  Wilde,  J.,  "therefore  is,  whether  after  notice  the  defendants  could 
lawfully  detain  the  money ;  and  we  are  of  opinion  that  they  could.  As 
Parkhurst  [the  agent]  was  indebted  to  them  in  a  sum  exceeding  the 
loan,  they  had  a  legal  right  of  set-off  as  against  Parkhurst,  of  which 
they  could  not  be  deprived  by  the  intervention  of  the  plaintiffs'  claim ; 
and  however  disingenuous  the  defendants'  conduct  may  be  considered 
in  relation  to  Parkhurst,  they  had  a  legal  right  thus  to  secure  their 
own  debt.  Their  refusal  to  repay  the  loan  according  to  agreement  was 
a  breach  of  promise;  but  against  this  the  defendants  could  set  off  a 
breach  of  promise  by  Parkhurst,  and  this  set-off  is  allowed  by  law. 
The  defendants,  therefore,  had  a  legal  right  to  appropriate  the  money 
lent,  to  the  payment  of  their  own  debt.  This  distinguishes  the  present 
case  from  that  of  Mason  v.  Waite,28  where  the  money  came  into  the 
defendant's  hands  unlawfully,  and  he  had  no  legal  or  equitable  right 
to  retain  it ;  and  also  from  that  of  Clarke  v.  Shee.29  But  the  law  as  laid 

bank,    which    account    was    already  27  Lime  Rock  Bank  v.  Plimpton,  1 7 

overdrawn.    The  bank  knew  that  the  Pick.   (Mass.)   159,  28  Am.  Dec.  286. 

check  was  the  proceeds  of  the  sale  of  Where  the  agent  is  also  a  partner, 

shares,  but  did  not  know  and  made  his  firm  is  not  to  be  charged  as  a 

no  Inquiry  whether  he  held  the  pro-  trustee   merely  because   he   wrongly 

ceeds  for  his  principal  or  not.    Later  applies  trust  money  to  the  firm's  use, 

the    broker    drew    out    some    small  the  other  partners  being  ignorant  of 

sums,  less  than  the  amount  of  this  that  fact     Engler  v.  Offutt,  70  Md. 

deposit,    and   still   later    became    in-  78,  14  Am.   St.  Rep.  332;    Gilruth  v. 

solvent.    Held,  that  the  bank  was  en-  Decell,  72  Miss.  232;  Payne  v.  Dexter, 

titled  to  retain  the  money  to  the  ex-  211  Mass.  1. 

tent  of  the  overdraft  as  against  the  28  17  Mass.  560. 

broker's  principals.  29  Cowp.  200. 

zeRiehl     v.     Evansville     Foundry 
Ass'n,  104  Ind.  70. 

1675 


§§    2103,2104]  THE   LAW   OF   AGENCY  [BOOK    IV 

down  by  Lord  Mansfield,  in  the  latter  case,  is  decisive  against  the  plain- 
tiff's claim.  'Where  money  or  notes,'  it  is  said,  'are  paid  bona  fide,  and 
upon  a  valuable  consideration,  they  never  shall  be  brought  back  by 
the  true  owner;  but  where  they  come  mala  fide  into  a* person's  hands, 
they  are  in  the  nature  of  specific  property,  and  if  their  identity  can 
be  traced  and  ascertained,  the  party  has  a  right  to  recover.' ': 

§  2103.  So  where  an  agent  having  money  of  his  principal 

in  his  hands  for  a  particular  purpose  paid  it  out  in  satisfaction  of  a 
trespass  which  he  had  committed,  the  other  party  acting  in  good  faith 
and  having  no  notice  of  the  principal's  rights,  it  was  held  that  the  prin- 
cipal had  no  claim  against  the  person  so  receiving  it.  The  court  said 
that  "from  the  necessity  of  the  thing,  an  exception  exists  in  the  case  of 
the  ordinary  currency  of  the  country.  It  has  no  'earmark'."  30 

§  2104.  Further  illustrations — Restrictive  indorsements. 

—This  question  frequently  arises  in  the  case  of  those  who  have  re- 
ceived from  a  bank,  or  other  agent,  negotiable  paper  which  the  prin- 
cipal has  entrusted  to  the  agent  for  collection.  Where  such  paper, 
bearing  no  indication  upon  its  face  of  the  trust  impressed  upon  it  in 
the  agent's  hands,  comes  into  the  hands  of  a  third  person  who,  in  good 
faith,  parts  with  value  for  it,  in  reliance  upon  the  agent's  apparent  ti- 
tle, such  third  person  will,  in  accordance  with  well  settled  rules,  be  pro- 
tected.81 But  where  the  paper  bears,  upon  its  face,  evidence  that  the 
agent  holds  it  for  a  special  purpose  merely,  as  if  it  be  indorsed  "for 
collection,"  S2  or  "for  collection  for  account  of"  the  principal,  such  an 
indorsement  is  notice  to  all  who  may  take  the  paper  of  the  restricted 
nature  of  the  agent's  title,  and  the  principal  may  recover  the  paper  or 
its  proceeds  from  one  who  claims  an  adverse  title  through  the  agent.8* 

soBurnham  v.  Holt,  14  N.  H.  367.  v.  First  Nat.  Bk.  of  Richmond,  76 
But  contra  see  Porter  v.  Roseman,  Ind.  561,  40  Am.  Rep.  261;  Sherman 
165  Ind.  255,  112  Am.  St.  Rep.  222,  6  Bank  v.  Weiss,  67  Tex.  331,  60  Am. 
Ann.  Gas.  718,  cited  in  a  preceding  Rep.  29;  First  Nat.  Bk.  v.  Bank  of 
section.  Monroe,  33  Fed.  408;  In  re  Arm- 
si  See  Hutchinson  v.  Manhattan  strong,  33  Fed.  405;  Cecil  Bank  v. 
Co.,  150  N.  Y.  250;  Hackett  v.  Rey-  Farmers'  Bank,  22  Md.  148;  Elaine  v. 
nolds,  114  Pa.  328.  Bourne,  11  R.  I.  119,  23  Am.  Rep. 

82  Sweeny  v.  Easter,  1  Wall.  (U.  S.)  429;    Sigourney  v.   Lloyd,  8  B.  &  C. 
166,  17  L.  Ed.  681.  622;    Treuttel  v.  Barandon,  8  Taunt. 

83  Freeman's  Nat.  Bank  v.  National  100. 

Tube  Works  Co.,  151   Mass.   413,   21  See  also,  ante,  §  1321,  where  many 

Am.  St.  Rep.  461,  8  L.  R.  A.  42;  Boy-  more  cases  upon  the  same  subject  are 

kin  v.  Bank  of  Fayetteville,  118  N.  C.  collected. 
566;   First  Nat  Bk.  of  Crown  Point 

1676 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL'      [§§  2IO5,  2IO6 

5.  Right  to  Recover  Property. 

§  2105.  In  general. — Analogous  to  the  question  considered  un- 
der the  last  subdivision,  is  that  of  the  right  of  the  principal  to  recover 
property,  which  has  been  applied  or  disposed  of  by  his  agent,  without 
the  authority  or  assent  of  the  principal. 

The  question  so  far  as  it  involves  real  or  apparent  agency  or  owner- 
ship, may  arise  in  three  classes  of  cases.  First,  where  the  agent  openly 
acting  as  such  undertakes  to  dispose  of  property  for  his  principal  in 
a  case  in  which  his  authority  properly  construed  does  not  justify  the 
disposition  which  he  assumes  to  make.  Second,  where  a  person  who  is 
not  agent  at  all,  or  is  not  agent  for  this  purpose,  undertakes  as  agent 
to  dispose  of  the  property,  under  circumstances  which,  as  the  taker 
contends,  justifies  him  in  believing  that  the  assumed  agent  was  really 
agent  for  the  purpose.  Third,  where  the  person  who  disposed  of  the 
property,  whether  he  be  agent  for  its  disposition  or  not,  though  usually 
where  he  is  not,  undertook  to  dispose  of  it,  not  as  agent  at  all,  but  as 
owner,  under  circumstances  which,  as  the  taker  now  contends,  justi- 
fied him  in  believing  that  such  assumed  owner  was  in  reality  the 
owner. 

There  may  of  course  also  be  many  cases  in  which  the  other  party  has 
fraudulently  colluded  with  an  agent  to  obtain  the  principal's  property, 
but  such  cases  have  no  agency  feature  and  the  principal's  right  to  re- 
cover the  property  would  ordinarily  be  unquestioned. 

§  2106.  '  Referring  to  the  three  classes  of  cases  above 

mentioned,  it  will  be  observed  that  the  first  class  involves  the  question 
of  the  construction  of  the  agent's  authority.  The  principal  contends 
that  the  agent,  though  confessedly  his  agent,  was  not  authorized  to 
make  any  disposition  of  the  property  at  all,  or  though  authorized  to 
make  some  other  disposition,  was  not  authorized  to  make  the  one  which 
he  did  make.  The  second  class  of  cases  is  that  of  apparent  or  ostensi- 
ble agency.  The  principal  contends  that  there  was  no  authority  to  act 
as  agent.  The  other  party  contends  that  even  though  there  may  not 
have  been  actual  authority,  there  was  an  appearance  of  agency  upon 
which  he  was  entitled  to  rely.  The  third  class  of  cases  is  that  of  ap- 
parent or  ostensible  ownership.  The  real  owner  contends  that  there 
was  no  authority  to  dispose  of  his  property;  the  other  party  contends 
that  whatever  may  have  been  the  real  ownership,  the  person  from  whom 
he  obtained  it  had  such  appearances  or  evidences  of  ownership  that 
he  was  justified  in  dealing  with  him  as  the  owner. 

In  some  cases  it  would  make  no  practical  difference  to  the  other 
party  whether  the  case  was  one  of  apparent  agency  or  apparent  own- 

1677 


§    2IQ7]  THE   LAW   OF   AGENCY  [liOOK    IV 

ership.  If,  for  example,  he  bought  the  property  and  paid  for  it,  he 
would  be  equally  protected  whether  the  case  was  one  of  apparent 
agency  to  sell  or  of  apparent  ownership.  And  so  he  would  in  any  case 
where  the  act  done  was  one  which  might  lawfully  be  done  by  such  an 
agent  as  he  appeared  to  be;  but  if  an  apparent  agent  should  undertake 
to  use  the  property  to  pay  his  own  debts  the  taker  would  not  be  pro- 
tected, while  one  who  took  from  an  apparent  owner  under  the  same 
circumstances  might  be  protected. 

Before  taking  up  the  more  detailed  discussion  it  may  be  worth  while 
to  recall  to  mind  a  few  general  principles,  thus — 

§  2107.  Principal's  title  can  not  be  divested  except  by  his  con- 
sent or  voluntary  act. — It  is  a  general  principle  of  our  law  that  no 
man  can  be  divested  of  his  property  without  his  own  consent  or  volun- 
tary act.34  It  is  also  a  general  rule  that  a  purchaser  of  property  takes 
only  such  title  as  his  seller  has,  and  is  authorized  to  transfer;  that  he 
acquires  only  such  interest  as  the  seller  has,  and  no  greater  or  other. 
Nemo  plus  juris  ad  alium  transferre  potcst  quam  ipse  habet,  is  the 
maxim  of  the  law.  If  an  agent  has  no  authority  to  transfer  title,  he 
can,  as  a  rule,  confer  none  upon  his  transferee.  Hence  whoever  claims 
to  have  acquired  the  title  to  goods  of  the  principal,  through  some  deal- 
ing with  his  alleged  agent,  must  be  prepared  to  show,  not  only  that  the 
agency  existed,  but  also  that  the  agent  had  authority  so  to  transfer  the 
property.35  If  the  other  party  relies  upon  an  apparent  authority,  it 
must  be  borne  in  mind  that  the  rule  of  apparent  authority  is  one  in- 
tended for  the  protection  of  innocent  parties  who  have  acquired  rights, 
while  relying  thereon  in  good  faith,  which  would  be  imperilled  if  the 
principal  were  to  be  permitted  to  assert  that  the  real  authority  was 
less  than  he  had  caused  or  permitted  it  to  appear.  When  no  such  rights 
exist,  there  is,  therefore,  nothing  to  prevent  the  principal  from  assert- 
ing the  actual  fact. 

If  estoppel  be  relied  upon,  then,  in  the  language  of  Judge  Allen, 
"Two  things  must  concur  to  create  an  estoppel  by  which  an  owner 
may  be  deprived  of  his  property,  by  the  act  of  a  third  person,  without 

"*  See  Barker  v.  Dinsmore,  72  Pa.  Am.    Dec.    602;    Edwards   v.    Dooley, 

527,  13  Am.  Rep.  697;  Saltus  v.  Ever-  120   N.   Y.   540;    Blass  v.   Terry,   156 

ett,    20   Wend.    (N.  Y.)    267,   32  Am.  N.  Y.  122;   Timpson  v.  Allen,  149  N. 

Dec.  541;   Quinn  v.  Davis,  78  Pa.  15;       Y.  513;  Anderson  v.  Patten, Iowa, 

McMahon  v.  Sloan,  12  Pa.  229,  51  Am.  • — ,  137  N.  W.  1050. 

Dec.  601.  Where  the  act  of  the  agent  is  not 

35  See  Barker  v.  Dinsmore,  72  Pa.  within    his    apparent    authority,    his 

427,  13  Am.  Rep.  697;  Saltus  v.  Ever-  assertion  that  it  is  authorized  does 

ett,   20  Wend.    (N.  Y.)    267,  32  Am.  not  help  the  matter  any.    Edwards  v. 

Dec.  541;  Quinn  v.  Davis,  78  Pa.  15;  Dooley,  supra. 
McMahon  v.  Sloan,  12  Pa.  St.  229,  51 

1678 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2IO7 

his  assent:  I.  The  owner  must  clothe  the  person  assuming  to  dispose 
of  the  property  with  the  apparent  title  to,  or  authority  to  dispose  of  it ; 
and  2.  The  person  alleging  the  estoppel  must  have  acted  and  parted 
with  value,  upon  the  faith  of  such  apparent  ownership  or  authority,  so 
that  he  will  be  the  loser  if  the  appearances  to  which  he  trusted  are  not 
real."  3« 

An  undisclosed  principal  may,  in  many  cases,  be  properly  regarded 
as  the  owner  of  rights  acquired  for  him,  but  this  is  not  universally 
true.37  As  between  him  and  the  agent  there  can  usually  be  little  diffi- 
culty. As  against  the  agent,  there  is,  as  has  been  seen  under  the  head 
of  the  agent's  duty  to  account,  a  duty  upon  the  agent  to  account  for  or 
transfer  to  the  principal  that  which  belongs  to  him.  But  as  against 
third  persons,  the  case  is  not  so  clear.  As  will  be  seen  in  the  following 
sections,  bona  fide  purchasers  for  value  from  the  one  having  the  legal 
title,  and  similar  dealers  with  the  one  having  the  ostensible  title,  are 
usually  protected ;  and  in  a  great  variety  of  cases  it  is  necessary  to  have 
regard  to  formal  or  artificially  established  evidences  of  ownership, 
rather  than  to  the  actual,  beneficial  interest. 

The  English  doctrine  of  market  overt  has  not  been  adopted  in  this 
country,  and  we  have  not  extended  protection  to  the  bona  fide  pur- 
chaser of  goods  to  the  degree  that  some  continental  systems  have 
done.88  The  American  Sale  of  Goods  Act  has,  however,  made  some 
innovations  in  this  direction.39 

se  In  Barnard  v.  Campbell,  55  N.  Y.  476,  where  rights  of  an  alleged  undis- 

456,  14  Am.  Rep.  289.  closed  principal  to  corporate  stocks 

ST  Edwards  v.  Dooley,  120  N.  Y.  which  had  not  been  transferred  upon 
540  (where  an  agent  is  supplied  with  the  books  as  required  by  the  by- 
money  to  purchase  goods  for  his  laws,  Holmes,  C.  J.,  said:  "It  is  ar- 
principal,  and  the  agent  purchases  gued  that  the  plaintiff  is  not  within 
those  very  goods,  the  title  passes  di-  the  by-law  because  she  was  an  undis- 
rectly  to  the  principal,  even  though  closed  principal  and  should  be  re- 
the  agent  bought  in  his  own  name,  garded  as  having  had  the  legal  title 
and,  Instead  of  using  the  funds  sup-  from  the  moment  of  the  purchase 
plied  by  his  principal,  uses  those  for  with  her  money.  But  we  might  as 
his  own  purposes  and  substitutes  well  talk  about  an  undisclosed  prin- 
other  funds  therefor.  Having  so  pur-  cipal  in  a  deed  of  land.  The  corpora- 
chased,  his  mere  possession  gives  tion  has  nothing  to  do  with  undis- 
him  no  apparent  power  to  sell  the  closed  equities  or  undisclosed  rela- 
goods).  See  also,  Stevenson  v.  Kyle,  tions.  The  only  person  whom  it  can 
42  W.  Va.  229,  57  Am.  St.  Rep.  854.  recognize  as  owner  is  the  one  who  ap- 

But  there  are  cases  to  which  the  .  pears  as  such  on  its  books." 

rule    would    not    be    applicable,    as  ss  See  Schuster's  Principles  of  Ger- 

where     the     other     party     has     re-  man    Law,    par.    333,    German    Civil 

lied    upon    ostensible    ownership,    as  Code  (Wang's  translation),  §§  929  et 

will  be  seen  in  later  sections,  or  upon  seq> 

recorded    or    registered    ownership.  39  See  §§  23  et  seq. 
Thus  in  Barrett  v.  King,  181  Mass. 

1679 


§    2I08J 


THE    LAW   OF   AGENCY 


[BOOK  iv 


§  2168.  Recovery  of  property  disposed  of  by  agent  in  excess  of 
authority. — Referring  now  to  the  classification  already  suggested, 
attention  may  first  be  given  to  the  cases  in  which  a  known  agent  has 
disposed  of  property  in  excess  of  the  authority  bestowed  upon  him. 
This  class  of  cases  presents  a  question  of  mere  authority.  The  agent 
has  authority  for  some  purpose:  Is  it  broad  enough  to  justify  the  dis- 
position actually  made?  This  ordinarily  resolves  itself  into  a  matter 
of  construction  or  interpretation.  What  the  general  rules  are  for  the 
construction  of  authorities,  and  what  acts  will  be  justified  in  particular 
cases,  have  already  been  discussed  with  sufficient  fullness  in  an  earlier 
portion  of  this  work,40  and  there  is  no  occasion  for  repeating  it  here. 
Suffice  it  to  say  that  wherever  the  agent  has,  without  the  authority  of 
his  principal,  sold,  assigned,  transferred  or  disposed  of  the  principal's 
property  to  a  third  person,  the  principal  may,  by  appropriate  action, 
recover  either  the  property  itself,  or  its  value,  from  such  third  person, 
if  he  refuses  to  recognize  the  rights  of  the  principal  therein.41 

The  transferee  of  the  agent  who  has  acquired  no  title  can,  of  course, 
in  the  case  of  ordinary  property,  transfer  none  to  any  other  person, 
even  though  he  be  a  bona  fide  purchaser,42  unless  the  principal  can  be 
estopped.43 


*o  See  ante.  Book  II,  Chaps.  II  and 
III. 

41  Boisblanc's  Succession,  32  La. 
Ann.  109;  Manning  v.  Keenan,  73  N. 
Y.  45;  Meiggs  v.  Meiggs,  15  Hun  (N. 
Y.),  453;  Loomis  v.  Barker,  69  111. 
360;  Bertholf  v.  Quinlan,  68  111.  297; 
Thompson  v.  Barnum,  49  Iowa,  392; 
McGoldrlck  v.  Willits,  52  N.  Y.  612; 
Union  Trust  Co.  v.  Means,  201  Pa. 
374;  Hunter  v.  Eastham,  95  Tex. 
648;  Robinson  v.  Nevada  Bank,  81 
Cal.  106;  Starr  Piano  Co.  v.  Morri- 
son, 159  Mich.  583;  Stevenson  v. 
Kyle,  42  W.  Va.  229,  57  Am.  St.  Rep. 
854. 

A  bank  which  permits  an  agent, 
purporting  to  act  under  a  power  of 
attorney  not  broad  enough  to  author- 
ize it,  to  endorse  a  check  payable  to 
his  principal  and  deposit  it  in  the 
agent's  account,  thereby  converts  the 
•check  and  is  liable  to  the  principal." 
Porges  v.  United  States  M.  &  Trust 
Co.,  203  N.  Y.  181. 

Where  agent  has  no  power  to  ap- 
point a  sub-agent  but  does  so,  and  de- 
livers principal's  goods  to  him,  prin- 


cipal may  recover  them.  Hodkinson 
v.  McNeal  Mach.  Co.,  161  Mo.  App.  87. 

«  Dyer  v.  Duffy,  39  W.  Va.  148,  24 
L.  R.  A.  339;  Rosendorf  v.  Poling,  48 
W.  Va.  621;  Alcorn  v.  Buschke,  133 
Cal.  655. 

«  in  Randall  v.  Duff,  79  Cal.  115, 
3  L.  R.  A.  754,  an  attorney  author- 
ized to  sell  and  convey  land,  the 
power  of  attorney  being  recorded, 
wrongfully  and  without  any  consid- 
eration made  a  deed  to  a  third  per- 
son reciting  the  receipt  of  a  valua- 
ble consideration.  This  deed  was  re- 
corded, and  the  grantee  then  obtained 
a  loan  upon  the  strength  of  it  from 
a  ftona  fide  lender  who  took  a  mort- 
gage upon  the  land.  Held,  that  the 
mortgagee  is  protected  to  the  extent 
of  his  loan. 

In  Van  Zandt  v.  Furlong,  63  Hun, 
630,  it  is  held  that  where  an  agent  is 
authorized  to  sell  and  convey  on  such 
terms  as  he  deems  fit  and  makes  a 
deed  reciting  a  consideration  of  $1 
and  other  good  and  valuable  consid- 
eration, a  stranger  to  the  title  cannot 
question  the  grantee's  title. 


1680 


CHAP.  VIlJ          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    21OO, 

§  2109.  Recovery  of  property  wrongfully  disposed  of  by  one  al- 
leged to  be  ostensible  agent  or  owner. — The  second  and  third 
classes  of  cases  referred  to  in  the  suggested  classification  may  perhaps 
be  considered  together.  These  are  the  cases  of  alleged  apparent 
agency  and  of  alleged  apparent  ownership.  Although  their  conse- 
quences may  be  unlike,  as  has  been  already  pointed  out,  yet  as  they 
spring  from  the  same  root,  namely,  estoppel,  and  are  governed,  in  gen- 
eral, by  the  same  rules,  there  will  probably  be  no  confusion,  if  they 
are  to  some  extent  treated  together.  With  reference  to  the  kind  and 
amount  of  evidence  necessary  to  establish  apparent  or  ostensible  agency 
or  ownership,  no  hard  and  fast  rule  can  be  laid  down.  The  question 
is  usually  one  of  reasonable  inference  from  conduct,  and  the  kinds  of 
conduct  involved  may  be  as  various  as  the  forms  of  human  activity. 
Two  situations,  however,  may  be  distinguished:  One  where  the  ques- 
tion is,  whether  an  agency  or  ownership  which  in  fact  never  was 
created  appears  to  have  been  created ;  and,  secondly,  where  an  agency 
or  ownership  once  confessedly  existing,  but  in  fact  terminated,  appears 
to  be  still  continuing.44  The  question  of  the  termination  of  an  agency, 
and  the  notice  to  be  given  of  that  fact  in  order  to  prevent  the  appear- 
ance of  its  continued  existence,  has  been  already  sufficiently  considered 
in  an  earlier  chapter,45  and  need  not  be  repeated  here.  Considerable 
attention  has  also  been  given  in  various  places,  and  particularly  in  the 
chapter  upon  the  appointment  of  agents,46  to  the  question  of  apparent 
authority  and  the  evidence  by  which  it  may  be  established,  and  it  is 
not  necessary  to  repeat  that  discussion.  With  reference,  however,  to 
the  particular  power  to  dispose  of  goods,  and  of  the  principal's  right  to 
recover  them  when  wrongly  disposed  of,  a  specific  reference  to  some  of 
the  cases  most  commonly  arising,  and  to  the  evidence  upon  which  an 


4-t  In    Quinn    v.    Dresbach,  75    Cal.  fendant    and    to    receive     payment. 

159,  7  Am.  St.  Rep.  138,  it  was  held  Three   days    later   J.   appeared    with 

that  where  a  person  had  been  acting  plaintiff's   team    and   wagon   with    a 

as  the  agent  of  another,  and  the  lat-  third    load,  which    in    fact    he    had 

ter  was  chargeable  with  knowledge  stolen   from   plaintiff,  but  which   he 

that  the  same  person  was  continuing  sold  and  delivered  to  defendant,  who 

to  act  in    the   matter    in    some  way,  bought  and  paid  for  it  in  good  faith, 

"the  only  inference  which  he  was  en-  with  no  notice  that  J.  was  not  au- 

titled  to  draw,  and  the  one  which  he  thorized  to  act   for  plaintiff.     Held, 

ought  to  have  drawn  was  that  he  was  that  the  plaintiff  could  not  recover 

continuing  to    act    as    he    had    com-  the  value  of  this  wheat  from  defend- 

menced,  viz.,  as  agent."    In  Miller  v.  ant.    Compare  Newlove  v.  Pond,  130 

Miller,  4  Ind.  App.  128,  it  appeared  Cal.  342. 

that  plaintiff  had  on  two  occasions,  a  45  See  supra,  §  547  et  seq. 

few  days  apart,  employed   one  J.  to  «  See  supra,  §  201  et  seq. 
sell  and  deliver  wheat  for  him  to  de- 

106  1681 


§    21 IO]  THE   LAW   OF   AGENCY  [BOOK    IV 

appearance  of  agency  or  ownership  may  be  predicated,  seems  to  be  de- 
sirable in  this  connection  and  will  be  given. 

§  21 10.  Possession  as  evidence  of  ownership  or  authority. — As  a 
general  rule  the  mere  possession  by  an  alleged  agent  of  his  principal's 
property,  is  not  sufficient  evidence  either  of  title  in  the  agent  or  of 
authority  in  the  agent  to  dispose  of  it.47  Such  possession  is  as  consis- 
tent with  agency  as  with  ownership,  and,  if  agency,  it  may  as  well  be 
for  any  one  of  a  variety  of  other  purposes,  as  that  the  agent  should 
sell  or  dispose  of  it. 

Thus  the  property  may  be  in  the  agent's  possession  for  safe  keeping, 
or  for  transportation,  or  for  repair,  or  it  may  have  been  borrowed  or 
hired  by  the  agent  for  some  purpose  of  his  own,  or  the  possession  may 
have  been  tortiously  acquired  by  the  agent  in  violation  of  his  duty  to 
his  principal ;  but  in  none  of  these  cases,  as  a  rule,  could  the  agent 
transfer  any  title  to  the  property,  as  against  the  true  owner,  even  to 
a  bona  fide  purchaser.4*  As  has  been  stated  in  a  previous  section,  Nemo 
dat  quod  non  habet.  To  this  rule,  however,  there  are  two  exceptions 
made.  One  relates  to  the  case  in  which  the  property  in  the  agent's 
possession  consists  of  money  or  of  negotiable  paper ;  the  other  to  the 
case  in  which  the  principal  entrusts  the  possession  of  his  goods  to  one 
whose  business  it  is  to  sell  similar  property  either  as  the  owner  or  as 
the  agent  of  the  owner. 

«  Baehr  v.  Clark,  83  Iowa,  313,  13  and  obtains  possession  of  them,  and 

L.  R.  A.  717;   Oilman  Oil  Co.  v.  Nor-  then  goes  to  B.  and,  by  pretending  to 

ton,   89   Iowa,   434,   48  Am.   St.  Rep.  be  the  selling  agent  of  A.,  induces  B. 

400;    Anderson  v.  Patten,  Iowa,  to  buy  them  and  pay  X.  for  them,  A. 

,     137     N.     W.     1050;     Covill     v.  may    recover    the     goods     from     B. 

Hill,    4    Denio  •  (N.    Y.),   323;    Bal-  There  was  no  sale  to  X.,  as  none  was 

lard     v.     Burgett,     40     N.     Y.     314;  intended.     There  was  no  sale  to  B., 

McNeil    v.     Tenth     National     Bank,  as  X.  was  not  authorized  to  buy  for 

46  N.  Y.  325,  7  Am.  Rep.  341;  Rogers  B.     The  title  therefore  never  passed 

v.  Button,  182  Mass.  187;  Kershaw  v.  and     A.     may     recover     his     goods. 

Merritt,   194   Mass.   113;    Gussner   v.  Barker  v.  Dinsmore,  72  Pa.  427,  13 

Hawks,  13  N.  D.  453;  Worthington  v.  Am.  Rep.  697.     See  also,  Edmunds  v. 

Vpite,   77   Mo.  App.   445;    Spencer  v.  Merchants    Transp.    Co.,    135    Mass. 

Mali,  87  111.  App.  680.  283;  Rogers  v.  Button,  182  Mass.  187; 

*«The   borrower   of  a  chattel  can  Rodliff  v.  Ballinger,  141  Mass.  1,  55 

confer    no   title   against   the    lender.  Am.    Rep.    439;     Bean    v.    Yates,  22 

McMahon  v.  Sloan,  12  Pa.  229,  51  Am.  Ohio  St.  388;    Hamet  v.  Letcher,  37 

Bee.  602.  Ohio  St.  356,  41  Am.  Rep.  519;   Alex- 

Sale   by  pretended  agent. — Within  ander  v.  Swackhamer,  105  Ind.  81,  55 

this  principle  are  the  cases  of  sales  Am.    Rep.    180;    Peters    Box    Co.    v. 

by  pretended  agents.    Thus  where  X.,  Lesh,  119    Ind.    98,  12    Am.  St.  Rep. 

who  intends  a  fraud,  comes  to  A.  and  367;    Hentz  v.   Miller,  94   N.  Y.   64; 

by  pretending  to  be  agent  of  B.  pur-  Gundy  v.  Lindsay,  3  App.  Gas.  459. 
ports  to  buy  goods   from  A.   for   B. 

1682 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    21 1 1 

§  21 1 1.  •  Money — Negotiable   paper. — The   first   exception 

depends  upon  principles  of  public  policy  and  the  necessities  of  com- 
merce. Money  itself  bears  no  earmark  of  peculiar  ownership,  and  its 
primary  purpose  is  to  pass  from  hand  to  hand,  as  the  medium  of  ex- 
change, without  other  evidence  of  its  title,  as  against  those  who  re- 
ceive it  in  good  faith  for  valuable  consideration  in  the  usual  course  of 
business,  than  its  mere  possession.49  And  so  in  regard  to  negotiable 
paper.  It  is  intended,  so  far  as  this  is  possible,  to  represent  money, 
and,  like  it,  to  be  a  means  of  commercial  intercourse  unfettered  by  any 
qualifications  or  conditions  not  appearing  on  its  face.  When  payable 
to  bearer,  or  endorsed  in  blank,  it  passes  by  mere  delivery,  and  it  is  a 
well-settled  principle  of  commercial  law  that  he  who  takes  such  paper, 
in  good  faith,  before  dishonor  and  for  a  valuable  consideration,  shall 
not  be  affected  by  defects  in  the  title  of  him  from  whom  it  was  so  ob- 
tained, of  which  the  taker  had  no  notice.50  If,  therefore,  an  agent  has 
in  his  possession  the  negotiable  paper  of  his  principal  payable  to  bearer 
or  endorsed  in  blank,  although  he  has  no  authority  to  transfer  it,  or  al- 
though he  may  have  acquired  its  possession  tortiously  or  against  the 
rights  of  his  principal,  his  transfer  of  it  to  one  who  takes  it  in  the 
usual  course  of  business,  in  good  faith,  before  maturity  and  for  valu- 
able consideration,  will  confer  upon  such  transferee  a  title  which  the 
principal  cannot  defeat.51  But  in  order  to  effect  this  result,  all  of  the 

*°  See  the  discussion,  ante,  §  2102  them  in  due  course  before  maturity 

et  seq.  to  a  bona  fide  pledgee,  the  latter  will 

so  See    Daniel,    Neg.    Instruments,  be  protected.    Belmont  Branch  Bank 

§§  769a,  1469.  v.  Hoge,  35  N.  Y.   65.     In  Caruth  v. 

51  In  London  Joint  Stock  Bank  v.  Thompson,  55  Ky.  572,  63  Am.  Dec. 
Simmons,  [1892]  A.  C.  201,  negotia-  559>  no*68  endorsed  in  blank,  which 
ble  bonds  payable  to  bearer  were  de-  nad  ^en  received  to  apply  on  an  ac- 
posited  with  a  broker  for  safe  keep-  count,  were  handed  back  to  the  in- 
ing  and  wrongfully  pledged  by  him  dorser  to  have  them  secured.  He 
to  defendants,  bona  fide  pledgees.  sold  them  to  a  6ono  ^d€  Purchaser. 
Held,  defendants  are  protected.  In  Seld,  such  a  Purchaser  would  be  pro- 
Walters  v.  Tielkemeyer,  72  Mo.  App.  tected. 

371,  the  owner  of  notes  indorsed  in  Bona  fi.de  purchaser  of  negotiable 

blank   allowed   them   to   remain   for  paper  payable  to  bearer  or  endorsed 

two  or  three  weeks  in  the  hands  of  a  in  blank  from  a  finder  acquires  good 

real    estate    agent    after    she    knew  title.    Marsh  v.  Small,  3  La.  Ann.  402. 

that    he    had    gotten    possession    of  48  Am.  Dec.  452;   Garvin  v.  Wiswell, 

them  by  trick,  and  that  he  was  pro-  83  111.  215. 

posing  to  dispose  of  them.  Soon  In  the  following  cases  bona  fide 
after  he  sold  them  to  defendant,  a  purchasers  from  a  thief  of  negotia- 
bona  fide  purchaser.  Held,  defendant  ble  paper  endorsed  in  blank  or  pay- 
not  liable  for  their  value.  So  where  able  to  bearer  were  held  to  have  ac- 
drafts  are  put  into  the  hands  of  an  quired  good  title.  National  Bank  v. 
agent  for  collection  and  he  transfers  Snow,  187  Mass.  159;  Spooner  v. 

1683 


§    2III] 


THE   LAW  OF  AGENCY 


[BOOK    IV 


elements  mentioned  must  co-exis.t.  In  default  of  these  the  principal, 
as  has  been  seen  in  the  preceding  subdivision,  may  pursue  his  property 
through  any  number  of  transmutations  so  long  as  he  can  trace  it.  If 
the  paper  were  payable  to  the  order  of  the  principal  and  was  not  en- 
dorsed, its  mere  possession  would,  of  course,  be  no  evidence  of  title 
in  the  agent.52 


Holmes,  102  Mass.  503;  Worcester  Co. 
Bank  v.  Dorchester  &  Milton  Bank, 
10  Cush.  (Mass.)  488,  57  Am.  Dec. 
120;  Wyer  v.  Dorchester  &  Milton 
Bank,  11  Cush.  (Mass.)  51,  59  Am. 
Dec.  137;  Evertson  v.  National  Bank  < 
of  Newport,  66  N.  Y.  14,  23  Am.  Rep. 
9;  Seybel  v.  National  Currency  Bank, 
54  N.  Y.  288,  13  Am.  Rep.  583;  Poess 
v.  Twelfth  Ward  Bank,  43  Misc.  Rep. 
(N.  Y.)  45;  Franklin  Sav.  Inst.  v. 
Heinsman,  1  Mo.  App.  336;  Murray 
v.  Lardner,  2  Wall.  (U.  S.)  110,  17  L. 
Ed.  857;  Smith  v.  Union  Bank  of  Lon- 
don, L.  R.  1  Q.  B.  D.  31. 

A  fortiori  it  would  seem  that  a 
bona  fide  purchaser  of  such  negotia- 
ble paper  from  one  who  had  obtained 
possession  in  any  other  way  would 
be  protected. 

In  Smith  v.  Prosser,  L.  R.,  [1907] 
2  K.  B.  D.  735,  defendant  signed  two 
blank  forms  for  promissory  notes 
and  gave  them  to  his  agent,  to  be 
filled  out  and  negotiated  when  later 
directed.  The  agent  fraudulently 
and  without  any  direction  from  de- 
fendant filled  out  the  forms  and  ne- 
gotiated to  plaintiff,  who  knew  that 
the  agent  filled  them  out,  but  who 
was  otherwise  a  bona  fide  purchaser. 
Held,  as  the  defendant  handed  the 
notes  to  his  agent  as  custodian  only 
and  with  the  intention  that  they 
should  not  be  issued  as  negotiable 
instruments,  unless  he  gave  further 
instructions  which  were  never  given, 
he  was  not  estopped  to  deny  their 
validity. 

With  reference  to  London .  Joint 
Stock  Bank  v.  Simmons,  supra,  the 
court  in  Smith  v.  Prosser  said:  "The 
instruments  there  in  question  were 
negotiable  securities.  .  .  .  That 
is  not  the  question  here;  the  ques- 

1684 


tlon  is  whether  these  promissory 
notes  were  .ever  negotiable  instru- 
ments." 

Compare  Ray  v.  Willson,  45  Can. 
Sup.  401. 

In  Wood  v.  Boylston  Nat.  Bank, 
129  Mass.  358,  37  Am.  Rep.  366, 
where  the  owner  of  a  note  endorsed 
in  blank  gave  it  to  an  attorney  for 
collection,  and  he  deposited  it  with 
a  bank  in  his  own  name  for  collec- 
tion, dealings  between  him  and  the 
bank  as  to  the  proceeds,  the  bank 
having  no  intimation  that  he  was  not 
the  owner,  were  protected. 

Certificates  of  stock  are  not  nego- 
tiable instruments  within  this  rule. 
East  Birmingham  Land  Co.  v.  Dennis, 
85  Ala.  565,  7  Am.  St.  Rep.  73,  2  L. 
R.  A.  836;  Barstow  v.  Savage  Min. 
Co.,  64  Cal.  388,  49  Am.  Rep.  705; 
Shaw  v.  Spencer,  100  Mass.  382,  97 
Am.  Dec.  107,  1  Am.  Rep.  115;  Ban- 
gor  Electric  L.  &  P.  Co.  v.  Robinson, 
52  Fed.  520. 

BiHs  of  lading,  etc.,  also  are  not,  in 
the  absence  of  a  statute.  Shaw  v. 
Railroad  Co.,  101  U.  S.  557,  25  L.  Ed. 
892.  See  also,  National  Bank  of 
Commerce  v.  Chicago,  etc.,  R.  Co.,  44 
Minn.  224,  20  Am.  St.  Rep.  566,  9  L. 
R.  A.  263;  National  Bank  of  Bristol 
v.  Baltimore,  etc.,  R.  Co.,  99  Md.  661, 
105  Am.  St  Rep.  321. 

Ron-negotiable  bonds. — Parsons  v. 
Jackson,  99  U.  S.  434,  25  L.  Ed.  457. 

52  See  Morton  v.  Preston,  18  Mich. 
60,  100  Am.  Dec.  146;  Lancaster  Na- 
tional Bank  v.  Taylor,  100  Mass.  18, 
97  Am.  Dec.  70,  1  Am.  Rep.  71; 
Whistler  v.  Forster,  14  C.  B.  (N.  S.) 
248;  Central  Bank  y.  Hammett,  50 
N.  Y.  158. 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§   21 12 

The  taker  must  also  take  without  notice.  If  he  is  advised  by  the 
agent  that  he  is  only  an  agent,  but  then  relies  upon  the  agent's  asser- 
tion that  he  is  authorized  to  use  the  principal's  paper  for  his  own  pur- 
poses, the  taker  relies  upon  this  at  his  peril,  since  the  agent's  assertions 
cannot  establish  his  own  authority.53 

§  21 12.  Possession  confided  to  recognized  sales  agent. — The  sec- 
ond exception  is  made  to  rest  upon  principles  of  estoppel.  If  a  man 
voluntarily  delivers  his  property  into  the  customary  business  posses- 
sion of  one,  like  an  auctioneer,  broker  or  factor,  whose  ordinary  busi- 
ness it  is  to  sell  similar  property  as  the  agent  of  the  owners,  it  is  said 
to  be  a  warrantable  inference,  in  the  absence  of  anything  to  indicate  a 
contrary  intent,  that  he  intends  his  property  to  be  sold  also.  The  same 
rule  would  seem  to  apply, — though  it  is  sometimes  denied, — to  one  who 
is  not  an  agent  but  a  dealer,  if  the  nature  of  his  business  is  such  thai 
confiding  the  goods  to  him  naturally  and  reasonably  justifies  the  infer- 
ence that  he  is  either  the  owner  or  an  agent  to  sell.  Thus  Lord  Ellen- 
borough,  in  a  dictum  frequently  quoted,  said :  "If  the  owner  of  a  horse 
send  it  to  a  repository  of  sale,  can  it  be  implied  that  he  sent  it  thither 
for  any  other  purpose  than  that  of  sale?  Or  if 'one  sends  goods  to  an 
auction  room,  can  it  be  supposed  that  he  sent  them  thither  merely  for 
safe  custody?"54  But  here,  unlike  the  case  of  the  possession  of  money 

r>'t  Merchants  &  Mfgrs.  Nat.  Bank  v.  considers  that  ownership  may  be  im- 

Ohio  Valley  Furniture  Co.,  57  W.  Va.  plied  from  possession  in  some  cases 

625,  70  L.  R.  A.  312.  from  the  character  of  the  goods:    in 

••4  Pickering  v.  Busk,  15  Bast,  38.  other  cases  from  the  character  of  the 
In  Heath  v.  Stoddard,  91  Me.  499,  place  to  which  they  are  sent,  in 
Wiswell,  J.,  paraphrases  Lord  Ellen-  which  connection  he  cites  Pickering 
borough's  question  as  follows:  "If  a  v.  Busk  as  laying  down  the  true  rule 
person  should  send  a  commodity  to  a  for  all  sorts  of  goods;  and  from  the 
store  or  warehouse  where  it  is  the  usual  employment  of  the  person, 
ordinary  business  to  sell  articles  of  In  Heath  v.  Stoddard,  91  Me.  499, 
the  same  nature,  would  not  a  jury  be  a  piano  was  put  in  possession  of  one 
justified  in  coming  to  the  conclusion  S.,  who  was  a  dealer  in  pianos,  to 
that,  at  least,  the  owner  had  by  his  take  to  defendant's  house,  where 
own  act  invested  the  person  with  plaintiff  would  come  later  and  make 
whom  the  article  was  entrusted,  with  the  sale.  S.  sold  the  piano  to  defend- 
an  apparent  authority  which  would  ant  as  owner.  S.  on  the  day  of  the 
protect  an  innocent  purchaser?"  The  sale  had  seen  defendant  and  at- 
rule  of  Lord  Ellenborough  is  also  ap-  tempted  to  sell  him  one  of  his  own 
proved,  though  by  way  of  dictum  pianos,  which  was  known  by  plain- 
merely,  in  Parsons  v.  Webb,  8  Me.  38,  tiff.  Held,  that  there  was  sufficient 
22  Am.  Dec.  220.  evidence  to  warrant  a  finding  by  tho 

Mr.  Ewart,  in  his  work  on  Estop-  jury  that  defendant  was  justified  in 

pel,  constantly  quotes  this  dictum  of  believing   that   S.    had    authority   to 

Lord     Ellenborough    with    approval.  sell. 

For  example,  on  pages  298  and  299  he          In  Smith  v.  Clews,  105  N.  Y.  283, 

1685 


§    2112] 


THE   LAW  OF  AGENCY 


[BOOK    IV 


or  negotiable  paper,  it  is  necessary  that  the  agent  shall  have  acquired 
the  possession  of  the  property  by  the  act  of  the  principal;  possession 
wrongfully  obtained  would  not  enable  the  agent  to  confer  title  even 


59  Am.  Rep.  502,  it  appeared  that 
one  Miers  was  a  dealer  in  dia- 
monds in  New  York.  His  busi- 
ness was  to  procure  diamonds  from 
the  larger  dealers  and  sell  them  to 
his  customers.  He  obtained  from  the 
plaintiff  a  pair  of  diamonds  for 
which  he  gave  them  a  receipt  stating 
that  they  were  received  by  him,  "on 
approval  to  show  to  my  customers, 
said  knobs  to  be  returned  to  said  A. 
H.  Smith  &  Co.  on  demand."  Hav- 
ing obtained  the  diamonds  he  sold 
them  to  defendant  who  purchased 
them  in  good  faith,  supposing  Miers 
to  be  the  owner  and  paying  him  the 
price.  Miers  not  paying  the  plain- 
tiffs they  sought  to  recover  them 
from  the  defendant,  but  the  court 
held  that  plaintiffs,  by  Intrusting 
them  to  Miers,  a  known  dealer  in 
such  articles,  to  be  shown  to  a  pros- 
pective purchaser,  had  clothed  him 
with  apparent  authority  to  sell,  and 
that  defendant  got  a  good  title.  The 
provision  that  the  diamonds  were  to 
be  returned  upon  demand  was  held 
by  the  court  to  mean  that  they  were 
to  be  returned  if  the  purchaser  in 
view  did  not  buy  them.  But  see  s.  o. 
114  N.  Y.  190,  11  Am.  St.  Rep.  627,  4 
L.  R.  A.  392,  where  the  court  reached 
a  different  conclusion  upon  a  new 
view  of  the  facts. 

But  where  the  owner  of  a  diamond 
ring  put  it  into  the  hands  of  a  "curb- 
stone" dealer  in  or  street  peddler  of 
jewelry  to  match  it,  or  failing  in 
that,  to  get  an  offer  for  it,  and  this 
person  sold  it  to  one  who  bought  in 
good  faith,  it  was  held  that  the  pur- 
chaser got  no  title  as  against  tho 
owner.  Authority  to  get  an  offer  did 
not  confer  power  to  sell.  He  was  not 
in  fact  authorized  to  sell  and  the 
court  held  that  possession  "even  by 
such  a  dealer  did  not  create  either  ap- 
parent ownership  or  apparent  author- 


ity.     Levi  v.  Booth,   68   Md.   305,  42 
Am.  Rep.  332. 

In  Baehr  v.  Clark,  83  Iowa,  313,  13 
L.  R.  A.  717,  where  B.,  by  fraudu- 
lent representations,  induced  plain- 
tiff to  entrust  him  with  possession 
of  diamonds  of  the  plaintiff  on  condi- 
tion that  he  bring  them  back  or  their 
price  within  an  hour,  and  he  there-' 
upon  repaired  to  a  gambling  house 
and  pawned  them,  and  later  sold 
them  at  a  reduced  price  to  defendant, 
defendant,  though  an  innocent  pur- 
chaser, acquired  no  title  and  is  liable 
In  replevin. 

In  Biggs  v.  Evans,  [1894]  1  Q.  B.  D. 
88,  plaintiff  was  the  owner  of  an  opal 
matrix  tabletop,  which  he  sent  to  the 
business  premises  of  one  G.,  "who 
was  a  dealer  in  jewels  and  gems,  and, 
who  also  as  a  known  part  of  his  busi- 
ness, sold  such  things  for  other  peo- 
ple in  his  own  name,  and  having 
them  in  his  possession."  The  table- 
top  was  entrusted  to  G.  on  the  writ- 
ten terms  that  it  "shall  not  be  sold  to 
any  person  nor  at  any  price  without 
my  authorization  is  first  obtained 
that  such  sale  shall  be  effected,"  and 
"that  the  cheque  handed  to  you  in 
payment  shall  be  paid  over  to  me  in- 
tact; "  plaintiff  agreeing  to  pay  a  cer- 
tain commission.  The  agent  sold  the 
tabletop  without  plaintiff's  knowl- 
edge or  consent  to  defendant  for  a 
price  which  was  paid  by  defendant, 
partly  in  property  and  money  given 
to  a  judgment  creditor  of  G.,  and  the 
balance  in  cash  to  G.  In  an  action 
to  recover  possession  of  the  tabletop, 
held,  that,  as  G.  had  no  authority  to 
sell  at  all  without  obtaining  plain- 
tiff's consent,  which  he  never  ob- 
tained, he  was  acting  outside  his  au- 
thority in  selling  it  at  all,  and  de- 
fendant acquired  no  title.  But  in 
Turner  v.  Sampson,  27  Times  L.  R. 
200,  Channell,  J.,  thinks  the  decision 


1686 


CHAP.  VII ]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    211: 


upon  a  bona  fide  purchaser.50  And  it  is  also  necessary  that  the  business 
of  the  person  to  whom  it  is  so  confided,  be  regularly  and  generally  to 
sell,  and  that  the  property  should  appear  to  have  been  intrusted  to  him 
in  the  line  of  his  business.  If,  on  the  other  hand,  his  business  is  as 
much  or  more  to  store,  care  for,  make  or  repair  as  it  is  to  sell,  some- 
thing more  than  mere  possession  is  necessary.  There  must  be  some 
act  or  conduct,  on  the  part  of  the  real  owner,  whereby  the  party  selling 
is  clothed  with  the  apparent  ownership,  or  authority  to  sell,  which  the 
real  owner  will  not  be  heard  to  deny  or  question  to  the  prejudice  of  an 
innocent  third  party  dealing  in  fair  and  reasonable  reliance  on  the  faith 
of  such  appearance.58  "If  it  were  otherwise,"  said  a  learned  judge, 


doubtful  In  view  of  the  Factors  Act 
of  1SS9.  Mr.  Ewart  also  thinks  It 
wrong. 

55  Saltus  v.  Everett,  20  Wend.  (N. 
Y.)  267,  32  Am.  Dec.  541;  Fitch  v. 
Newberry,  1  Doug.  (Mich.)  1,  40  Am. 
Dec.  33. 

so  Wilkinson  v.  King,  2  Camp.  335; 
Pickering  v.  Busk,  15  East,  38;  Cole 
v.  Northwestern  Bank,  L.  R.  10  C.  P. 
354;  Levi  v.  Booth,  58  Md.  305,  42 
Am.  Rep.  332;  Johnson  v.  Credit 
Lyonnais,  2  C.  P.  Div.  224;  s.  c.  on 
appeal,  3  C.  P.  Div.  26. 

In  Levi  v.  Booth,  supra,  the  dis- 
tinction made  in  the  text  was  de- 
clared and  made  the  basis  of  the  deci- 
sion. The  doctrine  of  Pickering  v. 
Busk,  supra,  it  was  held,  was  based 
upon  something  more  than  the  mere 
possession  of  the  goods  by  a  person, 
even  though  he  be  a  dealer  in  that 
class  of  goods.  Unless  he  be  a  per- 
son whose  occupation,  like  that  of  a 
factor,  broker  or  auctioneer,  coupled 
with  possession,  reasonably  raises  an 
inference  of  authority  to  sell,  it  is 
not  enough.  Levi  v.  Booth,  supra, 
was  followed  in  Oilman  Linseed  Oil 
Co.  v.  Norton,  89  Iowa,  434,  48  Am. 
St.  Rep.  400.  In  that  case  a  certain 
firm,  apparently  dealers  in  seeds  on 
their  own  account,  were  employed 
by  the  plaintiffs  to  act  as  agents  in 
promoting  the  growth  of  seeds  for  the 
plaintiffs,  and  for  that  purpose  plain- 
tiffs put  seeds  into  the  agent's  hands. 
These  were  used  to  grow  crops.  Later 


the  agents  bought,  for  the  plaintiffs 
and  with  their  money,  a  large  quan- 
tity of  new  seed  which,  under  the 
contract,  was  to  belong  and  be 
shipped  to  plaintiffs.  The  agents 
wrongfully  sold  these  seeds  to  de- 
fendant, who  apparently  acted  in 
good  faith  and  paid  value.  It  was 
held  nevertheless  that  the  plaintiffs 
were  entitled  to  recover  the  seeds 
from  defendant. 

Much  of  the  same  distinction  seems 
to  underlie  the  case  of  Biggs  v. 
Evans,  [1894]  1  Q.  B.  88,  referred  to 
in  preceding  note  54.  In  that  case 
the  owner  of  an  article  put  it  into 
the  hands  of  one  who  dealt  in  such 
articles  on  his  own  account  and  also 
often  sold  such  articles  for  other  per- 
sons, for  the  purpose  of  finding  a 
purchaser,  but  with  the  distinct  un- 
derstanding that  the  article  should 
not  be  sold  until  the  owner  had  con- 
sented to  the  particular  sale  and 
upon  actual  payment  of  the  price  to 
the  owner.  Nevertheless  the  dealer 
sold  the  article  without  the  owner's 
knowledge  or  consent  to  the  defend- 
ant, who  paid  for  it  partly  in  cash 
and  partly  by  satisfying  a  claim 
which  another  person  had  against 
the  dealer.  It  was  held  that  the 
owner  of  the  article  could  recover  it 
from  this  purchaser.  It  will  be  ob- 
served, •  however,  that  ostensible 
agency  would  not  suffice  for  this  case, 
since  an  ostensible  agent  would  not 
ordinarily  be  justified  in  taking  pay- 


1687 


§§  2113,2114] 


THE  LAW  OF  AGENCY 


[BOOK    IV 


"people  would  not  be  secure  in  sending  their  watches  or  articles  of 
jewelry  to  a  jewelry  establishment  to  be  repaired,  or  cloth  to  a  cloth- 
ing establishment  to  be  made  into  garments."  57 

§  2113.  So,  too,  it  is  necessary  that  the  business  of  the 

alleged  agent  or  owner  be  to  sell  similar  property.  The  mere  fact  that 
one  puts  his  horse  into  the  possession  of  a  person,  whose  occupation  it 
is  to  sell  jewelry  only,  would  be  no  evidence  of  authority  to  sell  the 
horse.58  This  rule,  like  the  other,  is  for  the  protection  of  those  only 
who  have  in  good  faith,  parted  with  value  in  the  usual  course  of 
business  upon  the  strength  of  the  authority  which  the  principal  has 
caused  or  permitted  to  appear.  If  the  purchaser  be  in  this  situation,  he 
is  protected  and  the  principal  is  estopped,  as  against  him,  to  assert  that 
the  agent  had  no  power  to  sell.  But  if  the  purchaser  had  notice  of 
the  agent's  want  of  authority,  or  if  he  acted  collusively  with  the  agent, 
or  if  he  has  parted  with  no  value,  or  if  he  purchased  the  property  out  of 
the  usual  course  of  business,  he  has  no  equities  which  are  superior  to 
those  of  the  true  owner.50 

§  2114.  <  The  authority  of  the  ostensible  agent  must  not  be 

extended  beyond  its  legitimate  scope.  The  authority  implied  is  an  au- 
thority to  sell  and  not  an  authority  to  exchange,  pledge  or  mortgage. 


ment  in  this  way.  Ostensible  owner- 
ship, therefore,  was  essential,  or  else 
such  an  authority  to  sell  as  would 
uphold  the  sale,  even  though  made  in 
a  different  manner  from  that  speci- 
fied by  the  principal.  In  the  present 
case,  while  the  dealer  had  posses- 
sion, he  had  no  authority  at  all  to 
sell  until  he  obtained  the  owner's 
commission,  and  this  he  never  did 
obtain. 

Mr.  Ewart  expresses  the  opinion 
that  Biggs  v.  Evans  was  wrongly  de- 
cided and  that  the  case  was  within 
the  rule  laid  down  by  Lord  Ellen- 
borough  in  Pickering  v.  Busk.  See 
Ewart  on  Estoppel,  pages  246,  484. 
And  in  Turner  v.  Sampson,  27  Times 
L.  R.  200,  Channell,  J.,  thinks  the 
case  questionable  in  view  of  the  Fac- 
tors' Act  of  1889. 

In  Quinn  v.  Davis,  78  Pa.  15,  Davis 
deposited  his  household  goods,  in- 
cluding a  piano,  for  storage  with  one 
Kirby,  a  dealer  in  second  hand  fur- 
niture. Some  months  later  the  piano 


was  wrongfully  sent  by  Kirby  to  an 
auction  room  and  sold  by  his  direc- 
tions. Quinn  bought  it  in  good  faith 
and  paid  for  it.  Held,  that  Davis 
could  recover  the  piano  from  Quinn. 
The  court  refused  to  accede  to  the  ar- 
gument that  storing  the  property 
with  Kirby  whose  business  was  to 
buy  and  sell  was  enough  to  estop 
Davis;  but  also  found  that  the  evi- 
dence Indicated  that  Kirby's  place  at 
which  the  goods  were  stored  was 
chiefly  used  for  storage  and  his  sales 
were  conducted  elsewhere. 

"  Alvey,  J.,  in  Levi  v.  Booth, 
supra. 

58  See  Folsom  v.  Batchelder,  22  N. 
H.  47;  Nixon  v.  Brown,  57  N.  H.  34. 

5»  "If  the  party  dealing  with  the 
apparent  owner  has  actual  notice  of 
the  rights  of  the  true  owner,  he  ac- 
quires no  better  title  than  the  trans- 
feror or  apparent  owner  can  lawfully 
convey."  Porter  v.  Parks,  49  N.  Y. 
564. 


1688 


CHAP.  VIIJ          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2115 


Hence  a  transferee  claiming  title  to  the  property  through  such  a  trans- 
action could  not  defeat  a  recovery  by  the  true  owner.60 

Neither,  of  course,  could  an  ostensible  agent  any  more  than  an  actual 
one,  turn  out  his  principal's  property  in  payment  of  his  own  debts.61 

§  2115.  Possession  coupled  with  indicia  of  ownership. — Where, 
in  addition  to  the  possession  of  the  property,  the  principal  has  con- 
ferred upon  the  agent  the  documents  which  constitute  the  usual  indicia 
of  ownership  as,  for  example,  a  certificate  of  stock,  a  bill  of  lading,  or 
other  document  of  title,  or  has  otherwise  held  him  out  as  possessed  of 
the  ownership,  or  unlimited  power  of  disposal  of  the  property,  a  ques- 
tion is  presented,  similar  to  the  one  last  under  consideration  but  which 
may  easily  be  placed  upon  a  much  broader  foundation.  For  where  the 
principal  has  intentionally  or  negligently  caused  or  permitted  his  agent 
to  hold  himself  out  as  the  owner  of  property,  clothed  with  the  evidences 
of  title,  or  as  having  unlimited  authority  to  transfer  the  title,  and  in- 
nocent third  parties  have,  in  good  faith,  acquired  rights  in  the  property 
upon  the  strength  of  the  appearance,  the  plainest  dictates  of  right  and 
justice  require  that  the  principal  should  not  be  permitted  to  deny  that 
the  agent  was  the  owner,  although  as  between  himself  and  the  agent, 
the  fact  may  have  been  otherwise.82 


fto  Agent  to  sell  cannot  pledge. 
Merchants  Bank  v.  Livingston,  74 
N.  Y.  223;  Loring  v.  Brodie,  134  Mass. 
453;  McCreary  v.  Gaines,  55  Tex.  485, 
40  Am.  Rep.  818;  City  Bank  v.  Bar- 
row, 5  App.  Cas.  664;  Voss  v.  Rob- 
ertson, 46  Ala.  483;  Wheeler  &  Wil- 
son Mfg.  Co.  v.  Givan,  65  Mo.  89; 
First  Nat.  Bank  v.  Taliaferro,  72 
Md.  164;  Thurber  v.  Cecil  Nat.  Bank, 
52  Fed.  513;  Hastings  v.  Pearson, 
[1893]  1  Q.  B.  62;  nor  mortgage, 
Switzer  v.  Wilvers,  24  Kan.  384,  36 
Am.  Rep.  259;  nor  exchange,  Ber- 
tholf  v.  Quinlan,  68  111.  297. 

Many  other  cases  to  the  same  effect 
are  cited  in  their  appropriate  places 
in  earlier  portions  of  the  work. 

ei  Childs  v.  Waterloo  Wagon  Co.,  37 
N.  Y.  App.  Div.  242,  aff'd  167  N.  Y. 
576. 

An  agent  for  the  sale  of  property 
who  transfers  it  as  his  own  in  pay- 
ment of  his  own  debt  conveys  no  title. 
Conable  v.  Lynch,  45  Iowa,  84;  Low 
v.  Moore,  31  Tex.  Civ.  App.  460. 


Compare  with  Bennett  v.  William- 
son, 9  Ohio  Cir.  Ct.  Rep.  107;  of 
doubtful  authority. 

62  Pickering  v.  Busk,  15  East,  38; 
Gregg  v.  Wells,  10  Ad.  &  Ell.  90; 
Dyer  v.  Pearson,  3  B.  &  C.  38;  New- 
som  v.  Thornton,  6  East,  17;  Taylor 
v.  Kymer,  3  B.  &  Ad.  320;  Henderson 
v.  Williams,  [1895]  1  Q.  B.  521; 
Brocklesby  v.  Temperance  Bldg.  So- 
ciety, [1895]  App.  Cas.  173;  Rimmer 
v.  Webster,  [1902]  2  Ch.  163;  Saltus 
v.  Everett,  20  Wend.  (N.  Y.)  267,  32 
Am.  Dec.  541;  McNeil  v.  Tenth  Na- 
tional Bank,  46  N.  Y.  325,  7  Am.  Rep. 
341;  Moore  v.  Metropolitan  National 
Bank,  55  N.  Y.  41,  14  Am.  Rep.  173; 
Root  v.  French,  13  Wend.  (N.  Y.) 
570,  28  Am.  Dec.  482;  Nixon  v.  Brown, 
57  N.  H.  34;  Barnard  v.  Campbell,  55 
N.  Y.  456,  14  Am.  Rep.  289,  s.  o.  58 
N.  Y.  73,  17  Am.  Rep.  208;  Walker 
v.  Detroit  Transit  Ry.  Co.,  47  Mich. 
338;  Dean  v.  Plunkett,  136  Mass.  195; 
Bowers  v.  Lumber  Co.,  152  N.  Car. 
604;  Kempner  v.  Thompson,  45  Tex. 


1689 


§§    2Il6,2II7]  THE   LAW  OF  AGENCY  [BOOK    IV 

"It  must  be  conceded,"  said  Judge  Rapallo,  in  dealing  with  the  ques- 
tion, "that  as  a  general  rule,  applicable  to  property  other  than  negotia- 
ble securities,  the  vendor  or  pledger  can  convey  no  greater  right  or  title 
than  he  has.  But  this  is  a  truism,  predicable  of  a  simple  transfer  from 
one  party  to  another  where  no  other  element  intervenes.  It  does  not 
interfere  with  the  well  established  principle,  that  where  the  true  owner 
holds  out  another,  or  allows  him  to  appear,  as  the  owner  of,  or  as  hav- 
ing full  power  of  disposition  over  the  property,  and  innocent  third  par- 
ties are  thus  led  into  dealing  with  such  apparent  owner,  they  will  be 
protected.  Their  rights  in  such  cases  do  not  depend  upon  the  actual 
title  or  authority  of  the  party  with  whom  they  deal  directly,  but  are  de- 
rived from  the  act  of  the  real  owner,  which  precludes  him  from  dis- 
puting, as  against  them,  the  existence  of  the  title  or  power  which, 
through  negligence  or  mistaken  confidence,  he  caused  or  allowed  to 
appear  to  be  vested  in  the  party  making  the  conveyance."  63 

§  2116.  '  •  Principal  may  lose  through  agent's  fraud. — The 
fact  that  the  act  of  the  agent  is  a  fraud  upon  his  principal,  does  not 
alter  the  rule.  '  Indeed,  in  every  case  in  which  the  question  here  under 
consideration  can  arise,  the  act  of  the  agent  must  have  been  either  a 
negligent  or  a  willful  violation  of  his  duty  to  his  principal,  because  if 
the  act  were  in  fact  authorized,  no  necessity  would  exist  for  the  ap- 
plication of  the  principle  of  estoppel. 

§  2117.  •  But  other  party  must  have  acted  in  good  faith 

and  with  reasonable  prudence. — But  the  rule  operates  only  for  the 
protection  of  those  who,  in  dealing  with  the  agent,  have  exercised  or- 
dinary caution  and  prudence,  and  who  have  dealt  in  the  ordinary  way 
and  in  the  usual  course  of  business,  upon  the  ordinary  evidences  of 
right  and  authority  and  without  notice  of  the  true  ownership.64  So 

Civ.  App.  267;  Wilcox-Rose  Const.  Co.  had  reserved  title  by  the   contract 

v.  Evans,  9  Cal.  App.  118.  Howe  v.  Kerr,  69  Miss.  311;   Colum- 

One  who  employs  another  as  a  buy-  bus   Buggy   Co.   v.    Turley,  73    Miss. 

ing  agent,  but  conceals  the  agency,  529,  32  L.  R.  A.  260,  55  Am.  St.  Rep. 

and    allows    the    agent    to    buy    as  550;  Parry  Mfg.  Co.  v.  Lowenberg,  88 

though  he  were  buying  as  owner,  can-  Miss.  532. 

not  recover  the  property  from  one  to  See  also,  estoppel  of  dormant  part- 

•whom  the  agent  as  apparent  owner  ner.     Swan  v.   Steele,  7   East,   210; 

sells  it.     Guggenheime  v.  Youell,  53  Willey  v.  Bank,  141  Cal.  508;   Locke 

Wash.  163.  v.    Lewis,  124   Mass.  1,  26    Am.  Rep. 

Under      the      Mississippi      statute  631. 

(§   4234,  Code   1892)    providing  that  «« In    McNeil    v.    Tenth    National 

property   apparently  belonging  to   a  Bank,  supra. 

trader  shall  be  liable  for  his  debts,  a  6*  Barnard   v.   Campbell,   55   N.   Y. 

conditional  vendee  of  chattels,  hav-  456,  14  Am.  Rep.  289,  58  N.  Y.  73,  17 

ing  authority  to  sell  may  pass  title  Am.  Rep.  208. 

against  the  conditional  vendor  who  Where    the    person    in    possession 

1690 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    21 18 

its  protection  extends  only  to  those  who,  in  reliance  upon  the  apparent 
ownership,  have  in  good  faith  acquired  interests  therein  for  a  valuable 
consideration.  If  they  have  parted  with  no  value,  they  are  entitled  to 
no  protection.  The  payment,  or  parting  with  value  for  the  property, 
by  the  purchaser,  lies  at  the  foundation  of  the  estoppel,  for  if  he  has 
parted  with  nothing,  he  can  lose  nothing  if  the  true  owner  retakes  the 
goods ;  and  that  payment  must  be  occasioned  by  the  acts  or  omissions 
of  such  owner.  It  is  the  payment  or  the  parting  with  value  which 
creates  the  estoppel,  and  if  that  is  not  done  in  reliance  upon  the  appear- 
ance given  by  the  principal,  the  latter  will  not  be  estopped.86 

§  2118.  •  Illustrations — Pickering  v.  Busk. — These  princi- 

ples find  frequent  illustration  in  the  decided  cases,  a  few  of  which  will 
serve  to  show  the  occasion  and  extent  of  their  application.  Among 
these,  Pickering  v.  Busk  B8  is  a  leading  case.  In  that  case  it  appeared 
that  broker,  named  Swallow,  had  purchased  for  the  plaintiff,  Picker- 
ing, a  quantity  of  hemp,  which  by  the  plaintiff's  request  was  trans- 
ferred upon  the  books  of  the  wharfinger  to  the  name  of  Swallow.  An- 
other lot  subsequently  purchased,  was  transferred  to  the  names  of 
Pickering  or  Swallow,  which  the  court  held  to  be  the  same,  so  far  as 
the  question  there  involved  was  concerned,  as  though  it  stood  in  Swal- 
low's name  alone.  The  plaintiff  paid  for  the  hemp.  Swallow  after- 
wards wrongfully  sold  it  to  defendant's  assignors  in  bankruptcy  who 
relied  upon  the  entry  in  the  wharfinger's  books  and  who  paid  him  for 
it ;  and  Pickering  sued  the  assignees  in  trover  for  the  value.  But  the 
court  held  that,  by  permitting  the  hemp  to  appear  upon  the  books  of 
the  wharfinger  as  the  property  of  Swallow,  the  plaintiff  had  author- 
ized third  persons,  who  relied  upon  Swallow's  apparent  ownership,  to 
believe  that  he  had  authority  to  sell  the  hemp,  and  that  he  could  not 
recover. 

does    not    claim    to    be    owner    but  the  documents  by  which  the  agent's 

merely  agent,  the  other  party  Is  put  authority  was  conferred  were  shown 

upon  his  guard,  and  can  acquire  no  to  defendant,  but  one  of  them  indi- 

rights  which  the  agency  would  not  cated    a    prior    instruction;    and    in- 

justify.     Merchants  Bank  v.  Living-  quiry  would  have  disclosed  the  lim- 

ston,  74  N.  Y.  223.    Rule  does  not  ap-  itation  of  fifty  cents  a  share.     Held. 

ply  where  there  are  circumstances  to  since  the  defendant  knew  the  agent 

put  the  taker  upon  inquiry.     Ryman  had    only    a    special    authority,    he 

v.  Gerlach,  153  Pa.  197.  should  have  inquired  into  it,  and  is, 

In  Sloan  v.  Brown,  228  Pa.  495,  139  therefore,  liable. 

Am.   St.  Rep.  1019,  where  the  facts          65  Barnard  v.  Campbell,  supra;  Ed- 
were:    The  plaintiff's  agent  sold  the  wards  v.  Schoharie  County  Bank,  47 
plaintiff's    shares    of    stock    for    ten  Hun  (N.  Y.),  469. 
cents  when  his  authority  was  to  sell          6a  15  East,  38.    To  the  same  effect: 
for  fifty  cents  a  share;  only  a  part  of  Fullerton  v.  Kennedy,  6  La.  Ann.  312. 

1691 


THE   LAW  OF  AGENCY  [BOOK    IV 


§  2119.  .  McNeil  v.  The  Tenth  National  Bank87  is  also  an 

important  case  upon  this  subject.  There  the  plaintiff,  who  was  the 
owner  of  bank  shares,  delivered  to  his  brokers  to  secure  a  balance  of 
account,  the  certificate  of  the  shares,  indorsed  with  an  assignment  in 
blank  and  an  irrevocable  power  of  transfer  signed  and  sealed  by  him- 
self. The  brokers,  without  his  knowledge,  pledged  the  shares  to  the 
defendant  to  secure  advances  made  to  them,  the  defendant  having  no 
knowledge  of  the  plaintiff's  interest.  The  plaintiff  brought  an  action 
against  the  defendant  to  compel  the  latter  to  deliver  the  shares  to  him, 
but  it  was  held  that  the  defendant  was  entitled  to  hold  the  stock  as 
against  the  plaintiff  for  the  full  amount  of  the  advances  made  and  re- 
maining unpaid.  In  delivering  the  opinion  of  the  court,  Rapallo,  J., 
said :  "Simply  entrusting  the  possession  of  a  chattel  to  another  as  de- 
positary, pledgee  or  other  bailee,  or  even  under  a  conditional  executory 
contract  of  sale,  is  clearly  insufficient  to  preclude  the  real  owner  from 
reclaiming  his  property,  in  case  of  an  unauthorized  disposition  of  it 
by  the  person  so  intrusted.68  'The  mere  possession  of  chattels,  by 
whatever  means  acquired,  if  there  be  no  other  evidence  of  property  or 
authority  to  sell  from  the  true  owner,  will  not  enable  the  possessor  to 
give  a  good  title.' 69 


0T46  N.  Y.  325,  7  Am.  Rep.  341; 
Smith  v.  Savin,  141  N.  Y.  315. 

ss  Citing  Ballard  v.  Burgett,  40  N. 
Y.  314. 

«»  Citing  Bronson,  C.  J.,  in  Covill 
V.  Hill,  4  Denio  (N.  Y.),  323. 

In  Rogers  v.  Dutton,  182  Mass.  187, 
the  rule  is  said  by  Holmes,  C.  J.,  to 
be  based  "on  the  ground  of  the 
owner's  having  entrusted  to  another 
an  instrument  with  an  endorsement 
which  purported  to  authorize  the 
writing  in  of  the  purchaser's  name." 
In  Scollans  v.  Rollins,  179  Mass.  346, 
88  Am.  St.  Rep.  386,  the  same  judge 
says:  "A  blank  endorsement  of  such 
an  instrument  signifies  that  some  per- 
son is  expected  to  have  the  right  to 
fill  in  the  blank."  Also  "if  the  owner 
of  the  instrument  entrusts  it  to  an- 
other, he  does  so  charged  with  notice, 
of  the  power  to  deceive,  which  he  is 
putting  into  that  other's  hands,  and 
if  deception  follows  he  must  bear  the 
burden."  Also,  "In  this  case,  as  in 
some  others,  it  cannot  be  said  that 
the  owner  is  free  from  all  obligation 


to  contemplate  the  possibility  of 
wrongdoing  by  a  third  person."  In 
Rimmer  v.  Webster,  [1902]  2  Chan. 
163,  it  is  said:  "The  course  of  action 
is  consistent  with  an  intention  that 
the  person  to  whom  the  indicia  of 
title  are  intrusted  should  deal  with 
them;  and  if  it  is  once  proved  or  ad- 
mitted that  such  was  the  intention, 
the  case  then  falls  to  be  decided  in 
accordance  with  the  principles  gov- 
erning the  cases  of  authority  given 
by  a  principal  to  an  agent;  and  the 
owner  comes  under  a  duty  to  the 
persons  whom  he  intends  to  act  on 
such  authority  to  give  them  notice  of 
any  limit  that  he  places  on  the  au- 
thority which  he  has  by  his  own  act 
made  apparently  co-extensive  with 
absolute  ownership." 

In  Shattuck  v.  American  Cement 
Co.,  205  Pa.  197,  97  Am.  St.  Rep.  735, 
the  court  quoting  with  approval  from 
Ryman  v.  Gerlach,  153  Pa,  197,  said: 
"A  certificate  of  stock  with  a  power 
of  attorney  to  transfer,  duly  executed 
but  in  blank  as  to  date  and  name  of 


1692 


CHAP.  VJlJ  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    21 19 

"But  if  the  owner  intrusts  to  another,  not  merely  the  possession  of 
the  property,  but  also  written  evidence  over  his  own  signature  of  title 
thereto,  and  of  an  unconditional  power  of  disposition  over  it,  the  case  is 
vastly  different.  There  can  be  no  occasion  for  the  delivery  of  such 
documents,  unless  it  is  intended  that  they  shall  be  used,  either  at  the 
pleasure  of  the  depositary  or  under  contingencies  to  arise.  If  the  con- 
ditions upon  which  this  apparent  right  of  control  is  to  be  exercised  are 
not  expressed  on  the  face  of  the  instrument,  but  remain  in  confidence 
between  the  owner  and  the  depositary,  the  case  cannot  be  distinguished 
in  principle  from  that  of  an  agent  who  receives  secret  instructions  qual- 
ifying or  restricting  an  apparently  absolute  power.  *  *  * 

"The  holder  of  such  a  certificate  and  power  possesses  all  the  external 
indicia  of  title  to  the  stock,  and  an  apparently  unlimited  power  of  dis- 
position over  it.  He  does  not  appear  to  have,  as  is  said  in  some  of  the 
authorities  cited,  concerning  the  assignee  of  a  chose  in  action,  a  mere 
equitable  interest,  which  is  said  to  be  notice  to  all  persons  dealing  with 
him  that  they  take  subject  to  all  equities,  latent  or  otherwise,  of  third 
parties ;  but,  apparently,  the  legal  title  and  the  means  of  transferring 
such  title  in  the  most  effectual  manner. 

"Such,  then,  being  the  nature  and  effect  of  the  documents  with  which 
the  plaintiff  intrusted  his  brokers,  what  position  does  he  occupy  to- 
wards persons  who,  in  reliance  upon  those  documents,  have  in  good 
faith  advanced  money  to  the  brokers  or  their  assigns  on  a  pledge  of  the 
shares?  When  he  asserts  his  title,  and  claims  as  against  them  that  he 
could  not  be  deprived  of  his  property  without  his  consent,  cannot  he 
be  truly  answered  that  by  leaving  the  certificate  in  the  hands  of  his 
brokers,  accompanied  by  an  instrument  bearing  his  own  signature, 
which  purported  to  be  executed  for  a  consideration  and  to  convey  the 
title  away  from  him,  and  to  empower  the  bearer  of  it,  irrevocably  to 
dispose  of  the  stock,  he,  in  fact  'substituted  his  trust  in  the  honesty  of 
his  brokers  for  the  control  which  the  law  gave  him  over  his  own  prop- 
transferee,  is  In  the  position  of  mer-  sell  stock,  and  when  a  certificate  and 
chandise  prepared  for  market.  That  power  to  transfer  are  put  into  a 
is  the  way  sales  and  transfers  of  broker's  hands,  the  situation  is  ex- 
stock  are  usually  made,  and  the  pre-  actly  analogous  to  that  of  goods  or 
sumable  intent  of  executing  the  merchandise  of  any  kind,  prepared 
power  to  transfer,  is  to  put  the  holder  for  market  and  put  into  the  hands  of 
in  position  to  complete  a  sale  by  de-  a  dealer  in  that  particular  article, 
livery  of  the  certificate  and  transfer  The  presumption  which  would  arisp 
of  the  stock.  Such  transfer  carries  in  the  case  of  an  ordinary  agent  or 
prima  facie  a  good  title.  The  busi-  holder  is  reinforced  by  the  nature  of 
ness  of  a  stock  broker  is  to  buy  and  this  particular  agent's  business." 

1693 


§    2I2O] 


THE   LAW  OF   AGENCY 


[BOOK    IV       I 


erty,'  and  that  the  consequences  of  a  betrayal  of  that  trust  should  fall 
upon  him  who  reposed  it,  rather  than  upon  innocent  strangers  from 
whom  the  brokers  were  thereby  enabled  to  obtain  their  money  ?" 70 

§  2120.  •  Commercial   Bank  v.   Armsby. — In    Commercial 

Bank  v.  Armsby  Co.71  the  plaintiff,  an  Illinois  corporation  engaged  in 
the  sale  of  provisions,  had  agents  in  Augusta,  Georgia,  through  whom 
goods  sold  in  that  vicinity  were  distributed.  Plaintiff  caused  certain 
goods  to  be  sent  to  Augusta  for  distribution,  under  a  bill  of  lading 
making  the  goods  deliverable  to  the  order  of  the  consignor.  Plaintiff 
endorsed  this  bill  of  lading  in  blank  and  sent  it  to  the  agents  in  order 
to  enable  them  to  obtain  the  goods  from  the  carrier.  The  agents  ob- 
tained a  loan  from  the  Commercial  Bank  on  their  own  account  and 
pledged  this  bill  of  lading  as  security.  The  note  not  being  paid  the 
bank  obtained  the  property  and  applied  it  to  the  payment  of  the  debt. 
In  an  action  by  the  Armsby  Co.  against  the  bank  it  was  held  that  the 
plaintiff  was  not  entitled  to  recover.  The  code  of  Georgia  provided 
that  "where  an  owner  has  given  to  another  such  evidence  of  the  right 
of  selling  his  goods,  as  according  to  the  custom  of  trade  or  the  com- 
mon understanding  of  the  world,  usually  accompanies  the  authority  of 


70  For  similar  or  analogous  cases, 
see  Commercial  Bank  v.  Kortright, 
22  Wend.  (N.  Y.)  348,  34  Am.  Dec. 
317;  Holbrook  v.  Zinc  Co.,  57  N.  Y. 
623;  Bartlett  v.  Board  of  Education, 
59  111.  371;  Smith  v.  Savin,  141  N.  Y. 
315;  Brittan  v.  Oakland  Bank,  124 
Cal.  282,  71  Am.  St.  Rep.  58;  Dover  v. 
Pittsburgh  Oil  Co.,  143  Cal.  501;  Mc- 
Carthy v.  Crawford,  238  111.  38,  29  L. 
R.  A.  (N.  S.)  252;  Shattuck  v.  Ameri- 
can Cement  Co.,  205  Pa.  197,  97  Am. 
St.  Rep.  735  (cf.  Ryman  v.  Gerlach, 
153  Pa.  197);  Dovey's  Appeal,  97  Pa. 
153;  Wood's  Appeal,  92  Pa.  379, 
37  Am.  Rep.  694;  Pennsylvania 
R.  Co.'s  Appeal,  86  Pa.  80;  Scollans 
v.  Rollins,  179  Mass.  346,  88  Am.  St. 
Rep.  386;  Russell  v.  American  Bell 
Telephone  Co.,  180  Mass.  467;  Na- 
tional, etc.,  Co.  v.  Gray,  12  App.  Cas. 
Dist.  C.  276;  Prall  v.  Tilt,  28  N.  J. 
Eq.  479;  Mt.  Holly  Turnpike  Co.  v. 
Ferree,  17  N.  J.  Eq.  117;  National 
Safe  Deposit  Co..  v.  Hibbs,  229  U.  S. 
391. 

Compare  Colonial  Bank  v.  Cady,  15 
App.  Cas.  267. 

See  also,  Wooster  v.  Nevills,  73  Cal. 


58;  Clews  v.  Friedman,  182  Mass. 
555;  Brewster  v.  Sime,  42  Cal.  139; 
Kilmer  v.  Hutton,  131  N.  Y.  App.  Div. 
625. 

Where  a  principal  entrusts  his 
agent  with  securities  and  instructs 
him  to  raise  thereon  a  certain  sum, 
but  the  agent  fraudulently  borrows  a 
larger  sum,  the  lender  acting  in  good 
faith,  the  principal  is  bound.  Brock- 
lesby  v.  Temperance  Bldg.  Society, 
[1895]  App.  Cas.  173.  So  where  the 
principal  puts  the  securities  into  the 
agent's  name  and  the  agent  then  mis- 
appropriates them  to  a  6ono  fide 
taker.  Rimmer  v.  Webster,  [1902]  2 
Ch.  163. 

«  120  Ga.  74,  65  L.  R.  A.  443.  It 
will  be  observed  that  in  this  case 
greater  effect  was  given  to  the  pos- 
session of  the  bill  of  lading  than 
would  probably  have  been  given  to 
the  possession  of  the  goods  them- 
selves. See  also,  Munroe  et  al.  v. 
Philadelphia  Warehouse  Co.,  75  Fed. 
545;  also  National  Bank  v.  Baltimore, 
etc.,  R.  R.  Co.,  99  Md.  661,  105  Am.  St. 
Rep.  321:  Pollard  v.  Reardon  13  C. 
C.  A.  171,  65  Fed.  848. 


1694 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2121,  2122 

disposal,  or  has  given  the  external  indicia  of  the  right  of  disposing  of 
his  property,  a  sale  to  an  innocent  purchaser  divests  the  true  owner's 
title."  Independently  of  this  statute,  however,  it  was  held  that  the 
bank  was  entitled  to  protection  since  the  plaintiff  had  entrusted  to  its 
agents  "a  bill  of  lading,  the  possession  of  which  under  the  universal 
custom  of  business  gave  a  prima  facie  right  to  the  disposal  of  the 
goods  for  which  it  was  issued." 

§  2 121.  •  Calais  Steamboat  Co.  v.  Van  Pelt. — In  Calais 

Steamboat  Co.  v.  Van  Pelt,72  it  appeared  that  Van  Pelt,  who  resided  in 
California,  instructed  his  agent  in  New  York  to  cause  a  steamboat  to 
be  built,  giving  the  agent  express  directions  to  hold  himself,  the  agent, 
out  as  owner,  and  to  cause  the  vessel  to  be  enrolled  in  his,  the  agent's, 
own  name,  as  the  principal  did  not  wish  to  appear,  or  to  be  known,  as 
the  owner.  The  agent  followed  these  instructions  but  upon  the  com- 
pletion of  the  vessel,  sold  her  to  the  Steamboat  company,  who  pur- 
chased her  in  good  faith  without  knowledge  of  Van  Pelt's  interest,  in 
reliance  upon  the  agent's  apparent  ownership,  and  paid  the  agent  her 
full  value.  The  agent  converted  the  money  to  his  own  use,  and  Van 
Pelt  brought  an  action  against  the  Steamboat  company  to  establish  his 
title.  But  the  Supreme  Court  of  the  United  States  held  that,  having 
held  the  agent  out  to  the  world  as  owner,  and  having  intentionally 
clothed  him  with  the  documentary  evidences  of  ownership,  he  could 
not  recover  from  one  who,  in  good  faith,  had  purchased  the  property 
relying  upon  such  apparent  ownership. 

§  2122  Nixon  v.  Brown 73  presents  another  illustration 

of  this  principle.  Nixon  had  employed  an  agent  to  purchase  a  horse. 
The  agent  made  the  purchase,  but  took  the  bill  of  sale  in  his  own 
name.  He  informed  Nixon  of  the  purchase,  showed  him  the  bill  of 
sale,  and  said  he  would  execute  a  bill  of  sale  to  Nixon  which  would 
make  it  all  right,  but  did  not  do  so.  It  was  then  arranged  that  the 
agent  should  keep  the  horse  in  his  possession  for  the  purpose  of  train- 
ing him,  and  the  agent  went  away  taking  with  him  the  bill  of  sale. 
Afterwards  the  agent  sold  the  horse  to  Brown  who  purchased  in  good 

TZ  2  Black   (U.  S.),  372,  17  L.  Ed.  corded  the  assignment  and  disposed 

282.  of  the  mortgage) ;  Cheshire  Provident 

TS  57  N.  H.  34.  Institution   v.  Feusner,   63   Neb.    682 

To  same  effect:  Williams  v.  Ashe,  (where   it  was  held  that  an  undis- 

111  Cal.  180;   Williams  v.  Pelley,  96  closed  principal  could  not  deny  the 

111.    App.    346    (where    principal    al-  authority  of  his   agent  to  collect  a 

lowed  agent  to  keep  an  assignment  to  note  made  to  the  agent  and  endorsed 

him  of  a  mortgage,  together  with  the  to  the  principal), 
mortgage,    and    he    wrongfully     re- 

1695 


§§    2123,2124]  THE  LAW  OF  AGENCY  [BOOK   IV 

faith  in  reliance  upon  the  apparent  title  conferred  by  the  bill  of  sale, 
and  paid  the  agent  the  money,  with  which  the  latter  decamped.  Nixon 
thereupon  sued  Brown  in  trover,  but  was  not  permitted  to  recover. 
The  trouble  with  the  plaintiff's  claim,  said  Smith,  J.,  was  "that  he 
.suffered  his  agent  to  carry  off  with  him  the  evidence  as  to  the  owner- 
ship of  the  horse,  which  was  directly  calculated  to  mislead  and  deceive 
an  innocent  purchaser.  He  selected,  as  his  agent,  a  person  who  proved 
to  be  a  thief.  And  inasmuch  as  one  of  two  innocent  persons  must  suf- 
fer, it  must,  in  this  case,  be  the  plaintiff,  because  he  put  it  in  the  power 
of  his  agent  to  deceive  the  defendant,  when  it  was  possible  for  him  to 
have  prevented  it." 

§  2123.  Other  cases — Title  put  in  agent's  name — Instru- 
ments delivered  in  blank. — The  same  question  presents  itself  in  a 
great  variety  of  cases  in  which  the  principal  has  put  the  title  to  land 
into  the  agent's  name  and  the  agent  has  been  thereby  enabled  to  de- 
ceive third  persons  ;74  and  where  the  principal  has  delivered  to  his 
agent  deeds,  mortgages,  and  the  like  executed  in  blank,  with  authority 
to  fill  the  blanks  in  certain  ways  and  then  to  deliver  the  instrument,  but 
the  agent  has  filled  them  in  different  ways  and  then  dealt  with  third 
persons  who  have  relied  upon  the  completed  instrument.75 

§  2124.  Limitations  on  doctrine  in  general. — But  in  or- 
der to  estop  the  true  owner  it  is,  as  has  been  seen,  indispensable  not 
only  that  he  has  clothed  the  person  assuming  to  dispose  of  the  property, 
with  the  apparent  title  to  it,  'or  with  apparent  authority  to  dispose  of 
it,  but  also  that  the  person  alleging  the  estoppel  must  have  acted,  and 
parted  with  value,  upon  the  faith  of  such  apparent  ownership  or  au- 

7*  See  Schultz  v.   McLean,  93   Cal.  the  homestead);    Owen  v.  Perry,  25 

3?9;  Conklin  v.  Benson,  159  Cal.  785,  Iowa,  412,  96  Am.  Dec.  49  (where  the 

36  L.  R.  A.    (N.   S.)   537   (a  strong  owner  sent  a  deed  with  the  grantee's 

case).  name    blank,    in    order    that    agent 

In  Brown  v.  Brown,  96  Ark.  456,  might  find  a  purchaser  and  sell 
the  principal  left  in  the  hands  of  his  the  land,  and  the  agent  wrongfully 
agent  an  unused  mortgage  running  filled  in  another's  name,  recorded  the 
to  the  agent  and  he  wrongfully  dis-  deed,  and  sold  to  a  bona  fide  pur- 
posed of  it.  chaser);  Pence  v.  Arbuckle,  22  Minn. 

But  the  transferee  will  not  be  pro-  417    (same    in    effect);     Guthrie    v. 

tected  where  he  has  notice  before  he  Field,  85  Kan.  58,  37  L.  R.  A.  (N.  S.) 

buys  of  the  limited  character  of  the  326    (same   in   effect).     Many  other 

agent's  interest.     Beere  v.  Northern  cases  are  cited  in  Garland  v.  Wells, 

Bank,  1   Alberta   L.  R.    228,  7   West.  15  Neb.  298. 
Rep.  432.  But  otherwise  where  there  was  no 

75  See  Nelson  v.  McDonald,  80  Wis.  authority  to  fill  the  blanks  or  deliver 

605,  27  Am.  St.  Rep.  71  (where  a  wife  the  deed    to   any    one.     Westlake    v. 

executed  a  mortgage  in  blank  as  to  Dunn,  184  Mass.  260,  100  Am.  St  Rep. 

the  property  and  delivered  it  to  her  557. 
husband  to  be  filled  and  he  inserted 

1696 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2125 

thority,  so  that  he  will  be  the  loser  if  the  appearances  to  which  he 
trusted  are  not  real.  This  principle  is  well  illustrated  by  a  case  which 
received  elaborate  consideration  in  the  Court  of  Appeals  of  New 
York.76  There  defendants  bought  of  one  Jeffries,  on  the  2ist  of  Au- 
gust, a  quantity  of  linseed,  and,  at  his  request,  forwarded  to  him  their 
notes  in  payment,  which  he  at  once  pledged  as  collateral  to  a  loan. 
Jeffries  did  not  have  the  linseed  at  the  time,  but  on  the  same  day  he 
contracted  for  the  purchase  of  it  from  the  plaintiffs  and  on  the  24th  by 
false  and  fraudulent  representations,  induced  them  to  deliver  it  to  him 
without  payment.  He  sent  the  linseed  to  the  defendants  on  the  24th  of 
August,  and  on  the  next  day  mailed  them  the  bill  of  lading.  On  the 
27th  of  August,  Jeffries  failed,  not  having  paid  for  the  linseed,  and 
plaintiffs,  on  account  of  the  fraudulent  representations,  rescinded  the 
sale,  and  demanded  the  linseed  of  the  defendants.  Upon  their  refusing 
to  surrender  it,  the  plaintiffs  brought  replevin,  and  were  permitted  to 
recover.  Defendants  assumed  the  position  of  bona  fide  purchasers  for 
value,  and,  claiming  that  they  had  purchased  upon  the  faith  of  the  pos- 
session conferred  by  the  plaintiffs  upon  Jeffries,  invoked  the  principle 
of  estoppel  for  their  protection.  But  the  court  held  that  every  element 
of  estoppel  was  wanting.  At  the  time  defendants  purchased  the  prop- 
erty and  parted  with  their  notes,  Jeffries  had  neither  the  possession  of 
the  property  nor  the  right  of  possession,  nor  had  he  any  documentary 
evidence  of  title,  or  an)'  indicia  of  ownership  or  of  dominion  over  the 
property  of  any  kind.  The  plaintiffs  had  then  done  nothing  to  induce 
the  defendants  to  put  their  faith  in,  or  give  credit  to,  the  claim  of  Jef- 
fries of  the  right  to  sell  the  property.  The  defendants  parted  with  the 
consideration  for  the  seed,  not  upon  the  apparent  ownership  of  Jeffries, 
but  upon  his  assertion  of  a  right  of  which  the  plaintiffs  had  no  knowl- 
edge, and  for  which  they  were  in  no  way  responsible. 

§  2125.  .  .  .  .  Limitations  on  rule  of  McNeil  v.  Tenth  National 
Bank. — It  is,  moreover,  to  be  kept  in  mind  that  in  order  to  make 
the  doctrine  of  such  cases  as  McNeil  v.  Tenth  National  Bank  7T  applic- 
able the  true  owner  must  have  entrusted  the  documents  of  title  for  some 
purpose  to  the  person  through  whose  breach  of  that  trust  the  docu- 
ments have  come  into  the  possession  of  the  holder  who  seeks  protection. 
What  shall  constitute  such  entrusting  is  not  perhaps  capable  of  compre- 
hensive definition ;  but  it  seems  to  include  at  least  the  surrender  of  pos- 
session with  some  power  of  keeping  or  disposing  of  the  documents  in 

76  Barnard  v.  Campbell,  55  N..  Y.  for  rehearing,  58  N.  Y.  73,  17  Am. 
456,  14  Am.  Rep.  289,  s.  c.,  on  motion  Rep.  208. 

77  46  N.  Y.  325,  7  Am.  Rep.  341. 

107  1697 


§    2125] 


THE   LA\V   OF  AGENCY 


[BOOK    IV 


accordance  with  the  directions  then  or  thereafter  to  be  given  by  the 
owner.78  In  McNeil  v.  Tenth  National  Bank  the  transfer  signed  by 
McNeil  in  blank  expressly  declared  that  it  was  made  for  value  re- 
ceived.79 It  was  put  into  the  hands  of  a  professional  dealer  in  such 
securities,  i.  e.,  a  stock-broker  80  and  the  latter  would  have  in  a  certain 
contingency,  i.  e.,  the  failure  of  McNeil  to  repay  the  loan,  the  power  of 
disposing  of  the  securities.  It  is  doubtless  true  that  to  the  maintenance 
of  this  doctrine  not  all  of  these  elements  are  essential ;  though  they  are 
at  least  significant.  The  essential  thing  seems  to  be  the  entrusting  for 

some  purpose  which  may,  under  certain  circumstances,  involve  a  power 

' 


78  in  McNeil  v.  Tenth  National 
Bank,  supra,  the  entrusting  was  not 
simply  for  safe  keeping;  but  in  Scol- 
lans  v.  Rollins,  179  Mass.  346,  88  Am. 
St.  Rep.  386,  a  case  involving  the  gen- 
eral question  now  under  considera- 
tion it  was  said,  per  Holmes,  O.  J. : 
"It  may  be  assumed  that  a  delivery 
of  possession  for  custody  is  a  suffi- 
cient entrusting.  See  Hatfield  v. 
Phillips,  12  Cl.  &  Fin.  343,  360;  s.  o. 
14  M.  &  W.  665,  670."  Hatfield  v.  Phil- 
lips was  a  case  arising  under  the 
Factors'  Acts.  In  Pennsylvania  Rail- 
road Co.'s  Appeal,  86  Pa.  80,  an  in- 
trusting of  the  certificates  endorsed 
in  blank  to  an  agent  for  safe  keeping 
was  held  to  be  within  this  doctrine. 
The  same  was  true  in  Shattuck  v. 
American  Cement  Co.,  205  Pa.  197,  97 
Am.  St.  Rep.  735. 

In  Scollans  *v.  Rollins,  179  Mass. 
346,  88  Am.  St.  Rep.  386,  the  owner 
of  two  certificates  of  indebtedness  of 
the  city  of  Boston,  payable  to  and 
assigned  in  blank  by  W.  S.,  handed 
them  to  brokers  for  safe  keeping. 
The  brokers,  in  the  owners'  presence, 
placed  the  certificates  in  an  envelope 
marked  "Private  Property,"  sealed 
the  envelope  and  placed  it  in  a  safe. 
The  brokers  pledged  the  certificates 
for  their  own  debt  and  on  a  sale  by 
the  pledgee  they  came  into  the  hands 
of  defendant,  a  bona  fide  purchaser. 
Held,  that  there  was  no  entrusting 
of  the  certificates  to  the  broker,  but 
the  transaction  was  a  bailment  of  a 
sealed  envelope.  Holmes,  C.  J., 


thought  there  was  sufficient  evidence 
of  an  intrusting  to  be  submitted  to 
the  jury. 

In  Phillips  v.  Huth,  6  M.  &  W.  572, 
Parke,  B.,  says:  ''Entrusting  with  the 
document  is  essentially  different  from 
enabling  a  person  to  become  pos- 
sessed of  it.  .  .  .  One  who  gives 
another  the  key  of  his  bureau  to  get 
out  one  paper,  may  enable  him  to  pro- 
cure any  other  that  he  pleases  to 
take,  but  does  not  entrust  him  with 
it."  In  Phillips  v.  Huth,  and  Close  v. 
Holmes,  2  M.  &  Rob.  22,  it  was  held 
that  where  a  factor  is  entrusted  with 
a  document  of  title,  by  means  of 
which  he  obtains  another  document, 
but  without  authority  from  his  prin- 
cipal, the  principal  is  not  estopped 
as  against  one  relying  on  such  sec- 
ondary document. 

Under  the  New  York  statute  a  bona 
fide  purchaser  who  relies  upon  any 
document  which  the  factor  has  gotten 
by  means  of  the  document  originally 
intrusted  is  protected.  Cartwright  v. 
Wilmerding,  24  N.  Y.  521. 

7o  In  Rimmer  v.  Webster,  [1902]  2 
Chan.  163,  the  fact  that  the  transfer 
recited  the  payment  of  a  considera- 
tion was  thought  to  be  significant. 

so  In  Shattuck  v.  American  Cement 
Co.,  supra,  the  court,  after  calling  at- 
tention to  the  nature  of  a  stock 
broker's  business,  said:  "The  pre- 
sumption which  would  arise  in  the 
case  of  an  ordinary  agent  or  holder 
is  re-inforced  by  the  nature  of  this 
particular  agent's  business." 


1698 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§ 

t  \*-J      • 

of  use  or  disposition,  and  such  a  use  or  disposition  at  a  time  when  those 
circumstances  reasonably  appear  to  the  taker  to  be  present, — sonije 
clothing  with  the  apparent  ownership  or  an  apparent  agency,  and  a 
taking  in  good  faith  in  reasonable  reliance  upon  that  appearance. 
Something  more  is  involved  than  mere  custody  by  one  who  appears  to 
be  only  a  custodian,  a  servant,  a  carrier,  a  messenger,  and  the  like. 

In  a  later  case  sl  in  the  same  court,  in  which  McNeil  v.  Tenth  National 
Bank  was  distinguished,  the  defendant,  a  corporation  with  outstanding 
certificates  of  stock,  had  received  certain  certificates  endorsed  in  blank 
from  the  owner  who  had  negotiated  the  sale  of  them,  in  order  that  they 
might  be  cancelled  and  new  certificates  issued  to  the  purchaser.  Pend- 
ing this  transfer  the  certificates  were  placed  for  safe  keeping  in  the 
office  safe  of  the  corporation  to  wdiich  a  certain  clerk  of  the  corporation 
had  access  and  to  whom  alone  apparently  was  the  combination  known. 
To  this  clerk  was  ordinarily  confided  the  mechanical  duty  of  filling  out 
new  certificates  and  cancelling  the  old  ones.  On  this  occasion  this 
clerk  made  out  the  proper  new  certificate,  obtained  thereto  the  signa- 
ture of  the  necessary  officers,  and  delivered  it  to  the  new  purchaser, 
but  did  not  cancel,  as  was  his  duty  to  do,  the  old  certificates  lying  in 
the  safe.  A  little  later  he  wrongfully  took  these  uncancelled  certifi- 
cates from  the  safe  and  pledged  them  on  his  own  account  to  the  plain- 
tiff, who  was  in  all  respects  a  bona  fide  purchaser.  It  was  held  that 
the  plaintiff  was  not  entitled  to  recover  of  the  defendant  corporation 
which  repudiated  his  claim  to  any  interest  under  the  certificates.  The 
certificates,  said  the  court,  were  in  the  legal  possession  of  the  company 
and  had  been  wrongfully  abstracted  by  the  clerk.  The  company  never 
placed  them  in  his  possession  or  invested  him  with  the  indicia  of  owner- 
ship. He  had  access  to  the  safe  as  the  mere  servant  of  the  company. 
Even  if  it  could  be  said  that  the  direction  of  the  company  to  the  clerk 
to  cancel  the  certificates  made  him  the  agent  of  the  company  for  that 
purpose,  it  was,  said  the  court,  an  authority  to  destroy  and  not  to  use. 
"His  act  in  abstracting  them  from  the  safe  and  uttering  them  as  valid 
certificates  had  no  relation  to  the  authority  conferred.  It  was  not  an 
act  of  the  same  kind  as  that  which  he  was  authorized  to  perform.  He 
had  no  apparent  authority  to  issue  them  as  genuine  certificates,  because 
he  had  no  authority  to  issue  certificates  for  any  purpose,  and  what  he  did 
was  'a  willful  and  criminal  act,  perpetrated  for  private  gain,  and  not 

si  Knox  v.  Eden  Musee  Co.,  148  N.  souri,  etc.,  R.  Co.,  182  N.  Y.  47,  70  L* 
Y.  441,  51  Am.  St.  Rep.  700,  31  L.  R.  R.  A.  787;  American  Exchange  Nat. 
A.  779.  Bank  v.  Woodlawn  Cemetery,  194  N. 

(Compare  Clarkson  Home  v.  Mis-      Y.  116.) 

1699 


§§    2126,2127] 


THE   LAW   OF   AGENCY 


[BOOK  iv 


connected  with  any  official  authority  or  a  semblance  of  authority  which 
he  possessed  as  the  defendant's  agent.'  " 

§  2126.  Notice  of  principal's  rights  from  descriptive 

words  in  document. — The  rule  of  McNeil  v.  Tenth  National  Bank 
obviously  cannot  apply  where  the  document  shows  upon  its  face,  or 
reasonably  suggests,  that  the  holder  is  merely  an  agent  or  trustee. 
Thus,  while  the  addition  of  the  word  "agent,"  "trustee,"  etc.,  is  often 
to  be  regarded  merely  as  descriptio  personac,  its  use  following  the  name 
of  the  holder  of  a  certificate  of  stock  or  similar  document,  is  held  to  be 
sufficient  to  put  a  transferee  from  such  a  holder  upon  inquiry  as  to 
his  title  and  right  to  thus  transfer  the  document.82 

§  2127.  Rule  of  McNeil  v.  Tenth  National  Bank  does  not 

apply  to  ordinary  chattels. — As  often  pointed  out 83  the  doctrine  of 
McNeil  v.  Tenth  National  Bank  docs  not  apply  to  the  mere  possession 
of  ordinary  chattels  but  only  where  some  document  importing  title 
or  an  unlimited  power  to  transfer  is  intrusted.  The  certificate  of  stock 
is  the  document  most  commonly  represented  in  the  cases,84  but  a  bill 
of  lading  is  often  the  document  ;85  and  warehouse  receipts,  entries,  and 
delivery  orders  may  also  be  documents  within  the  rule.86  A  registered 
city  bond  transferable  only  at  the  office  of  the  city  treasurer,  having 


sa  Where  the  stock  stood  in  the 
name  of  A.,  "trustee."  Shaw  v. 
Spencer,  100  Mass.  382,  97  Am.  Dec. 
107,  1  Am.  Rep.  115;  Duncan  v.  Jau- 
don,  82  U.  S.  165,  21  L.  Ed.  142;  Mc- 
Leod  v.  Despain,  49  Ore.  536,  19  L.  R. 
A.  (N.  S.)  276;  Ford  v.  Brown,  114 
Tenn.  467,  1  L.  R.  A.  (N.  S.)  188; 
Trademen's  Nat.  Bank  v.  Looney,  99 
Tenn.  278.  63  Am.  St.  Rep.  830,  38  L. 
R.  A.  837;  Marbury  v.  Ehlen,  72  Md. 
206,  20  Am.  St.  Rep.  467. 

Where  it  stood  in  the  name  of  A., 
"agent."  Tyson  v.  George's  Creek 
Coal  Co.,  115  Md.  564. 

See  also,  Lang  v.  Metzger,  86  111. 
App.  117;  Hazeltine  v.  Keenan,  54  W. 
Va.  600,  102  Am.  St.  Rep.  953. 

For  cases  involving  administra- 
tors, executors  and  trustees  under 
wills,  see  Wooten  v.  Wilmington,  etc., 
R.  Co.,  128  N.  Car.  119,  56  L,  R.  A. 
615;  Cox  v.  First  Nat.  Bank,  119  N. 
Car.  302;  Lowry  v.  Commercial,  etc., 
Bank,  Taney,  310,  15  Fed.  Gas.  p. 
1040;  Smith  v.  Nashville,  etc.,  R.  Co., 
91  Tenn.  221;  Caulkins  v.  Gas  L.  Co., 


85  Tenn.  685,  4  Am.  St.  Rep.  786. 
For  cases  involving  negotiable  instru- 
ments, see  Dan.  Neg.  Inst., 

§  795a. 

83  E.  g.,  Rogers  v.  Dutton,  182  Mass. 
187. 

s*  See  ante,  §  2119. 

8-1  See  ante,  §  2120. 

se  gee  Henderson  v.  Williams, 
[1895]  1  Q.  B.  521. 

But  not,  it  is  held,  unless  the  prin- 
cipal himself  has  by  them  clothed  the 
agent  with  apparent  ownership  (e.  g., 
not  where  the  agent  having  the  pos- 
session of  the  goods  put  them  into 
his  own  name  without  the  knowl- 
edge or  consent  of  his  principal,  and 
then  used  the  warehouse  receipts  so 
obtained).  Commercial  Bank  v.  Hurt, 
99  Ala.  130,  42  Am.  St  Rep.  38,  19  L. 
R.  A.  701  (see  also,  Worthington  v. 
Vette,  77  Mo.  App.  445);  Hatfield  v. 
Phillips,  12  C.  &  F.  343,  14  M.  &  W. 
665;  Phillips  v.  Huth,  6  M.  &  W. 
572;  Close  v.  Holmes,  2  M.  &  R.  22. 

Under  the  N.  Y.  statute  a  bona  fide 
purchaser  is  protected  who  relies  on 


1700 


CHAP.  VIl]  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL  [§    2128 

upon  its  back  an  assignment  in  blank  executed  and  acknowledged  by 
the  registered  owner,  is  also  such  a  document  in  a  city  where  a  usage 
exists  to  treat  such  bonds  thus  endorsed  and  acknowledged  as  the  prop- 
erty of  the  bearer.87 

But  a  deed  of  lands  with  the  name  of  the  grantee  left  in  blank 
temporarily  entrusted  to  another  for  a  special* purpose,  not  involving 
any  power  to  fill  the  blank  or  deliver  the  deed,  as,  for  example,  to  show 
the  deed  to  an  advisor,  has  been  held  not  to  be  such  a  document  as  the 
rule  in  question  contemplates.88 

§  2128.  Possession  under  the  factors'  acts. — The  subject  now  un- 
der consideration  is  affected  in  England  and  several  of  the  States  89  by 
the  legislation  commonly  known  under  the  general  term  of  Factor's 
Acts  and  to  be  hereinafter  more  fully  considered.  That  legislation 
began  in  England  in  1823  and  after  a  variety  of  changes  culminated 
in  the  Act  of  1889.  Without  going  into  the  details  of  that  Act  here, 
the  keynote  to  it  may  be  found  in  the  following  provision :  "Where  a 
mercantile  agent  is,  with  the  consent  of  the  owner,  in  possession  of 
goods  or  of  the  document  of  title  to  goods,  any  sale,  pledge  or  other 
disposition  of  the  goods  made  by  him,  when  acting  in  the  ordinary 
course  of  business  of  a  mercantile  agent,  shall,  subject  to  the  provi- 
sions of  this  Act,  be  as  valid  as  if  he  were  expressly  authorized  by  the 
owner  of  the  goods  to  make  the  same :  provided  that  the  person  tak- 
ing under  the  disposition  acts  in  good  faith,  and  has  not  at  the  time  of 

any  document  which  the  factor  has  100  Am.  St.  Rep.  557.     But  in  Pence 

gotten  by  means  of  the  primary  docu-  v.  Arbuclde,  22  Minn.  417,  the  owner 

ment.    Cartwright  v.  Wilmerding,  24  of  lands  who  confided  to  another  a 

N.  Y.  521.  blank  form  of  deed  signed,  sealed  and 

In  Farquharson  v.  King,   [1901]   2  acknowledged,  but  with  the  name  of 

K.  B.  697,  a  majority  of  the  English  the    grantee,    the    consideration    and 

Court  of  Appeal  applied  the  doctrine  the  description  in  blank  to  enable  the 

to  a  case  wherein  an  agent  had  by  latter  to  sell  the  land  and  upon  the 

written  instrument  been  given  prac-  sale  to  fill  out  and  execute  the  deed 

tically     unlimited     power    to    make  was  held    to   be    estopped    to    assert 

transfer    orders    for    his    principal's  title  as  against  one  who  in  good  faith 

timber  kept  in  warehouse  with  a  dock  had  relied  upon  the  deed  after  it  had 

company.     But  this  case  was  much  been  fraudulently  filled  out  as  a  con 

criticised  since  it  did  not  appear  that  veyance  by  the  person  to  whom  the 

the  buyer  had  been  mislead  thereby.  blank  form  was  so  entrusted.     Other 

17  L.  Q.  Rev.  347;  2  Columbia  L.  Rev.  similar  cases  are  cited,  ante,  §  2123. 
44;  15  Har.  L.  Rev.  322,  and  it  was  89  Factors'  Acts  have  been  passed 

reversed    in    the    House    of    Lords,  in  Kentucky,  Maine,  Maryland,  Mas- 

[1902]  App.  Gas.  325.  sachusetts,  Missouri,  New  York,  Ohio, 

ST  Scollans  v.  Rollins,  179  Mass.  346,  Pennsylvania,  Rhode  Island,  Wiscon- 

88  Am.  St.  Rep.  386.  sin.      The    Kentucky    act    has    since 

as  Westlake  v.  Dunn,  184  Mass.  260,  been  repealed. 

1701 


§    2129]  THE  LAW  OF  AGENCY  [BOOK   IV 

the  disposition  notice  that  the  person  making  the  disposition  has  not 
authority  to  make  the  same."90  The  New  York  statute  provides  among 
other  things:  "Every  factor  or  other  agent,  intrusted  with  the  posses- 
sion of  any  bill  of  lading,  custom-house  permit,  or  warehouse-keeper's 
receipt  for  the  delivery  of  any  such  merchandise,  and  every  such  factor 
or  agent  not  having  the  documentary  evidence  of  title,  who  shall  be 
entrusted  with  the  possession  of  any  merchandise  for  the  purpose  of 
sale,  or  as  a  security  for  any  advances  to  be  made  or  obtained  thereon, 
shall  be  deemed  to  be  the  true  owner  thereof,  so  far  as  to  give  validity 
to  any  contract  made  by  such  agent  with  any  other  person,  for  the  sale 
or  disposition  of  the  whole  or  any  part  of  such  merchandise,  for  any 
money  advanced,  or  negotiable  instrument  or  other  obligation  in  writ- 
ing given  by  such  other  person  upon  the  faith  thereof."  The  statutes 
in  the  other  states  wherein  this  legislation  has  been  enacted  are  sub- 
stantially similar.  Since  a  fuller  discussion  of  the  effect  of  such  stat- 
utes is  given  in  the  chapter  devoted  to  factors  91  it  is  not  necessary  to  go 
extensively  into  the  matter  here.  It  is  sufficient  for  the  present  pur- 
pose to  observe  that  such  a  statute  may  protect  one  who  deals  with  one 
actually  an  agent,  but  in  ignorance  of  the  fact  that  he  is  merely  an 
agent,92  as  though  he  were  the  real  owner  of  the  goods. 

§  2129.  Principal  may  recover  his  property  appropriated  to  pay- 
ment of  agent's  debts  or  seized  by  agent's  creditors. — As  has  been 
seen,  an  agent  having  property  of  his  principal  in  his  possession  to  be 
disposed  of  by  sale  or  otherwise  for  the  principal's  benefit,  can  not 
lawfully  turn  it  over  to  a  third  person  in  payment  of  a  debt  due  such 
third  person  by  the  agent,  and,  if  he  does  so,  the  principal — unless  he 
may  be  estopped  under  the  principles  of  the  preceding  sections — may 
recover  it.93  The  fact  that  the  principal  also  has  a  right  of  action 
against  the  agent  for  the  wrongful  disposition  of  the  property,  does 
not  prevent  the  principal's  recovery  from  the  third  person  who  has  re- 
ceived it.94 

So  the  property  of  the  principal  in  the  agent's  hands  can  not  be 
taken  by  legal  process  for  the  agent's  debts,  and,  if  so  taken,  the  prin- 

90  For  recent  cases  under  this  act,  72  Md.  164;   People's  Bank  v.  Frick, 

see    Oppenheimer    v.    Attenborough,  13   Okla.  179;    Conklin  v.   Raymond, 

[1907]   1  K.  B.  510;   Oppenheimer  v.  127  N.    Y.    App.    Div.    663,  aff'd,  no 

Frazer,  [1907]  1  K.  B.  519;  Turner  v.  opinion,   197   N.  Y.   509;    Merchants, 

Sampson,  [1911]  27  Times  L.  R.  200.  etc.,  Nat  Bank  v.  Ohio  Valley  Furn. 

si  See  post,  Book  V,  Chap.  IV.  Co.,  57  W.  Va.  625,  70  L.  R.  A,  312; 

92  See  Stevens  v.  Wilson,  3  Denio  Brooms  v.  Neff  Harness  Co.,  79  Ark. 

(N.  Y.),  472.  401;   Fisher  v.  Brown,  104  Mass.  259, 

»s  Thompson  v.   Barnum,  49   Iowa,  6  Am.  Rep.  235. 

392;    First  Nat'l  Bank  v.  Taliaferro,          94  Bertholf  v.  Quinlan,  68  111.  297. 

1702 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2130,  213! 

cipal  may  recover  it.95  Even  though  the  principal  should  allow  the 
legal  title  to  be  in  the  agent's  name  for  some  lawful  purpose,  the  mere 
creditor  of  the  agent,  where  he  could  not  be  deemed  a  purchaser  for 
value,  could  not  hold  against  the  principal.86 

Where,  however,  the  principal  represents  property  as  a  fund  to  be 
relied  upon  in  giving  credit  to  the  agent,  there  is  authority  for  saying 
that  he  may  be  estopped  from  setting  up  his  title  as  against  those  who 
have  given  credit  in  reliance  upon  it.97 

§  2130.  Right  to  recover  securities  wrongfully  released. — Where 
an  agent,  without  authority,  releases  security  belonging  to  his  prin- 
cipal, the  principal  may  recover  it,  and  his  right  of  action  is  not  lost 
by  mere  neglect  to  dissent,  if  not  amounting  to  ratification  or  estoppel. 

Where  an  agent  authorized  only  to  sell  goods  and  take  and  collect 
notes,  surrendered,  before  they  were  due,  certain  notes  running  to  his 
principal  and  took  notes  payable  to  himself,  it  was  held  that  the  prin- 
cipal could  recover  on  the  original  notes.98 

But  where  an  agent  having  authority  to  "assign,  satisfy  and  dis- 
charge" all  mortgages  of  his  principal  in  his  possession,  pledged  and 
assigned  one  to  A,  as  security  for  money  which  he  represented  to  A  he 
was  obtaining  for  his  principal,  but  which  he  used  for  his  own  pur- 
poses, it  was  held  that  A,  having  acting  in  good  faith,  was  not  liable 
over  to  the  principal.99 

§  2131.  Right  to  recover  property  wrongfully  sold  to  third  per- 
son for  the  agent's  benefit. — As  has  been  seen,  an  agent  employed 
to  sell  his  principal's  property,  whether  it  be  real  or  personal,  cannot, 
without  the  principal's  full  knowledge  and  consent,  sell  it  to  himself. 
And  what  he  can  not  thus  do  directly,  he  will  not  be  permitted  to  do 
indirectly.  If  therefore,  the  agent,  in  violation  of  his  duty,  sells  the 

on  Loomis   v.    Barker,    69    111.   360;  201,  61  Am.  St.  Rep.  698;  Johnson  V. 

Farmers'  &  Mechanics'  Bank  v.  King,  Williams,  111  Va.  95. 

57  Pa.  202,  98  Am.  Dec.  215;  Greene  »s  Robinson  v.  Anderson,  106  Ind. 

v.   Haskell,   5  R.  I.  447;    Spencer  v.  152. 

Mali,  87  111.  App.  680.  »o  Chetwood  v.  Berrian,  39  N.  J.  Eq. 
as  Gage  v.  Stimson,  26  Minn.  64.  203.  The  vice-chancellor  based  his 
97  See  Kelly  v.  Scott,  49  N.  Y.  595;  ruling  upon  the  wide  character  of 
Adams  v.  Albert,  155  N.  Y.  356,  63  the  authority  given,  and,  as  the  trans- 
Am.  St.  Rep.  675;  Thayer  v.  Hum-  action  took  place  in  New  York,  upon 
phrey,  91  Wis.  276,  30  L.  R.  A.  549;  the  New  York  rule  as  to  the  declara- 
Van  Kleeck  v.  McCabe,  87  Mich.  599,  tion  by  an  agent  concerning  the  pur- 
24  Am.  St  Rep.  182.  Compare  Broad-  pose  for  which  he  exercises  a  power, 
way  Nat.  Bank  v.  Wood,  165  Mass.  laid  down  in  North  River  Bank  v. 
312;  Himmelreich  v.  Shaffer,  182  Pa.  Aymar,  3  Hill,  262. 


§    2132]  THE  LAW  OF  AGENCY  [BOOK   IV 


property  ostensibly  to  a  third  person,1  or  to  a  third  person  in  conjunc- 
tion with  himself,2  but  in  reality  for  his  own  benefit;  or  if  he  sells  it 
to  a  partnership  of  which  he  is  a  member  ;3  the  sale  is  voidable  at  the 
election  of  the  principal,  and  the  latter  may,  if  he  acts  within  a  reason- 
able time  after  the  facts  have  come  to  his  knowledge,  and  if  the  rights 
of  an  innocent  third  party  have  not  intervened,  avoid  the  sale,  upon  re- 
turning or  tendering  back  the  consideration  received,  and  recover  the 
property  from  such  third  person  or  any  one  to  whom  it  was  conveyed 
with  knowledge  of  the  facts.4  That  the  principal  was  not  injured,  or 
the  property  was  not  sold  under  its  value,5  or  that  it  was  sold  for  the 
price  fixed  by  the  principal,0  does  not,  as  has  been  seen,  defeat  the 
principal's  right. 

4.  Right  to  Recover  for  Torts. 

§  2132.  Principal  may  recover  for  injuries  to  his  interests  by 
third  person's  torts. — For  wrongs  done  or  injuries  committed  by 
third  persons  to  the  property  or  interests  of  the  principal  which  he  has 
committed  to  his  agent,  the  principal  may  ordinarily  recover  in  the 
same  manner  and  to  the  same  extent  as  though  no  agency  had  existed. 
Except  where  the  agent  has  a  special  interest  in  the  subject-matter  of 
the  agency,  the  possession  of  the  agent  is  the  possession  of  the  principal, 
who  may  maintain  actions  based  upon  such  possession.  For  the  main- 
tenance of  those  actions  which  depend  upon  the  right  of  property,  the 
principal's  title  to  the  thing  involved  is,  of  course,  sufficient,  though 
the  actual  custody  may  have  been  confided  to  another. 

Hence  if,  in  the  dealings  through  the  agent,  the  principal  is  injured 
by  the  fraud,  deceit,  negligence  or  trespass  of  third  persons,  he  may 

1  Eldridge  v.  Walker,  60  111.   230;  person  in  secret  trust  for  the  admin- 
see  Haynie  v.  Johnson,  71  Ind.  394;  istrator;  Ives  v.  Ashley,  97  Mass.  198. 
Smith    v.    Tyler,    57    Mo.    App.  668;  Agent's  clerk  can  not  lawfully  pur- 
Webb  v.  Marks,  10  Colo.   App.   429;  chase  and  if  he  does  principal  may 
Hodgson  v.  Raphael,  105  Ga.  480.  compel  him  to  recover  or  account  for 

2  Hughes  v.  Washington,  72  111.  84.  proceeds;  Gardner  v.  Ogden,  22  N.  Y. 

3  Francis  v.  Kerker,  85  111.  190.  327,    78    Am.    Dec.    192.      See    also, 
^Norris  v.  Taylor,  49  111.  17,  95  Am.      Lingke  v.  Wilkinson,  57  N.  Y.  451; 

Dec.  568.  Cheeseman  v.   Sturges,  9  Bosw.    (N. 

s  Lewis  v.   Hillman,   3   H.  L.   Cas.  Y.)    255;    Levy  v.  Brush,  8  Abb.  Pr. 

607;    Trevelyan   v.  Charter,   9   Beav.  N.  S.  431;  Newcomb  v.  Brooks,  16  W. 

140.  Va.  71. 

«  Ruckman  v.  Bergholz,  37  N.  J.  K          Nor  his  partner;    Fulton  v.  Whit- 

437.  ney,  5  Hun    (N.  Y.),  19;    Francis  v. 

Same   principle   was   applied   to   a  Kerker,  85  111.  190. 
sale  by  an  administrator  to  a  third 

1704 


CHAP.  VII ]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


2133 


ordinarily  maintain  his  action  in  the  same  manner  as  though  he  had 
,    ,  . 

dealt  m  person.7 

if 

If  the  agent  has  co-operated  with  the  third  person  in  the  commission 
of  the  injury,  the  principal  may  sue  either  or  both  of  them,8  unless  the 
co-operation  or  consent  of  the  agent  would  be  a  justification  or  excuse 
to  the  third  person. 

§  2133.  For  enticing  agent  away. — A  principal  may  under  many 
circumstances  maintain  an  action  against  a  third  person  who  wrong- 
fully induces  his  agent  to  abandon  his  undertaking.9  Said  Rodman,  J., 


7  Principal  whose  property  has 
been  taken  from  his  agent  by  re- 
plevin, can  retake  it  by  replevin. 
White  v.  Dolliver,  113  Mass.  400,  18 
Am.  Rep.  502.  If  his  goods  consigned 
to  a  factor  for  sale  are  attached  as 
the  property  of  the  factor,  the  prin- 
cipal may  maintain  trespass  against 
the  officer  who  made  the  attachment. 
Holly  v.  Huggeford,  8  Pick.  (Mass.) 
73,  19  Am.  Dec.  303. 

If  his  agent  in  the  purchase  of 
land  was  deceived  by  a  false  entry 
made  by  a  public  officer,  and  the 
principal  thereby  sustains  loss,  the 
principal  may  recover  damages.  Per- 
kins v.  Evans,  61  Iowa,  35. 

An  action  for  fraudulent  represen- 
tations can  be  maintained  by  the 
principal,  although  the  representa- 
tions were  not  made  to  the  principal 
in  person,  but  to  his  agent  acting  for 
him  in  the  matter.  Allen  v.  Adding- 
ton,  7  Wend.  (N.  Y.)  9;  Raymond  v. 
Howland,  12  Wend.  (N.  Y.)  176;  Cul- 
liford  v.  Gadd,  60  N.  Y.  Super.  343, 
aff'd  in  139  N.  Y.  618;  Moore  v.  Havi- 
land,  61  Vt.  58. 

Where  plaintiff's  agent  gave  plain- 
tiff's check  to  defendants  in  payment 
of  rent,  and,  the  check  being  lost,  the 
agent  gave  another  check,  on  defend- 
ants' promise  to  cancel  the  lost  check 
when  found,  but  defendants  wrong- 
fully collected  the  check  when  found, 
held,  plaintiff  can  maintain  trover 
for  the  check.  Mayer  v.  Kilpatrick, 
7  Misc.  (N.  Y.)  689. 

See  also,  Post  v.  Houston  Rice  Mill- 
ing Co.,  35  Tex.  Civ.  App.  642. 


In  Stansell  v.  Cleveland,  64  Tex. 
660,  it  is  held  that  the  principal,  in 
attempting  to  support  and  justify  an 
attachment  issued  upon  an  affidavit 
made  by  his  agent,  as  against  an  ac- 
tion for  malicious  prosecution,  is  en- 
titled to  the  benefit,  not  only  of  his 
own  knowledge  of  the  facts,  but  of 
the  knowledge  of  facts  known  to  his 
agent,  which  would  justify  the  at- 
tachment. 

The  principal  may  sue  in  tort  for 
injuries  caused  to  his  property 
through  the  negligence  of  a  carrier 
transporting  it,  although  the  contract 
for  the  transportation  was  made  by 
the  principal's  agent.  Central  Ry. 
Co.  v.  James,  117  Ga.  832.  Many 
other  cases  where  the  action  was 
brought  in  contract  have  been  cited 
in  a  preceding  section.  Ante,  §  2059. 

Representations  to  one  not  then 
agent— Representations  made  to  A., 
who  was  then  the  agent  of  X.,  can 
not  per  se  be  deemed  representations 
to  Y.,  for  whom  A.  later  becomes 
agent.  Moore  v.  Haviland,  61  Vt. 
58.  It  is  not  difficult,  however,  to 
imagine  cases  in  which  the  contrary 
would  be  the  rule. 

8  Guernsey  v.  Davis,  67  Kan.  378. 

» See  for  example  (this  list  does 
not  purport  to  be  complete) :  Lumley 
v.  Gye,  2  El.  &  Bl.  216,  20  Eng.  Law 
&  Eq.  168;  Hart  v.  Aldridge,  Cowp. 
54;  Gunter  v.  Astor,  4  J.  B.  Moore, 
12;  Glamorgan  Coal  Co.  v.  South 
Wales  Miners  Federation,  [1903]  2 
K.  B.  545,  affirmed  in  [1905]  App. 
Cas.  239;  Read  v.  Friendly  Society  of 


1705 


§  2133] 


THE   LAW  OF  AGENCY 


[BOOK  iv 


in  one  case :  "We  take  it  to  be  a  settled  principle  of  law,  that  if  one 
contracts  upon  a  consideration  to  render  personal  services  for  another, 
any  third  person  who  maliciously,  that  is,  without  a  lawful  justifica- 
tion, induces  the  party  who  contracted  to  render  the  service  to  refuse 
to  do  so,  is  liable  to  the  injured  party  in  an  action  for  damages.  It  need 
scarcely  be  said  that  there  is  nothing  in  this  principle  inconsistent  with 
personal  freedom,  else  we  should  not  find  it  in  the  laws  of  the  freest 
and  most  enlightened  States  in  the  world.  It  extends  impartially  to 
every  grade  of  service,  from  the  most  brilliant  and  best  paid,  to  the 
most  homely,  and  it  shelters  our  nearest  and  tenderest  domestic  rela- 
tions from  the  interference  of  malicious  intermeddlers.  It  is  not  de- 
rived from  any  idea  of  property  by  the  one  party  in  the  other,  but  is 
an  inference  from  the  obligation  of  a  contract  freely  made  by  com- 
petent persons."10 

This  doubtless  cannot  be  regarded  as  an  entirely  accurate  statement 
of  the  rule ;  and  although  there  is  substantial  accord  as  to  cases  involv- 
ing threats,  intimidation,  violence  or  fraud,  there  is  much  difference  of 
opinion  in  other  cases  as  to  what  interference  may  be  justified  or  what 
motive  will  excuse.  The  full  discussion  of  this  question  belongs  to 
the  treatises  upon  Torts,  and  it  cannot  be  exhaustively  considered  here. 


Operative  Stonemasons,  [1902]  2  K. 
B.  732;  Brauch  v.  Roth,  10  Ont.  L.  R. 
284;  Old  Dominion  Steamship  Co.  v. 
McKenna,  30  Fed.  48;  Boyson  v. 
Thorn,  98  Cal.  578,  21  L.  R.  A.  233; 
Chipley  v.  Atkinson,  23  Pla.  206,  11 
Am.  St.  Rep.  367;  Jones  v.  Blocker, 
43  Ga.  331;  Salter  v.  Howard,  43  Ga. 
601;  Employing  Printers'  Club  v.  D. 
Blosser  Co.,  122  Ga.  509,  2  Ann.  Gas. 
694,  106  Am.  St.  Rep.  137,  69  L.  R.  A. 
90;  Doremus  v.  Hennessy,  176  111. 
608,  68  Am.  St.  Rep.  203,  43  L.  R.  A. 
797;  Chambers  v.  Probst,  145  Ky.  381, 
36  L.  R.  A.  (N.  S.)  1207;  Bourlier  v. 
Macauley,  91  Ky.  135,  34  Am.  St.  Rep. 
171,  11  L.  R.  A.  550  (only  when  forci- 
ble or  fraudulent) ;  Dickson  v.  Dick- 
son,  33  La.  Ann.  1261;  Walker  v. 
Cronin,  107  Mass.  555;  Sherry  v.  Per- 
kins, 147  Mass.  212,  9  Am.  St.  Rep. 
689;  Moran  v.  Dunphy,  177  Mass. 
485,  83  Am.  St.  Rep.  289,  52  L.  R.  A. 
115;  Globe,  etc.,  ins.  Co.  v.  Firemen's 
Fund  Ins.  Co.,  97  Miss.  148,  29  L,  R.  A. 
(N.  S.)  869;  Haskins  v.  Royster,  70 
N.  C.  601,  16  Am.  Rep.  780;  Bixby  v. 

1706 


Dunlap,  56  N.  H.  456,  22  Am.  Rep. 
475;  Van  Horn  v.  Van  Horn,  52  N.  J. 
L.  284,  10  L.  R.  A.  184  (procuring 
breach  of  contract  to  sell  goods  to 
plaintiffs),  (see  also,  Frank  v.  Her- 
old,  63  N.  J.  Eq.  443);  De  Jong  v. 
Behrman,  148  N.  Y.  App.  Dlv.  37 
(only  where  defendant  used  "fraudu- 
lent or  other  wrongful  means") ; 
O'Neil  v.  Behanna,  182  Pa.  236,  61 
Am.  St.  Rep.  702,  38  L.  R.  A.  382; 
Huff  v.  Watkins,  15  S.  C.  82,  40  Am. 
Rep.  680;  Daniel  v.  Swearengen, 
6  S.  C.  297,  24  Am.  Rep.  471;  Duckett 
v.  Pool,  34  S.  C.  311;  Brown  Hdw.  Co. 
v.  Indiana  Stoveworks,  96  Tex.  453; 
Raymond  v.  Yarrington,  96  Tex.  443, 
97  Am.  St.  Rep.  914,  62  L.  R.  A.  962 
(contract  not  to  engage  In  business); 
St.  Johnsbury  R.  R.  Co.  v.  Hunt,  55 
Vt.  570,  45  Am.  Rep.  639;  Jones  v. 
Leslie,  61  Wash.  107,  1912  B.  Ann. 
Cas.  1158;  Thacker  Coal  Co.  v.  Burke, 
59  W.  Va.  253,  8  Ann.  Cas.  885,  5  L. 
R.  A.  (N.  S.)  1091. 

«>  In  Haskins  v.  Royster,  supra. 


CHAP.  VII ]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§2134,2135 


The  same  difference  of  opinion  prevails  where  the  attempt  is  to  en- 
join the  interference,  rather  than  to  recover  damages  for  it.11 

§  2134.  For  preventing  agent  from  performing. — For  similar 
reasons  the  principal  may  in  some  cases  recover  against  one  who  by 
wrongful  act,  directly  prevents  the  agent  from  performing  his  under- 
taking, whereby  the  principal  suffers  injury.  Thus  it  has  been  held 
that  a  railroad  company  may  maintain  an  action  against  one  who  ma- 
liciously causes  the  arrest  of  its  engineer  while  running  a  train,  with 
intent  to  delay  the  train  and  injure  the  company.12  So  it  has  been  held 
that  the  master  may  recover  damages  against  one  who  interrupted  the 
rendition  of  the  service  by  imprisoning  the  servant  without  legal  justi- 
fication.18 

§  2135.  For  personal  injury  to  agent  causing  loss  of  service. — So 
it  has  been  held  that  an  action  may  be  maintained  by  the  master 


"  In  the  following  cases  violence, 
threats,  intimidation,  and  opprobri- 
ous language  were  enjoined.  Con- 
nett  v.  United  Hatters,  etc.,  76  N,  J. 
Eq.  202;  Jones  v.  Maher,  62  Misc. 
(N.  Y.)  388  (affirmed  in  125  N.  Y.  S. 
1126);  In  re  McCormick,  132  App. 
Div.  (N.  Y.)  921  (affirmed  in  196  N. 
Y.  571);  Aluminum  Castings  Co.  v. 
Local  No.  84,  etc.,  197  Fed.  221; 
Jonas  Glass  Co.  v.  Glass  Bottle 
Blowers'  Ass'n,  77  N.  J.  Eq.  219,  41 
L.  R.  A.  (N.  S.)  445  (affirming  72 
N.  J.  Eq.  653);  O'Neil  v.  Behanna, 
182  Pa.  236,  61  Am.  St.  Rep.  702,  38 
L.  R.  A.  382. 

See  also,  Badger  Brass  Mfg.  Co.  v. 
Daly,  137  Wis.  601;  Hitchman  Coal  & 
Coke  Co.  v.  Mitchell,  202  Fed.  512. 

In  Tunstall  v.  Steam  Coal  Co.,  192 
Fed.  808,  41  L.  R.  A.  (N.  S.)  453,  the 
payment  of  money  to  induce  servants 
to  leave  the  plaintiffs  employment, 
and  to  keep  others  from  entering  it, 
was  held  not  to  be  within  the  limits 
of  lawful  persuasion  and  was  en- 
joined. Jonas  Glass  Co.  v.  Glass  Bot- 
tle Blowers'  Ass'n,  supra. 

In  Steinert  &  Sons  v.  Tagen,  207 
Mass.  394,  32  L.  R.  A.  (N.  S.)  1013, 
the  defendants  were  enjoined  from 
parading  through  the  city  a  placard 
containing  a  false  statement  to  the 
effect  that  "the  union  teamsters 

1707 


were  on  strike  for  hours  and  wages" 
at  plaintiff's  place  of  business. 

In  Employing  Printers'  Club  v. 
Blosser  Co.,  122  Ga.  509,  106  Am.  St. 
Rep.  137,  2  Ann.  Cas.  694,  69  L.  R.  A. 
90,  the  defendants  were  enjoined 
from  "maliciously"  inducing  plain- 
tiff's employees  to  break  their  con- 
tracts and  leave  the  service. 

Picketing  and  organized  efforts  to 
argue  with  employees  in  order  to  an- 
noy them  and  induce  them  to  leave  or 
to  refuse  employment  have  been  en- 
joined. Jonas  Glass  Co.  v.  Glass  Bot- 
tle Blowers'  Ass'n,  supra;  O'Neil  v. 
Behanna,  182  Pa.  236,  61  Am.  St.  Rep. 
702,  38  L.  R.  A.  382. 

12  St.  Johnsbury,  etc.,  R.  Co.  v. 
Hunt,  55  Vt.  570,  45  Am.  Rep.  639. 

is  Woodward  v.  Washburn,  3  Denio 
(N.  Y.),  369.  In  this  case  the  plain- 
tiff, a  merchant,  sent  one  of  his 
clerks,  an  adult,  to  a  bank  for  the 
purpose  of  presenting  some  notes  for 
redemption.  The  defendant,  who  was 
the  teller  of  the  bank,  locked  the  out- 
side door  and  detained  the  clerk  in 
the  bank  without  any  reason  or  ex- 
cuse, so  far  as  appears,  for  about  a 
half  an  hour.  A  judgment  for  the 
plaintiff  for  nominal  damages  and 
costs  was  sustained. 

See  also,  Gilbert  v.  Schwenck,  14 
Mees.  &  W.  488. 


§  2135] 


THE   LAW  OF  AGENCY 


[BOOK  iv 


against  a  third  person  who  negligently  or  wilfully  inflicts  such  per- 
sonal injury  upon  the  servant  as  disables  him  from  performing  the 
service,  to  the  master's  detriment.14 

This  rule  has  been  applied  in  many  cases  involving  the  seduction 
of  the  servant  and  also  in  many  cases  involving  the  loss  of  a  wife's 
services  by  the  husband  or  a  child's  services  by  the  parent.  In  most 
of  the  cases  arising  in  this  connection,  the  servant  has  been  a  member 
of  the  plaintiff's  family  and  the  service  largely  a  constructive  one,  but 
if  the  theory  of  any  of  the  cases  in  this  and  the  preceding  section  be 
sound,  the  rule  is  not  confined  to  servants  of  that  sort.15 

Where,  however,  the  action  is  really  for  breach  of  a  contract  made 
with  the  agent  or  servant  personally,  the  principal,  who  is  in  no  sense 
a  party  to  it,  can  not,  it  is  held,  recover  damages.18 

is  In  Fluker  v.  Georgia  R.  R.  Co., 
81  Ga.  461,  12  Am.  St  Rep.  328,  2  L. 
R.  A.  843,  plaintiff  sought  to  recover 
not  only  for  an  injury  to  himself  but 
for  an  injury  to  his  servant  It  did 
not  appear,  however,  that  the  service 
was  interfered  with.  The  court  said : 
"It  does  appear,  however,  that  the 
company's  servant,  although  he  did 
not  chase  the  plaintiff  beyond  the 
right  of  way,  pushed  the  matter  fur- 
ther in  dealing  with  the  plaintiff's 
servant.  He  not  only  forced  him  off 
the  right  of  way,  but  across  the 
street  and  to  the  plaintiff's  door. 
This  may  give  a  cause  of  action  to 
the  servant,  but  it  furnishes  none  to 
the  plaintiff;  because  there  was  no 
loss  of  service,  nor  any  impairment 
of  capacity  to  render  service.  And 
for  a  master  to  have  a  right  of  action 
for  an  assault  and  battery  committed 
upon  his  servant,  one  or  both  of 
these  consequences  must  ensue.  Rob- 
ert Marys'  Case,  9  Coke,  113;  Wood's 
M.  &  S.  §  224;  Bigelow  on  Torts,  108; 
1  Minor's  In.  224,  and  authorities 
cited." 

Burgess  v.  Carpenter,  2  S.  C.  7, 
16  Am.  Rep.  643,  as  explained  in 
Daniel  v.  Swearengen,  6  S.  C.  297,  24 
Am.  Rep.  471,  is  not  contra. 

See  also,  Kennedy  v.  Shea,  110 
Mass.  147,  14  Am,  Rep.  584. 

16  Action  will  not  lie  for  loss  of 
services  against  a  carrier  who  has 
negligently  injured  a  servant  as  a 


i*  Robert  Marys'  Case,  9  Coke,  113; 
Dixon  v.  Bell,  5  M.  &  S.  198;  Burden 
v.  Barnett,  7  Ala.  169;  Ames  v.  Union 
Ry.  Co.,  117  Mass.  541,  19  Am.  Rep. 
426. 

In  Louisville,  etc.,  R.  R.  Co.  v.  Wil- 
lis, 83  Ky.  57,  4  Am.  St.  Rep.  124, 
where  a  railroad  company  took  plain- 
tiff's minor  son  on  a  freight  train  as 
a  temporary  brakeman,  during  which 
time  the  son  was  injured,  it  was  said 
that  "if  one  engage  the  servant  of  an- 
other in  an  obviously  dangerous  busi- 
ness, he  renders  himself  responsible 
for  any  injury  the  servant  may  sus- 
tain while  so  engaged,  and  which  can 
rationally  be  attributed  to  the  under- 
taking; and  this  is  so,  even  if  the  in- 
jury results  immediately  from  the 
neglect  or  unskilfulness  of  the  serv- 
ant" "It  is  not  necessary  that  he 
should  have  been  employed  for  wages 
when  the  injury  was  received  in  or- 
der that  the  father  may  recover." 
"The  duty  of  the  father  to  educate 
and  maintain  the  son  entitled  the 
former  to  the  son's  services,  and 
placed  him  in  the  attitude  of  a  mas- 
ter to  him  or  created  the  relation  of 
master  and  servant" 

To  substantially  the  same  effect  is 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 
Redeker,  75  Tex.  310,  16  Am.  St  Rep. 
887;  Sullivan  v.  Union  Pacific  R.  R. 
Co.,  3  Dillon's  Cir.  Ct  Rep.  334;  Mc- 
Carthy v.  Guild,  12  Mete.  (Mass.) 
291. 


1708 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2136 


§  2136.  Third  person  not  liable  to  principal  for  agent's  fraud  or 
neglect — A  third  person,  however,  who  deals  with  an  agent,  is  not 
liable  to  the  principal  for  a  fraud  perpetrated  by  the  agent  upon  his 
principal  in  that  transaction  unless  such  third  person  was  a  party  to 
the  fraud  ;17  nor  does  the  neglect  or  want  of  skill  of  the  agent  in  the 
transaction,  by  which  the  principal  suffers  loss  or  injury,  entitle  the 
principal  to  relief  against  the  other  party  who  has  been  guilty  of  no 
wrong  upon  his  part.18  If  the  principal  does  not  obtain  as  good 'a 


passenger,  the  cause  of  action  arising 
solely  from  the  contract  of  carriage 
and  this  being  with  the  servant  per- 
sonally. Alton  v.  Midland  Ry.  Co., 
19  Com.  B.  (N.  S.)  213;  Fairmount, 
etc.,  Ry.  Co.  v.  Stutler,  54  Pa.  375,  93 
Am.  Dec.  714. 

But  that  the  cause  of  action  in 
such  a  case  as  this  arises  solely  from 
the  contract,  is  at  least  questionable. 
Sir  F.  Pollock  says  that  the  Alton 
case,  supra,  is  "virtually  overruled" 
(Torts,  8th  ed.,  p.  545). 

Compare  Ames  v.  Union  Ry.  Co., 
supra,  where  the  action  was  held  to 
be  maintainable. 

"  Mason  v.  Bauman,  62  111.  76. 

is  Bacon  v.  Markley,  46  Ind.  116. 
Where  the  plaintiff  had  sold  cattle 
to  the  defendant  and  plaintiff's  agent 
by  mistake  delivered  the  wrong  cat- 
tle to  defendant,  the  defendant  is  not 
a  trespasser,  nor  is  he  liable  for  the 
loss  of  one  of  the  cattle  which  died 
without  the  defendant's  fault.  Nap- 
pin  v.  Abbott,  51  111.  App.  615. 

An  agent  who  had  negotiated  a 
loan,  part  of  the  proceeds  of  which 
was  to  be  used  to  pay  off  existing 
liens  upon  the  land,  received  from 
his  principal  a  draft  in  the  bor- 
rower's name  for  the  amount  of  the 
loan.  The  agent  induced  the  bor- 
rower to  endorse  the  draft,  but  re- 
tained it  on  the  pretense  that  he 
would  pay  the  liens  out  of  the 
amount.  Instead  of  doing  so  he  ap- 
propriated the  money  to  his  own  use. 
Held,  that  the  principal  must  bear 
the  loss.  Figley  v.  Bradshaw,  35 
Neb.  337. 

In  Silver  v.  Frazier,  3  Allen 
(Mass.),  382,  81  Am.  Dec.  662,  plain- 


tiff employed  an  agent  to  build  a 
house  for  him  in  a  certain  location 
upon  plaintiff's  land.  Plaintiff  then 
went  abroad  leaving  the  agent  to 
build  the  house.  After  the  agent  had 
proceeded  some  way  with  the  house 
and  incurred  considerable  expense, 
the  defendant,  knowingly  and  falsely, 
as  was  alleged,  induced  the  agent  to 
believe  that  the  boundary  line  ran  so 
near  the  location  selected  that  the 
house  when  erected  would  encroach 
upon  the  neighboring  land,  and  for 
that  reason  to  abandon  that  location, 
sacrifice  the  work  already  done,  and 
erect  the  house  in  a  less  advanta- 
geous position.  Held,  that  the  plain- 
tiff had  no  cause  of  action  against 
the  defendant.  "Stripped  of  its  tech- 
nical language,"  said  the  court,  "the 
declaration  charges  that  the  agent 
employed  by  the  plaintiff  to  do  a 
piece  of  work  disobeyed  the  orders  of 
his  principal,  and  was  induced  to  do 
so  by  the  false  statements  of  the  de- 
fendant. In  other  words,  the  plain- 
tiff alleges  that  his  agent  violated 
his  duty  and  thereby  did  him  an  in- 
jury, and  seeks  to  recover  damages 
therefor  by  an  action  against  a  third 
person,  on  the  ground  that  he  In- 
duced the  agent  by  false  statements 
to  go  contrary  to  the  orders  of  his 
principal.  Such  an  action  is,  we  be- 
lieve, without  precedent.  The  imme- 
diate cause  of  injury  and  loss  to  the 
plaintiff  is  the  breach  of  duty  of  his 
agent.  This  is  the  proximate  cause 
of  damage.  The  motives  or  induce- 
ments which  operated  to  cause  the 
agent  to  do  an  unauthorized  act  are 
too  remote  to  furnish  a  good  ground 
of  action  to  the  plaintiff." 


1709 


THE   LAW   OF   AGENCY 


[BOOK  iv 


bargain,  or  derive  as  much  benefit  from  the  transaction,  as  though  a 
•more  faithful,  skilful,  or  experienced  agent  had  been  employed,  he 
cannot  complain  of  the  other  party  if  the  latter  has  taken  no  undue 
advantage  of  the  agent. 

5.  Remedies  for  Double  Dealing. 

-  §  2137.  How  when  third  person  conspires  with  agent. — As  has 
been  seen  in  the  preceding  section  the  third  person  who  has  been  guilty 
of  no  wrong  is  ordinarily  not  liable  to  the  principal  for  losses  caused 
to  the  latter  by  the  misconduct  or  default  of  his  own  agent.  But  where 
the  third  person  conspires  with  the  agent  to  perpetrate  a  fraud  upon 
the  principal,  he  is  undoubtedly  liable.  So  where  the  third  person,  by 
surreptitious  dealing  with  the  agent,  or  by  corrupting  him  or  leading 
him  astray  from  his  duty,  has  obtained  the  property  of  the  principal, 
•  or  has  secured,  from  the  principal,  contracts,  obligations  or  rights  in 
action,  the  defrauded  principal,  if  he  acts  promptly  and  before  the 
rights  of  innocent  third  parties  have  intervened,  is  entitled  to  recover 
his  property,  and  to  have  the  contracts,  obligations  or  rights  of  action 
rescinded,  or,  if  he  elects  not  to  have  them  rescinded,  to  have  such  other 
adequate  relief  as  a  court  of  equity  may  be  able  to  render  under  the 
circumstances.19 


See  also,  Schultz  v.  McLean,  93  Cal. 
329. 

is  These  principles  are  admirably 
illustrated  In  a  case  in  the  English 
Court  of  Chancery.  Panama,  etc., 
Telegraph  Co.  v.  Indian  Rubber,  etc., 
Co,,  L.  R.,  10  Ch.  App.  515.  In  this 
case  It  appeared  that  a  telegraph 
works  company  had  agreed  with  a 
telegraph  cable  company  to  lay  a 
cable,  to  be  paid  for  by  installments 
on  certificates  by  the  cable  com- 
pany's engineer,  who  was  named  in 
the  contract.  Shortly  afterwards  the 
engineer,  who  was  engaged  to  lay 
other  cables  for  the  works  company, 
entered  into  a  contract  with  them  to 
lay  this  cable  also,  for  a  certain  sum 
to  be  paid  to  him  by  installments  by 
the  works  company  when  they  re- 
ceived the  installments  from  the 
cable  company.  Held,  that  the  agree- 
ment between  the  engineer  and  the 
works  company  was  a  fraud,  which 
entitled  the  cable  company  to  have 
their  contract  rescinded,  and  to  re- 


ceive back  the  money  which  they  had 
paid  under  that  contract. 

Sir  W.  M.  James,  L.  J.  said:  "Ac- 
cording to  my  view  of  the  law  of  this 
court,  I  take  it  to  be  clear  that  any 
surreptitious  dealing  between  one 
principal  and  the  agent  of  the  other 
principal,  is  a  fraud  on  such  other 
principal,  cognizable  in  this  court. 
That,  I  take  to  be  a  clear  proposition, 
and  I  take  it,  according  to  my  view, 
to  be  equally  clear  that  the  defrauded 
principal,  if  he  comes  in  time,  is  en- 
titled, at  his  option,  to  have  the  con- 
tract rescinded,  or,  if  he  elects  not  to 
have  it  rescinded,  to  have  such  other 
adequate  relief  as  the  court  may 
think  right  to  give  him. 

"It  is  said  that  there  is  no  author- 
ity and  no  dictum,  to  that  effect.  The 
clearer  a  thing  is,  the  more  difficult 
it  is  to  find  any  express  authority  or 
any  dictum  exactly  to  the  point.  I 
doubt  whether  there  could  be  found 
any  authority  or  any  dictum  exactly 
laying  down  the  first  of  the  two  prop- 


1710 


CHAP.  VII]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2137 


The  principal  in  such  a  case  may  recover  damages,20  or,  where  the 
agent  could  be  charged  as  a  trustee,  may  recover  from  the  third  per- 


ositions  which  I  have  mentioned,  and 
which  nobody  has,  in  the  course  of 
the  argument,  ventured  to  dispute — 
that  is,  that  any  surreptitious  deal- 
ing between  one  principal  and  the 
agent  for  the  other  principal  is  a 
fraud  on  such  other  principal  cogniz- 
able in  this  court.  The  other  propo- 
sition, as  to  the  relief,  may  perhaps 
not  be  found  stated  in  so  many  terms 
in  any  case  or  in  any  dictum,  but 
many  cases  may  be  suggested  which 
probably  will  be  equally  without  any 
authority,  either  in  decision  or  dic- 
tum. If  a  man  hired  a  vetturino  to 
take  him  from  one  place  to  another, 
and  found  that  the  vetturino,  after 
he  had  accepted  the  hiring,  had  con- 
spired with  his  servant  to  rob  him 
on  the  way,  he  would  be  entitled  to 
get  rid  both  of  the  vetturino  and  the 
servant.  So,  if  a  man  sits  down  to  a 
tavern  or  osteria  to  play  at  cards  or 
dice  with  another  man  for  a  stake, 
and  finds  that  his  opponent  has  pro- 
vided himself  with  cogged  dice  or 
marked  cards,  the  man  would  be  im- 
mediately entitled  to  leave  the  table, 
and  would  not  be  obliged  to  procure 
proper  cards  or  honest  dice.  I  am 
not  aware,  however,  of  any  express 
decision  on  either  of  the  cases  I  have 
suggested. 

"I  am  of  opinion  that  where  any- 
thing in  the  nature  of  a  fraud  in  the 
eye  of  this  court  is  committed,  a  man 
has  the  right  at  once  to  sever  the  con- 
nection; and  I  cannot  bring  my  mind 
to  doubt,  that  if  you  find  a  case 
where,  in  the  contemplation  of  this 
court,  a  principal  is  conspiring  with 


the  servant  of  the  other  principal  to> 
cheat  his  master  in  the  execution  of  a 
contract,  then  in  common  sense,  com- 
mon justice,  common  honesty,  and  in; 
this  court,  the  master  is  entitled  to 
say,  'I  will  have  nothing  more  to  do 
with  the  business;'  and  in  this  court 
a  surreptitious  sub-contract  with  the 
agent  is  regarded  as  a  bribe  to  him 
for  violating  or  neglecting  his  duty." 

Sir  G.  Mellish,  L.  J.,  said:  "I  am 
not  quite  certain  that  I  go  the  full 
length  to  which  the  Lord  Justice  has 
gone  in  thinking  that,  because  a  per- 
son has  been  party  to  a  fraudulent 
act  of  this  kind  after  the  contract  was 
made,  the  mere  fact  of  his  having 
been  guilty  of  such  fraudulent  con- 
duct, supposing  that  a  full  remedy 
for  the  fraud  could  be  otherwise  ob- 
tained, would  entitle  the  other  party 
to  say,  'Because  you  acted  fraudu- 
lently, therefore  I  will  have  nothing, 
more  to  do  with  you,  and  I  will  not 
carry  out  my  contract  with  you.'  I 
am  not  aware  of  any  authority  which, 
has  gone  to  that  extent.  As  far  as  I 
know,  the  consequence  of  fraud  is, 
that  the  court  will  see  that  the  party 
defrauded  obtains,  as  far  as  can  be 
given,  full  redress  for  the  fraud,  and 
I  have  thought  it,  therefore,  neces- 
sary on  this  part,  of  the  case  to  con- 
sider whether  the  plaintiffs  could  be 
relieved  from  the  consequences  of 
this  fraud  by  anything  short  of  the 
relief  which  the  Vice-Chancellor  has 
given  to  them. 

"Now  I  do  not  think  it  necessary  to 
give  a  conclusive  opinion  whether  at 
law  there  would  be  a  defense  on  the 


20  See  Mayor  of  Salford  v.  Lever,      person  fraudulently  induces  an  agent 
supra;  Exchange  Teleg.  Co.  v.  Greg-      to  deceive  his  principal,  to  the  detri- 


ory,  [1896]  1  Q.  B.  147;  Nathan  v. 
Blakes,  [1904]  Transv.  L.  R.  S.  C.  626 
(where  it  is  said,  "Clearly  it  is  the 
law  of  England,  and  I  think  it  is  also 
law  in  this  country,  that  if  a  third 


ment  of  the  latter  and  to  his  own 
benefit,  then  he  is  liable  for  any  dam- 
ages which  the  principal  may  suf- 
fer"). 


I7H 


§  2137] 


THE   LAW   OF  AGENCY 


[BOOK  iv 


son  what  by  such  collusion  he  has  received  from  the  agent.21     Sums 
obtained  from  the  principal  through  the  bribery  or  corruption  of  the 


ground,  that  by  the  act  of  the  defend- 
ants, the  performance  of  the  contract 
has  been  rendered  impossible.  No 
doubt  it  is  a  clear  principle  of  law, 
that  if  by  any  act  of  one  of  the  par- 
ties, the  performance  of  a  contract  is 
rendered  impossible,  then  the  other 
side  may,  if  they  choose,  rescind  the 
contract,  and,  certainly,  according  to 
the  case  of  Planche  v.  Colburn,  8 
Ring.  14,  and  other  cases,  it  appears 
sufficient  if  the  contract  cannot  be 
performed  in  the  manner  stipulated, 
though  it  may  be  performed  in  some 
other  manner  not  very  different. 
Still  there  may  be  a  question  of  law 
in  a  case  of  this  kind  as  to  how  far 
the  certificate  of  the  engineer  would 
be  considered  so  much  of  the  essence 
of  the  contract  that  the  plaintiffs, 
having  been  deprived  of  that,  would 
be  entitled  at  law  to  rescind  the  con- 
tract. But  whether  it  is  so  or  not,  I 
am  clearly  of  opinion  that  if  by  any 
fraudulent  misconduct  of  the  defend- 
ants in  entering  into  an  agreement 
with  Sir  Charles  Bright,  which  had 
the  effect  of  making  it  impossible  to 
keep  him  as  a  disinterested  engineer 
—if  by  that  it  is  rendered  impossible 
that  the  plaintiffs  can  have  the  full 
benefit  of  the  contract,  then  it  ap- 
pears to  me  that  there  is  sufficient  to 
enable  them  to  rescind  the  contract." 


See  also,  Atlee  v.  Fink,  75  Mo.  100, 
42  Am.  Rep.  385,  where  an  agreement 
secretly  made  by  a  lumber  dealer 
with  one  employed  to  supervise  the 
erection  of  buildings  for  another  and 
to  pass  upon  accounts  for  materials, 
but  not  to  make  purchases,  by  which 
the  lumber  dealer  agreed  to  pay  him 
a  commission  on  sales  made  to  the 
employer  through  his  influence,  was 
held  void  as  against  public  policy. 

So  where  a  secret  gratuity  is  given 
to  an  agent  with  the  intention  of  in- 
fluencing his  mind  in  favor  of  the 
giver,  and  the  agent,  on  subsequently 
entering  into  a  contract  with  such 
giver  on  behalf  of  his  principal,  is 
actually  influenced  by  the  gratuity  in 
assenting  to  stipulations  prejudicial 
to  the  interests  of  his  principal,  al- 
though the  gratuity  was  not  given 
with  direct  relation  to  that  particular 
contract,  the  transaction  is  fraudu- 
lent as  against  the  principal  and  the 
contract  is  voidable  at  his  option. 
Smith  v.  Sorby,  3  Q.  B.  Div.  552. 
Even  though  the  agent  was  not  in 
fact  influenced  against  his  principal's 
interests,  the  contract  is  corrupt. 
Harrington  v.  Victoria  Graving  Dock 
Co.,  3  Q.  B.  Div.  549. 

In  Mayor,  etc.,  of  Salford  v.  Lever, 
[1891]  1  Q.  B.  D.  168,  the  plaintiffs, 
who  were  proprietors  of  gasworks, 


21  In  Grant  v.  Gold,  etc.,  Syndicate, 
(1900]  1  K.  B.  233,  an  owner  of  land 
arranged  with  a  person  who  was 
really  the  agent  of  a  corporation, 
though  the  owner  did  not  then  know 
it,  to  pay  him  a  commission  for  the 
sale  of  the  land.  The  agent  arranged 
a  sale  to  his  principal,  but  before  the 
contract  was  made  the  owner  became 
aware  of  the  agency,  but  the  sale  was 
then  consummated.  Held,  that  the 
corporation  could  recover  from  the 
agent  so  much  of  the  commission  as 
had  been  paid  to  him  and  from  the 


owner  the    balance    of    the    amount 
agreed  to  be  paid. 

Where  an  agent  fraudulently  col- 
ludes with  a  third  person  to  make  a 
joint  purchase  of  the  principal's  land, 
at  an  inadequate  price,  which  the 
agent  induces  by  misrepresentation 
and  concealment,  and  the  land  is 
then  sold  to  a  bona  fide  purchaser, 
both  the  agent  and  his  confederate 
may  be  charged  as  trustees  of  the 
amount  received  in  excess  of  the  sum 
they  paid  the  principal.  Waterbury 
v.  Barry,  145  N.  Y.  App.  Div.  773. 


1712 


CHAP.  VIl]          LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL 


[§    2137 


agent,  may  be  recovered  from  the  third  person  though  he  has  paid  or 

given  them  to  the  agent.22 

' 


had  a  manager  whose  duty  it  was  to 
examine  tenders  for  the  supply  of 
coal  and  advise  the  plaintiffs  thereon. 
This  manager  entered  into  a  contract 
with  defendant  coal  dealers  that  they 
should  add  one  shilling  a  ton  to  their 
offers  of  coal;  that  he  would  advise 
plaintiffs  to  accept  the  tenders,  and, 
if  they  did  so,  defendants  were  to  pay 
the  manager  the  extra  shilling  per 
ton.  This  was  carried  out  on  a  large 
scale  before  it  was  discovered,  and 
the  defendant  paid  the  manager  the 
sums  agreed  upon.  Upon  discovery 
of  the  fraud  plaintiff  arranged  with 
their  manager  to  assist  them,  by  giv- 
ing the  necessary  information  and  evi- 
dence, to  bring  actions  against  the 
defendant  for  the  recovery  of  dam- 
ages for  the  loss  sustained  by  the 
plaintiffs  in  consequence  of  the 
frauds,  and  also  to  make  certain  de- 
posits to  secure  them.  After  the 
agreement  had  been  entered  into  and 
the  securities  deposited,  the  plaintiffs 
brought  this  action  against  the  de- 
fendant to  recover  the  additional  one 
shilling  per  ton  paid  to  him  for  the 
coal  supplied.  It  was  contended  by 
the  defendant  that  the  plaintiffs' 
cause  of  action  was  for  a  tort  com- 
mitted by  the  defendants  and  the 
manager  jointly,  and  that  the  agree- 
ment between  the  plaintiffs  and  the 
manager,  coupled  with  the  deposit  of 
the  securities  by  the  latter,  amounted 
to  a  discharge  of  the  manager,  and 
consequently  operated  to  discharge 


the  defendants  also.  Held,  by  the 
Court  of  Appeal  (affirming  the  judg- 
ment of  the  Queen's  Bench  Division), 
that  the  facts  relied  on  afforded  no 
defense  to  the  action.  Approved  and 
followed  in  the  similar  case  of  Kuntz 
v.  Tonnele,  80  N.  J.  Eq.  373. 

In  Hegenmyer  v.  Marks,  37  Minn. 
6,  5  Am.  St.  Rep.  808,  where  an 
owner  of  land,  authorized  an  agent 
to  sell  it  so  that  it  should  bring  a 
specified  net  sum  to  her;  he  to  have, 
as  commission,  all  above  that  sum  for 
which  he  might  sell  it,  and  he  con- 
cealed from  the  principal  facts  which 
greatly  enhanced  its  value,  and  sold 
it  to  a  purchaser  who  knew  of  th? 
facts  for  a  large  price,  it  was  held 
that  the  sale  was  voidable,  and  that 
the  principal  was  obliged  to  tender 
to  the  buyer  on  rescinding,  only  what 
the  principal  received  from  the  agent 
and  not  what  the  buyer  paid  the 
agent. 

In  Shipway  v.  Broadwood,  [1899]  1 
Q.  B.  369,  defendant,  having  employed 
P.  to  buy  a  pair  of  horses  for  him, 
agreed  to  purchase  horses  of  the  plain- 
tiff, if  P.  certified  to  their  soundness. 
P.  so  certified,  and  defendant  gave 
his  check  for  the  price,  but,  it  appear- 
ing that  the  horses  were  unsound  and 
that  P.  had  assented  to  an  offer  of  a 
bribe  by  plaintiff,  defendant  stopped 
payment.  Held,  plaintiff  cannot  re- 
cover in  an  action  on  the  check. 

See  also,  Bollman  v.  Loomis,  41 
Conn.  581;  Western  Union  Tel.  Co.  v. 


22  The  ascertained  amount  of  bribes 
given  by  the  seller  of  property  to  the 
buying  agent  of  the  purchaser  may  be 
recovered  by  the  purchaser  from  the 
seller.  Mayor  of  Salford  v.  Lever, 
supra.  The  court  will  not  inquire 
into  the  motive  of  the  seller  and  it 
will  be  conclusively  presumed  that 
the  agent  was  influenced  by  the  bribe. 
108 


Hovenden  v:  Millhoff,  83  L.  T.  41  C.  A. 
It  is  not  necessary  to  prove  that  the 
price  of  the  goods  to  the  purchaser 
has  been  enhanced  by  the  bribes. 
Cohen  v.  Kuschke,  83  L.  T.  102;  Grant 
•  v.  Gold,  etc.,  Syndicate,  supra,  and 
Mayor  of  Salford  V.  Lever,  supra, 
were  relied  upon. 


§  2137] 


THE   LAW  OF  AGENCY 


If  the  agent  is  under  disabilities  as  to  his  action,  either  during  or 
after  the  termination  of  the  agency,  e.  g.,  not  to  disclose  trade  secrets 
or  other  confidential  information,  not  to  carry  on  a  competing  business, 
and  the  like,  third  persons  who  collude  with  the  agent  to  violate  his 
duty  may  be  restrained  as  well  as  he.23 

As  has  been  pointed  out  in  an  earlier  chapter  and  held  in  many 
cases,  a  third  person  who  colludes  with  the  agent  to  defraud  the  prin- 
cipal is  not  entitled  to  the  benefit  of  the  general  rule  that  notice  to  an 


Railroad  Co.,  1  McCrary  (U.  S.  C.  C.), 
418;  Miller  v.  Louisville,  etc.,  R.  R. 
Co.,  83  Ala.  274,  3  Am.  St.  Rep.  722; 
Henninger  v.  Heald,  52  N.  J.  Eq.  431; 
Guernsey  v.  Davis,  67  Kan.  378;  Cun- 
ningham v.  Holcomb,  1  Tex.  Civ.  App. 
331;  Societe  des  Mines  v.  Mackintosh, 
5  Utah,  568;  Jacobs  v.  George,  2  Ariz. 
93;  Nathan  v.  Blake,  [1904]  Trans- 
vaal L.  R.  626;  note  to  Potter's  Appeal, 
7  Am.  St.  Rep.  280. 

In  Pommerenke  v.  Bate,  3  Saskat- 
chewan L.  R.  417,  the  plaintiff  em- 
ployed B.  as  his  agent  to  secure  a 
purchaser  for  land.  B.  approached 
C.,  who  expressed  a  willingness  to 
purchase  on  the  plaintiff's  terms.  B. 
being  desirous  of  securing  part  of  the 
land  for  himself,  interested  M.,  who 
consented  to  advance  the  price  of  one 
half  the  land,  B.  agreeing  to  give  M. 
an  interest  in  one-fourth  of  the  en- 
tire tract.  B.  then  went  to  C.  and  re- 
fused to  complete  the  sale  unless  C. 
would  give  B.  one-half  interest,  title 
being  taken  in  C.'s  name.  The  trans- 
action was  completed  and  the  land 
resold  at  a  large  advance.  In  this 
action  against  B.,  C.  and  M.,  the 
plaintiff  seeks  to  recover  the  profits 
of  the  resale.  M.  had  entered  upon 
the  transaction  not  knowing  that  B. 
was  interested  in  the  original  pur- 
chase from  his  principal,  but  believ- 


ing that  he  had  made  a  repurchase 
from  C.  Held,  that  B.  had  derived 
profit  by  breach  of  trust  with  princi- 
pal, and  th  t  C.  was  in  partnership 
with  him,  and  therefore  the  plaintiff 
could  recover  the  profit  made  by  both. 
Since  the  defendant  M.  had  no  knowl- 
edge of  the  breach  of  trust  when  he 
acquired  his  interest  there  could  be 
no  recovery  as  to  him. 

In  Ashley  v.  Schmalinski,  46  La. 
Ann.  499,  plaintiff  and  defendant  ap- 
pointed agents  respectively  to  sell 
their  land.  Plaintiff's  agent  con- 
ceived the  idea  of  exchanging  plain- 
tiff's land  for  defendant's  and  recom- 
mended that  plaintiff  employ  defend- 
ant's agent,  not  knowing  him  to  be 
such,  to  examine  and  report  on  de- 
fendant's land.  This  was  done  and 
the  plaintiff  was  induced  by  this 
fraudulent  report  to  make  the  ex- 
change. Defendant  knew  the  fraud 
was  being  practiced  on  plaintiff  by 
the  agents  and  gave  the  plaintiff's 
agent  a  tract  of  land,  apparently  as  a 
bribe.  Held,  that  the  plaintiff  could 
rescind  the  contract  and  recover  the 
land. 

Waite  v.  City  of  Santa  Cruz,  89  Fed. 
619;  Scripture  v.  Scottish  American 
Mortgage  Co.,  20  Tex.  Civ.  App.  153; 
Societe  des  Mines,  etc.  v.  Mackintosh, 
5  Utah,  568. 


23  Thus  in  Summers  v.  Boyce,  97 
L.  T.  505,  where  the  plaintiffs'  travel- 
ing salesman,  under  a  written  con-- 
tract  not  to  divulge  secrets  of  their 
business,  was  induced  to  enter  the 
employ  of  the  defendant,  a  competi- 
tor of  plaintiff,  and  to  use  lists  of  the 


plaintiff's  customer  for  defendant's 
advantages  in  breach  of  his  contract 
with  plaintiff.  Held,  the  defendant 
was  liable  in  damages,  and  an  injunc- 
tion should  issue  restraining  further 
breach. 


1714 


CHAP.  VIl]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2138,  2139 

agent  is  notice  to  his  principal  in  order  to  impute  to  the  principal 
knowledge  of  the  agent's  fraudulent  acts.24 

§  2138.  How  when  agent  in  secret  employment  of  the  other 
party. — As  has  already  been  seen  in  an  earlier  chapter,  an  agent 
who  is  relied  upon  to  exercise,  in  behalf  of  his  principal,  his  skill,  judg- 
ment, knowledge  or  influence,  will  not  be  permitted  without  such  prin- 
cipal's full  knowledge  and  consent,  to  undertake  to  represent  the  other 
party  also  in  the  same  transaction.25  Such  conduct  is  a  fraud  upon  his 
principal,  and  not  only  will  the  agent  not  be  entitled  to  compensation  for 
services  so  rendered,26  but  the  contract  or  dealings  made  or  had  by 
the  agent,  while  so  acting  also  for  the  other  party  without  the  knowl- 
edge or  consent  of  the  principal,  are  not  binding  upon  the  latter,  and 
if  they  still  remain  executory,  he  may  repudiate  them  on  that  ground, 
or,  if  they  have  been  executed  in  whole  or  in  part,  he  may  by  acting 
promptly  and  before  the  rights  of  innocent  parties  have  intervened, 
restore  the  consideration  received,  rescind  the  contract  and  recover 
back  the  property  or  rights  with  which  he  has  parted  under  it.27 

It  makes  no  difference  that  the  principal  was  not  in  fact  injured,28  or 
that  the  agent  intended  no  wrong,  or  that  the  other  party  acted  in 
good  faith;  the  double  agency  is  a  fraud  upon  the  principal  and  he  is 
not  bound.29 

§  2139.  The  situation  here  seems  to  be  this:  If  my  agent 

enters  into  your  employment  without  your  knowledge  of  and  consent 
to  the  double  agency,  yon  may  repudiate  because  you  were  entitled  to 
have  a  free  and  unprejudiced  agent.  Similarly,  if  your  agent  enters 

24  See  ante,  §  1826.  Iowa,    447;     Hunter    Realty    Co.    v. 

25  See  ante,  §§  1190  et  seq.,  1206.  Spencer,  21  Okla.  155,  17  L.  R.  A.  (N. 

26  See  ante,  §§  1588  et  seq.  S.)  622;  Hoerling  v.  Lowry,  58  Wash. 

27  Mercantile  Ins.  Co.  v.  Hope  Ins.  426;  Donovan  v.  Campion,  29  C.  C.  A. 
Co.,  8  Mo.  App.  408;  Utica  Ins.  Co.  v.  30,  85  Fed.  71;  Pindlay  y.  Pertz,  13  C. 
Toledo  Ins.  Co.,  17  Barb.  (N.  Y.)  132;  C.  A.   559,  66  Fed.  427^  29  L.  R.  A. 
Herman  v.  Martineau,  1  Wis.  151,  60  188. 

Am.  Dec.  368;  Wassell  v.  Reardon,  11  Specific  performance. — Such  double 

Ark.  705,  54  Am.  Dec.  245;  Harrison  agency  will  be  a  good  defense  to  a  bill 

v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  for   specific   performance.     Marsh   v. 

435;    Switzer  v.  Skiles,  3  Gilm.   (111.)  Buchan,  46  N.  J.  Bq.  595. 

529,  44  Am.  Dec.  723;   Fish  v.  Leser,  28  New  York  Central  Ins.  Co.  v.  Na- 

69  111.  394;   Empire  State  Ins.  Co.  v.  tional  Ins.  Co.,  supra;  Black  v.  Miller, 

Am.  Central  Ins.  Co.,  138  N.  Y.  446;  71  111.  App.  342. 

New  York  Central  Ins.  Co.  v.  Na-  29  See  Truslow  v.  Parkersburg 
tional  Protection  Ins.  Co.,  14  N.  Y.  Bridge,  etc.,  Co.,  supra;  Shirland  v. 
85;  Shirland  v.  Monitor  Iron  Works  Monitor  Iron  Works  Co.,  supra;  Em- 
Co.,  41  Wis.  162;  Truslow  v.  Parkers-  pire  State  Ins.  Co.  v.  Am.  Cent.  Ins. 
burg  Bridge,  etc.,  Co.,  61  W.  Va.  628;  Co.,  supra:  United  States  Rolling 
Wiruth  v.  Lashmett,  82  Neb.  375,  29  Stock  Co.  v.  Atlantic,  etc.,  R.  R.  Co., 
L.  R.  A.  188;  Young  v.  Goodhue,  106  34  Ohio  St.  450,  32  Am.  Rep.  380. 

I/I5 


§  2139] 


THE   LAW  OF  AGENCY 


[BOOK  iv 


into  my  employment  without  my  knowledge  of  the  double  relation,  I 
may  repudiate.80  If  my  agent  enters  into  your  employment,  with  your 
knowledge  and  consent,  but  without  mine,  I  may  repudiate4  because 
you  have  practically  seduced  and  corrupted  my  agent.  You  are  an 
accomplice.  If  your  agent  enters  my  employment,  with  my  knowledge 
and  consent  but  without  yours,  you  may  repudiate  for  the  same  rea- 
son. These  cases  are  not  difficult.31 

Again,  if  my  agent  enters  your  employment,  without  your  actual 
knowledge  and  consent  so  that  you  are  not  an  accomplice,  but  yet  deal- 
ings result  because  of  your  negligence,  I  may  repudiate  his  acts,  be- 
cause you  can  not  be  permitted  to  profit  where  you  were  the  negligent 
instrument  of  the  betrayal  of  my  interests  by  my  agent.32 

But  the  most  difficult  question  is  this : — If  my  agent  enters  your  em- 
ployment without  your  knowledge  and  without  any  negligence  on  your 
part,  may  I  repudiate  ?  To  permit  me  to  do  so,  it  is  obvious,  is  to  per- 
mit me  to  take  advantage,  against  a  perfectly  innocent  party,  of  the 
misconduct  of  my  own  agent.  The  rule  is  often  stated  broadly  enough 
to  cover  this  case  also,  though  it  is  not  so  easy  to  see  upon  what  grounds 
it  is  based.  The  practical  foundation  for  the  rule  in  this  case,  if  it  ap- 


so  A  fortiori  is  this  true  where  you 
have  arranged  to  get  your  agent  into 
my  employment  for  the  purpose  of 
afterwards  using  him  to  your  advan- 
tage. Erlanger  v.  New  Sombrero 
Phosphate  Co.,  L.  R.  3  App.  Gas.  1218. 
Many  cases  in  corporations  have  fol- 
lowed this  one. 

31  Principal      who     selects     agent 
knowing  that  he  is  then  the  agent  of 
the    opposite    party,    cannot    himself 
disaffirm    dealings   on    that   account. 
Fitzsimmons  v.  Southern  Express  Co., 
40  Ga.  330,  2  Am.  Rep.  577. 

32  Thus  in  New  York  L.  Ins.  Co.  v. 
Fletcher,  117  U.  S.  519,  29  L.  Ed.  934, 
the   agent  of  a   life   insurance  com- 
pany,  in   filling   out  an   application, 
put  in  false  answers  favorable  to  the 
applicant.      The    applicant    did    not 
know   this,   but   signed    the   applica- 
tion   without    reading    it,    although 
he    knew    the  'application    was    the 
basis    of    the    contract,    and  a  copy 
of     it     was     attached     to     the     pol- 
icy  when   issued.    It  was   held   that 


there  could  be  no  recovery  on 
the  policy.  If  the  applicant  had 
known  of  the  false  answers,  he  could 
not  recover.  It  was  inexcusable  neg- 
ligence in  him,  under  the  circum- 
stances, not  to  read  the  application. 
If  the  applicant  had  known  that  the 
agent  was  seeking  to  defraud  his 
principal  for  the  applicant's  benefit, 
the  applicant  would  have  been  an  ac- 
complice; to  permit  him  to  recover 
would  be  to  make  him  the  negligent 
instrument  of  a  fraud  upon  the  prin- 
cipal. Ryan  v.  World  Mut.  L.  Ins.  Co., 
41  Conn.  168,  19  Am.  Rep.  490,  was 
strongly  relied  upon.  American  Ins. 
Co.  v.  Neiberger,  74  Mo.  167;  Richard- 
son v.  Maine  Ins.  Co.,  46  Me.  394,  74 
Am.  Dec.  459,  were  also  cited.  Al- 
though there  is  wide-spread  dissent 
in  the  state  courts  from  the  particu- 
lar application  of  the  principle  here 
made,  that  fact  does  not  affect  the 
soundness  of  the  general  principle  it- 
self. 


1716 


CHAP.  VII]       LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL       [§§  2140,  214! 

plies,  must  doubtless  be  found  by  approaching  the  matter  from  the  stand- 
point of  the  other  party,  namely,  in  the  conviction  that  not  even  an  in- 
nocent third  party,  who  is  also  the  principal  of  the  same  agent,  may  be 
allowed  voluntarily  to  retain  benefits  or  advantages  which  came  to  him 
only  through  the  act  of  his  agent  and  as  the  result  of  that  same  agent's 
perfidy  to  his  other  principal. 

§  2140.  One  of  two  principals  not  liable  to  other  for  defaults  of 
their  common  agent  Where  two  or  more  principals  employ  the. 
same  agent,  whether  as  a  means  of  dealing  with  one  another  or  to  pro- 
tect their  common  interests,  one  can  not  charge  the  other  not  actually 
at  fault  with  the  misconduct  of  the  common  agent.  The  latter  owes 
no  more  duty  to  one  than  to  the  other ;  each  of  the  principals  is  under 
an  equal  duty  to  supervise  the  agent  and  to  protect  his  own  interest, 
and  there  is  no  reason  why  the  misconduct  of  the  agent  should  be  im- 
puted to  one  principal  rather  than  to  the  other.33  If  the  agent  loses 
or  misapplies  funds  in  which  they  are,  equally  interested,  the  loss  must 
fall  upon  them  both  equally.34 

6.  Conclusiveness  upon  Principal  of  Judgment  against  Agent. 

§  2141.  Principal  not  bound  by  judgment  respecting  property 
rights  against  agent  in  action  to  which  he  was  not  a  party. — A  prin- 
cipal and  his  agent  are  not  in  privity  with  each  other  respecting  prop- 
erty rights,  and  a  judgment  against  the  agent  cannot  settle  the  rights1 
of  the  principal,35  if  he  is  not  made  a  party  to  the  action  in  which  it 
was  obtained,  and  has  not  intervened  or  appeared  therein.30  Hence  it 

33  See  Murdock  v.  Clarke,  90  Cal.  Watkins,  62  Mo.  App.  502;  Rhoades  v. 
127;  Nevada  Nickel  Syndicate  v.  Na-  McNulty,  52  Mo.  App.  301.     See  also, 
tional  Nickel  Co.,  96  Fed.  133;   Blair  Bailey  v.  Sundberg,  1  C.  C.  A.  387,  49 
v.  Baird,  43  Tex.  Civ.  App.  134;  Brown  Fed.  583. 

v.  St.  John  Trust  Co.,  71  Kan.  134;  Ins-          No  privity  of  title  can  be  Inferred 

ley  v.  Shire,  54  Kan.  793,  45  Am.  St.  between  A.  and  B.  merely  because  A. 

Rep.  308.  had  attended  and  acted  as  agent  for 

34  Schiek   v.    Warren   Mtg.    Co.,  86  B.  in  a    trial    relating    to    the  same 
Kan.  812,  Ann.  Gas.  1913  C.  466  (case  property  between  B.  and  the  present 
where  a  common  agent  to  receive  and  defendants.    Fogg  v.  Plumer,  17  N.  H. 
disburse  money  embezzled  it  and  left  112. 

unpaid     the     obligations     which     he  36  In  McKinzie  v.  Baltimore  &  Ohio 

should  have  paid  with  it).  R.  R.  Co.,  28  Md.  161,  it  appeared  that 

35  White  v.  Dolliver,  113  Mass.  400,  the  principal  was  present  and  took  an 
18  Am.    Rep.  502;    Warner    v.    Com-  active  part  in  the  conduct  and  man- 
stock,    55    Mich.    615;    Northwestern  agement   of   the   action   against   the 
State  Bank  v.  Silberman,  83  C.  C.  A.  agent    (who    defended    only    in    the 
525,  154  Fed.  809;  Alexander  v.  Tay-  right  of  his  principal),  and  then  and 
lor,  4  Denio  (N.  Y.),  302;  Westbay  v.  there  claimed  the  property  to  be  his 
Milligan,  74    Mo.    App.    179;   Coen  v.  own  and  demanded  protection  for  his 

1717 


§    2142]  THE  LAW  OF  AGENCY  [BOOK    IV 

is  held  that  one  whose  property  has  been  replovied,  by  a  writ  against  his 
agent,  may  retake  it  by  replevin  against  the  plaintiff  in  the  first  suit, 
even  during  the  pending  of  that  action.87  So  he  may  maintain  trover 
against  the  plaintiff  in  the  action  brought  against  the  agent,  and  his 
right  is  not  barred  by  the  fact  that  he  acted  as  the  attorney  for  the 
agent  in  the  action  against  the  latter.38. 

§  2142.  Otherwise  as  to  contract  rights. — But  where  the 

action  is  to  enforce  rights  under  a  contract  made  with  the  agent,  there, v 
as  has  been  seen,  usually  either  the  principal  or  the  agent  may  eue, 
though  the  principal's  right  is  paramount.  If  the  agent  sues  for  the 
principal  or  the  principal  sues  in  the  agent's  name,  a  judgment  rendered 
in  that  action  must  ordinarily  be  conclusive,  and  the  principal  could  not 
litigate  the  matter  anew  in  an  action  brought  in  his  own  name.  As  has 
been  seen,  also,  the  principal  who  takes  the  contract  must  take  it  as  he 
finds  it,  and,  in  general,  subject  to  the  defences  which  could  be  made 
against  the  agent.  If,  in  an  action  to  which  the  agent  is  a  party,  his 
rights  have  been  determined  under  it,  that  determination  would  ordi- 
narily be  conclusive  against  the  principal,89  unless  he  could  impeach  the 
judgment  for  fraud  or  collusion. 

interests.    He  was  held  bound  by  the  See  also,  ante,  §  2072  et  seq. 

judgment.      Same    effect:    Castle    v.  ST  White  v.  Dolliver,  supra. 

Noyes,  14  N.  Y.  329.  ss  Warner  v.  Comstock,  supra. 

In   Phillips   v.  Moir,  69   111.   155,  a  s»  In  Lippman  v.  Campbell,  40  Mo. 

judgment  against  the  agent  in  an  ac-  App.  564,  where  an  action  brought  by 

tion  of  which  the  principal  had  been  an  agent  to  enforce  a  chattel  mort- 

given  notice  and  been  requested  to  gage  taken  in  the  agent's  name  was 

defend  was  held  binding  as  between  decided  against  him,  it  was  held  that 

the  principal  and  the  agent.  this  was  conclusive  against  a  subse- 

In  Emery  v.  Fowler,  39  Me.  326,  63  quent  action  by  the  principal. 

Am.  Dec.  627,  a  judgment  in  an  ac-  In   Moore   v.    Richardson,   100   111. 

tion     of     trespass     gtiare     clausum  App.    134,  197    111.    437,  a    judgment 

brought  against  the  master  for  the  against  the  agency  to  terminate  an 

act   of   his   servant,    rendered    after  alleged    tenancy    was    held    binding 

trial  upon  the  merits  was  held  to  be  upon  his  undisclosed  principal, 
a  bar  to  a  later  action  against  the 
servant  for  the  same  trespass. 

1718 


iOtl 


BOOK  V 

PARTICULAR  CLASSES  OF  AGENTS. 


CHAPTER  I. 

OF  ATTORNEYS  AT  LAW. 


§  2143.  Scope  of  chapter. 

1.  OF  THE   OFFICE. 

2144.  Who   meant   by   attorney   at 

law. 

2145.  Attorney  at  law  defined. 

2146.  Is  an  officer  of  the  court. 
•   2147.  Who  may  be. 

2148.  Party  may  appear  in  person. 

2149.  May  not  appear  by  agent. 

II.    OF   THE    RELATION   OF   ATTORNEY   AND 
CLIENT. 

1.  A  Relation  of  Agency. 

2150.  Rules  of  agency  govern. 

2.  Hoio  Created. 

2151.  No  formal  power  necessary. 

III.    APPEARANCE  PRESUMPTIVELY  AU- 
THORIZED. 

2152.  Presumption  of  authority. 

2153.  The  presumption  not  conclu- 

sive. 

a.  While  Proceedings  Are  Pending. 

2154.  1.  Opposite    party    may 

require    production    of    au- 
thority. 

2155.  2.  What    evidence    suffi- 


2156. 


cient. 
3.  Client 


may     dispute 


authority. 


b.  In  Actions  upon  the  Judgment. 

2157.  1.  Foreign   judgments. 

2158.  2.  Domestic  judgments. 


IV.    IMPLIED    AUTHORITY    OF    ATTORNEY. 

2159.  In  general. 

2160.  Has   general   control  of  con- 

duct of  suit. 
-Presumption    of    author- 


2161. 

2162. 
2163. 
2164, 


ity. 


What  included. 

What  not  included. 

2165.  Can    not    delegate    his 


powers. 

2166.  May  not  employ  counsel. 

2167.  May  employ  subordinates. 

2168.  Authority  to  institute  action. 

2169.  Authority  to  incur  expense  on 

client's  account. 

2170.  Authority   to  bind  client   by 

contracts. 

2171-2174.  Authority  to  bind  cli- 
ents by  bonds. 

2175-2177.  Authority  to  bind  client 
by  receipt  of  notice — Notice 
to  attorney  as  notice  to  cli- 
ent. 

2178,  2179.  Authority  to  bind  client 
by  admissions. 

2180,  2181.  Authority  to  receive 
payment. 

2182.  After  judgment. 

2183.  What    constitutes    pay- 
ment. 

2184-2186.  Authority  to  enforce 
judgment. 

2187.  Ratification. 

V.    DUTIES  AND  LIABILITIES  OF  ATTORNEY 
TO   CLIENT. 

2188.  Bound  to  highest  honor  and 
integrity. 


1719 


THE   LAW  OF   AGENCY 


[BOOK   V 


2189.  Duty  to  disclose  adverse  In- 

terests —  Must  not   assume 
antagonistic  positions. 

2190.  Duty    to    remain     loyal — In- 

capacities resulting. 

2191.  • Effect     on     opposite 

party. 

2192.  Duty  to  use  reasonable  care 

and  skill. 

2193-2195.  -  -  Errors  in  law  or 
judgment. 

2196,  2197.  Negligence  in  col- 
lecting. 

2198-2200.  Negligence  in 

bringing  suit. 

2201.  •  Negligence    in    trial    of 

action. 

2202.  Negligence    in    examin- 
ing titles. 

2203.  Neglect     in     preparing 

contracts,  etc. 

2204.  Neglect  of  partners, 

clerks,  etc. 

2205.  Neglect   of  subagent  in 

collecting. 

2206.  Liability    for    exceeding    au- 

thority, or  violating  instruc- 
tions. 

2207.  Liability  for  money  collected. 

2208.  When     action    may    be 

brought. 

2209.  Statute  of  limitations. 

2210.  Liability  for  interest. 

2111.  Attorney  liable  though  acting 

gratuitously. 

2212.  The    burden    of    proof    and 

measure  of  damages. 

VI.    LIABILITY   OF    ATTORNEY   TO   THIRD 
PERSONS. 

2213.  Not  liable  for  breach  of  duty 

owing  to  client  only. 

2214.  2215.  -    -  Cases  in  which  he 

would  be  liable. 

2216.  Liable    where    he    contracts 

personally. 

2217.  Liability  for  clerk's,  officer's, 

witnesses's  and  other  fees. 

2218-2223.  Liability  to  third  per- 
son in  tort. 

2224.  Liability     for     words 

written  or  spoken. 
1  2225.  Liability  for  money  received. 


VII.    LIABILITY   OF   CLIENT   TO   THIRD   PER- 
SON. 

2226.  In  contract. 

2227,  2228.  In  tort. 

VIII.    LIABILITY  OF  CLIENT  TO  ATTORNEY. 

1.  Attorney's  Right  to  Reimbursement 

and  Indemnity. 

2229.  Attorney    entitled    to    reim- 

bursement and  indemnity. 

'lAflb. 

2.  Attorney's  Right  to  Compensation. 

a.  In  General. 

2230.  Attorney  entitled  to  compen- 

sation. 

2231.  Attorney  may  sue  for  com- 

pensation. 

1.  Where  there  was  a  special  contract. 

2232.  In  general. 

2233.  Parties     may     agree     upon 

amount  of  compensation. 

2234.  Where  such  a  contract 

is  fairly  made  it  is  conclu- 
sive. 

2235.  Extra  compensation. 

2236.  Contracts  for  contingent  com- 

pensation. 

2237.  What  contracts  champertous. 

2238.  Statutory  changes. 

2239.  The  effect  of  champerty. 

2240.  What  contracts  barratrous. 

2241.  Quantum   meruit   when   con- 

tract void  for  champerty. 

2242.  Agreements  restricting  settle- 

ment. 

2243.  Contracts  for  contingent  fees 

do  not  defeat  settlement  by 
client. 

2244.  But    attorney    may    recover 

from  client. 

2.  Where  there  was  no  special  con- 

tract. 

2245.  Attorney  entitled  to  statutory 

or  usual  rate,  if  any,  other- 
wise to  reasonable  value  of 
his  services. 

2246.  What  evidence  admissible. 

2247.  What  evidence   not  admissi- 

ble. 


1720 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


b.  When  compensation  deemed  to  be 
earned. 

2248.  In  cases  of  ordinary  retainer. 

2249.  Compensation   under   express 

contract  earned  when  under- 
taking substantially  per- 
formed. 

2250.  Lack  of  success  no  defense. 

2251.  Negligence  or  bad  faith  may 

be  shown. 

2252.  Fees   forfeited   by   breach   of 

trust. 

2253.  How  when  attorney  abandons 

service. 

2254.  What  will  justify  aban- 
donment. 

2255.  When  discharged  by  client. 

2256.  In    violation    of    agree- 


2257. 


ment. 
What 


will    justify    dis- 


2291. 


charge. 

2258.  Effect   of   death    of   attorney 

or  client. 

2259,  2260.  Irrevocable  powers 

— Powers   coupled  with  an 

. 

interest. 

2261.  Right  to  interest. 

2262.  When  attorney's  claim  barred 

)|ftf3  2293. 
2294. 


2279.  When  lien  attaches. 

2280.  To  what  the  lien  attaches. 

2281.  How    lien    protected — Settle- 

ment—Set off— Notice. 

2282.  Abandonment    —    Dis- 
charge. 

2283.  How  lien  enforced. 

2284.  If  the  judgment  has  re- 
sulted in  a  fund. 

2285.  Statute    of    limitations, 

etc. 

2286.  Liens  by  contract— Equitable 

protection    independent    of 
lien. 

2287.  How  lien  lost  or  waived. 

2288.  By  what  law  governed. 

IX.    DEALINGS    BETWEEN    ATTORNEY    AND 
CLIENT. 

2289.  In    general — Good    faith    and 

perfect  fairness  required. 

2290.  Purchases  from  and  sales  to 

client — Adverse  purchases. 
Private     purchases     by 


2292. 


by  limitation. 
S.  Attorney's  Eight  to  Lien. 


2263.  Two  kinds  of  lien. 

2264.  General  nature  of  this  lien. 

2265.  Declared  by  statute  in  some 

states. 

2266.  What  this  lien  adheres  to. 

2267.  .  a.  Upon  papers. 

2268.  .  b.  Upon   property. 

2269.  c.  Upon  money. 

2270.  What    charges    the    lien    se- 

cures. 

2271.  Against  what  parties  lien  pre- 

vails. 

2272.  How  lien  may  be  lost. 

2273.  How  lien  may  be  waived. 

2274.  Enforcement  of  lien. 

2.  The  special  or  charging  lien. 

2275.  General  nature  of  this  lien. 

2276.  In  what  states  it  exists. 

2277.  Whom  this  lien  protects. 

2278.  What  this  lien  protects. 


the  attorney  of  the  client's 
property.' 

Gifts  from  client  to  at- 
torney. 

Other  dealings. 

Contracts  for  compen- 
sation made  after  relation 
exists. 

2295.  Relation  of  attorney  and  cli- 

ent must  exist. 

2296.  Former    relation   termi- 
nated. 

X.    PRIVILEGED   COMMUNICATIONS. 

2297.  2298.  Confidential  communica- 

tions  privileged. 

2299,    2300.    What   communications 
0$i  included — By  client  to  attor- 
ney. 

2301.  By  attorney  to  client. 

2302.  Under  what  circumstances 

privileged — No  suit  need  be 
pending — Must  be  confiden- 
tial. 
2303. Criminal  acts. 

2304.  -    -  Fraudulent  or  illegal 

acts. 

2305.  Non-confidential    communica- 

tions. 


1721 


§§    2143-2145]  THE  LAW  OF  AGENCY  [BOOK  V. 

.serfoBiJB  n<»H  rreiEW  jSTS-S  ed  ot  •ft^nt^^ft  fu>itRefi'K'fffo> •  nod'/T   »f 

2306.  Non-professional        em-         2312.  How  long  It  continues. 

ployments.  2313.  Attorney  may  disclose  for  hia 

2307.  Collateral   facts.  own  protection. 

2308.  Relation  of  attorney  and  cli- 

ent must  exist.  xi.  TERMINATION  OF  THE  RELATION. 

2309.  Attorney  as  scrivener. 

2310.  Communications    must    have  314-  B^  operation  of  law. 

been  made  to  an  attorney.  2315-  B?  act  of  the  Parties. 

2311.  Privilege     is     the     client's—          2316-  Notice  of  termination. 

Waiver. 

§  2143.  Scope  of  chapter. — It  is  not  within  the  scope  of  this  work, 
to  go  extensively  into  the  relations  of  attorneys  at  law  to  the  State  or 
to  the  Court.  Space  will  not  permit  a  discussion  of  this  public  side  of 
their  character,  but  an  attempt  will  be  made  to  give  some  of  the  gen- 
eral rules  which  govern  their  relation  to  their  clients  and  their  client's 
business,  viewing  them  only  in  the  character  of  private  agents. 


I. 

OF  THE  OFFICE. 

§  2144.  Who  meant  by  attorney  at  law. — Under  the  English  sys- 
tem, legal  practitioners  are  divided  into  a  variety  of  classes,  with  dis- 
tinct powers  and  duties,  and  some  of  these  distinctions  have  been  rec- 
ognized or  adopted  in  several  of  the  United  States.  As  a  rule,  how- 
ever, so  far  as  they  imply  distinct  rights  and  duties  pertaining  only 
to  distinct  classes  of  practitioners,  they  have,  in  the  United  States  be- 
come practically  obsolete,  and  the  same  person  is  daily  seen  exercis- 
ing functions  which,  under  the  English  system,  would  be  distributed 
among  several.  Indeed,  it  is  common  for  the  same  person,  with  pro- 
priety, to  hold  himself  out  to  the  public  as  qualified  to  act  in  the  sev- 
eral capacities  of  attorney  and  counselor  at  law,  and  solicitor  and 
counselor  in  chancery,  and  proctor  in  admiralty.  In  common  parlance, 
such  a  person  is  ordinarily  spoken  of  as  a  lawyer  or  more  frequently  as 
an  attorney  at  law.  For  the  purposes  of  this  chapter,  the  latter  term 
will  be  adopted,  and,  under  it,  will  be  considered  the  rules  of  law  applic- 
able to  the  relations  of  one  man  with  his  agent  or  representative  in 
law  to  whichsoever  of  the  special  classes  he  may  technically  belong. 

§  2145.  Attorney  at  law  defined. — For  the  present  purposes, 
therefore,  an  attorney  at  law  may  be  defined  to  be  an  officer  of  a  court 
of  justice  who  is  qualified  to  conduct  the  cause  of  a  litigant  therein.1 
Although  he  may  be  and  frequently  is,  employed  to  take  part  with 
others  in,  or  to  conduct,  the  trial  only,  yet  his  functions  are  not  con- 

i  See  Weeks  on  Attorneys,  §  28,  et  seq. 
1722 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2146 

fined  to  that.  In  ordinary  cases,  his  duties  begin  with  the  commence- 
ment of  the  legal  controversy  and  end  only  with  its  termination.  He 
is  usually  employed  before  any  step  in  the  legal  procedure  is  taken, 
and  from  that  time  on,  he  consults  with  his  client  regarding  the  cause 
of  action  or  the  matter  of  his  defense;  he  determines  upon  the  nature 
of  relief  to  be  sought  and  the  court  in  which  the  remedy  is  to  be  pur- 
sued; he  prepares  the  necessary  preliminary  papers  and  directs  the  is- 
sue and  service  of  process ;  he  prepares,  files  and  serves  the  pleadings ; 
examines  and  consults  with  the  witnesses ;  takes  minutes  of  their  ex- 
pected testimony,  and,  usually,  directs  the  issue  and  service  of  the 
process  for  their  attendance  at  the  trial ;  he  makes  or  resists  the  inter- 
locutory motions  and  applications  incident  to  the  progress  of  the  cause ; 
he  prepares  the  briefs  and  papers ;  gives  the  necessary  notice  and  pro- 
cures the  cause  to  be  placed  upon  tha  calendar  for  trial;  he  conducts 
the  trial  and  attends  to  the  subsequent  motions  and  hearings ;  he  directs 
the  issue  and  service  of  the  process  to  enforce  the  judgment;  and  re- 
ceives the  proceeds  and  satisfies  the  judgment  on  the  record. 

In  addition  to  these  duties,  incident  to  the  trial  of  causes,  the  attor- 
ney at  law,  in  practice,  often  undertakes  a  great  variety  of  duties  hav- 
ing a  very  remote,  if  any,  connection  with  the  business  of  courts.  Thus 
he  acts  as  a  conveyancer  or  scrivener,  putting  into  appropriate  form 
the  agreements  and  undertakings  of  his  clients ;  he  searches  records, 
makes  abstracts  of  title,  and  gives  opinions  thereon ;  he  gives  advice 
and  counsel  as  to  legal  questions  submitted  to  him;  he  attends  to  the 
making  of  loans,  and  the  perfecting  and  recording  of  securities ;  he  col- 
lects and  secures  claims ;  and  performs  many  duties  which,  in  the  mul- 
tiform phases  of  business  transactions,  require  the  attention  of  one 
skilled  in  the  knowledge  and  application  of  legal  principles. 

§  2146.  Is  an  officer  of  the  court. — He  is  not  a  private  agent  only, 
but  he  is  also  an  officer  of  the  court,  owing  to  it  the  discharge  of  a 
variety  of  high  and  important  duties,  designed  and  imposed  for  the 
furtherance  of  justice  and  the  legal  and  orderly  conduct  of  its  business. 
For  a  violation  of  these  duties,  as  well  as  for  others  which  are  due 
more  directly  to  his  client,  he  is  liable  to  be  suspended  or  removed  from 
his  office. 

Whether  his  office  is  to  be  regarded  as,  in  all  respects,  a  public  one. 
is  a  question  upon  which  the  courts  are  not  fully  agreed,  but  he  is,  at 
all  events,  a  quasi  officer  of  the  State  whose  justice  is  administered  by 
the  court.2 

•!     V.SJO'i    --lit  X;      •   li   • 

2  "The  bar  Is  no  unimportant  part  fleers  of  the  court.  Thomas  v.  Steele. 
of  the  court;  and  its  members  are  of-  22  Wis.  207;  Cothren  v.  Connaughton, 

1723 


§  2147] 


THE   LAW  OF  AGENCY 


[BOOK   V 


§  2147.  Who  may  be. — As  an  officer  of  the  court,  the  power  of 
the  attorney  to  act  as  such  depends  upon  ttoe  license  or  permission  of 
the  court.  The  persons  to  whom  such  license  may  be  granted,  and  the 
terms  upon  which  it  shall  be  granted,  are  usually  prescribed  by  the  leg- 
islatures of  the  States.  These  provisions  are  generally  acquiesced  in 
by  the  courts,  but  whether  they  are  binding  upon  the  courts  has  been 
doubted.8 


24  Id.  134.  See  Bacon's  Abr.  Attor- 
ney H.;  1  Tidds  Pr.  60;  3  Black.  25; 
1  Kent,  306;  Ex  parte  Garland,  4 
Wall.  333.  And  if  officers  of  the 
court,  certainly,  in  some  sense,  offi- 
cers of  the  state  for  which  the  court 
acts.  Re  Wood.  Hopk.  6.  This  is  not 
really  denied  in  (In  the  matter  of 
Oats,  etc.)  20  Johns,  492,  decided  in 
the  same  year.  And  if  it  were,  we 
have  no  doubt  that  the  Chancellor 
was  correct,  and  that  attorneys  and 
counselors  of  a  court,  though  not 
properly  public  officers  are  quasi  offi- 
cers of  the  state  whose  justice  is  ad- 
ministered by  the  court."  Ryan,  C. 
J.,  in  Matter  of  Mosness,  39  Wis.  509, 
20  Am.  Rep.  55. 

"At  attorney  at  law  is  not,  indeed, 
in  the  strictest  sense,  a  public  officer. 
But  he  comes  very  near  it.  As  was 
said  by  Lord  Holt,  'the  office  of  an 
attorney  concerns  the  public,  for  it  is 
for  the  administration  of  justice.' 
White's  Case,  6  Mod.  18;  Bradley's 
Case,  7  Wall.  364,  378,  379,  19  L.  Ed. 
214."  Gray,  C.  J.,  in  Robinson's  Case, 
131  Mass.  376,  41  Am.  Rep.  239.  See 
also,  Austin's  Case,  5  Rawle  (Penn.), 
191,  28  Am.  Dec.  657. 

In  In  re  Baum,  55  Hun  (N.  Y.), 
611,  it  was  said:  "In  this  state  coun- 
selors, solicitors,  and  attorneys  have 
not  been  appointed  to  admitted  to 
practice  by  the  several  courts  in 
which  they  intend  to  pursue  their 
profession,  and,  although  they  are  de- 
clared by  statute  to  be  judicial  offi- 
cers, yet  they  do  not  hold  an  office  or 
public  trust,  in  the  constitutional 
sense  of  that  term.  .They  are  officers 
of  the  court,  exercising  a  privilege  or 
franchise,  subject  to  removal  or  sus- 


pension by  the  courts;  but,  if  they 
are  not  so  removed  or  suspended,  they 
hold  their  office  for  life." 

In  In  re  Ricker,  66  N.  H.  207,  24  L. 
R.  A.  740,  the  court  said:  "Giving 
due  weight  to  history,  tradition,  and 
usage,  it  does  not  appear  that  mem- 
bers of  the  New  Hampshire  bar  are 
public  officers  in  any  other  sense  than 
that  in  which  they  are  officers  of  the 
court.  That  sense  is  well  under- 
stood, and  is  fully  set  forth  and 
clearly  defined  in  authorities  before 
cited." 

To  the  same  effect  Ex  parte  Yale, 
24  Cal.  241,  85  Am.  Dec.  62. 

3  In  a  Wisconsin  case  it  is  said  by 
Ryan,  C.  J.,  "The  constitution  makes 
no  express  provision  for  the  bar.  But 
it  establishes  courts,  amongst  which 
it  distributes  all  the  jurisdiction  of 
all  of  the  courts  of  Westminster  Hall, 
in  equity  and  at  common  law.  Put- 
nam v.  Sweet,  2  Pin.  302.  And  it 
vests  in  the  courts  all  the  judicial 
power  of  the  state.  The  constitu- 
tional establishment  of  such  courts 
appears  to  carry  with  it  the  power 
to  establish  a  bar  to  practice  in  them. 
And  admission  to  the  bar  appears  to 
be  a  judicial  power.  It  may  there- 
fore become  a  very  grave  question 
for  adjudication  here,  whether  the 
constitution  does  not  entrust  the  rule 
of  admissions  to  the  bar,  as  well  as  of 
expulsion  from  it,  exclusively  to  the 
discretion  of  the  courts."  In  Matter 
of  Goo4ell,  39  Wis.  232,  239,  20  Am. 
Rep.  42. 

In  Petition  of  Splane,  123  Pa.  527, 
the  court  refused  to  be  bound  by  an 
act  of  the  legislature  respecting  the 
qualification  of  persons  for  admission 


1724 


CHAP.  l] 


OF   ATTORNEYS    AT   LAW 


[§    2147 


While  the  conditions  fixed  in  the  several  States  are  not  uniform,  the 
provision  is  common,  if  not  universal,  that  the  applicant  shall  be  a 
citizen  of  the  State ;  that  he  shall  be  of  the  age  of  twenty-one  years  or 
upwards,4  that  he  shall  be  of  good  moral  character,  and  that  he  shall 
appear  to  possess  sufficient  legal  learning  and  ability.5 

Whether  women  are  entitled  to  be  admitted  to  the  bar  is  a  question 
which  has  been  discussed  under  various  statutes,  and  while  their  right 
has  in  some  cases  been  denied,  the  tendency  of  modern  legislation  and 
of  its  judicial  interpretation  is  to  regard  them  as  eligible.6 


to  the  bar.  The  court  said:  "The  at- 
torney is  an  officer  of  the  court,  and 
is  brought  into  close  and  intimate  re- 
lations with  the  court.  Whether  he 
shall  be  admitted,  or  whether  he 
shall  be  disbarred,  is  a  judicial  and 
not  a  legislative  question." 

In  In  re  Day,  181  111.  73,  50  L.  R. 
A.  519,  the  court  held  that  an  attor- 
ney is  an  officer  of  the  court,  and  the 
power  to  prescribe  his  qualifications 
is  judicial,  and  not  legislative.  Two 
judges  dissented. 

On  the  other  hand  In  In  re  Appli- 
cants for  License,  143  N.  Car.  1,  10 
Ann.  Cas.  187,  10  L.  R.  A.  (N.  S.) 
288,  the  Supreme  Court  of  North 
Carolina  (two  judges  dissenting), 
held  that  the  power  to  prescribe  quali- 
fications for  admission  to  the  bar  was 
part  of  the  police  power  which  vested 
in  the  legislature,  and  that  its  exer- 
cise did  not  tend  to  deprive  the 
courts  of  any  power  constitutionally 
vested  in  them  alone.  To  same  effect, 
Ex  parte  Yale,  24  Cal.  241,  85  Am. 
Dec.  62. 

See  also,  In  re  Leach,  134  Ind.  665, 
21  L.  R.  A.  701;  In  re  Hong  Yen 
Chang,  84  Cal.  163;  In  re  Ah  Yup,  5 
Saw.  155,  Fed.  Cas.  No.  104;  In  re 
Look  Tin  Sing,  21  Fed.  905. 

*  In  Ex  parte  Coleman,  54  Ark.  235, 
it  was  held  that  a  statute  authorizing 
the  court  to  remove  the  ordinary 
business  disabilities  of  infancy  did 
not  affect  the  general  statutory  re- 
quirement that  applicants  for  admis- 
sion to  the  bar  must  be  twenty-one 
years  old.  State  v.  Baker,  25  Fla. 
598,  holds  the  opposite. 


s  In  In  re  Maggio,  27  N.  Y.  App.  Div. 
129,  the  court  refused  to  admit  an 
Italian  lawyer  upon  the  ground  that 
familiarity  with  the  legal  system  of 
Italy  founded  upon  the  Civil  Code  of 
the  Roman  Empire  altered  by  the  cus- 
toms and  statutes  of  the  various 
states  of  that  kingdom  was  not  suffi- 
cient to  qualify  one  to  perform  the 
duties  of  attorney  and  counselor  un- 
der a  system  based  upon  the  constitu- 
tions of  the  United  States  and  of  New 
York,  interpreted  according  to  the 
principles  of  the  common  law. 

«  They  are  not  eligible  in  Massachu- 
setts. Robinson's  Case,  131  Mass.  376, 
41  Am.  Rep.  239  (since  changed  by 
statute) ;  Oregon,  In  re  Leonard,  12 
Oreg.  93,  53  Am.  Rep.  323  (changed 
by  statute);  New  York,  see  note  to 
53  Am.  Rep.,  p.  325  (changed  by  stat- 
ute). They  are  admitted  in  Connecti- 
cut, Matter  of  Hall,  50  Conn.  131, 
•47  Am.  Rep.  625;  Wisconsin,  Matter 
of  Goodell,  48  Wis.  693,  and,  says 
Judge  Landon  in  a  case  referred  to 
in  the  note  above  cited,  in  Iowa,  Mis- 
souri, Michigan,  Utah,  District  of  Co- 
lumbia, Maine,  Ohio,  Illinois,  In- 
diana, Kansas,  Minnesota,  California, 
Nebraska,  Washington,  and  Pennsyl- 
vania. To  these  may  be  added:  Ken- 
tucky, North  Carolina,  New  Hamp- 
shire, Colorado,  Wyoming,  Montana 
(by  statute). 

See,  Ex  parte  Lockwood,  154  U.  S. 
116;  Richardson's  Case,  3  Pa.  Dist. 
Rep.  299;  Ex  parte  Griffin  (Tenn.),  71 
S.  W.  746;  In  re  Maddox,  93  Md.  727, 
55  L.  R.  A.  298;  In  re  Leach,  134  Ind. 
665,  21  L.  R.  A.  701. 


§§    2148-2150]  THE  LAW    OF  AGENCY  [BOOK   V 

Aii  alien  can  not,  it  is  held,  be  admitted  under  a  statute  providing 
for  the  admission  of  "citizens,"  7  nor  can  a  non-resident  of  the  State 
claim  the  right  to  a  license.8 

§  2148.  Party  may  appear  in  person. — In  every  criminal  prosecu- 
tion tha  right  of  the  accused  to  counsel  for  his  defense  is  declared  by 
the  Constitution,  but  the  accused  may  none  the  less  conduct  his  own 
defense  if  he  prefers :  but  as  a  rule  the  defense  cannot  be  conducted 
by  both  the  accused  and  his  counsel.9 

In  civil  cases,  there  is  no  such  constitutional  guarantee  of  counsel. 
There  is,  however,  in  the  Constitutions  or  Statutes  of  many  of  the 
States  a  declaration  of  the  party's  right  to  conduct  his  suit  in  person 
or  by  attorney. 

§  2149.  May  not  appear  by  agent. — But  under  a  constitutional 
provision  that  any  suitor  "shall  have  the  right  to  prosecute  or  defend 
his  suit,  either  in  his  own  proper  person  or  by  an  attorney  or  agent  of 
his  choice,"  the  Supreme  Court  of  Michigan  held  that  a  party  can  not 
appear  in  a  court  of  record  by  an  agent  who  is  not  an  attorney  duly 
licensed  to  practice  as  such.10 

II. 

OF  THE  RELATION  OF  ATTORNEY  AND  CLIENT. 

I.  A  Relation  of  Agency. 

§  2150.  Rules  of  agency  govern. — The  relation  of  attorney  and 
client  is  a  relation  of  agency,  and,  in  its  general  features,  is  governed 
by  the  same  rules  which  apply  to  other  agencies.  Many  of  the  appli- 

i  Matter  of  O'Neill,  90  N.  Y.  584.  v.  Illinois,  16  Wall.    (U.   S.)   130,  21 

s  Matter  of  Mosness,  39  Wis.  509,  20  L.  Ed.  442;  Robinson's  Case,  131  Mass. 

Am.  Rep.  55.     In  this  case  it  is  said  376,    41    Am.    Rep.    239;    Lockwood's 

that  the  legislature  has  no  power  to  Case,  9  Ct.  of  Cl.  346,  356. 

authorize    non-residents    to    be    ad-  » See  Bishop's  Grim.  Proc.  §  962. 

mitted.  As  to  the  right  of  a  party,  to  appear 

The  United  States  Constitution,  ar-  in  person,  see  Aukam  v.  Lantzinger, 

tide  4,  §  2,  providing  that  the  citi-  94  Md.  421. 

zens  of  each  state  shall  be  entitled  to  In  Phillbrook  v.  Superior  Court,  111 

the  privileges  and  immunities  of  citi-  Cal.  31,  the  right  of  a  party  to  act  in 

zens  of  the  several  states,  does  not,  it  person  was  upheld,  although  he  had 

is  held,  give  to  an  attorney  removing  been  disbarred    from    practice   as  an 

from   one   state  to   another   the  con-  attorney  at  law. 

stitutional     right     to     be     admitted  10  Cobb  v.  Judge  of  Superior  Court, 

to     the     bar     in     the     latter     state.  43  Mich.  289. 

In    re    Rodgers,    194    Pa.    161.      See  In   Pennsylvania,   under  a  statute 

also,    per    Bradley,    j.,    in    Brodwell  regulating  pleadings  to  be  signed  by 

1726 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2T5T 


cations  of  these  rules  to  the)  case  of  attorneys  have  been  noted  in  the 
general  development  of  the  principles  of  agency,  to  which  the  earlier 
portion  of  this  work  has  been  devoted ;  but  the  importance  of  the  sub- 
ject, and  the  large  number  of  special  applications,  seem  to  warrant  a 
more  extended  examination  in  this  place. 

2.  Hozv  Created. 

§  2151.  Nor  formal  power  necessary. — It  was  formerly  considered 
necessary  that  the  authority  of  the  attorney  to  appear  for  his  client 
should  be  conferred  by  a  formal  warrant  of  attorney,11  but,  although 
there  are  many  reasons  of  convenience  and  propriety,  if  not  of  safety 
and  protection  to  the  parties,  which  commend  this  as  a  desirable  course 
to  be  pursued  in  many  cases,  it  can  no  longer  be  regarded  as  necessary. 
In  practice,  the  mere  request  of  the  client  is  the  common  method,  and 
is  undoubtedly  a  sufficient  authorization,  in  the  absence  of  a  statute  or 
rule  of  procedure  requiring  more.12 

And  the  rule  may  be  stated  still  more  broadly,  for  an  express  request 
is  not  indispensable,  but  the  a'ttorney's  authority  may  be  inferred  from 
the  words  or  conduct  of  his  client,  or  his  unauthorized  appearance  and 


the  plaintiff  or  his  attorney,  it  was 
held  that  an  attorney  at  law  was 
meant  and  not  merely  an  attorney  in 
fact.  Kelly  v.  Herb,  147  Pa.  St.  563. 
But  the  same  court  refused  to  set 
aside  an  execution  issued  upon  a 
praecipe  signed  by  one  who  was  not 
an  attorney  at  law.  Holshue  v.  Mor- 
gan, 170  Pa.  217. 

11  McAlexander  v.  Wright,  3  T.  B. 
Mon.  (Ky.)  189,  16  Am.  Dec.  93. 

12  Smith  v.  Black,  51  Md.  247;  Eick- 
man  v.  Troll,  29  Minn.  124;  Manches- 
ter Bank  v.  Fellows,   28  N.  H.   302; 
Bunton  v.  Lyford,  37  N.  H.   512,  75 
Am.  Dec.  144;    Henck  v.  Todhunter, 
7    H.    &  J.   (Md.)   275,    16    Am.  Dec. 
300;  Orr  v.  Brown,  16  C.  C.  A.  197,  69 
Fed.  216. 

In  Perkins  v.  Lumber  Co.,  129  Cal. 
427,  it  is  said:  "When  a  party  seek- 
ing legal  advice  consults  an  attor- 
ney at  law  and  secures  that  advice, 
the  relation  of  attorney  and  client  is 
established  prima  faoie." 

In  Sheehan  v.  Erbe,  103  N.  Y.  App. 
Div.  7,  the  court  said:  "To  establish 


this  relation  of  attorney  and  client  it 
is  not  necessary  that  the  attorney 
should  have  appeared  as  attorney  in 
legal  proceedings.  Where  it  appears 
that  an  attorney  is  consulted  to  ex- 
tricate a  person  from  his  difficulties, 
that  the  relation  commenced  because 
of  the  position  held  by  the  attorney, 
and  the  attorney  undertakes  to  act  for 
the  person  consulting  him,  the  rela- 
tion of  attorney  and  client  exists." 

The  mere  fact  that  a  person  who 
has  not  yet  been  sued  attends  a  pre- 
liminary meeting  of  persons  who 
have  been  sued  to  consider  the  advis- 
ability of  the  employment  of  attor- 
neys to  make  a  common  defense,  and 
contributes  to  a  common  fund,  where 
"no  persons  were  named  or  desig- 
nated and  the  arrangement  was  neces- 
sarily a  general  and  indefinite  one, 
subject  to  acceptance  by  those  who 
might  thereafter  avail  themselves  of 
it,"  does  not,  wit-bout  some  further 
act  of  acceptance  of  their  services,  es- 
tablish the  relation  of  attorney  and 
client  between  such  person  when 


1727 


§    2152]  THE   LAW   OF   AGENCY  [BOOK   V 

action  may  be  subsequently  ratified  and  confirmed.  In  this  respect,  the 
ordinary  rules  which  govern  the  appointment  of  agents  generally  or 
the  ratification  of  their  acts  apply,  and  the  same  kind  of  evidence  which 
would  be  admissible  to  establish  the  authority  of  any  agent 1S  may  be 
used  to  establish  the  authority  of  an  attorney.1* 


n  wwoq  Ifirrriol  ioM  .igrs  { 

'''}     ''fff    "lol     7  •     '\t\\    1r\    »  +'•»       i+  f-»    •»     J+ 

APPEARANCE  PRESUMPTIVELY  AUTHORIZED. 
_ 

§  2152.  Presumption  of  authority. — An  attorney,  as  has  been 
seen,  is  an  officer  of  the  court,  and  is  responsible  to  the  court  for  the 
propriety  of  his  professional  conduct,  and  for  the  proper  exercise  of 
his  privileges  as  such.  It  is  the  presumption  of  the  law  that  he  will 
not  violate  his  duty,  or  impose  upon  the  court  with  a  false  appearance 
of  authority.  Wherever,  therefore,  a  regularly  admitted  attorney  ap- 
pears for  a  party  in  a  cause,  the  presumption  is  that  such  appearance 
is  authorized.16  And  this  rule  applies  whether  the  attorney  appears  for 
a  natural  person  or  a  corporation.1' 

afterward  sued  and  the  attorneys  em-  v.  Harrington,  52  Neb.  300;   Marrow 

ployed  by  the  committee.    Bradley  v.  v.  Brinkley,  85  Va.  55;  Neff  v.  Smyth, 

Welch,  100  Mo.  258.  Ill  111.  100;  Holden  v.  Greve,  41  Minn. 

is  See  ante,  §§  202  et  seq.  173;     Field    v.    Nantucket,    1    Gush. 

i*  "The  employment  of  an  attorney  (Mass.)   11;   Arrington  v.  Arrington, 

by  a  private  corporation,  as  well  as  102  N.  C.  491;  Orr  v.  Brown,  69  Fed. 

by  an  individual,  may  be  shown  by  216. 

its    conduct;    and    the    rules    under          The  fact  that  after  an  order  of  dis- 

which  it  may  be  estopped  from  dis-  missal   is  entered  by  the  court,  for 

puting  its  liability  for  his  acts  or  by  want  of  authority  on  the  part  of  the 

which  its  ratification  of  his  acts  may  attorney  to  bring  suit,  the  plaintiff 

be  established  are  the  same."     Kelly  signs  an  appeal  bond,  does  not  amount 

v.  Ning  Yung  Ben.  Ass'n,  2  Cal.  App.  to  a  ratification  of  authority  to  bring 

460.      [Citing  Pixley  v.  W.   P.  R.  R.  suit.     Bell  v.  Farwell,  189  111.  414. 
Co.,  33  Cal.  183,  91  Am.  Dec.  623;  Main          "  Osborn    v.    The    United    States 

v.  Casserly,  67  Cal.  127;    Crowley  v.  Bank,  9  Wheat.  (U.  S.)  738,  6  L.  Ed. 

Gennesse  M.  Co.,  55  Cal.  273;  Gribble  204;  Brown  v.  Arnold,  67  C.  C.  A.  125, 

v.    Columbus    B.    Co.,    100    Cal.    67;  131  Fed.  723;  In  re  Gasser,  44  C.  C.  A. 

Streeten  v.  Robinson,  102  Cal.  542.]  20,  104  Fed.  537;  Bonnifield  v.  Thorp, 

To  the  same  effect:  Newton  v.  Ham-  71  Fed.  924;   Aaron  v.  United  States, 

den,  79  Conn.  237;  Roberts  v.  Denver,  et  al.,  84  C.  C.  A.  67,  155  Fed.  833; 

etc.,  R.  R.  Co.,  8  Colo.  App.  504;  Hays  Horseshoe  Min.   Co.   v.   Miners'   Ore 

v.  Merkle,  70  Mo.  App.  509;    Hughes  Samp.  Co.,  77  C.  C.  A.  213,  147  Fed. 

County  v.  Ward,  81  Fed.  314;   Saxton  517;   Doe  v.  Abbott,  152  Ala.  243,  126 

isPenobscot  Boom  Co.  v.  Lam  son,  16  Me.  224,  33  Am.  Dec.  656;  Peoples 
Bank  v.  Rauer,  2  Cal.  App.  445. 

1728 


CHAP.  l] 


OF    ATTORNEYS    AT    LAW 


[§§2153,2154 


§  2153.  The  presumption  not  conclusive. — This  presumption, 
however,  is  not  conclusive,  but  the  fact  of  the  authority  may,  in  a 
proper  case,  be  inquired  into.  The  occasion  for  this  inquiry  may  arise 
under  several  states  of  fact.  Thus  the  authority  of  the  attorney  may 
be  questioned  during  the  pendency  of  the  suit  in  which  he  assumes  to 
appear,  and  this  may  be  done  either  by  his  alleged  client,  or  by  the  op- 
posite party.  Or  the  question  of  his  authority  may  arise,  either  di- 
rectly or  collaterally,  in  a  subsequent  action  in  which  the  judgment  ob- 
tained upon  his  appearance  may  be  called  in  question. 

a.  While  Proceedings  are  Pending. 

§  2154.  i.  Opposite  party  may  require  production  of  au- 
thority.— The  opposite  party  in  a  pending  suit,  having  reasonable 
grounds  to  doubt  the  attorney's  authority  to  appear,  may  apply  to  the 

,:  . 


Am.  St.  Rep.  30;  Clark  v.  Morrison, 
o  Ariz.  349;  Broadway  v.  Sidway,  84 
Ark.  527;  Pacific  Pav.  Co.  v.  Vizelich, 
141  Cal.  4;  San  Francisco  Savings 
Union  v.  Long,  123  Cal.  107;  Hunter 
v.  Bryant,  98  Cal.  247;  People's  Bank 
v.  Rauer,  2  Cal.  App.  445;  Odd  Fel- 
lows' Bank  v.  Brander,  124  Cal.  255; 
Strattner  v.  Wilmington  City  Elec. 
Co.,  3  Penne.  (Del.)  453;  Bigham  v. 
Kistler,  114  Ga.  453;  Planters  Fire 
Ass'n  v.  De  Loach,  113  Ga.  802;  Fer- 
ris v.  Commercial  Nat.  Bank,  158  111. 
237;  Leslie  v.  Fischer,  62  111.  118; 
Crane  v.  Nelson,  37  111.  App.  597; 
Patterson  v.  The  Northern  Trust  Co., 
132  111.  App.  208;  People  v.  Parker, 
231  111.  478;  Wehlein  v.  Burk,  119 
Iowa,  742;  Harshey  v.  Blacfcmarr,  20 
Iowa,  161,  89  Am.  Dec.  520;  Piggott 
v.  Addicks,  3  G.  Greene  (Iowa),  427, 
56  Am.  Dec.  547;  Lake  City  El.  Light 
Co.  v.  McCrary,  13  Iowa,  624;  City  of 

Cherokee  v.  Illinois  Cent.  R.  Co.,  

Iowa,  ,  137  N.  W.  1053;    Esley  v. 

People,  23  Kan.  510;  Howe  v.  Ander- 
son (Ky.),  14  S.  W.  216;  Duff  v. 
Combs  (Ky.),  117  S.  W.  259;  New  Or- 
leans v.  Steinhardt,  52  La.  Ann.  1043; 
Postal  Tel.  Cable  Co.  v.  Louisville, 
etc.,  Ry.  Co.,  43  La.  Ann.  522;  Flint 
v.  Comly,  95  Me.  251;  Kelso  v.  Steiger, 
75  Md.  376;  Hager  v.  Cochran,  66 
Md.  253;  Dorsey  v.  Kyle,  30  Md.  512, 


96  Am.  Dec.  617;  Steffe  v.  Old  Colony 
R.  R.  Co.,  156  Mass.  262;  De  Monta- 
gue v.  Bacharach,  187  Mass.  128;  Cor- 
bitt  v.  Timmerman,  95  Mich.  581,  35 
Am.  St.  Rep.  586;  Arnold  v.  Nye,  23 
Mich.  286;  Norberg  v.  Heineman,  59 
Mich.  210;  Backus  v.  Burke,  63  Minn. 
272;  Nelson  v.  Jenks,  51  Minn.  108; 
Hardin  v.  Ho-Yo-Po-Nubby's  Lessee, 
27  Miss.  567;  Public  Schools  v. 
Crumb,  157  Mo.  545;  Davis  v.  Cohn, 
96  Mo.  App.  587;  Robinson  v.  Robin- 
son, 32  Mo.  App.  88;  Barkley  Ceme- 
tery Ass'n  v.  McCune,  119  Mo.  App. 
349;  Miller  v.  Continental  Assur.  Co.. 
233  Mo.  91,  Ann.  Cas.  1912  C.  102; 
State  v.  Muench,  230  Mo.  236;  Vorce 
v.  Page,  28  Neb.  294;  Mo.  Pac.  Ry.  Co. 
v.  Fox,.  56  Neb.  746;  Ebel  v.  Stringer, 
73  Neb.  249;  Denton  v.  Noyes,  6 
Johns.  (N.  Y.)  296,  5  Am.  Dec.  237; 
Hamilton  v.  Wright,  37  N.  Y.  502; 
People  v.  Murray,  2  Misc.  152;  Cut- 
ting v.  Jessmer,  101  N.  Y.  App.  Div. 
283;  Bacon  v.  Mitchell,  14  N.  Dak. 
454,  4  L.  R.  A.  (N.  S.)  244;  Pillsbury 
v.  Dugan,  9  Ohio,  117,  34  Am.  Deo. 
427;  Miller  v.  Preston,  154  Pa.  63; 
Danville,  etc.,  R.  Co.  v.  Rhodes,  180 
Pa.  157;  Sanders  v.  Price,  56  S.  Car. 
1;  Noyes  v.  Belding,  5  S.  Dak.  603; 
Anderson  v.  Hultman,  12  S.  Dak.  105; 
Mead  v.  Mead,  28  S.  Dak.  131;  Pro- 
prietors v.  Bishop,  2  Vt.  231;  Hallam 


109 


1729 


§  2i54l 


THE   LAW  OF  AGENCY 


[BOOK   V 


court  to  require  him  to  produce  his  authority.  But  before  the  court 
will  interfere  in  such  a  case  the  party  making  the  application  must 
adduce  some  facts  showing  or  tending  to  show  that  the  attorney  does 
not  in  fact  possess  the  authority  which  he  assumes  to  exercise.  Tha 
court  will  not  proceed  in  such  a  case  upon  light  or  frivolous  grounds, 
but  where  the  facts  alleged  raise  a  reasonable  presumption  that  the 
attorney  is  acting  in  the  case  without  authority  from  the  party  he  as- 
sumes to  represent,  the  court  will  require  him  to  produce  his  author- 
ity." 

This  showing  of  absence  of  authority  is  usually  made  upon  affida- 
vits,18 and  the  burden  of  proof  rests  upon  him  who  denies  the  author- 


v.  Tillinghast,  19  Wash.  20;  Low  v. 
Settle,  22  W.  Va.  387;  Thomas  v. 
Steele,  22  Wis.  207;  Schlitz  v.  Meyer, 
61  Wis.  418. 

"Tally  v.  Reynolds,  1  Ark.  99,  31 
Am.  Dec.  737;  Keith  v.  Wilson,  6  Mo. 
435,  35  Am.  Dec.  443;  McAlexander 
v.  Wright,  3  T.  B.  Mon.  (Ky.)  189, 
16  Am.  Dec.  93;  State  v.  Houston,  3 
Harr.  (Del.)  15;  McKierman  v. 
Patrick,  4  How.  (Miss.)  333;  People 
v.  Mariposa  Co.,  39  Cal.  683;  Leslie 
v.  Fischer,  62  111.  118;  Hamilton  v. 
Wright,  37  N.  Y.  502. 

In  Colorado,  etc.,  Co.  v.  Carpita,  6 
Colo.  App.  248,  the  court  said: 
"Where  the  right  of  the  attorney  to 
appear  is  questioned,  not  capri- 
ciously, but  upon  evidently  good 
grounds,  it  is  the  duty  of  the  court  to 
require  the  attorney  to  exhibit  his 
authority." 

Showing  of  authority  will  not  be 
required  on  mere  demand.  Norberg 
v.  Heineman,  59  Mich.  210. 

In  Barkley  Cemetery  Ass'n  v.  Mc- 
Cune,  119  Mo.  App.  349,  it  was  held 
that  where  the  defendant  in  an  ac- 
tion brought  by  a  corporation  denied 
the  authority  of  the  plaintiff's  attor- 
ney, the  testimony  of  one  director 
of  the  corporation  that  the  attorney 
had  not  been  authorized  to  bring  the 
suit,  was  not  sufficient  to  overcome 
the  ordinary  presumption  of  his  au- 
thority. 

is  In  Bonnifield  v.  Thorp,  71  Fed. 


924,  the  court  said:  "The  practice  is 
also  well  settled  that  the  authority 
for  an  attorney  to  appear  cannot  be 
called  into  question  except  by  a  mo- 
tion directly  for  that  purpose,  based 
upon  affidavits,  showing  in  the  first 
instance,  prima  facie  a  want  of  au- 
thority; and,  upon  the  hearing,  such 
want  must  be  established  by  clear 
and  positive  proofs.  The  proceeding 
may  be  by  motion  to  vacate  the  ap- 
pearance, to  dismiss  the  action,  or 
for  an  order  requiring  authority  to  be 
shown;  and,  in  cases  where  the  va- 
lidity of  an  order,  judgment,  or  de- 
cree depends  on  the  jurisdiction  of 
the  court  over  the  person  of  a  party, 
acquired  solely  by  the  appearance  of 
attorneys,  the  authority  of  such  at- 
torney may  be  attacked  upon  a  mo- 
tion to  vacate  the  order,  judgment 
or  decree.  In  the  absence  of  some 
such  proceeding,  directly  challenging 
the  authority,  the  court  will  not  hear 
or  inquire  into  the  question  of  the 
authority  of  the  attorney  for  his  ap- 
pearance. Hollins  v.  Railroad  Co. 
(Sup.),  11  N.  Y.  Supp.  27;  Insurance 
Co.  v.  Pinner,  43  N.  J.  Eq.  52;  Hill  v. 
Mendenhall,  21  Wall.  453;  McKiernon 
v.  Patrick,  4  How.  (Miss.)  333;  Howe 
v.  Anderson  (Ky.),  14  S.  W.  216; 
Reynolds  v.  Fleming,  30  Kan.  106,  46 
Am.  Rep.  86;  Williams  v.  Canal  Co., 
13  Colo.  469,  affirmed  in  Dillon  v. 
Rand,  15  Colo.  372;  Winters  v.  Means, 
25  Neb.  241,  13  Am.  St.  Rep.  489;  Tur- 


1730 


CHAP.  l] 


OF   ATTORNEYS    AT    LAW 


[§    2155 


ity.19  The  question  -should  be  raised  upon  the  earliest  practicable  op- 
portunity.20 It  cannot  be  raised  for  the  first  time  on  appeal.21 

§  2155.  2.  What  evidence  sufficient. — In  some  cases,  the 

statement  of  the  attorney  that  he  does,  in  fact,  represent  the  party  for 
whom  he  assumes  to  act,  has  been  held  priina  facie  sufficient,22  and  the 
affidavit  of  the  attorney  that  he  was  duly  authorized  or  a  similar  affida- 
vit made,  either  by  the  party  or  his  agent,  would  be  competent  evidence 
of  his  authority.23  So,  where  the  alleged  client  resides  at  a  distance, 
letters  coming  or  purporting  to  come,  in  due  course  from  himself  or 
his  agent,  authorizing  the  commencement  of  the  suit  would  be  prima 
facie  sufficient.24  Evidence  of  subsequent  ratification  would  also  be 


ner  v.   Caruthers,  17   Cal.   431;    Peo- 
ple v.  Mariposa  Co.,  39  Cal.  683." 

To  the  same  effect:  Danville,  etc., 
R.  Co.  v.  Rhodes,  180  Pa.  157. 

See  also,  Dockham  v.  Potter,  27  La. 
Ann.  73;  Tally  v.  Reynolds,  supra. 

The  question  cannot  ordinarily  be 
raised  by  the  pleadings.  Robinson  v. 
Robinson,  32  Mo.  App.  88.  See  State 
v.  Beardsley,  108  Iowa,  396. 

A  written  statement  by  the  nominal 
plaintiff  (though  not  sworn  to) 
showing  that  the  action  was  begun 
without  his  authority,  coupled  with 
the  admission  of  the  attorney  that 
he  does  not  claim  to  represent  the 
nominal  party,  is  sufficient  showing 
of  a  lack  of  authority  until  overcome 
by  other  evidence.  Bell  v.  Farwell, 
189  111.  414. 

10  Thomas  v.  Steele,  22  Wis.  207; 
Schlitz  v.  Meyer,  61  Wis.  418;  Low 
v.  Settle,  22  W.  Va.  387;  Esley  v. 
People,  23  Kan.  510. 

20  See  Low  v.  Settle,  supra. 

An  objection  to  the  right  of  an  at- 
torney to  appear  for  a  party  must  be 
made  by  motion  before  trial.  People 
v.  Lamb,  85  Hun  (N.  Y.),171;  waived, 
where  not  challenged  at  the  first 
term  after  service  and  before  plead- 
ing, and  not  until  after  the  trial 
thereof  had  been  entered  on  by  selec-  . 
tion  of  the  jury.  Doe  v.  Abbott,  152 
Ala.  243,  126  Am.  St.  Rep.  30;  State 
v.  Harris,  14  N.  Dak.  501. 

In  Bell  v.  Farwell,  189  111.  414,  it 
was  held  that  a  defendant  "had  the 


right  to  rely  upon  the  presumption 
that  the  suit  was  authoritatively  com- 
menced until  he  was  advised  to  the 
contrary,"  and  hence  his  motion  to 
dismiss,  immediately  upon  discover- 
ing such  want  of  authority  was  in 
time. 

21  State  v.   Carothers,   1   G.  Greene 
(Iowa),  464;    Mclllhenny  v.  Binz,  80 
Tex.  1,  26  Am.  St.  Rep.  705. 

22  Penobscot  Boom  Co.  v.  Lamson, 
16  Me.   224,  33  Am.  Dec.   656;    Man- 
chester  Bank   v.    Fellows,  28   N.    H. 
302;  Bridgton  v.  Bennett,  23  Me.  420. 

23  Hughes  v.   Osborn,   42   Ind.  450. 

Where  the  attorney  relies  upon  em- 
ployment by  an  agent,  the  burden  of 
showing  the  agent's  authority  for 
that  purpose  is  held  to  be  upon  the 
attorney.  Saxton  v.  Harrington,  52 
Neb.  300.  See  also,  Dillon  v.  Rand. 
15  Colo.  372.  Compare  Manchester 
Bank  v.  Fellows,  28  N.  H.  302,  307. 

24  Eickman  v.  Troll,  29  Minn.  124; 
Hardin   v.   Ho-Yo-Po-Nubby's   Lessee, 
27    Miss.    567.      "The    presumption," 
said  the  court  in  this  case,  at  p.  579, 
"is    in    favor    of   his    authority,  and 
though  he  may  be  required  to  show 
it,  yet  if  he  acts  in  good  faith  and 
the  want  of  authority  is  not  manifest, 
he  will   not   be   held   to  have   acted 
without  authority,  because  it  is  not 
shown    according    to    strictly    legal 
rules.    If  this  were  not  so,  the  great- 
est inconvenience  In  practice  would 
continually  occur  both  to  clients  and 
attorneys;    for   suits   are    frequently 


1731 


§  2156] 


THE    LAW   OF   AGENCY 


[BOOK  v 


competent.25  The  mere  possession  by  an  attorney  of  a  certified  copy  of 
a  foreign  judgment  upon  which  he  brings  action  is  not  sufficient,  when 
his  authority  to  bring  the  action  is  called  in  question.2' 

§  2156.  3.  Client   may   dispute   authority. — It   has    been 

held  in  some  cases,  that  an  appearance  by  an  attorney  binds  the  party 
for  whom  he  appears,  whether  the  attorney  was  employed  by  the  party 
or  not,27  and  that  the  only  remedy  of  the  party,  in  such  a  case,  is  by  a 
proceeding  against  the  attorney.28  That  this  is  a  harsh  rule,  and  that 
it  affords  in  many  cases  no  security  whatever  to  the  party,  is  too  mani- 


instituted  by  attorneys  under  the  au- 
thority of  letters  from  their  clients, 
who  are  strangers,  and  whose  hand- 
writing is  unknown  to  them,  and 
could  not  be  proved  without  great 
trouble  and  delay.  If  required  in 
such  a  case  to  produce  his  authority, 
the  production  of  the  letter,  though 
he  might  be  unable  to  prove  the  hand- 
writing, would  be  sufficient,  and  so 
of  a  letter  written  by  a  party  pur- 
porting to  be  the  agent  of  the  plain- 
tiff. All  that  is  required  to  be  shown 
in  such  cases  in  the  first  instance,  is, 
that  the  attorney  has  acted  in  good 
faith  and  under  an  authority  appear- 
ing to  be  genuine,  though  informal.  It 
then  devolves  upon  the  party  im- 
peaching the  authority,  to  show  by 
positive  proof,  that  it  is  invalid,  and 
insufficient  in  substance."  To  same 
effect,  see  Savery  v.  Savery,  8  Iowa, 
217;  Bush  v.  Miller,  13  Barb.  (N.  Y.) 
481;  Grignon  v.  Schmitz,  18  Wis.  620. 

See  also,  Arrington  v.  Arrington, 
102  N.  C.  491. 

25  Roberts  v.  Denver,  etc.,  R.  Co.,  8 
Colo.  App.  504;  Hays  v.  Merkle,  70 
Mo.  App.  509;  Hughes  County  v. 
Ward,  81  Fed.  314;  Saxton  v.  Har- 
rington, 52  Neb.  300;  Marrow  v. 
Brinkley,  85  Va.  55. 

The  fact  that  after  an  order  of  dis- 
missal is  entered  by  the  court,  upon 
a  statement  by  the  alleged  plaintiff, 
showing  a  want  of  authority  on  the 
part  of  the  attorney  to  bring  the  suit, 
the  plaintiff  signs  an  appeal  bond, 
does  not  amount  to  a  ratification  of 
his  act  in  bringing  the  suit  He  can- 


not by  his  own  act  undo  what  the 
court  had  rightfully  done  based  upon 
his  own  action.     Bell  v.  Farwell,  189 
111.  414. 
20  Bell  v.  Farwell,  189  I'll.  414. 

27  Abbott  v.  Button,   44  Vt.   546,  8 
Am.  Rep.  394;    St.  Albans  v.  Bush,  4 
Vt.  58,  23  Am.  Dec.  246;    Spaulding 
v.    Swift,  18    Vt.    214;     Newcomb  v. 
Peck,  17  Vt.   302,  44  Am.  Dec.  340; 
Denton  v.  Noyes,   6  Johns.    (N.  Y.) 
296,  5  Am.  Dec.  237.     This  case  has 
been  followed  in  New  York,  though 
often   under   protest.     See  Meacharn 
v.   Dudley,   6  Wend.   514;    Ingalls  v. 
Sprague,  10  Wend.   673;    Gaillard  v. 
Smart,  6  Cow.  385;  Acker  v.  Ledyard. 
8  N.  Y.  62;   Brown  v.  Nichols,  42  N. 
Y.  26;    Vilas  v.   Plattsburg  &  M.  R. 
Co.,  123  N.  Y.  440,  9  L.  R.  A.  844,  20 
Am.  St.  Rep.  771;   Washbon  v.  Cope, 
144  N.  Y.  287.  The  same  rule  has  been 
applied  in:  Everett  v.  Warner  Bank, 
58  N.  H.  340;  Cyphert  v.  McClune,  22 
Pa.  195;   England  v.  Garner,  90  N.  C. 
197;    University   v.   Lassiter,    83    Id. 
38;    Dorsey  v.  Kyle,  30  Md.   512,  96 
Am.  Dec.  617;   Schirling  v.  Scites,  41 
Miss.  644. 

28  Anonymous,  1  Salk.  86;    Denton 
v.  Noyes,  supra;  Bunton  v.  Lyford,  37 
N.  H.  512,  75  Am.  Dec.  144;    Munni- 
kuyson  v.  Dorsett,  2  H.  &  G.   (Md.) 
374;    Dorsey  v.  Kyle,  supra;  Everett 
v.  Warner  Bank,  supra;  Schirling  v. 
Scites,  supra. 

In  Post  v.  Charlesworth,  66  Hun, 
256,  the  court  gave  relief  by  com- 
pelling the  attorney  to  pay  the  judg- 
ment. 


1732 


CHAP.  l] 


OF    ATTORNEYS    AT    LAW 


[§    2156 


fest  to  require  argument.  That  it  is  opposed  to  every  principle  of  the 
law  of  agency,  binding  a  party  who  has  neither  expressly  authorized  or 
tacitly  consented  to  the  appearance,  is  equally  obvious,  and  a  number 
of  courts  have  sought  to  modify  it,  by  holding  it  to  be  applicable,  only 
in  cases  where  the  attorney  is  pecuniarily  responsible.20  While  the 
rule,  thus  modified,  would  afford  relief  in  some  cases,  it  is  also  emi- 
nently unsatisfactory  and  unreasonable.  No  rule  of  law  ought  to  rest 
upon  the  uncertain  and  shifting  conditions  of  any  man's  pecuniary  re- 
sponsibility.30 

And  it  is  believed  that  no  such  distinction  can  be  sustained.  A  party 
may,  by  his  laches,  deprive  himself  of  the  right  to  object,  or  he  may, 
by  acquiescence,  give  apparent  validity  to  an  unauthorized  appearance, 
but  these  cases  stand  upon  other  and  familiar  ground.31  The  true 
rule  is  believed  to  be  that,  while  the  appearance  of  a  regularly  admit- 
ted attorney  is  presumed  to  be  authorized,  this  presumption  is  not  con- 
clusive upon  a  party  who  has  given  no  authority  or  color  of  authority 
for  it,  and  that  the  proceeding  taken  by  the  unauthorized  attorney  will 
be  suspended  or  vacated  by  the  court  upon  a  timely  application  of  the 
party  for  whom  the  attorney  assumed  to  act.32  This  relief  is  usually 
obtained  by  motion  to  the  court  showing  the  facts.3 


29  Anonymous,  1  Salk.  86;  Den  ton 
v.  Noyes,  supra:  Everett  v.  Warner 
Bank,  supra;  University  v.  Lassiter, 
supra. 

so  See  Anderson  v.  Hawhe,  115  I1J. 
33. 

31  Thus  a  party  who  is  present  at 
the  trial  and  takes  part  in  conduct- 
ing  it   without   questioning   the   au- 
thority of  the  attorney  who  is  then 
and  there  appearing  for  him,  will  not 
be  heard  to  deny  it  after  the  trial 
has    gone    against    him.      Bacon    v. 
Mitchell,  14  N.  Dak.  454,  4  L.  R.  A. 
(N.  S.)  244. 

In  McNeal  v.  Gossard,  68  Kan.  113, 
it  was  held  where  an  attorney  was 
directed  to  enter  only  a  special  ap- 
pearance, yet  he  pleaded  matter 
operating  as  a  general  appearance  the 
client  was  bound. 

32  Harshey  v.  Blackmarr,  20  Iowa, 
161,  89    Am.    Dec.    520;    DeLouis    v. 
Meek,  2  G.  Greene  (Iowa),  55,  50  Am. 
Dec.  491;  Hefferman  v.  Burt,  7  Iowa, 


si ' 

320,  71  Am.  Dec.  445;  Sherrard  v. 
Nevius,  2  Ind.  241,  52  Am.  Dec.  508; 
Wiley  v.  Pratt,  23  Ind.  628;  Brink- 
man  v.  Shaffer,  23  Kan.  528;  Rey- 
nolds v.  Fleming,  30  Kan.  106,  46  Am. 
Rep.  86;  Critchfleld  v.  Porter,  3  Ohio, 
519;  Marvel  v.  Mansubrier,  14  La. 
Ann.  3,  74  Am.  Dec.  424;  Ridge  v. 
Alter,  14  La.  Ann.  866. 

33  Arno  v.  Wayne  Circuit  Judge,  42 
Mich.  362,  where  a  default  entered 
for  not  replying  to  a  plea  filed  by  un- 
authorized attorney  was  set  aside  on 
motion.  Where  an  attorney  brings 
an  action  without  the  authority  of 
the  plaintiff,  it  will  be  stayed  on  mo- 
tion of  plaintiff  without  costs.  Rey- 
nolds v.  Howell,  L.  R.  8  Q.  B.  398. 

The  question  may  be  raised  upon 
an  application  to  stay  proceedings. 
Spurr  v.  Mining  Co.,  15  N.  Bruns.  260, 
or  to  set  the  proceedings  aside.  Weir 
v.  Hervey,  1  U.  C.  Q.  B.  430;  proceed- 
ings may  be  dismissed  on  motion. 
Falor  v.  Beery,  6  Ohio  N.  P.  290. 


§§    2157,  2158]  THE   LAW   OF   AGENCY  [BOOK   V 

b.  In  Actions  upon  the  Judgment. 

§  2157.  •  i.  Foreign  judgments. — The  rule  is  now  well  set- 

tled that  in  actions  brought  upon  judgments,  recovered  in  other  states 
or  countries,  it  is  competent  for  the  defendant  to  show,  notwithstand- 
ing any  recitals  in  the  judgment  record  to  the  contrary,  that  he  was 
not  in  fact  served  with  process,  and  that  the  appearance  entered  for 
him  by  the  attorney  was  unauthorized.84  This  rule  does  not  conflict 
with  the  Constitution  of  the  United  States,  for  it  is  only  when  the 
court  had,  in  fact,  jurisdiction  of  the  cause,  and  of  the  parties,  that  its 
judgment  is  entitled  to  full  faith  and  credit.35 

This  rule,. of  course,  prevails  in  New  York,  even  though  upon  do- 
mestic judgments  a  different  rule  is  applied,  as  will  be  seen  in  the  fol-r 
lowing  section. 

§  2158.  2.  Domestic  judgments. — With  reference  to  do- 
mestic judgments  the  case  is  not  so  clear.  The  courts  in  New  York 
apply  to  such  judgments  when  collaterally  called  in  question  the  rule 
respecting  the  conclusive  character  of  an  attorney's  appearance,  which 
has  been  referred  to  in  the  preceding  sections,  where  the  defendant 
was  a  resident  of  the  State  86  but  not  whore  he  was  a  non-resident.87 
Elsewhere,  while  it  is  generally  held  that  any  judgment  rendered  with- 
out jurisdiction,  when  assailed  directly,  may  be  impeached,  and  that, 
in  doing  so,  anything  contained  in  the  record  purporting  to  give  or 
prove  jurisdiction, — as  the  appearance  of  an  attorney, — may  be  con- 
tradicted by  any  evidence,  extrinsic  as  well  as  intrinsic,  and  may  be 

s*Gleason  v.  Dodd,  4  Mete.  (Mass.)  as  Oilman  v.  Oilman,  126  Mass.  26, 

333;     Phelps    v.     Brewer,     9     Gush.  30  Am.  Rep.  646;  Penny  wit  v.  Foote, 

(Mass.)  390,  57  Am.  Dec.  56;  Carleton  27  Ohio    St.    600,  22    Am.  Rep.  340, 

v.  Bickford,  13  Gray  (Mass.),  591,  74  which  contains  a  full  review  of  the 

Am.  Dec.   652;    McDermott  v.  Clary,  cases. 

107  Mass.  501;  Oilman  v.  Oilman,  126          36  See  Hamilton  v.  Wright,  37  N.  Y. 
Mass.  26,  30  Am.  Rep.  646;  Mastin  v.  502;   Brown  v.  Nichols,  42  N.  Y.  26; 
Gray,  19  Kan.  458,  27  Am.  Rep.  149;  Ferguson  v.  Crawford,  70  N.  Y.  253, 
Norwood  v.  Cobb,  24  Tex.  551;   Star-  26  Am.  Rep.  589;  Vilas  v.  Plattsburgh, 
buck  v.  Murray,  5  Wend.  (N.  Y.)  148,  etc.,  R.  Co.,  123  N.  Y.  440,  20  Am.  St. 
21  Am.  Dec.  172;   Aldrich  v.  Kinney,  Rep.  771,  9  L.  R.  A.  844;  Washbon  v. 
4  Conn.  380,  10  Am.  Dec.  151;  Fergu-  Cope,  144  N.  Y.  287;  Donohue  v.  Hun- 
son  v.  Crawford,  70  N.  Y.  253,  26  Am.  gerford,  IN.  Y.  App.  Div.  528. 
Rep.  589;   Latterett  v.  Cook,  1  Iowa,          ^  Vilas  v.  Plattsburgh,  etc.,  R.  Co. 
1,  63  Am.  Dec.  428;  Bakzell  v.  Nosier,  (1890),  123  N.  Y.  440,  20  Am.  St.  Rep. 
1  Iowa,  588,  63  Am.  Dec.  466;  Harshey  771,  9  L.  R.  A.  844. 
v.  Blackmarr,  20   Iowa,  161,  89  Am.          See  also,  Needham  v.  Thayer,  147 
Dec.  520;  Rape  v.  Heaton,  9  Wis.  328,  Mass.  536;   Cooper  v.  Newell,  173  TJ. 
76  Am.  Dec.  269;  Rice  v.  Bennett,  29  S.  555,  43  L.  Ed.  808. 
S.  Dak.  341,  137  N.  W.  359. 

1734 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2159 

shown  to  be  untrue  and  false,38  with  reference  to  collateral  attack  there 
is  much  dispute.  Many  cases  hold  that  there  can  be  no  collateral  at- 
tack on  this  ground,89  but  there  are  also  many  cases  holding  that  the 
defect  may  be  shown  even  in  a  collateral  proceeding.40 


IV. 


IMPLIED  AUTHORITY  OF  ATTORNEY. 


§  2159.  .In  general.  —  In  dealing  with  the  question  of  the  implied 
authority  of  the  attorney  it  is  necessary  to  keep  in  mind  that  he  is  often 
employed  to  act  in  two  distinct  capacities.  One  of  these  is  the  case 
in  which  he  is  employed  as  a  lawyer,  an  attorney  at  law/in  his  pro- 
fessional capacity  to  conduct  for  parties  their  legal  proceedings.  The 
other  case  is  where  he  is  employed  merely  as  an  agent,  an  attorney  in 
fact,  to  do  what  any  layman  might  be  employed  to  do  in  the  transac- 
tion of  matters  of  ordinary  business.  Where  the  attorney  is  employed 
in  the  latter  capacity  he  does  not  differ  from  any  other  agent,  and  the 
ordinary  rules  applicable  to  any  agent  will  apply  to  him.  It  is  not  the 
purpose  to  consider  this  form  of  agency  in  this  place. 

Where  the  attorney  is  employed  in  his  professional  capacity  as  at- 
torney at  law,  while  he  is  in  many  respects  an  agent,  it  is  necessary  to 
keep  in  mind  that  he  is  an  agent  of  a  somewhat  unusual  sort.  In  the 
first  place,  as  has  been  seen  in  an  earlier  section,  it  is  held  by  some 

38  See   the  discussion  in  Reynolds  son,  112  N.  Car.  424,  34  Am.  St.  Rep. 

v.    Fleming,    30    Kan.    106,    46    Am.  513,  21  L.  R.  A.  848;  Sanders  v.  Price, 

Rep.     86;      Ferguson     v.     Crawford,  56  S.  Car.  1;    Deegan  v.  Deegan,  22 

70    N.  Y.    253,    26    Am.    Rep.    589;  Nev.  185,  58  Am.  St.  Rep.  742;  Cabell 

Harshey    v.     Blackmarr,     20     Iowa,  v.  Given,  30  W.  Va.  760;  Wandling  v. 

161,  89  Am.  Dec.  520;   McEachern  v.  Straw,    25    W.    Va.    692;     Brigot    v. 

Brackett,    8   Wash.    652,    40   Am.    St.  Brigot,  47  La.  Ann.  1304. 
Rep.    922;   Great   West.    Min.    Co.  v.          40  See  Hess  v.  Cole,  23  N.  J.  L.  116; 

Woodmas,  12  Colo.  46,  13  Am.  St.  Rep.  Parker  v.  Spencer,  61  Tex.  155;  Green 

204;    Kirschbaum    v.    Scott,    35   Neb.  v.  Green,  42  Kan.  654,  16  Am.  St.  Rep. 

199;  Bryn  Mawr  Nat.  Bank  v.  James,  510;    Kepley  v.    Irwin,   14  Neb.   300; 

152  Pa.  364;    Bradley  v.  Welch,  100  Anderson  v.  Hawhe,  115  111.  33;  Cas- 

Mo.  258;   Wandling  v.  Straw,  25  W.  sidy  v.  Automatic  Time   Stamp  Co., 

Va.  692.  185  111.  431;    Wiley  v.  Pratt,  23  Ind. 

so  See    Corbitt    v.    Timerman,    95  628   (defendant  not  being  within  the 

Mich!  581,  35  Am.  St.  R.  586;   Coch-  jurisdiction);   Raub  v.  Otterback,  89 

ran  v.  Thomas,  131  Mo.  258;  Finneran  Va.  645;   Great  Western  Min.  Co.  v. 

v.  Leonard,  7  Allen    (Mass.),  54,  83  Woodmas,  12  Colo.  46,  13  Am.  St.  Rep. 

Am.    Dec.    665;   Hendrick    v.  Whitte-  204   (semble). 
more,  105  Mass.  23;  Williams  v.  John- 

1735 


§    2l6o]  THE   LAW  OF   AGENCY  [BOOK   V 

courts  that  if  the  regularly  admitted  attorney  appears  and  assumes  to 
act  for  a  party  in  a  cause,  there  is  a  conclusive  presumption  that  he 
was  authorized  to  do  so;  and  even  if  he  were  not  so  authorized,  the 
party  for  whom  he  appeared  will  nevertheless  be  bound  and  must  con- 
tent himself  with  a  remedy  against  the  attorney,  at  least  where  the 
attorney  is  solvent.  As  has  been  pointed  out  already,  such  a  conclu- 
sion is  contrary  to  the  ordinary  rules  of  agency.  Again,  in  ordinary 
cases,  the  employment  of  an  agent  does  not  disqualify  the  principal 
from  acting  with  reference  to  the  subject  matter  in  person.  But,  as 
will  be  seen,  while  a  party  may  ordinarily  appear  and  conduct  his  case 
either  in  person  or  by  attorney,  it  is  ordinarily  held  that  if  he  employs 
an  attorney  he  must  not  act  in  the  case  in  person.  Some  other  in- 
stances will  appear  as  the  discussion  proceeds  sufficient  to  show  that 
while  the  attorney  at  law  may  be  an  agent  when  employed  in  his  pro- 
fessional capacity,  he  is  in  some  respects,  at  least,  an  agent  of  an  un- 
usual sort 

_  ,         e  •,  r  •  i 

§  2160.  Has  general  control  of  conduct  of  suit. — A  party  employs 
an  attorney  to  conduct  and  manage  his  cause  in  court  because  he  him- 
self lacks  the  learning,  experience:  and  ability  necessary  to  its  success- 
ful prosecution,  and  because  he  believes  that  the  attorney  possesses  these 
qualifications.  The  object  sought  is  the  prosecution  or  defense  of  the 
cause,  and  the  authority  to  accomplish  this  is  confided  to  the  attorney. 
As  in  other  cases,  this  authority  must  carry  with  it  all  the  incidental 
and  auxiliary  powers  which  are  reasonable  and  proper  to  carry  the 
main  power  into  effect.  Much  of  the  procedure  in  the  case  is  governed 
by  rules  of  court  with  which  the  attorney  is  familiar,  and  which  it  is  his 
duty  to  observe.  The  orderly  conduct  of  the  cause  requires  that  the 
settled  course  of  practice  shall  be  adhered  to,  with  which  the  attorney, 
and  not  the  client^  is  presumed  to  be  acquainted. 

When,  therefore,  a  party  puts  his  cause  into  the  hands  of  an  attor- 
ney, the  latter  is  necessarily  vested  with  large,  if  not  exclusive  author- 
ity, to  control  the  conduct  and  management  of  the  suit  in  all  matters 
which  pertain  to  the  remedy,  and  which  do  not  involve  the  substantial 
rights  of  the  client.  For  the  due  and  orderly  conduct  of  the  cause, 
the  court  holds  the  attorney  responsible,  and  these  matters  the  client, 
while  he  has  an  attorney  of  record,  has  no  right  to  interfere  with  or  to 
control.*1 

41  "A  party  to  an  action  may  ap- 
pear in  his  own  proper  person  or  by 
attorney,  but  he  cannot  do  both.  If 
he  appears  by  attorney,  he  must  be 
heard  through  him,  and  it  is  indis- 

1736 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2l6l 


§  2161. Presumption  of  authority. — So  whatever  the  at- 
torney does  in  the  prosecution  of  the  remedy,  if  it  be  not  done  fraudu- 
lently or  collusively,  is  said  to  be  binding-  upon  the  client,  although  it 
may  result  disastrously  to  him,  and  he  must  find  his  remedy  in  an  ac- 
tion against  the  attorney.*2  And  this  rule  is  not  confined  to  the  pro- 
ceedings had  in  court,  but  includes  all  acts,  whether  done  in  or  out  of 
court,  necessary  or  incidental  to  the  prosecution  or  defense  of  the  suit, 
and  which  affect  the  remedy  only  and  not  the  cause  of  action.43 

Duel  Co.,  6  Kan.  App.  173;  Beale  v. 
Swasey,  106  Me.  36,  20  Ann.  Gas.  396; 
Burgess  v.  Stevens,  76  Me.  559;  Ben- 
son v.  Carr,  73  Me.  76;  Jenney  v. 
Delesdernier,  20  Me.  183;  Wieland  v. 
White,  109  Mass.  392;  Lewis  v.  Sum- 
ner,  13  Mete.  (Mass.)  269;  Shores  v. 
Caswell,  13  Mete.  (Mass.)  413;  Moul- 
ton  v.  Bowker,  115  Mass.  36,  15  Am. 
Rep.  72;  Foster  v.  Wiley,  27  Mich. 
244,  15  Am.  Rep.  185;  AWen  v.  Dyer, 
92  Minn.  134;  Grand  Court  v.  Downs, 
98  Miss.  740;  Levy  v.  Brown,  56  Miss. 
83;  Gehrke  v.  Jod,  59  Mo.  522;  Mc- 
Cann  v.  McLennan,  3  Neb.  25;  Edger- 
ton  v.  Brackett,  11  N.  H.  218;  Howe 
v.  Lawrence,  22  N.  J.  L.  99;  Beck  v. 
Bellamy,  93  N.  Car.  129;  Ex  parte 
Jones,  47  S.  Car.  393  (where  attorney 
agreed  to  substitution  of  liens); 
State  v.  Frazier,  26  S.  Dak.  383  (cli- 
ent suffers  the  consequences  of  the 
neglect  or  ignorance  of  his  attor- 
ney) ;  Fowler  v.  Iowa  Land  Co.,  18 
S.  Dak.  131;  Illinois  Steel  Co.  v.  War- 
ras,  141  Wis.  119;  Clark  v.  Randall,  9 
Wis.  135,  76  Am.  Dec.  252;  Pierce  v. 
Strickland,  2  Story  (U.  S.  C.  C.),  292; 
Nightingale  v.  Oregon  Cent.  Ry.  Co., 
2  Sawyer  (U.  S.  C.  C.),  338. 

43  Moulton  v.  Bowker,  115  Mass.  36, 
15  Am.  Rep.  72. 

When  authority  begins. — In  Stone 
v.  Bank  of  Commerce,  174  U.  S.  412, 
43  L.  Ed.  1028,  it  is  said:  "An  attor- 
ney, in  his  capacity  merely  as  such, 
has  no  power  to  make  any  agreement 
for  his  client  before  a  suit  has  been 
commenced  or  before  he  has  been 
retained  to  commence  one."  If  he 
does  act,  he  acts  as  agent  merely  and 
his  authority  must  appear. 


by  any  one  except  the  party  whom  he 
represents.  So  long  as  he  remains 
attorney  of  record,  the  court  cannot 
recognize  any  other  as  having  the 
management  of  the  case."  Sander- 
son, C.  J.,  in  Board  of  Commissioners 
v.  Younger,  29  Cal.  147,  87  Am.  Dec. 
164.  To  same  effect,  see  Mott  v.  Fos- 
ter, 45  Cal.  72;  Nightingale  v.  Oregon 
Central  Ry.  Co.,  2  Sawyer  (U.  S.  C. 
C.),  338;  Wyllie  v.  Sierra  Gold  Co., 
where  the  court  refused  to  recognize 
a  stipulation  signed  by  the  client  ex- 
tending the  time  for  pleading.  Bon- 
nifield  v.  Thorp,  71  Fed.  924;  Earhart 
v.  United  States,  30  Ct  Cl.  343. 
Where  stipulations  by  the  client  re- 
specting matters  of  procedure  were 
held  not  binding. 

But  where  the  client  has  stipulated 
in  person  to  settle  the  cause,  he  can- 
not defeat  it  by  insisting  that  his  at- 
torney and  not  himself  was  the  per- 
son who  should  have  signed.  Mc- 
Bratney  v.  Rome,  etc.,  R.  R.  Co.,  87 
N.  Y.  467. 

It  is  a  general  rule  that  the  author- 
ity of  the  attorney  ends  with  the  en- 
try of  judgment  and  though  he  may 
be  actually  authorized  to  enforce  the 
judgment  this  would  not  defeat  the 
stipulation  of  a  client  that  the  judg- 
ment might  be  reduced  in  amount. 
Homaus  v.  Tyng,  56  N.  Y.  App.  Div. 
383. 

42  Scroggin  v.  Hammett  Co.,  66  Ark. 
183  (where  attorney  lost  right  to  ap- 
peal by  negligence) ;  Coonan  v.  Loe- 
wenthal,  129  Cal.  197;  Lee  v.  Grimes, 
4  Colo.  185;  Whitestown  Milling  Co. 
v.  Zahn,  9  Ind.  App.  270;  DeLouis  v. 
Meek,  2  G.  Greene  (Iowa),  55,  50  Am. 
Dec.  491;  Cronkhite  v.  Evans-Snider- 


1737 


§    2l62] 


THE   LAW   OF  AGENCY 


[BOOK   V 


In  this  respect,  it  is  often  said  that  the  authority  of  the  attorney 
stands  upon  different  footing  from  that  of  other  agents.  "The  assump- 
tion by  an  attorney  at  law,"  it  is  said  in  one  case,  "of  authority  within 
the  scope  of  the  general  power  of  a  practicing  lawyer  to  act  for  a  party 
to  an  action  or  suit  is  always  presumptive  proof  of  his  actual  authority 
to  do  so.  The  authority  assumed  by  an  attorney  at.  law  to  act  for  a 
party  in  court  is  valid  until  disproved,  not  void  until  proved."  ** 

§  2162.  -  What  included.  —  It  is  obviously  impracticable  to 
detail  all  of  the  acts  which  the  attorney  at  law,  by  reason  of  his  em- 
ployment, has  implied  authority  to  do  respecting  the  conduct  of  the 
cause,  but  as  incidental  to  his  authority  to  manage  and  control  the  gen- 
eral course  and  conduct  of  the  cause,  the  attorney  of  record  has  been 
held  to  have  implied  power  :  — 

a.  To  make  such  affidavits  as  are  required  in  the  progress  of  the 
cause,  when  the  facts  are  within  his  knowledge.*3 

b.  To  waive  a  verification.40 

c.  To  serve,  and  accept  service  of,  all  necessary  and  proper  papers, 
notices,  etc.,  during  the  progress  of  the  cause.47 

d.  To  waive  formal  notice  of  proceedings  in  the  cause.48 

6.  To  waive  or  extend  the  time  fixed  for  any  motion  or  proceeding.49 


<*  Brown  v.  Arnold,  67  C.  C.  A,  125, 
131  Fed.  723. 

In  Pierce  v.  Perkins,  2  Dev.  Eq.  (17 
N.  Car.)  250,  it  is  said:  "The  author- 
ity  of  the  attorney  of  record  to  make 
all  agreements  for  the  conducting  or 
determining  the  suit  cannot  be  dis- 
puted  by  his  clients;  other  persons 
are  not  to  take  notice  of  his  private 
instructions  or  his  want  of  instruc- 
tions.  They  have  a  right  to  consider 
his  authority  full,  to  manage  the  suit 
as  the  party  himself  could;  and  the 
client  must  be  bound  by  his  acts,  un- 
less  he  can  clearly  establish  collusion 
between  the  attorney  and  the  oppo- 
site  party."  This  is  cited  with  ap- 
proval  in  Wilson  v.  Spring,  64  111.  14; 
Grand  Lodge  v.  Ohnstein,  110  111. 
App.  312. 

45  He  may  verify,  by  affidavit,  a  pe- 
tition  in  scire  facias.  Wright  v. 
Parks,  10  Iowa,  342.  He  may  make 
an  affidavit  to  obtain  an  order  of 
seizure  and  sale.  Simpson  v.  Lorn- 
bas,  14  La.  Ann.  103;  or  to  obtain  an 


attachment,  Clark  v.  Morse,  16  La. 
575;  Austin  v.  Latham,  19  Id.  88; 
Hardie  v.  Colvin,  43  La.  Ann  851; 
Willis  v.  Lyman,  22  Tex.  268;  Manley 
v.  Headley,  10  Kan.  88. 

*«  Smith  v.  Mulliken,  2  Minn.  273. 

<?  Anderson  v.  Watson,  3  C.  &  P. 
214;  Richardson  v.  Daly,  4  M.  &  W. 
384;  Lacoste  v.  Eastland,  117  Cal. 
673;  Taylor  v.  Hill,  115  Cal.  143; 
Hutchison  v.  Johnson,  1  Bin.  (Pa.) 
69. 

*s  Hefferman  v.  Burt,  7  Iowa,  320, 
71  Am.  Dec.  445;  Smith  v.  Cunning- 
ham,  59  Kan.  552. 

«  Hefferman  v.  Burt,  supra. 

Attorney  has  authority  to  stipulate 
that  additional  time  be  given  a  jus- 
tice  of  the  peace  in  which  to  render 
judgment.  Beardsley  v.  Pope,  88  Hun 
(N.  Y.),  560;  Litt  v.  Stewart,  62  N. 
Y.  Supp.  1114. 

Morris  v.  Press  Pub.  Co.,  98  N.  Y. 
App.  Div.  143  (attorney  may  stipulate 
that  defendant  may  have  the  same 
time  in  which  to  answer  or  demur  as 


CHAP.  l] 


OF   ATTORNEYS   AT  LAW 


/.  To  consent  to  a  reference  of  the  cause  where  such  a  practice  pre- 
vails.50 

g.  To  submit  a  pending  cause  to  arbitrators — at  least,  where  done  by 
rule  of  court.61 


the  plaintiff  had  in  which  to  serve  the 
complaint) ;  Haas  v.  Gaddis,  1  Wash. 
89.  (That  a  notice  of  appeal  may  be 
given  after  the  time  limited  by  law.) 

so  Stokely  v.  Robinson,  34  Pa.  St. 
315;  Wade  v.  Powell,  31  Ga.  1;  Smith 
v.  Bossard,  2  McCord's  (S.  C.),  Ch. 
406;  Tiffany  v.  Lord,  40  How.  (N.  Y.) 
Pr.  481;  Buckland  v.  Conway,  16 
Mass.  396. 

A  counsel  has  no  authority  to  refer 
an  action  against  the  wishes  of  his 
client  or  upon  terms  different  from 
those  which  his  client  has  authorized. 
Neale  v.  Lennox,  [1902]  App.  Gas. 
465. 

si  Holker  v.  Parker,  7  Cranch  (U. 
S.),  436,  3  L.  Ed.  396  (a  case  of  ref- 
erence) ;  Sargeant  v.  Clark,  108  Pa. 
588  (at  least  in  a  case  involving 
boundaries,  but  not  title);  Williams 
v.  Tracey,  95  Pa.  308  (but  here  was 
evidence  of  ratification) ;  Lew  v. 
Nolan,  8  Pa.  Dist.  Rep.  531  (but  not 
where  title  to  land  is  involved); 
Brooks  v.  New  Durham,  55  N.  H.  559 
(where  the  agreement  was  made  in 
open  court  and  the  arbitrator  was  a 
referee  appointed  by  the  court  in  pur- 
suance of  a  statute  which  made  the 
judgments  of  a  referee  upon  a  refer- 
ence made  with  the  consent  of  the 
parties  binding  upon  them,  the  hold- 
ing being  that  the  attorney  had  im- 
plied authority  to  give  such  con- 
sent) ;  Bank  of  Glade  Spring  v.  Mc- 
Bwen,  160  N.  Car.  414,  76  S.  E.  222 
(where  the  court  said  this  was  one 
method  of  trial);  Morris  v.  Grier,  76 
N.  Car.  410;  Tilton  v.  United  States 
Life  Ins.  Co.,  8  Daly  (N.  Y.),  84;  Jen- 
kins v.  Gillespie,  10  Sin.  &  M. 
(Miss.)  31,  48  Am.  Dec.  732;  Lee  v. 
Grimes,  4  Colo.  185;  McElreath  v. 
Middleton,  89  Ga.  83  (dictum);  Con- 


irfj  • 


nett  v.  Chicago,  114  111.  233  (but  this 
case  rests  upon  ratification  rather 
than  upon  inherent  authority);  Bev- 
erly v.  Stephens,  17  Ala.  701. 

Only  by  rule  in  court  and  not  in 
pat's.  Daniels  v.  City  of  New  London, 
58  Conn.  156,  7  L.  R.  A.  563.  (Good 
case. ) 

Not  where  no  cause  is  pending. 
McGinnis  v.  Curry,  13  W.  Va.  29; 
Stinerville  Stone  Co.  v.  White,  25  N. 
Y.  Misc.  314;  Scarborough  v.  Rey- 
nolds, 12  Ala.  252.  Not  under  the 
code  in  Lousiana.  King  v.  King,  104 
La.  420. 

Only  by  rule  of  court  in  a  pending 
cause.  Markley  v.  Amos,  8  Rich.  (S. 
Car.)  L.  468. 

The  writer  feels  constrained  to  ex- 
press his  opinion,  with  due  defer- 
ence, that  a  general  rule  that  an  at- 
torney employed  to  conduct  a  cause 
has  implied  authority  to  submit  it  to 
arbitration,  is  unsound.  Practice  or 
custom  may  justify  it  in  particular 
cases.  An  attorney  authorized,  with- 
out more,  to  conduct  a  cause  has 
doubtless  the  implied  power  to  do 
what  is  usually  done  in  such  cases. 
Is  it  usual  to  submit  causes  in  court 
to  arbitration?  Certainly  not,  in  the 
writer's  judgment.  An  attorney  is 
usually  employed  to  obtain  the  law's 
arbitrament  of  the  client's  cause, — 
not  that  of  an  extra-judicial  and  in- 
formal tribunal. 

An  attorney  has  no  implied  power 
to  change  the  terms  of  a  submission 
agreed  to  by  his  client.  Daniels  v. 
New  London,  58  Conn.  156,  7  L.  R.  A. 
563;  Jenkins  v.  Gillespie,  10  Sm.  & 
M.  (Miss.)  31,  48  Am.  Dec.  732. 

Attorney  cannot  submit  cause  to 
arbitration,  Crotly  v.  Eagle,  35  W.  Va. 
143;  McPherson  v.  Cox,  86  N.  Y.  472. 


-r&TS  JV  £8  ,.oD 


THE    LAW   OF   AGENCY 


[BOOK   V 


h.  To  dismiss  or  discontinue  the  action  where  it  will  not  amount  to 
a  retraxit  or  release.52 

i.  To  consent  to  a  nonsuit.83 

;'.  To  admit  facts  for  the  purposes  of  trial,  either  on  the  trial  or  be- 
fore.54 


"  Gaillard  v.  Smart,  6  Cow.  (N.  Y.) 
385;  Barrett  v.  Third  Ave.  R.  R.  Co., 
45  N.  Y.  628;  Davis  v.  Hall,  90  Mo. 
659;  McLeran  v.  McNamara,  55  Cal. 
508;  Rogers  v.  Greenwood,  14  Minn. 
333;  Paxton  v.  Cobb,  2  La.  137; 
Bacon  v.  Mitchell,  14  N.  Dak.  454, 
4  L.  R.  A.  (N.  S.)  244;  Simpson  v. 
Brown,  1  Wash.  Ter.  248;  Furman  v. 
Bon  Marche,  71  Wash.  238,  128  Pac. 
210;  Nightingale  v.  Oregon  Cent.  Ry. 
Co.,  18  Fed.  Cas.  239  (No.  10,264); 
Rhutasel  v.  Rule,  97  Iowa,  20,  and 
Steinkamp  v.  Gaebel,  1  Neb.  (unof.) 
480,  are  apparently  contra,  but  in  the 
latter  at  least  there  were  special  cir- 
cumstances. 

An  authority  to  dismiss  an  action 
is  not  authority  to  enter  a  final  de- 
cree. Jubilee  Placer  Co.  v.  Hossfeld, 
20  Mont.  234. 

In  Brown  v.  Mead,  68  Vt  215,  it 
was  held  that  although  an  attorney 
would  not  have  implied  power  to  fin- 
ally dismiss  the  case,  he  does  have 
implied  power  to  accept  a  tender  of 
damages  for  the  injury  made  in  pur- 
suance of  a  statute. 

53  Lynch  v.  Cowell,  12  L.  T.  548. 

5*  Lewis  v.  Sumner,  13  Mete. 
(Mass.)  269;  Starke  v.  Kenen,  11  Ala. 
818;  Farmers'  Bank  v.  Sprigg,  11  Md. 
389;  Pike  v.  Emerson,  5  N.  H.  393, 
22  Am.  Dec.  468;  Talbot  v.  McGee,  4 
T.  B.  Mon.  (Ky.)  375;  Godwin  v. 
State,  1  Boyce  (24  Del.),  173;  Key- 
wood  v.  Doernbecher,  48  Ore.  359; 
Everett  v.  Marston,  186  Mo.  587; 
Preston  v.  Davis,  112  111.  App.  636; 
Bochat  v.  Knisely,  144  III.  App.  551; 
Webster  v.  Dundee  Mtg.  &  Trust  Co., 
93  Ga.  278;  Garrett  v.  Hanshue,  53 
Ohio  St.  482,  35  L.  R.  A.  321;  J.  L. 
Roper  Lumber  Co.  v.  Lumber  Co., 
137  N.  C.  431;  United  States  v. 
United  States  Fidel.  Co.,  83  Vt.  278. 


In  Walsh  v.  Missouri  Pac.  Ry.  Co., 
102  Mo.  582,  [a  case  afterwards  char- 
acterized by  the  court  as  an  extreme 
case]  the  court  held  the  defendant 
bound  as  for  an  admission  by  his  at- 
torney, because  the  attorney  allowed 
to  go  unquestioned  a  statement  of 
fact  made  by  the  plaintiff's  attorney 
upon  the  trial.  But  compare  Lord  v. 
Bigelow,  124  Mass.  185.  In  Currier 
v.  Silloway,  1  Allen  (83  Mass.),  19, 
it  was  held  that  a  written  agreement 
respecting  a  prior  suit,  and  filed 
therein,  signed  by  the  attorney  of  an 
alleged  partnership,  is  competent  evi-. 
dence  to  prove  the  partnership  in  a 
later  action,  against  those  whose  con- 
nection with  the  suit  is  otherwise 
shown. 

"Admissions  of  an  attorney,  in  or- 
der to  bind  his  client,  must  be  dis- 
tinct and  formal,  and  made  for  the 
express  purpose  of  dispensing  with 
formal  proof  of  a  fact  at  the  trial." 
Treadway  v.  Sioux  City,  etc.,  R.  R. 
Co.,  40  Iowa,  526.  Same  effect:  Mc- 
Keen  v.  Gammon,  33  Me.  187;  Rock- 
well v.  Taylor,  41  Conn.  55;  Missouri, 
etc.,  Tel.  Co.  v.  Vandevont,  67  Kan. 
269;  Johnson  v.  Russell,  144  Mass. 
409. 

"While  attorneys  engaged  In  the 
actual  management  of  a  cause  may 
bind  their  clients  by  admissions 
while  so  engaged,  or  by  statements 
and  correspondence  relating  hereto, 
yet  they  have  no  authority  under  a 
general  retainer  to  compromise  an 
action,  or  to  bind  a  client  by  state- 
ments that  he  has  no  cause  of  action 
or  that  he  has  surrendered  whatever 
rights  he  possessed."  Lytle  v.  Craw- 
ford, 69  N.  Y.  App.  Div.  273.  Where 
the  attorney  of  a  railroad  company 
is  sent  to  a  county  seat  to  pay  the 
taxes  assessed  against  his  client,  this 


1740 


CHAP,  ij 


OF   ATTORNEYS   AT   LAW 


[§ 


k.  To  stipulate  as  to  the  issues  to  be  tried,  and  the  like.95 

/.  To  waive  mere  formalities  and  technicalities.56 

m.  To  release  an  attachment  lien  before  judgment.57 

n.  To  stipulate  that  judgment  in  the  cause  be  the  same  as  in  another 

cause  then  pending  to  which  the  client  is  a  party  and  involving  the 

same  questions.58 

presumptively  means  the  legal  and 
valid  taxes  only,  and  his  offer  to  pay 
illegal  taxes,  of  the  illegality  of 
which  he  is  unaware  at  the  time, 
does  not  bind  the  company,  nor  estop 
it  from  disputing  such  taxes.  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Apperson,  97 
Mo.  300.  An  attorney  employed 
merely  to  collect  a  legacy,  has  no 
implied  authority  to  make  promises 
or  admissions  respecting  the  distribu- 
tion of  the  fund.  Lyon  v.  Hires,  91 
Md.  411. 

os  Bingham  v.  Board  of  Supervisors 
of  Winona  County,  6  Minn.  136. 

The  general  attorney  of  a  railway 
company,  then  negotiating  about  a 
settlement,  may  bind  the  company  by 
agreeing  that  if  the  claimant  would 
not  then  give  his  deposition,  in  case 
of  his  death  his  wife  might  testify  as 
to  the  account  he  had  given  her  as  to 
the  cause,  character,  and  extent  of 
his  injuries.  Thompson  v.  Fort 
Worth,  etc.,  R.  R.  Co.,  31  Tex.  Civ. 
App.  583.  Such  an  attorney  has  au- 
thority to  agree  that  the  deposition 
of  the  plaintiff  may  be  taken  before 
the  trial,  and  that  if  he  dies  before 
such  trial,  the  depositions  may  be 
read  upon  the  trial  of  an  action 
brought  by  his  personal  representa- 
tives. Ludeman  v.  Third  Ave.  R.  R. 
Co.,  72  N.  Y.  App.  Div.  26. 

May  stipulate  that  an  adjourn- 
ment shall  be  without  prejudice  to 
opposite  party.  Hunt  v.  Hunt,  154 
N.  Y.  App.  Diy.  833,  139  N.  Y.  Supp. 
413;  that  where  the  judge  who  dis- 
qualified to  sit  in  the  case,  a  certain 
other  judge  shall  be  called  upon  to 
try  it  Washoe  Copper  Co.  v.  Hickey, 
46  Mont.  363,  128  Pac.  584. 

56  Hanson  v.  Hoitt,  14  N.  H.  56. 


o  IQ  Ju'jrn^iujf  g<;olriQ5  oj    .1 

57  Benson  v.  Carr,  73  Me.  76;  Moul- 
ton  v.  Bowker,  115  Mass.  36,  15  Am. 
Rep.  72;  Jenney  v.  Delesdernier,  20 
Me.  183;  Pierce  v.  Strickland,  2  Story 
(U.  S.  C.  C.),  292;  Muir  v.  Orear,  87 
Mo.  App.  38;  Monson  v.  Hawley,  30 
Conn.  51,  79  Am.  Dec.  233. 

Where  a  surety  on  a  delivery  bond 
had  a  right  under  the  statute  to  re- 
turn the  property  and  thus  discharge 
his  obligation  on  the  bond,  except  for 
damages  assessed,  without  the  con- 
sent of  the  attorney  for  the  plaintiff 
in  execution,  it  was  held  that  an 
agreement  to  discharge  the  surety 
from  the  damages  if  he  would  return 
the  property  was  within  the  attor- 
ney's authority  in  prosecuting  the 
suit.  Willis  v.  Chowning,  90  Tex. 
617,  59  Am.  St.  Rep.  842. 

In  a  suit  in  equity  to  enforce  a 
lien  on  land  wherein  a  decree  for 
sale  had  been  entered  and  an  appeal 
taken  without  supersedeas,  it  was 
held  that  the  attorneys  of  record  had 
authority  to  agree  that  the  land 
should  be  sold  and  the  proceeds  be 
paid  into  court  and  held  to  abide  the 
final  event  of  the  suit.  Halliday  v. 
Stuart,  151  U.  S.  229,  38  L.  Ed.  141. 

68  North  Missouri  R.  R.  Co.  v. 
Stephens,  36  Mo.  150,  88  Am.  Dec. 
138;  Stone  v.  Bank  of  Commerce,  174 
U.  S.  412,  43  L.  Ed.  1028;  Gilmore  v. 
American  Central  Insurance  Co.,  67 
Cal.  366;  Eidam  v.  Finnegan,  48 
Minn.  53,  16  L.  R.  A.  507;  Southern 
Kansas  R.  Co.  v.  Pavey,  57  Kan.  521; 
Louisville  Trust  Co.  v.  Stone,  88  Fed. 
407;  Brown  v.  Arnold,  131  Fed.  723, 
67  C.  C.  A.  125;  or  that  the  result  in 
one  of  several  similar  causes  shall 
determine  all.  Ohlquest  v.  Farwell, 
71  Iowa,  231.  The  clients  here  were 


• 


1741 


§    2l62] 


THE   LAW  OF   AGENCY 


[COOK   V 


o.  To  bring  a  new  action  after  a  nonsuit/'0 

p.  To  agree  that  upon  judgment  being  entered  for  his  client,  he  will 
suspend  the  issue  of  execution.00 

q.  To  remit  damages  after  a  verdict.61 

r.  To  stipulate  as  to  the  form  of  the  judgment  or  decree.02 

s.  To  confess  judgment  or  consent  to  a  decree  against  his  client.63 


not  the  same  in  name,  though  they 
were  in  interest  and  all  had  the  same 
attorneys. 

In  Gilmore  v.  American  Cent.  Ins. 
Co.,  supra,  the  court  applied  the  rule 
"where  the  two  causes  were  alike  in 
every  material  respect,  had  the  same 
attorneys,  and  were  pending  in  the 
same  court."  In  Louisville  Trust  Co. 
v.  Stone,  supra,  it  was  said  that  the 
rule  can  exist  only  where  the  two 
cases  involve  the  same  questions  of 
law  and  fact.  In  Scarritt  Furniture 
Co.  v.  Moser,  48  Mo.  Ap>p.  543,  it  is 
said  that  an  attorney  has  an  implied 
authority  to  stipulate  that  the  action 
in  which  he  appeal's  shall  abide  the 
result  of  another  action  in  which  he 
is  not  engaged  and  to  which  his 
client  is  not  a  party.  But  this  was 
probably  only  a  dictum  and  is  ques- 
tioned in  Stone  v.  Bank  of  Commerce, 
supra.  See  also,  Grand  Lodge  v.  Ohn- 
stein,  110  111.  App.  312,  329. 

5»  Scott  v.  Elmendorf,  12  Johns. 
(N.  Y.)  317. 

«o  In  Wieland  v.  White,  109  Mass. 
392,  plaintiff's  attorney  agreed  to 
suspend  execution  on  judgment  one 
week.  Held,  the  attorney  "may  delay 
issuing  an  execution  and  may  stay 
proceedings  upon  it,  if  it  be  done 
honestly  and  with  reasonable  discre- 
tion." 

In  Union  Bank  v.  Geary,  5  Pet.  (U. 
S.)  99,  8  L.  Ed.  60,  it  was  held  that 
the  attorney  had  implied  power  to 
agree  that,  if  an  endorser  would  sub- 
mit to  judgment  against  him,  the  at- 
torney would  immediately  issue  exe- 
cution against  the  principal  debtor 
and  have  it  levied  on  his  property, 
which  was  then  apparently  sufficient 
to  satisfy  the  claim. 


«i  Lamb  v.  Williams,  1  Salkeld,  89, 
where  the  attorney  remitted  part  of 
the  damages  and  took  judgment  as  to 
the  balance,  the  court  held  "that  the 
attorney  has  authority  by  his  being 
constituted  attorney  to  remit  dam- 
ages." It  was  also  said  that  a 
retraxit,  on  the  contrary,  must  be 
made  by  the  client  in  propria  per- 
sona. 

62  Wood  v.  Wood,  59  Ark.  441,   43 
Am.  St.  Rep.  42,  28  L.  R.  A.  157.     In 
Wilkie  v.  Reynolds,  34  Ind.  App.  527, 
it  was  held  that  the  defendant  in  an 
action  to  enforce  a  note  and  mortgage 
was  bound  by  a  stipulation  made  in 
open  court,  submitting  the  case  for 
trial  on  a  given  day  and  agreeing  to 
a  judgment  that  if  payment  was  not 
made  within  a  certain  time  judgment 
should    be   entered   for   the   plaintiff 
for  a  given  sum.     The  attorney  here 
was  the  defendant's  husband  and  had 
charge  of    the    cause    with    her  full 
knowledge  and  consent. 

See  Beck  v.  Bellamy,  93  N.  C.  129. 

In  Grand  Lodge  v.  Ohnstein,  110 
111.  App.  312,  it  was  held  that  an  at- 
torney has  implied  authority  to  agree 
with  the  opposite  party  to  pay  the 
amount  of  his  claim  in  consideration 
of  his  dismissal  of  his  suit. 

In  Monk  v.  Wabash  R.  Co.,  166  Mo. 
App.  692,  150  S.  W.,  it  is  said  that 
attorney  has  authority  on  the  grant- 
ing of  a  new  trial,  to  stipulate  that 
case  shall  be  tried  on  evidence  taken 
on  first  trial. 

63  This  rule  seems  to  be  sustained 
by  the  weight  of  authority,  although 
there  are  a  number  of  cases  opposed 
to  it.     It  doubtless  rests,  as  do  most 
of  the  matters    in    this    section,  not 
upon     the     ordinary     doctrines     of 


1742 


CHAP.  l] 


OF  ATTORNEYS   AT   LAW 


[§    2163 


§  2163.  What  not  included. — Such  an  attorney  has,  how- 
ever, no  implied  power  :— 

a.  To  admit  or  accept  service  of  original  process  by  which  the  court 
acquires  jurisdiction  for  the  first  time  of  the  person  of  his  client.04 


agency,  but  upon  the  peculiar  posi- 
tion of  the  attorney  at  law.  In  many 
of  the  cases  it  vvas  said  that  the  rem- 
edy of  the  client  for  an  improper 
confession  of  judgment  is  an  action 
against  the  attorney,  qualified  in 
many  of  them  by  the  proviso  that  the 
attorney  be  not  insolvent.  The  deci- 
sion in  several  of  the  cases  could  be 
sustained  upon  the  theory  that  even 
if  the  attorney  had  not  the  implied 
power,  yet  where  he  had  done  so  his 
action  would  afterwards  be  pre- 
sumed to  have  been  taken  with  the 
actual  authority  of  his  client  until 
the  contrary  was  shown. 

That  the  judgment  will  be  upheld, 
see  Hollenbeck  v.  Glover,  128  Ga.  52; 
Taylor  v.  Land-Mortgage  Co.,  106  Ga. 
238;  Williams  v.  Simmons,  79  Ga. 
649;  Hudson  v.  Allison,  54  Ind.  215; 
Thompson  v.  Pershing,  86  Ind.  303; 
Garrigan  v.  Dickey,  1  Ind.  App.  421; 
Devenbaugh  v.  Nifer,  3  Ind.  App.  379; 
Chalmers  v.  Tandy,  111  111.  App.  252; 
Meriden,  etc.,  Co.  v.  Anderson,  111 
111.  App.  449  (in  which  the  appellate 
court  attempts  to  distinguish  the 
earlier  cases  in  the  supreme  court 
which  seem  to  hold  the  contrary) ; 
Talbot  v.  McGee,  4  T.  B.  Monroe 
(Ky.),  375;  Holbert  v.  Montgomery, 
5  Dana  (Ky.),  11;  Gifford  v.  Thorn, 
9  N.  J.  Eq.  702;  Denton  v.  Noyes,  6 
Johns.  (N.  Y.)  296,  5  Am.  Dec.  237; 
In  re  Maxwell,  66  Hun  (N.  Y.),  151; 
Hairston  v.  Garwood,  123  N.  C.  345; 
Flanigan  v.  Philadelphia,  51  Pa.  491; 
Jones  v.  Williamson,  5  Cold.  (Tenn.) 
371;  Teter  v.  Irwin,  69  W.  Va.  200, 
Ann.  Cas.  1913  A.  707. 

Contra:  Pfister  v.  Wade,  69  Cal.  133; 
Wadhams  v.  Gay,  73  111.  415;  People 
v.  Lamborn,  2  111.  123  (but  see  Wilson 
v.  Spring,  64  111.  14;  Meriden,  etc.,  Co. 
v.  Anderson,  111  111.  App.  449);  Kil- 


mer v.  Gallaher,  112  Iowa,  583,  84  Am. 
St.  Rep.  358  (citing  several  other  cases 
in  the  same  state  to  the  same  effect 
and  treating  Potter  v.  Parsons,  14 
Iowa,  286,  as  overruled  by  them) ;  Ed- 
wards v.  Edwards,  29  La.  Ann.  597 
(but  this  was  controlled  by  the  code.) 

Attorney  may  not  consent  to  judg- 
ment on  behalf  of  infant  clients 
where  he  represents  adverse  inter- 
ests. Walker  v.  Grayson,  86  Va.  337. 

Withdrmving  defense.  —  Attorney 
has  no  authority,  for  the  declared 
reason  that  his  fees  have  not  been 
paid,  to  withdraw  the  answer  and 
defense  in  a  case  in  which  he  was 
employed  to  make  a  defense,  and  thus 
permit  judgment  to  go  against  his 
client.  The  judgment  may  be  set 
aside.  Nichells  v.  Nichells,  5  N.  Dak. 
125,  57  Am.  St.  Rep.  540,  23  L.  R.  A. 
515  (a  divorce  case). 

64  Masterson  v.  Le  Claire,  4  Minn. 
163  (it  is  immaterial  that  the  client 
is  also  an  attorney);  Reed  v.  Reed, 
19  S.  C.  548;  Starr  v.  Hall,  87  N.  C. 
381;  Warlick  v.  Reynolds,  151  N.  C. 
606;  Ashcraft  v.  Powers,  22  Wash. 
440;  Bradley  v.  Welch,  100  Mo.  258; 
Segars  v.  Segars,  76  Me.  96;  Rice  v. 
Bennett,  29  S.  Dak.  341,  137  N.  W. 
359. 

In  the  following  cases  it  is  said 
that  authority  to  acknowledge  serv- 
ice does  not  include  authority  to 
waive  service.  Clark  v.  Morrison,  85 
Ga.  229;  Reed  v.  Reed,  supra;  Sulli- 
van v.  Susong,  40  S.  C.  154. 

Attorney  has  no  implied  authority 
to  consent  to  such  a  change  in  the 
action  as  amounts  to  a  new  and  dif- 
ferent action,  e.  g.,  to  agree  that  the 
declaration  in  an  action  against  an 
individual,  be  so  amended  to  declare 
against  him  as  receiver.  Erskine  v. 
Mcllrath,  60  Minn.  48b. 


1743 


§  36163] 


THE   LAW   OF   AGENCY 


[BOOK;IV 


b.  To  enter  a  retraxit  when  it  is  a  final  bar.65 

c.  To  stipulate  that  the  dismissal  of  an  action  shall  bar  an  action-  for 
malicious  prosecution.66 

d.  To  compromise  the  claim  of  his  client.87 


While  an  attorney  has  no  implied 
authority  to  accept  service,  it  is  said 
in  several  cases  that,  if  he  has  in 
fact  done  so,  there  will  be  a  prima 
facie  presumption  that  he  had  been 
actually  authorized  to  do  so,  which 
will  prevail  until  proof  to  the  con- 
trary. Especially  is  this  so,  where 
there  has  also  been  an  appearance. 
Hendrix  v.  Fuller,  7  Kan.  331;  Tay- 
lor v.  Sutton,  6  La.  Ann.  709;  Courey 
v.  Brenham,  1  La.  Ann.  397;  Marling 
v.  Robrecht,  13  W.  Va.  440;  Northern 
Cent.  R.  Co.  v.  Rider,  45  Md.  24; 
Backus  v.  Burke,  63  Minn.  272. 

See  Clark  v.  Lilliebridge,  45  Kan. 
567. 

«s  Lambert  v.  Sandford,  2  Blackf . 
(Ind.)  137,  18  Am.  Dec.  149;  Hallock 
v.  Loft,  19  Colo.  74;  Forest  Coal  Co. 
v.  Doolittle,  54  W.  Va.  210;  Brown  v. 
Mead,  68  Vt.  215;  Sheffer  v.  Perkins, 
83  Vt.  185,  25  L.  R.  A.  (N.  S.)  1313. 

ee  Marbourg  v.  Smith,  11  Kan.  554. 

67  Treated  merely  as  an  agent  to 
collect  or  prosecute  a  claim,  the  rule 
that  the  attorney  has  no  implied 
power  to  compromise  a  claim  is  in 
strict  accordance  with  the  unques- 
tioned rule  prevailing  with  respect  to 
other  agents.  See  ante,  §  954.  And 
treating  the  attorney  as  a  profes- 
sional agent  employed  in  his  profes- 
sional capacity  to  sue  upon  and 
collect  his  client's  claim,  the  weight 
of  authority  in  the  United  States  is 
clearly  that  such  an  employment 
gives  him  no  implied  authority  to 
compromise  the  claim.  Senn  v.  Jos- 
eph, 106  Ala.  454  (also  that  the  Ala- 
bama statute  relating  to  attorneys 
gives  no  such  power ) ;  Henderson  v. 

Planters'  Bank,  Ala.  — ,  59  So. 

493 ;  Pickett  v.  Merchants'  Nat.  Bank, 
32  Ark.  346;  Cullin-McCurdy  Co.  v. 
Vulcan  Iron  Works,  93  Ark.  342;  Am- 


brose v.  McDonald,  53  Cal.  28;  Pres- 
ton v.  Hill,  50  Cal.  43;  Trope  v. 
Kerns,  83  Cal.  553;  Hallock  v.  Loft, 
19  Colo.  74;  Strattner  v.  Electric  Co., 
3  Penn.  (Del.)  453  (the  attorney  was 
said  to  have  presumptive  authority); 
Kaiser  v.  Hancock,  106  Ga.  217;  Kidd 
v.  Huff,  105  Ga.  209;  Schroeder  v. 
Wolf,  227  111.  133;  Danziger  v.  Shoe 
Co.,  204  111.  145;  Heifer  v.  Spunner, 
147  111.  App.  448;  Wetherbee  v.  Fitch, 
117  111.  67;  Wadhams  v.  Gay,  73  111. 
415;  Jennings  v.  South  Whitley  Hook 

Co.,  Ind.  App.  ,  98  N.  E.  194; 

Martin  v.  Capital  Ins.  Co.,  85  Iowa, 
643;  Bigler  v.  Toy,  68  Iowa,  687; 
Jones  v.  Inness,  32  Kan.  177;  Lough- 
ridge  v.  Burkhart,  147  Ky.  451; 
Hall  v.  Wright,  137  Ky.  39; 
Brown  v.  Bunger  (Ky.),  43  S.  W. 
714;  Cox  v.  Adelsdorf,  21  Ky.  L.  Rep. 
421,  51  S.  W.  616;  Harrow  v.  Farrow, 
46  Ky.  126,  45  Am.  Dec.  60;  Smith  v. 
Dixon,  60  Ky.  438;  Benedict  v.  Wil- 
hoite,  26  Ky.  L.  R.  178,  80  S.  W.  1155 
(although  the  client  may  live  in  a 
distant  state) ;  Sebastian  v.  Rose,  135 
Ky.  197  (compromising  on  amount  of 
alimony  awarded);  In  re  Landry,  117 
La.  193;  Pomeroy  v.  Prescott,  106  Me. 
401,  138  Am.  St.  Rep.  347,  21  Ann 
Cas.  574;  Real  Estate  Trust  Co.  v. 
Union  Trust  Co.,  102  Md.  41;  Frit- 
chey  v.  Bosley,  56  Md.  94;  Maddux  v. 
Bevan,  39  Md.  485;  Nelson  v.  Nelson, 
111  Minn.  183,  31  L.  R.  A.  (N.  S.) 
523;  Fitch  v.  Scott,  3  How.  (Miss.) 
314,  34  Am.  Dec.  86;  Kelly  v.  Rail- 
road Co.,  113  Mo.  App.  468  (but  if 
he  has  authority  to  compromise,  a 
compromise  within  his  apparent  au- 
thority binds) ;  State  v.  Clifford,  124 
Mo.  492;  Walden  v.  Bolton,  55  Mo. 
405;  Spears  v.  Ledergerber,  56  Mo. 
465;  Vanderline  v.  Smith,  18  Mo. 
App.  55;  Grumley  v.  Webb,  48  Mo. 


1744 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2163 


c.  To  release  his  client's  cause  of  action.88 

/.  To  stipulate  not  to  appeal  or  move  for  a  new  trial.6* 


562;  Roberts  v.  Nelson,  22  Mo.  App. 
28;  Barton  Bros.  v.  Hunter,  59  Mo. 
App.  610;  Schlemmer  v.  Schlemmer, 
107  Mo.  App.  487;  Grant  City  v.  Sim- 
mons, 167  Mo.  App.  183,  151  S.  W. 
187;  Smith  v.  Bradhurst,  18  N.  Y. 
Misc.  Rep.  546;  McKechnie  v.  Mc- 
Kechnie,  3  N.  Y.  App.  Div.  91;  Mande- 
ville  v.  Reynolds,  68  N.  Y.  528;  Lewis 
v.  Duane,  141  N.  Y.  302;  Moye  v.  Cog- 
dell,  69  N.  Car.  93;  Bank  of  Glade 

Spring  v.   McEwen,  N.  Car.  , 

76  S.  E.  222;  Turner  v.  Fleming,  36 
Okla.  ;  Isaacs  v.  Lugsmith,  103 


Pa.  77;  Mackey  v.  Adair,  99  Pa.  143; 
North  Whitehall  v.  Keller,  100  Pa. 
105,  45  Am.  Rep.  361;  Gray  v.  How- 
ell,  205  Pa.  211;  Whipple  v.  Whitman, 
13  R.  I.  512,  43  Am.  Rep.  42;  Roller 
v.  Wooldridge,  46  Tex.  485;  Adams  v. 
Roller,  35  Tex.  711;  Granger  v. 
Batchelder,  54  Vt.  248,  41  Am.  Rep. 
846;  Carter  v.  Cooper,  111  Va.  602; 
Kelly  v.  Wright,  65  Wis.  236;  Fosha 
v.  Prosser,  120  Wis.  336;  Mallory  v. 
Mariner,  15  Wis.  172;  Mygatt  v.  Tar- 
bell,  85  Wis.  457. 
In  New  Hampshire,  see  Beliveau  v. 


68  Cox  v.  New  York,  etc.,  R.  R.  Co., 
63  N.  Y.  414;  Mandeville  v.  Reynolds, 
68  N.  Y.  528;  Gilliland  v.  Gasque,  6 
S.  Car.  406;  Armstrong  v.  Hurst,  39 
S.  Car.  498;  Hickey  v.  Stringer,  3 
Tex.  Civ.  App.  45;  Real  Estate  Co.  v. 
Union  Co.,  102  Md.  41;  Wadhams  v. 
Gay,  73  111.  415;  Lingenfelter  v.  Bow- 
man,    Iowa,  ,  137  N.  W.  946. 

No  implied  authority  to  admit 
away  the  cause  of  action  by  means  of 
an  admission  as  to  what  the  law  upon 
the  subject  is.  Harvin  v.  Blackman, 
108  La.  426.  No  implied  authority  to 
stipulate  that  certain  items  of  his 
client's  claim  shall  be  eliminated. 
Pomeroy  v.  Prescott,  106  Me.  401,  138 
Am.  St.  Rep.  347.  When  seasonably 
challenged,  the  court  will  set  aside 
proceedings  brought  by  the  attorney 
to  cancel  a  contract  where  he  had 
been  employed  to  enforce  it.  Neill  v. 
McClung, W.  Va. ,  76  S.  E.  878. 

«9  People  v.  Mayor,  etc.,  of  New 
York,  11  Abb.  Pr.  (N.  Y.)  66; 
Keoughan  v.  Equitable  Oil  Co.,  116 
La.  773.  (The  court  said:  "The  man- 
date of  the  attorney  is  to  prosecute 
and  defend,  and  not  to  waive  or  aban- 
don. While  the  battle  is  raging  the 
proper  measures  of  attack  or  defense 
are  necessarily  left  largely  to  his 
judgment,  and,  if  it  appears  to  him 
good  strategy  to  waive  certain  rights, 
he  may  do  so,  and  the  client  be 


bound,  as  a  general  proposition;  but, 
after  the  battle  has  been  brought  to 
a  close  by  judgment,  he  cannot  take 
upon  himself  to  make  a  gratuitous 
abandonment  of  the  right  of  his 
client  to  renew  the  contest.");  Lee  v. 
Lord,  75  Wis.  35;  Brown  v.  Arnold, 
127  Fed.  387. 

Contra,  Pike  v.  Emerson,  5  N.  H. 
393,  22  Am.  Dec.  468  (at  least  until 
the  attorney's  act  has  been  in  some 
way  impeached).  Followed  in  Leahy 
v.  Stone,  115  111.  App.  138. 

In  Smith  v.  Barnes,  9  N.  Y.  Misc. 
368,  it  was  held  that  the  attorney  had 
authority  to  stipulate  that  the  judg- 
ment should  be  final.  "The  stipula- 
tion was  proposed  by  the  defendants' 
attorney,  and  by  it  the  defendants 
secured  the  benefit  of  an  adjourn- 
ment, the  waiver  of  a  jury  trial  and 
the  appointment  of  a  referee  named 
by  them.  As  a  condition  of  granting 
the  favor,  both  parties  by  their  at- 
torneys united  in  a  stipulation  not 
to  appeal.  The  plaintiff  was  justified 
in  assuming  the  authority  of  the  de- 
fendants' attorney  to  make  the  stipu- 
lation, and  in  consideration  thereof 
waived  a  default  and  an  inquest." 

Waiver  of  the  right  was  sustained 
where  the  attorney  had  good  reason 
to  believe  his  client  did  not  wish  to 
appeal.  In  re  Heath,  83  Iowa,  215. 


110 


i/45 


§  2163] 


THE   LAW   OF   AGENCY 


[BOOK    V 


g.  To  release  the  property  of  the  defendant  from  the  lien  of  a  judg- 
ment,70 or  from  the  levy  of  an  execution.71 


Amcskeag  Mfg.  Co.,  68  N.  H.  225,  44 
L.  R.  A.  167,  73  Am.  St.  Rep.  577. 

It  is  yet  an  open  question  in  Mas- 
sachusetts. Anglo-American  Land, 
Mortgage,  etc.,  Co.  v.  Dyer,  181  Mass. 
593,  92  Am.  St.  Rep.  437. 

See  also,  Dalton  v.  West  End  St. 
Ry.  Co.,  159  Mass.  221,  38  Am.  St. 
Rep.  410  (a  settlement  by  the  attor- 
ney contrary  to  instructions  held  not 
binding);  New  York,  etc.,  R.  R.  Co. 
v.  Martin,  158  Mass.  313  ("We  have 
been  shown  no  case  where  an  execu- 
tory agreement  for  a  settlement  of  a 
suit  for  personal  injuries,  which  was 
not  made  of  record  in  the  case,  and 
was  in  fact  made  by  an  attorney  un- 
der a  mistake  of  fact  as  to  authority, 
has  ever  been  specifically  enforced  in 
equity  against  his  client"). 

In  Bonney  v.  Morrill,  57  Me.  368, 
the  court  said:  "We  do  not  hesitate 
to  say  that  the  employment  of  a 
counsellor  and  attorney  at  law  to 
prosecute  a  suit  for  land,  of  which 
the  party  alleges  that  he  has  been  dis- 
seized, carries  with  it  an  authority  to 
such  attorney  to  compromise  the 
claim  against  the  disseizor  for 
mesne  profits  during  the  pendency  of 
the  suit,  if  he  deems  it  best  for  the 
interest  of  his  client  to  avoid  all  the 
chances  of  litigation,  and  secure  the 
speedy  and  successful  termination  of 
the  principal  suit  in  the  most  eco- 
nomical manner  thereby." 

In  Union  Mutual  Life  Ins.  Co.  v. 
Buckman,  100  Ind.  63,  it  is  said  that 
while  the  attorney  has  no  general  au- 
thority to  compromise  the  claim  of 
his  client,  yet  where  the  client  re- 
sides at  a  distance  and  there  is  no 
time  to  communicate  with  him  and 
the  occasion  is  urgent,  and  the  at- 
torney uses  good  faith  and  reason- 


able skill,  the  settlement  is  binding. 
Repp  v.  Wiles,  3  Ind.  App.  167,  cites 
and  relies  on  this  case. 

The  same  doctrine  is  held  in 
Fleishman  v.  Meyer,  46  Ore.  267. 

A  similar  qualification  was  also 
suggested  in  Pennsylvania.  Brockley 
v.  Brockley,  122  Pa.  1. 

In  South  Carolina  a  compromise 
made  out  of  court  by  the  attorney 
does  not  bind,  but  a  consent  in  open 
court  to  the  entry  of  a  compromise 
judgment  does  bind.  Dixon  v.  Floyd, 
73  S.  C.  202;  Ex  parte  Jones,  47  S.  C. 
393. 

Authority  to  compromise  may  of 
course  be  given  by  the  client  and 
such  an  authorization  may  be  shown 
by  circumstances,  e.  ff.,  a  lapse  of  a 
long  time  without  question.  Bay  v. 
Trusdell,  92  Mo.  App.  377.  With  the 
consent  of  the  client  the  compromise 
may  include  other  matters  than  those 
embraced  in  the  litigation.  Carstens 
v.  Schmalholz,  16  Daly  (N.  Y.),  26. 
A  direction  to  an  attorney  to  proceed 
to  put  a  claim  in  judgment  as  soon 
as  possible  impliedly  revokes  any 
previous  authority  to  compromise. 
Maxwell  v.  Pate  (Miss.),  16  So.  529. 
Where  after  some  negotiations  as  to 
settlement,  a  defendant  directed  his 
attorney  to  settle  on  the  best  terms 
he  could,  the  attorney  is  authorized 
to  effect  a  settlement  and  to  bind  his 
client  to  pay  the  sum  agreed  upon. 
Phillips  v.  Pullen,  50  N.  J.  L.  439.  A 
fair  and  reasonable  compromise  made 
by  the  attorney  with  the  assent  of  the 
real  party  in  interest,  though  with- 
out the  knowledge  of  the  plaintiff  of 
record,  will  not  be  disturbed.  Whip- 
pie  v.  Whitman,  13  R.  I.  512,  43  Am. 
Rep.  42.  Mere  authority  to  com- 
promise a  claim  does  not  imply  au- 


70  Phillips  v.  Dobbins,  56  Ga.  617;  "  Banks   v.    Evans,  10    Sm.    &   M. 

Fritchey  v.  Bosley,  56  Md.  94;  Horsey       (Miss.)  35,  48  Am.  Dec.  734;  Benedict 
v.  Chew,  65  Md.  555.  v.  Smith,  10  Paige   (N.  Y.),  126. 

1746 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2163 


h.  To  release  his  client's  security  without  payment.72 

i.  To  discharge  or  release  a  surety  7S  or  indorser.74 

;'.  To  discharge  a  defendant  in  custody  on  a  ca.  sa.,  without  the  plain- 
tiff's consent  or  without  satisfaction.75 

k.  To  agree  to  suspend  proceedings  on  a  judgment.78 

/.  To  release  a  garnishee  from  the  attachment  of  money  or  property 
in  his  hands.77 

m.  To  release  the  interest  of  parties  so  as  to  make  them  competent 
as  witnesses.78 

11.  To  give  an  extension  of  time  upon  the  demand.79 

o.  To  assign  or  transfer  the  demand  or  suit  to  a  third  person.80 


thority  to  assign  it  to  a  third  person. 
Mayer  v.  Blease,  4  S.  Car.  10. 

While  attorney  has  no  implied  au- 
thority to  compromise,  still  if  he  does 
do,  it  will  be  presumed,  until  the 
contrary  appears,  that  he  did  it  with 


bis  client's  authority.  East  Line, 
etc.,  R.  Co.  v.  Scott,  72  Tex.  70,  13 
Am.  St.  Rep.  758. 

In  England,  see  Macauley  v.  Policy, 
[1897]  2  Q.  B.  122;  Duffy  v.  Hanson, 
16  L.  T.  332. 


72Terhune  v.  Colton,  2  Stock.  (N. 
J.)  Eq.  21;  Tankersley  v.  Anderson, 
4  Desaus.  (S.  C.)  45;  Hirsh  v.  Bev- 
erly, 125  Ga.  657;  Engelbach  v. 
Simpson,  32  Tex.  Civ.  App.  188;  Bud- 
long  v.  Budlong,  31  Wash.  228;  Mc- 
Clintock  v.  Helberg,  168  111.  384; 
Ludden  v.  Sumter,  45  S.  Car.  186,  55 
Am.  St.  Rep.  761. 

73  Savings  Inst.  v.  Chinn,  7  Bush 
(Ky.)  539;  Givens  v.  Briscoe,  3  J.  J. 
Marsh.  (Ky.)  529;  Union  Bank  v. 
Go  van,  10  Sm.  &  M.  (Miss.)  333;  Stoll 
v.  Sheldon,  13  Neb.  207;  Roberts  v. 
Smith,  3  La.  Ann.  205;  Lowry  v. 
Clark,  20  Pa.  Super.  Ct.  357. 

But  see  Willis  v.  Chowning,  90  Tex. 
617,  59  Am.  St.  Rep.  842. 

7*  East  River  Bank  v.  Kennedy,  9 
Bosw.  (N.  Y.)  543;  York  Bank  v. 
Appleton,  17  Me.  55;  Varnum  v.  Bel- 
lamy, 4  McLean  (U.  S.  C.  C.),  87,  Fed. 
Cas.  16,886. 

75  Kellogg    v.     Gilbert,     10     Johns. 
(N.  Y.)   220,  6  Am.  Dec.  335;    Treas- 
urers  v.    McDowell,    1   Hill    (S.   C.), 
184,  26  Am.  Dec.  166. 

76  Pendexter  v.  Vernon,  9  Humph. 
(Tenn.)   84.    Has  no  implied  author- 
ity to  agree  not  to  enforce  the  judg- 


ment.   Richardson  Drug  Co.  v.  Duna- 
gan,  8  Colo.  App.  308. 

77  Quarles  v.  Porter,  12  Mo.  76.    See 
also,  Barr  v.  Rader,  31  Ore.  225. 

78  York  Bank  v.  Appleton,  17  Me. 
55;    East  River  Bank  v.  Kennedy,  9 
Bosw.  (N.  Y.)  543;  Murray  v.  House, 
11  Johns.  (N.  Y.)  464;  Shores  v.  Cas- 
well,  13  Mete.    (Mass.)    413;    Ball  v. 
Bank  of  Alabama,  8  Ala.  590,  42  Am. 
Dec.  649. 

79Lockhart  v.  Wyatt,  10  Ala.  231, 
44  Am.  Dec.  481;  Beatty  v.  Hamilton, 
127  Pa.  71;  Hall  v.  Presnell,  157  N. 
Car.  290,  Ann.  Cas.  1913  B.  1293,  39 
L.  R.  A.  (N.  S.)  62.- 

so  White  v.  Hildreth,  13  N.  H.  104; 
Child  v.  Eureka  Powder  Works,  44 
N.  H.  354;  Russell  v.  Drummond,  6 
Ind.  216;  Craig  v.  Ely,  5  Stew.  &  P. 
(Ala.)  351. 

He  has  no  implied  power  to  assign 
the  judgment.  Henry  v.  Halter,  58 
Neb.  685;  Mayer  v.  Sparks,  3  Kan. 
App.  602;  Hyatt  v.  Fromme,  70  Mo. 
App.  613;  Smiley  v.  Bld'g  &  Loan 
Ass'n's  Assign.,  23  Ky.  Law  Rep.  250, 
62  S.  W.  853;  Mayer  v.  Blease,  4  S.  C. 
10;  Ritz  v.  Rea,  —  Iowa,  — ,  135 
N.  W.  645;  Cottrell  v.  Wheeler,  89 
Iowa,  754. 


1747 


§  2164] 


THE   LAW   OF   AGENCY 


p.  To  consent  to  stay  the  execution  if  lien  will  be  lost.81 
q.  To  waive  the  right  to  an  inquisition.82 
r.  To  give  up  the  demand  and  take  other  security.88 
s.  To  stipulate  that  the  case  shall  not  be  tried  during  certain  periods.84 
/.  To  appeal  the  case.85 

§  2164.  May  not  delegate  his  powers. — The  relation  of  attorney 
and  client  is  pre-eminently  one  of  trust  and  confidence.    The  client  em- 


si  Reynolds  v.  Ingersoll,  11  Sm.  & 
M.  (Miss.)  249,  49  Am.  Dec.  57. 

82Hadden  v.  Clark,  2  Grant  (Pa.), 
107.  But  according  to  Kissick  v. 
Hunter,  184  Pa.  174,  where  this  is 
done  after  a  prompt  issue  of  execu- 
tion, it  is  presumptively  authorized, 
and  the  client  who  would  repudiate 
must  do  so  without  delay.  So  he 
has  no  right  to  waive  the  filing  of  a 
claim  against  a  deceased  person  in 
the  probate  court,  where  that  is  a 
condition  precedent  to  suing  the  ad- 
ministratrix, his  client.  Andrews  v. 
O'Reilly,  34  R.  I.  256,  83  All.  119. 

ss  Tankersley  v.  Anderson,  4 
Desaus.  (S.  C.)  44;  McClintock  v. 
Helberg,  168  111.  384. 

But  he  may  agree  that,  pending 
appeal,  property  in  litigation  may  be 
sold  and  the  proceeds  held  to  await 
the  result,  where  that  seems  a  fair 
and  reasonable  method  to  conserve 
the  interests  of  all  parties.  Halliday 
v.  Stuart,  151  U.  S.  229,  38  L.  Ed.  141. 

s*  Robert  v.  Commercial  Bank,  13 
La.  528,  33  Am.  Dec.  570.  Here  the 
attorneys  undertook  as  a  matter  of 
personal  convenience  to  stipulate  in 
June  that  the  case  should  not  be 
tried  during  the  summer  nor  until 
November.  Held,  that  the  agreement 
did  not  bind  the  client  or  preclude 
him  from  having  his  cause  set  for 
trial  and  tried  by  other  counsel. 

85  In  Hooker  v.  Village  of  Bran- 
don, 75  Wis.  8,  it  is  said:  "We  think, 
upon  authority  and  principle,  an  em- 
ployment to  defend  an  action  pend- 
ing in  a  trial  court  does  not,  under 
ordinary  circumstances,  authorize 
such  attorney  to  take  an  appeal  to  a 
higher  court  from  the  judgment  ren- 

1748 


dered  against  his  client.  Public  pol- 
icy and  the  rights  of  litigants  require 
that  their  attorneys  in  such  case,  es- 
pecially where  they  have  easy  access 
to  their  clients,  should  first  consult 
their  wishes  upon  the  question  of 
taking  an  appeal  from  the  judgment 
rendered  against  them  in  the  trial 
court,  before  incurring  further  ex- 
penses in  such  litigation.  Any  other 
rule  would  authorize  an  over-confi- 
dent attorney  to  inflict  unnecessary 
costs  upon  his  client  in  a  case  where 
the  client  was  entirely  satisfied  to 
abide  the  judgment  of  the  trial  court. 
The  following  authorities  tend  to  es- 
tablish this  view  as  to  the  authority 
of  the  attorney  under  such  circum- 
stances. Covill  v.  Phy,  24  111.  37; 
Richardson  v.  Talbot,  2  Bibb.  382; 
Hinkley  v.  St.  Anthony  Falls  W.  P. 
Co.,  9  Minn.  55;  Jackson  v.  Bartlett, 
8  Johns.  361;  Walradt  v.  Maynard,  3 
Barb.  584,  586;  Weeks,  Attys.  §  238 
and  notes." 

To  the  same  effect:  Delaney  v.  Hus- 
band, 64  N.  J.  L.  275;  Commissioners 
v.  Griffin,  9  Ga.  491;  Hey  v.  Simon, 
29  Ky.  Law.  R.  315,  93  S.  W.  50. 

The  contrary  was  held  in  Grosve- 
nor  v.  Danforth,  16  Mass.  74,  and  in 
Bach  v.  Ballard,  13  La.  Ann.  487, 
where,  however,  the  client  was  an 
absentee. 

See  also,  Tobler  v.  Nevitt,  45  Colo. 
231,  132  Am.  St.  Rep.  142,  16  Ann. 
Gas.  925,  23  L.  R.  A.  (N.  S.)  702.  An 
appeal  actually  taken  by  the  attor- 
ney is  presumptively  authorized  un- 
less there  is  something  to  show  the 
contrary.  Ring  v.  Vogel  Paint  & 
Glass  Co.,  46  Mo.  App.  374. 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2165 

ploys  a  particular  attorney  because  he  relies  upon  his  skill,  learning, 
ability  or  integrity.  The  attorney,  in  the  management  of  the  cause,  has 
from  necessity  a  large  discretion  and  authority  as  to  the  general  course 
and  conduct  of  the  proceedings,  and  this  fact  the  client  has  presuma- 
bly taken  into  consideration  in  making  his  selection.  In  accordance 
with  well  settled  principles  of  agency,  therefore,  the  rule  is  rigidly  ad- 
hered to  that  those  powers  committed  to  an  attorney,  which  involve  the 
exercise  on  his  part  of  judgment  or  discretion,  or  which  are  based  upon 
considerations  of  his  personal  skill  or  ability,  can  not  be  delegated  by 
him  to  another  without  the  consent  of  his  client.86 

Thus  the  client  who  has  employed  an  attorney  to  take  charge  of  his 
case  at  the  trial,  or  to  argue  it  in  an  appellate  court,  or  to  undertake  to 
secure  a  compromise,  or  to  endeavor  to  collect  an  account,  or  to  do  any 
other  act  involving  judgment,  skill,  ability  or  discretion,  is  entitled  to 
have  the  personal  services  of  the  attorney  for  which  he  stipulated,  and 
the  attorney  has  no  right  or  power  to  bind  his  client  by  subletting  or 
delegating  the  work  to  another.87  If  such  a  delegation  were  attempted, 
the  client  would  have  the  undoubted  right  to  summarily  intercept  its 
execution,88  and  if  it  were  fully  executed,  without  his  knowledge  or  con- 
sent, the  execution  would  render  him  liable  neither  to  the  original  at- 
torney nor  to  his  substitute.89  But  if,  having  knowledge  of  the  substi- 
tution, he  should  permit  the  substitute  to  perform  the  services  without 
objection,  he  would  be  deemed  to  have  assented  to  it.90 

§  2165.  •  So  third  persons  dealing  with  such  a  substitute 

would  acquire  no  rights  against  the  client,  inasmuch  as  the  substitute 
is  the  agent  of  the  attorney  only,  and  not  of  his  client.91  Thus  if  the 
client  entrusts  to  his  attorney  a  claim  or  note  for  collection,  and  the  at- 
torney employs  another  to  do  it  for  him,  the  latter  stands  in  no  relation 

seDanley    v.    Crawl,    28    Ark.    95;  14.    An  agreement  by  an  attorney  to 

Kellogg  v.  Norris,  10  Ark.  18;    Sloan  turn  over  to  another  attorney,  notes 

v.  Williams,  138  111.  43,  12  L.  R.  A.  which  the  former  holds  for  collection, 

496;    Chicago,    etc.,    Traction    Co.    v.  is  invalid.    Smalley  v.  Greene,  supra: 

Flaherty,    222    111.    67;     Smalley    v.  Riebold  v.  Hartzell,  23  N.  Dak.  264, 

Greene,   52   Iowa,    241,   35   Am.    Rep.  136  N.  W.  247. 

267;   Antrobus  v.  Sherman,  65  Iowa,  88  Eggleston  v.  Boardman,  supra. 

230,    54    Am.    Rep.     7;     Dickson    v.  89  Eggleston  v.  Boardman,  supra.  A 

Wright,    52    Miss.    585,   24    Am.    Rep.  client  is  not  liable  for  costs  made  by 

677;   Hilton  v.  Crooker,  30  Neb.  707;  an  attorney   employed   by   his  attor- 

Lacher  v.  Gordon,  127  N.  Y.  App.  Div.  ney.    Antrobus  v.  Sherman,  65  Iowa, 

140;  Johnson  v.  Baca,  13  N.  Mex.  338;  230,  54  Am.  Rep.  7. 

Missouri,  etc.,  Ry.  Co.  v.  Wright,  47  80  Eggleston    v.    Boardman,    supra. 

Tex.  Civ.  App.  458;   Crotty  v.  Eagle,  Briggs  v.  Georgia,  10  Vt.  68. 

35  W.  Va.  143.  91  See  ante,  §  333. 

87  Eggleston  v.  Boardman,  37  Mich. 

1749 


§    2l66]  THE  LAW  OF  AGENCY 

of  privity  to  the  client,  and  a  payment  made  to  the  substitute  will  not  be 
a  payment  to  the  client  unless  actually  received  by  him.92 

If,  however,  the  note  were  payable  to  bearer,  or  was  endorsed  in 
blank,  and  was  paid  at  maturity  to  one  apparently  the  owner,  having  the 
possession  of  it,  ready  to  be  delivered  upon  payment,  such  payment 
would  be  valid  and  discharge  the  debtor.03 

The  client  may,  however,  either  expressly  or  by  implication  authorize 
the  attorney  to  employ  a  substitute,  or  he  may  subsequently  ratify  and 
confirm  such  delegation,  and,  in  either  of  these  cases,  the  substitute  is 
the  attorney  of  the  client. 

The  employment  of  one  of  a  firm  of  attorneys  is  ordinarily  an  em- 
ployment of  them  all,  and  unless  otherwise  stipulated,  the  cause  may 
be  tried,  or  the  business  performed,  by  any  one  of  them.9* 

§  2166.  May  not  employ  counsel. — An  attorney  employed  to  con- 
duct a  cause  for  his  client  has  thereby  no  implied  authority  to  employ 
on  his  client's  account,  and  bind  his  client  to  pay  for,  counsel  or  other 
legal  assistance.95  He  may  of  course  be  expressly  authorized  to  do  so, 
and  his  unauthorized  act  in  that  behalf  may  be  subsequently  ratified  ;  but 
any  alleged  ratification  based  upon  the  acquiescence  of  the  client  must 
be  such  as  to  show  that  the  client  understood  that  the  counsel  was  em- 
ployed on  his  account,96  and  at  his  expense,  and  not  merely  as  the  per- 
sonal assistant  of  the  attorney  who  was  himself  to  make  compensation. 

An  attorney,  however,  may  properly  employ  assistants  on  his  own  ac- 
count as  to  matters  not  within  the  rule  forbidding  delegation  :  and  while 
he  cannot  bind  his  client  to  such  assistant  for  payment,  he  may 
himself  charge  the  client  for  the  reasonable  value  of  the  service  rend 
ered  by  the  assistant  where  he  could  properly  have  made  the  same 
charge  had  he  performed  the  service  in  person.91 

»2  Kellogg  v.   Norris,   10   Ark.   18;  herty,  222    111.    67;    Continental    Ad- 

Danley    v.    Crawl,  28    Ark.    95.      At  justment  Co.  v.  Hoffman,  123  111.  App. 

any  rate  if  the  debtor  knew  of  the  69;  Dillon  v.  Watson,  3  Neb.  (unof.) 

substitution   and   the   substitute   did  530;     Moore    v.    Orr,    10    Ind.    App. 

not    have    possession    of    the    note.  89;    Brewer  v.   Hartman,   116   Minn. 

Dickson  v.  Wright,  52  Miss.  585,  24  512;    White  v.   Esch,   78   Minn.   264; 

Am.  Rep.  677.  Meaney  v.  Rosenberg,  32  N.  Y.  Misc. 

OB  Wheeler     v.     Guild,     20     Pick.  96. 

(Mass.)  545,  32  Am.  Dec.  231.  96  Price  v.   Hay,  132   111.   543;    Mc- 

9*  Eggleston  v.  Boardman,  supra.  Carthy  v.  Crump,  17  Colo.  App.  110. 

»5  Emblem    v.    Bicksler,    34    Colo.  »?  Dillon    v.    Watson,    supra;    Cal- 

496;  Lathrop  v.  Hallett,  20  Colo.  App.  houn  v.  Akeley,  82  Minn.  354;  Kings- 

207;   Matthews  v.  Giles,  108  Ga.  364;  bury    v.    Joseph,  94    Mo.    App.  298; 

Chicago,   etc.,   Traction   Co.   v.   Fla-  Vilas  v.  Bundy,  106  Wis.  168. 

1750 


CHAP.  l]  OF    ATTORNEYS    AT    LAW  [§§  2167,  2l68 

§  2167.  May  employ  subordinates,. — Moreover  the  rule  forbidding 
delegation  does  not  require  that  the  attorney  should  personally  perform 
all  of  the  mechanical  and  routine  labor  involved  in  the  cause.  From  the 
very  necessities  of  the  case,  much  of  this  must  be  done  by  clerks  and 
subordinates  under  his  direction,  and  such  a  performance  does  not  vi- 
olate the  principle  under  consideration.  As  has  been  seen,  what  is  min- 
isterial and  mechanical  merely  may  be  delegated;  but  that  which  in- 
volves discretion,  judgment  or  other  personal  considerations  may  not. 
As  the  rule  is  sometimes  stated,  an  attorney  may  employ  subordinates 
but  not  substitutes.98 

§  2168.  Authority  to  institute  action. — The  question  whether  the 
attorney  has  implied  authority  to  institute  action,  where  no  express  in- 
structions have  been  given,  must  depend  upon  a  variety  of  circum- 
stances. A  mere  authority  to  receive  payment  would  not  be  sufficient 
to  justify  an  action;  but,  while  claims  are  often  put  into  the  hands  of 
agents  "for  collection"  under  such  circumstances  as  to  indicate  that 
nothing  more  is  intended  than  that  the  agent  shall  demand  and  receive 
payment,  still  where  a  claim  is  put  into  the  hands  of  an  attorney  at  law 
under  general  instructions  to  collect  it,  it  would  seem  to  be  a  fair  infer- 
ence that  collection  by  legal  process  was  intended,  at  least  if  ordinary 
demand  should  prove  insufficient."  If  collection  by  legal  process  should 
be  deemed  authorized,  this  would  doubtless  be  properly  held  to  mean 
any  suitable  and  appropriate  process  ordinarily  resorted  to  in  such 
cases,  and  which  in  the  judgment  of  the  attomey  was  adopted  to  the 

ssEggleston  v.  Boardman,  37  Mich.  Ryan  v.  Tudor,  31  Kan.  366;    Dolan 

14;    McEwen  v.  Mazyck,  3  Rich.    (S.  v.  Van  Demark,  35  Kan.  304;  Merrick 

C.)  L.  210;   Reich  v.  Cochran,  102  N.  v.  Wagner,  44  111.  266;  Moore  v.  Hall, 

Y.  App.  Div.  615,  105  App.  Div.  542.  48  Mich.  143."   To  the  same  effect,  see 

99  In   Briggs   v.   Yetzer,   103   Iowa,  Joyce  v.  Duplessis,  15  La.  Ann.  242, 

342,  it    was    said:    "Pennell    took    it  77  Am.  Dec.  185;    McMinn  v.  Richt- 

with    instructions    to    collect.      The  myer,  3  Hill   (N.  Y.),  236;    Scott  v. 

manner  of  doing  this  was  left  to  hia  Elmendorf,    12    Johns.    (N.    Y.)    317; 

discretion,   as    no   other   instructions  Alden  v.  Dyer,  92  Minn.  134. 
were  given.     He  was  required  to  ex-          Where  the  attorney  has  power  to 

ercise   that  degree  of  diligence   and  bring  an  action,  of  which  the  state 

foresight  an  ordinarily  prudent  man  and   federal  courts   have   concurrent 

would  under  like  circumstances.     If  jurisdiction,  he  may,  in  the  exercise 

so,  he  has  the  right  to  resort  to  the  of  a  sound  discretion,  and  when  not 

means,  if  necessary,  which  are  usu-  instructed     otherwise,     bring     it     in 

ally  adopted  to  compel  payment,  and  either  forum.     McGeorge  v.  Bigstone 

might  bring  suit.     Davis   v.   Water-  Gap  Imp.  Co.,  88  Fed.  599. 
man,  10  Vt   526,  33  Am.   Dec.   216; 

1751 


§    2169]  THE  LAW  OF  AGENCY  [BOOK   V 

case  at  hand.1    It  has  been  held,  however,  that  civil  process  must  be 
deemed  to  be  intended  and  not  criminal  process.2 

§  2169.  Authority  to  incur  expense  on  client's  account. — An  at- 
torney at  law  will  undoubtedly,  unless  the  contrary  is  made  known,  have 
implied  power  to  the  same  extent  as  any  other  agent  to  bind  his  prin- 
cipal for  reasonable  and  necessary  expenses  incidental  to  the  ordinary 
prosecution  of  the  business  with  which  he  has  been  entrusted.  As 
said  in  one  case : 3  "There  can  be  no  doubt  of  the  authority  of  an  at- 
torney in  the  conduct  and  management  of  his  client's  case  to  make  such 
necessary  and  proper  disbursements  as  the  case  shall  require.  This  au- 
thority can  be  implied  merely  from  the  relation  between  attorney  and 
client,  from  which  a  request  on  the  part  of  the  latter  would  be  pre- 
sumed." This  authority,  however,  is  not  like  that  previously  consid- 
ered *  of  the  attorney  to  control  the  matter  of  the  procedure, — in  which 
case,  as  has  been  seen,  the  client  has  no  right  to  interfere  so  long  as  he 
retains  the  attorney, — but  depends  upon  the  ordinary  principles  of 
agency.  Secret  instructions  to  the  contrary  of  which  the  other  party 
is  not  aware  would  not  limit  the  attorney's  apparent  authority ; 5  but 
if  the  other  party  knew  that  the  attorney's  authority  in  this  respect 
was  limited,  the  client  would  not  be  bound  by  the  attorney's  contract.6 

In  accordance  with  the  general  rule  above  stated  it  has  been  held 
that  the  attorney  has  implied  authority  to  get  necessary  briefs  printed 
upon  an  appeal ; 7  to  employ  an  expert  witness  to  testify ; 8  to  employ 
the  assistance  of  a  stenographer,  if  necessary ; 9  to  make  arrangements 

1  See  Briggs  v.  Yetzer,  supra;  Fos-      In  the  case,  as  distinguished  from  the 
ter  v.  Wiley,  27    Mich.    244,    15  Am.      attorney,  would    not   have    such    au- 
Rep.    185;   Howell    v.    Caryl,    50  Mo.      thority. 

App.  440.  In  Brown  v.  Traveler's  Life  &  Ace. 

2  Thompson  v.  Rubber  Co.,  56  Conn.  Ins.  Co.,  21  N.  Y.  App.  Div.  42,  the 
493.  authority  of  the  attorney  to  employ 

3  Packard  v.  Stephani,  85  Hun  (N.  an    expert    was    upheld    in    general 
Y.),  197.  terms,  but  the  attorney  was  one  em- 

*  See  ante,  §  2160  et  seq.  ployed  for  a  fixed  period  on  a  salary. 

5  See  Packard  v.   Stephani,  supra;         8  Thornton  v.  Tuttle,  supra;  Palmer 
Thornton  v.  Tuttle,  7  N.  Y.  St.  Rep.  v.  Miller,  19  Ind.  App.  624;   Miller  v. 
801.  Palmer,  25  Ind.  App.  357,  81  Am.  St. 

6  See  Packard  v.  Stephani,  supra.  Rep.  107. 

TWeisse   v.    New    Orleans,    10   La.  See  Tobler  v.  Nevitt,  45  Colo.  231, 

Ann.    46;    Williamson    Paper   Co.    v.  132  Am.   St.  Rep.  142,  16  Ann.  Gas. 

Bosbyshell,   14  Mo.  App.  534;    Horn-  925,  23  L.  R.  A.  (N.  S.)  702. 

stein   Co.  v.  Crandall,   156   111.   App.  In  Bonynge  v.  Field,  81  N.  Y.  159; 

520;    Sanders  v.  Riddick,  Tenn.  and  Bonynge  v.  Waterbury,  12  Hun 

,  156  S.  W.  464.  <N.   Y.),    534,   it   was   held   that  the 

8  Packard  v.    Stephani,   supra.     In  attorney   was   not   personally   liable, 

this  case  it  was  said  that  the  counsel  In  Covell  v.  Hart,  14  Hun   (N.  Y.), 

1752 


CHAP.  I]  OF   ATTORNEYS   AT   LAW  [§    2I7O 

for  the  care,  storing  and  protection  of  property  under  his  control ; 10 
and  the  like.11 

§  2170.  Authority  to  bind  client  by  contracts. — The  implied  au- 
thority of  the  attorney  at  law  resulting  from  his  retainer  is  limited,  as 
has  been  seen,  to  the  conduct  and  management  of  the  case.  It,  there- 
fore, does  not  extend  so  far  as  to  empower  the  attorney  to  bind  his 
client  by  special  contracts  or  agreements  which  do  not  affect  the  pro- 
cedure. Thus  it  has  been  held  that  an  attorney  employed  in  condem- 
nation proceedings  has  no  implied  authority  to  bind  his  client  by  agree- 
ments respecting  the  manner  in  which  the  land  acquired  was  to  be 
used ; 12  or  as  to  the  nature,  plan  or  design  of  the  structures  or  improve- 
ments to  be  erected  thereon ; 13  or  for  the  payment  of  compensation  or 
damages  other  than  or  in  addition  to  such  as  may  be  awarded  in  the 
proceeding ; 14i  or  for  payment  of  compensation  to  persons  not  parties 
to  the  proceedings.15  An  attorney  in  proceedings  involving  the  sale  of 
property  has  no  implied  authority  to  bind  his  client  by  agreements  that 
the  proceeds  of  a  sale  shall  be  paid  to  any  other  person  than  the  one 
legally  appointed  to  receive  it ; 16  or  that  in  consideration  of  a  resale 
his  client  would  receive  a  certain  sum,  from  a  third  party  and  assign 
the  judgment  to  him.17  The  general  attorney  of  a  railroad  company  in 
charge  of  its  litigation  has  no  implied  power  to  agree  that  a  pending 
case  for  damages  for  a  personal  injury  shall  be  settled  by  giving  the 
plaintiff  employment  for  life ; 18  nor  has  such  an  attorney,  in  a  pending 

252,   attorney   was   held   not  person-  is  Wabash,  St.  L.  &  P.  R.  R.  Co.  v. 

ally  liable  for  services  of  expert  ac-  McDougall,    126    111.   Ill,   9   Am.    St. 

countant.  Rep.  539,  1  L.  R.  A.  207;  Du  Pont  v. 

loKiraball  v.   Payne,   9  Wyo.   441;  Sanitary  Dist,  203  111.  170.    Compare 

Fox  v.  William  Deering  &  Co.,  7  S.  Elgin,  etc.,  R.  R.  Co.  v.  Fletcher,  128 

Dak.  443.  111.  619,  referred  to  in  a  later  note. 

"Vilas    v.    Bundy,  106    Wis.  168;  1*  Nutting  v.  Kings  County,  etc.,  R. 

Haseltine  v.  Mahan,  8  Kan.  App.  857.  Co.,  91  Hun  (N.  Y.),  251. 

Where    a   client   is   physically    in-  15  Haynes  v.  Tacoma,  etc.,  R.  Co., 

capacitated  to  look  up  testimony,  an  7  Wash.  211.     To  same  effect:   Won- 

attorney  has  a  prima  facie  right  to  derly  v.  Martin,  69  Mo.  App.  84. 

recover  amount  paid  to  a  third  per-  16  Fire  Ass'n  v.  Ruby,  58  Neb.  730; 

son    for    this    purpose,  even    though  Luce  v.  Foster,  42  Neb.  818. 

there  was  a  contingent  fee.     Forbes  "  Conley     v.     Whitthorne     (Tenn. 

v.   Chicago,  etc.,  Ry.   Co.,   150   Iowa,  Ch.),  58  S.  W.  380. 

177,  Ann.  Cas.  1912  D.,  311.    To  same  is  Nephew   v.   Michigan   Cent.   Ry. 

effect:  Barcus  v.  Gates,  130  Fed.  364.  Co.,  128  Mich.  599;  East  Line,  etc.  v. 

Attorney  must  be  reimbursed   for  Scott,  72  Tex.  70,  13  Am.  St.  Rep.  758. 

costs  advanced.     Shuck  v.  Pfenning-  An    inference    of    such    authority 

hausen,  101  Mo.  App.  697.  may,    however,    arise    from    acquies- 

12  Chicago  Gen.  Ry.  Co.  v.  Murray,  cence   in   similar   settlements.     East 

174  111.  259.  Line,  etc.  v.  Scott,  supra. 

1753 


§    2171]  THE   LAW  OF  AGENCY  [BOOK   V 

action  for  the  non-performance  of  the  terms  of  a  lease  implied  author- 
ity to  bind  the  company  by  an  agreement  that  if  the  defendant  will  sur- 
render the  lease  and  abandon  the  premises  the  company  will  accept  it 
and  release  him  from  liability.19 

An  attorney  may,  of  course,  be  given  authority  as  agent  in  such  mat- 
ters in  addition  to  his  ordinary  powers  as  attorney,  and  in  such  cases 
his  agreements  as  agent  will  bind  his  client  within  the  ordinary  rules 
governing  the  construction  of  the  authority  of  other  agents.20  Thus  in 
many  cases  attorneys  who  have  also,  either  expressly  or  impliedly,  been 
given  powers  of  negotiation  or  adjustment,  have  been  held  to  bind  their 
clients  by  stipulations,  which  would  not  fall  within  their  ordinary  pow- 
ers as  attorneys  at  law.21 

§  2171.  Authority  to  bind  client  by  bonds. — The  necessity  for  the 
execution  of  bonds  and  other  undertakings  by  the  client,  frequently 
arises  in  the  progress  of  the  cause,  and  it  becomes  material  in  many 
cases,  particularly  where  the  client  is  a  non-resident,  to  determine  what 
authority  the  attorney  possesses  by  virtue  of  his  general  retainer,  to  ex- 
ecute such  bonds  in  the  name  of  the  clients.  These  bonds  and  under- 
takings are  often  required  to  be  under  seal,  and  it  has  been  seen  to  be  a 
general  rule  that  authority  to  execute  an  instrument  under  seal  can  only 
be  conferred  by  an  instrument  of  like  solemnity.22  Where,  therefore, 
a  seal  is  required,  the  power  to  execute  the  bond  could  not,  where  this 
rule  prevails,  be  implied  from  a  mere  general  retainer,23  but  if  the  seal 

ifl  Jamestown  &  F.  R.  Co.  v.  Egbert,  545,  the  matter  in  controversy  had 

152  Pa.  53.  been  confided  to  the  discretion  of  the 

One  employed  as  attorney  to  col-  attorney  for  settlement.  In  Barfield 

lect  a  claim  for  rent  cannot  bind  the  v.  McCombs,  89  Ga.  799,  the  stipula- 

landlord  by  a  contract  to  pay  for  im-  tion  was  sustained  upon  the  ground 

provements  made  on  the  rented  prem-  that  the  "attorney  was  acting  both 

Ises.  McMichen  v.  Brown,  10  Ga.  as  agent  and  attorney  for  the  de- 

App.  506.  fendant." 

20  in  Elgin,  etc.,  R.  Co.  v.  Fletcher,          In    Ward    v.  Wilson,  17  Tex.  Civ. 
128   111.   619,  the  attorney  In  a  con-  App.  28,  affirmed  92  Tex.  22,  it  was. 
demnation  proceeding  made  a  stipu-  held  that  an  agreement  made  by  de- 
lation respecting  the  fencing  of  the  fendant's  attorney,  pending  suit,  that 
premises,  which  was  held  to  be  bind-  defendant,    in   consideration   of   cer- 
ing  upon  his  client,  but  the  stipula-  tain     privileges     extended     to     him, 
tion  was  made  in  the  progress  of  the  should  pay  so  much  of  the  notes  in 
trial  and  expressly  stated  to  be  upon  suit  as  were  equitably  a  lien  on  cer- 
the  authority  of  an  officer  of  the  com-  tain    land    purchased    by    him,    was 
pany  then  present  in  court.  binding   on   defendant   in   an   action 

21  Thus    in    McTeer    v.    Huntsman      upon  the  agreement  of  which  he  had 
(Tenn.  Ch.),  49  S.  W.  57,  a  stipula-      notice. 

tion  was  sustained  upon  the  ground  22  See  ante,  §§  212  et  seg. 

that  the  whole  matter  had  been  left  2S  See  Clark  v.  Courser,  29  N.  H. 

to  the  attorney  for  adjustment.     In  170. 

Freeman  v.  Brehm   (Ind.),  31  N.  E. 

1754 


CHAP.  l]  OF    ATTORNEYS    AT    LAW  [§§2172,2173 

were  not  required,  it  could,  as  has  been  seen,2*  be  rejected  as  a  mere 
redundancy  and  the  bond,  if  otherwise  authorized,  might  be  given  force 
as  a  simple  contract  or  undertaking.25 

§  2172.  The  question  of  authority  must  depend  largely 

upon  circumstances.  Authority  to  do  a  given  act  carries  with  it  implied 
authority  to  do  those  things  which  are  necessary  in  order  to  accomplish 
the  main  end,  and  what  is  necessary  must  be  determined  in  many  cases 
by  reference  to  the  particular  facts.  Thus  if  a  party  sends  a  claim  to  an 
attorney  in  a  distant  town  for  collection,  there  is  implied  authority  in  the 
attorney  to  take  those  steps  which  are  usually  taken  under  like  circum- 
stances, and  which  are  necessary  to  accomplish  the  purpose.  If  in  such 
a  case  there  was  reasonable  ground  to  believe  that  the  claim  would  be 
lost  unless  the  debtor's  property  was  attached  or  levied  upon  at  once, 
and  there  was  not  sufficient  time  to  communicate  with  the  client,  the 
attorney  would  undoubtedly  be  authorized  to  make  the  necessary  affi- 
davit and  execute  the  proper  undertaking  in  the  name  of  the  client  to 
obtain  the  writ.28  But  it  has  been  held  that  an  attorney  under  such  cir- 
cumstances is  under  no  obligation  to  make  the  affidavit  or  execute  the 
bond.27  If  the  client  were  on  the  ground  where  he  could  be  personally 
consulted,  the  attorney's  authority  to  bind  him  would  doubtless  not 
exist.28 

§  2173.  So  it  has  been  held  that  an  attorney  authorized 

to  collect  for  a  non-resident  client  has  implied  authority  to  execute  in 
the  client's  name  an  undertaing  to  the  sheriff  to  indemnify  him  against 
the  consequences  of  levying  the  client's  execution,  and  that  the  attorney, 

24  See  ante,  §  215.  bonds  for  his  client,  yet  where  one 

25  Schoregge   v.    Gordon,   29   Minn.  member  of  a  law  firm,  in  pursuance 
367;   Ford  v.  Williams,  13  N.  Y.  577,  of  a  practice  common  among  attor- 
67  Am.  Dec.  83.  neys    at    that    place,    undertakes    to 

2«  Dwight  v.  Weir,  6  La.  Ann.  706;  supply  a  bond  upon  receiving  a  de- 
Fulton  v.  Brown,  10  La.  Ann.  350;  posit  of  money,  and  does  do  so,  the 
Clark  v.  Randall,  9  Wis.  135,  76  Am.  other  members  of  the  firm  are  liable 
Dec.  252;  Schoregge  v.  Gordon,  29  for  the  misappropriation  of  the 
Minn.  367.  money  so  received,  though  they  had 

27  Foulks  v.  Falls,  91  Ind.  315.    See  in  fact  known  nothing  of  it. 

also,  Winborn  v.  Byrd,  92  N.  C.  7;  28An  attorney  at  law,  unless  spe- 

Churchill  v.  Brooklyn  Life  Ins.  Co.,  cially  authorized,  or  unless  his  client 

92  N.  C.  485;  Luce  v.  Foster,  42  Neb.  is  absent,  has  no  authority  to  sign 

818;     Anderson    v.    Hendrickson,    1  the  bond  in  an  injunction  suit  for  his 

Neb.    (Unoff.)    610.  client.      Maraist    v.    Sheriff,    44    La. 

In  Fornes  v.  Wright,  91  Iowa,  392,  Ann.  884.     To  the  same  effect:   Luce 

it  was  held  that  while  it  is  no  part  v.   Foster,  supra;  Anderson  v.  Hen- 

of  the  duty  of  an  attorney  to  furnish  drickson,  1  Neb.  (Unoff.)  610. 

1755 


§  2174] 


THE   LAW  OF  AGENCY 


[BOOK  v 


acting  in  good  faith  may  himself  indemnify  the  sheriff,  and,  if  com- 
pelled to  pay  damages  thereon,  may  recover  the  amount  so  paid  from 
his  client.29 

If,  however,  the  levy  were  fully  completed  and  the  proceeds  realized, 
before  the  indemnity  was  given,  there  would  be  no  such  necessity  as 
would  justify  the  attorney  in  giving  it,  nor  would  there  be  any  consid- 
eration for  it. 

§  2174.  But  the  authority  of  the  attorney  in  these  cases 

has  not  everywhere  been  recognized.  Thus  his  power  to  indemnify  the 
sheriff  has  been  denied  in  New  York.80  So  it  has  been  held  that  the 
attorney  has  no  implied  authority  to  bind  his  client  by  a  bond  on  ap- 


2»  Clark  v.  Randall,  9  Wis.  135,  76 
Am.  Dec.  252,  is  a  leading  case  upon 
this  question.  In  this  case  attorneys 
at  Milwaukee  acting  for  clients  in 
New  York  in  order  to  induce  the 
marshal,  who  insisted  upon  indem- 
nity, to  levy  an  execution  for  their 
clients  upon  a  stock  of  goods  which 
the  attorneys  believed  in  good  faith 
to  belong  to  the  judgment  debtor, 
gave  him  their  own  personal  bond. 
A  judgment  having  been  rendered 
against  the  marshal  at  the  suit  of  the 
parties  who  established  a  superior 
title  to  the  goods,  he  took  legal  steps 
to  collect  of  the  attorneys,  and  they 
having  paid  him  brought  an  action 
against  their  clients,  contending  that 
the  latter  were  bound  to  reimburse 
them  for  all  damages  which  they  had 
sustained  in  consequence  of  giving 
the  indemnifying  bond.  It  was  held 
that  they  could  recover. 

This  case  was  followed  and  relied 
upon  in  Schoregge  v.  Gordon,  29 
Minn.  367.  Here  an  attorney  acting 
for  non-resident  clients,  navmg  ob- 
tained judgment,  caused  an  execu- 
tion to  be  issued  and  levied  upon 
property  supposed  to  belong  to  the 
Debtor.  The  property  being  claimed 
by  third  parties,  the  sheriff  refused 
to  retain  it  unless  indemnified,  the 
statute  giving  him  the  right  to  insist 
upon  it  Thereupon  the  attorney, 


without  their  express  direction  or 
consent,  executed,  to  the  sheriff  a 
bond  of  indemnity,  in  the  name  of 
his  clients  by  himself  as  their  attor- 
ney. The  third  parties  established 
their  claim  and  the  sheriff  brought 
an  action  upon  the  bond  and  was  per- 
mitted to  recover. 

In  Swartz  v.  Morgan,  163  Pa.  195, 
43  Am.  St.  Rep.  786,  the  syllabus  re- 
ports the  court  as  holding  in  accord- 
ance with  Clark  v.  Randall,  and 
Schoregge  v.  Gordon,  supra;  but  the 
opinion  shows  that  while  those  cases 
were  cited  the  court  stated  that  it 
was  not  necessary  for  them  to  go  so 
far  or  to  consider  the  point,  since  the 
attorney  there  was  authorized  to  do 
what  he  did  by  the  general  agent  of 
the  client. 

In  Luce  v.  Poster,  42  Neb.  818,  the 
court  also  referred  to  Clark  v.  Ran- 
dall and  Schoregge  v.  Gordon,  but 
distinguished  the  case  at  bar  upon 
the  ground  that  the  client  was  a 
neighbor  of  the  attorney  and  could 
have  been  readily  consulted,  as  was 
known  to  both  the  surety  and  the 
sheriff. 

soAudley  v.  Townsend,  49  N.  Y. 
Misc.  23.  On  the  authority  of  Welsh 
v.  Cochran,  63  N.  Y.  181,  20  Am.  Rep. 
519,  which  seems  to  be  in  point, 
though  the  precise  question  was  not 
specifically  referred  to. 


1756 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2175 

peal,31  or  by  a  bond  in  replevin.32  So  it  has  been  held  that  the  employ- 
ment of  an  attorney  to  prosecute  an  injunction  suit,  gave  him  no  im- 
plied authority  to  bind  his  client  to  indemnify  a  third  person  who,  on 
the  attorney's  request,  becomes  surety  on  the  injunction  bond.33  The 
unauthorized  execution  of  the  bond  or  other  undertaking  could,  of 
course,  be  subsequently  ratified  and  confirmd  by  the  client,  and  such  a 
ratification  would  be  conclusively  presumed,  if  the  client,  with  full 
knowledge  of  the  facts,  accepted  and  retained  the  proceeds  derived 
from  the  levy  or  other  act.34 

§  2175.  Authority  to  bind  client  by  receipt  of  notice — Notice  to 
attorney  as  notice  to  client. — The  general  question  of  imputing  to 
a  principal  and  charging  him  with  the  notice  or  knowledge  which  his 
agent  may  possess  or  acquire,  has  been  fully  considered  in  a  preceding 
chapter.35  The  general  rules  there  stated  are  applicable  here  and  need 
not  be  repeated.  In  some  respects,  however,  the  fact  that  the  notice 
comes  to  an  attorney  at  law  in  charge  of  his  client's  litigation  is  peculiar 
and  significant.  The  power  of  an  attorney  at  law  in  such  a  case  to  ac- 
cept or  dispense  with  formal  notice  of  the  proceedings  in  the  c?-use,36 
because  that  matter  is  under  his  exclusive  control,  has  been  already 
referred  to.  That  notice  to  the  attorney  of  the  proceeding  in  the  action, 
or  notice  coming  to  him  directly  relating  to  its  subject  matter,  is  to  be 
deemed  notice  to  his  client,  is  a  consequence  directly  resulting  from 
his  situation.37  A  broader  statement  still  of  the  rule  is  sometimes  made, 

si  Ex  parte  Holbrook,  5  Cow.    (N.  judge;   the  clients  were  non-resident, 

Y.)   35    (the  client  here  was  a  mm-  but  it  is  a  fair  inference  that  they 

resident) ;  Clark  v.  Courser,  29  N.  H.  could  have  been  communicated  with. 

170   (here  the  client  was  a  non-resi-  In  Maraist  v.  Sheriff,  44  La.  Ann. 

dent,  but  the  decision  turned  largely  884,  it  was  held  that  the  attorney  had 

on  the  fact  that  the  bond  was  under  no  authority  to  execute  an  injunction 

seal  and  the  authority  not).    But  see  bond  unless  the  client  was  absent  or 

Adams  v.  Robinson,  1  Pick.   (Mass.)  expressly    authorized    it.      See    also, 

461,  where  it  was  held  that  the  at-  Bank  of  Louisiana  v.  Wilson,  19  La. 

torney  might  execute  a  recognizance  Ann.  1. 

on  appeal.    The  question  here  consid-  s*  Bank   of  Augusta  v.  Conrey,   28 

ered  was  not  discussed.  Miss.  667;    Dove  v.  Martin,  23  Miss. 

32  Narraguagus  Land  Proprietors  v.  588;    Narraguagus   Land   Proprietors 
Wentworth,  36  Me.  339.  v.  Wentworth,  36  Me.  339. 

The  case  does  not  disclose  anything  85  See  ante,  §§  1802  et  seq. 

respecting  the  presence  or  absence  of  Sfl  See  ante,  2162c. 

the  client.  3T  Thus    in    Sweeney    v.    Pratt,  70 

33  White   v.    Davidson,    8   Md.    169,  Conn.  274,  66  Am.  St.  Rep.  101,  it  is 
63  Am.  Dec.  699.    It  was  not  known,  said:  "The  knowledge  of  an  attorney 
when    the    attorney    was    employed,  gained  in   the    very    business    in  re- 
that  a  bond  would  be  required,  since  spect  to  which  he  is  attorney  is  im- 
that  rested  in  the  discretion  of  the  puted  to  his  client." 

1757 


§    2176]  THE   LAW   OF   AGENCY  [BOOK   V 

for  it  has  been  declared  that  the  attorney  is  "bound  to  take  notice  of  the 
orders  and  decrees  made  in  the  case  and  must  also.be  deemed  to  have 
had  knowledge  of  them,  for,  like  other  officers  of  the  court,  attorneys 
are,  by  legal  fiction,  always  deemed  to  be,  during  term,  present  in  court ; 
and  notice  to  the  attorney,  whether  actual  or  implied,  is  considered 
notice  to  the  client  and  binds  him  when  the  notice  is  in  the  course  of  a 
transaction  in  which  the  attorney  is  acting  for  him."  3S  Whether  the 
rule  so  broadly  announced  can  be  sustained  or  not,  there  can  be  no  doubt 
that  notice  or  knowledge  coming  to  the  attorney  while  he  is  acting  as 
such  and  with  reference  to  the  subject  matter  confided  to  his  care  will, 
subject  to  the  exceptions  to  be  noted  later,  be  deemed  to  be  notice  to 
or  knowledge  of  the  client,  even  though  the  attorney  has  in  fact  failed 
to  communicate  it  to  his  client  and  the  latter  is,  therefore,  wholly  ignor- 
ant of  it.39  The  client's  remedy  in  such  a  case  is  against  the  attorney. 

§  2176.  —  As  has  been  pointed  out  in  the  earlier  chapter, 

there  is  a  sharp  conflict  of  authority,  whether  the  rule  imputing  notice 
extends  to  information  acquired  before  the  attorney  became  such. 
Clearly  if  the  information  were  of  the  sort  which  the  law  deems  priv- 
ileged, it  would  not  be  imputed  to  the  client,  whether  acquired  before  or 
after  he  employed  the  attorney,  for  the  law  will  neither  require  nor  per- 
mit an  attorney  to  violate  his  duty  to  a  former  client  by  communicating 
to  a  later  one  the  information  which  his  duty  to  the  former  forbids  him 
to  disclose.40  Where  the  information  is  not  of  the  privileged  variety 
it  would  seem  that  the  considerations  which  are  held  to  justify  the  im- 
putation to  any  principal  of  knowledge  which  his  agent  acquired  before 

ss  Butler  v.  Morse,  66  N.  H.  429.  Peeples  v.  Warren,   51   S.   Car.   560; 

so  See  ante,   §   1813     And  see  also  Riordan   v.   Britton,    69   Tex.   198,    5 

Price  v.  Carney,  75  Ala.  546;   Bierce  Am.   St.  Rep.   37;    Fordtran  v.   Cun- 

v.  Red  Bluff  Hotel  Co.,  31  Cal.  160;  ningham,  Tex.  Civ.  App.  ,  141 

Sweeney  v.  Pratt,  70  Conn.  274,  66  S.  W.  562;  Hyman  v.  Barmon,  6 
Am.  St.  Rep.  101;  Brown  v.  Oattis,  55  Wash.  516;  Rogers  v.  Palmer,  102  U. 
Ga.  416;  Haas  v.  Sternbach,  156  111.  S.  263,  26  L.  Ed.  164. 
44;  Dorrance  v.  McAlester,  1  Ind.  Ter.  Not  only  actual  notice  is  imputed 
473;  Blake  v.  Clary,  83  Me.  154;  to  the  client,  but  also  any  informa- 
Shartzer  v.  Mountain  I^ake  Park  tion  which  the  attorney  "might  have 
Ass'n,  86  Md.  335;  Mayor  v.  Whiting-  known  by  the  use  of  ordinary  dill- 
ton,  78  Md.  231;  Bates  v.  Johnson,  79  gence."  Wells  v.  McMahon,  3  Wash. 
Minn.  354;  Edwards  v.  Hillier,  70  T.  532. 

Miss.  803;  Hunter  v.  Wabash  Ry.  Co.,          *o  The    Distilled    Spirits,    11   Wall. 

149  Mo.  App.  243;  Bank  of  Commerce  (U.  S.)  356,  20  L.  Ed.  167;   Melms  v. 

v.   Hoeber,   88   Mo.   37,   57   Am.   Rep.  Pabst  Brewing  Co.,   93  Wis.   153,   57 

359;   Hyde  v.  Bloomingdale,  23  Misc.  Am.  St.  Rep.  899;   Sebold  v.  Citizens 

(N.  Y.)   728;   In  re  Mutual  Bldg.  &  Bank  (Ky.),  105  S.  W.  130. 

Loan  Ass'n,  19   Pa.  Co.  Ct.   R.   504r 

o 


CHAP.  l] 


OF   ATTORNEYS    AT   LAW 


[§    2177 


the  commencement  of  the  agency  would  be  applicable  here;41  but  as 
matter  of  fact  the  exigencies  of  professional  business  have  been  thought 
to  demand,  and  the  rule  is  commonly  stated  to  be,  that  information  ac- 
quired by  the  attorney  in  the  course  of  his  employment  by  one  client 
will  not  be  imputed  to  any  other  client  who  employs  him.42 

§  2177.  •  As  in  other  cases  of  agency  more  fully  discussed 

in  the  preceding  general  treatment  on  the  effect  of  notice,  the  notice 
coming  to  the  knowledge  of  the  attorney  must  be  with  reference  to  the 
matter  concerning  which  he  was  employed  to  act  ;43  and  as  in  other  cases 


«  See  Abell  v.  Howe,  43  Vt.  403; 
Hunter  v.  Watson,  12  Cal.  363,  73  Am. 
Dec.  543;  Hart  v.  Bank,  33  Vt.  252; 
The  Distilled  Spirits,  11  Wall.  (U. 
S.)  367,  20  L.  Ed.  167. 

«  Scotch  Lumber  Co.  v.  Sage,  132 
Ala.  598,  90  Am.  St.  Rep.  932;  Mc- 
Cormick  v.  Joseph,  83  Ala.  401;  Pep- 
per v.  George,  51  Ala.  190;  Terrell 
v.  Bank,  12  Ala.  502;  Chapman  v. 
Hughes,  134  Cal.  641;  Wittenbrock  v. 
Parker,  102  Cal.  93,  41  Am.  St.  Rep. 
172,  24  L.  R.  A.  197;  Bierce  v.  Red 
Bluff  Hotel  Co.,  31  Cal.  160;  Parish 
v.  Hedges,  34  App.  Cas.  D.  C.  21; 
Herrington  v.  McCollum,  73  111.  476; 
Campbell  v.  Benjamin,  69  111.  244; 
McCormick  v.  Wheeler,  36  111.  114,  85 
Am.  Dec.  388;  Allen  v.  McCalla,  25 
Iowa,  464,  96  Am.  Dec.  56;  Santa  Fe 
R.  R.  v.  Benton,  42  Kan.  698;  Willis 
v.  Vallette,  4  Mete.  (Ky.)  186;  Haven 
v.  Snow,  14  Pick.  (Mass.)  28;  War- 
ner v.  Hall,  53  Mich.  371;  Fidelity 
Trust  Co.  v.  Baker,  60  N.  J.  Eq.  170; 
Denton  v.  Ontario  Co.  Nat.  Bank,  150 
N.  Y.  126;  Martin  v.  Jackson,  27  Pa. 
504  67  Am.  Dec.  489;  Hood  v.  Fahne- 
stock,  8  Watts  (Pa.),  489,  34  Am. 
Dec.  489;  Steinmeyer  v.  Steinmeyer, 
55  S.  Car.  9;  Neilson  v.  Weber,  107 
Tenn.  161;  Manley  v.  Zeigler,  23  Tex. 
88;  Pacific  Mfg.  Co.  v.  Brown,  8 
Wash.  347;  Melms  v.  Pabst  Brewing 
Co.,  93  Wis.  153,  57  Am.  St.  Rep.  899; 
Lowther  v.  Carlton,  2  Atk.  242; 
Worsley  v.  Scarborough,  3  Atk.  392; 
Warrick  v.  Warrick,  3  Atk.  291. 

[Many  of  these  cases  can  be  recon- 
ciled upon  the  ground  that  the  theory 


of  legal  identification  confines  the  ef- 
fect of  notice  to  the  period  when  the 
agent  is  actually  representing  the 
principal.  Others  of  the  cases  seem 
to  have  adopted  the  rule,  without 
much  consideration,  as  one  peculiar 
to  attorneys.  Others,  e.  g.,  Witten- 
brock v.  Parker,  supra,  may  be  dis- 
tinguished in  that  the  attorney  did 
not  remember  at  the  time  the  infor- 
mation; or,  like  Tucker  v.  Tilton, 
Fidelity  Trust  Co.  v.  Baker,  and  Ar- 
rington  v.  Arrington,  supra,  that  the 
notice  formerly  received  had  no  re- 
lation to  the  present  employment.] 

And  so  it  has  been  held  that  knowl- 
edge acquired  by  an  attorney  while 
acting  for  one  client  will  not  affect 
another  client  for  whom  he  is  acting 
in  another  matter  at  the  same  time. 
Ford  v.  French,  72  Mo.  250. 

In  Denton  v.  Ontario  Co.  Nat. 
Bank,  150  N.  Y.  126,  the  court  said: 
"The  client  is  not  ordinarily  charge- 
able with  the  knowledge  which  his 
attorney  may  have  of  a  particular 
fact  unless  it  was  obtained  in  the 
conduct  of  the  cause  or  in  the  busi- 
ness of  the  client  or  was  present  to 
his  mind  at  the  time."  See  also,  Tay- 
lor v.  Evans,  16  Tex.  Civ.  App.  409. 

*3  The  notice  or  knowledge  ac- 
quired by  the  attorney  must  relate 
to  a  subject  matter  within  the  scope 
of  his  authority.  Atchison,  etc.,  R. 
R.  Co.  v.  Benton,  42  Kan.  698;  Mc- 
Cutcheon  v.  Dittman,  23  N.  Y.  App. 
Div.  285,  e.  g.,  where  an  attorney  is 
employed  simply  to  examine  an  ab- 
stract of  title  to  land,  the  client  is  not 


1759 


§    2I/8J  THE   LAW   OF  AGENCY  [BOOK   V 

also,  the  notice,  whether  it  be  one  relating  to  the  formal  matters  of  pro- 
cedure or  to  the  general  subject  of  his  agency,  must  come  to  him  while 
the  relation  still  continues.44  The  party  seeking  to  avail  himself  of  the 
rule  imputing  notice  has  the  burden  of  showing  that  the  conditions  ex- 
ist under  which  notice  is  imputed.45 

§  2178.  Authority  to  bind  client  by  admissions. — The  question 
of  the  attorney's  authority  to  bind  his  client  by  admissions  may  present 
two  aspects.  First,  that  which  belongs  to  the  somewhat  peculiar  situa- 
tion of  the  attorney  as  the  manager  of  the  procedure  in  a  cause,  and, 
secondly,  that  which  belongs  to  him  as  a  mere  agent  under  rules  similar 
to  those  which  would  apply  in  the  case  of  other  agents.  Under  the  first 
head,  as  has  been  seen,  the  attorney  would  have  power  to  bind  his  client 
by  admissions  respecting  the  merely  formal  matters  of  procedure,  such 
as  the  admission  of  the  service  of  papers,  admissions  as  to  the  receipt 
of  notice,  and  the  like.*6  So,  as  has  been  seen,  it  has  been  held  that  the 
attorney  may  bind  the  client  by  admissions  of  fact  for  the  purposes  of 
the  trial.*7  In  the  same  line,  it  was  said  by  the  Missouri  court  in  a  re- 
cent case :  "It  has  been  ruled  again  and  again  that  where  counsel  in 
their  opening  statements  state  or  admit  facts,  the  existence  of  which 
precludes  a  recovery  by  their  clients,  the  courts  may  close  the  case  at 
once  and  give  judgment  against  the  clients."48 

chargeable  with  notice  or  knowledge  torney  of  record,  the  case  having 
of  any  matters  outside  the  abstract.  been  off  the  docket  for  several  years 
Arrington  v.  Arrington,  114  N.  C.  and  the  attorney  having  in  fact 
151;  Trenton  v.  Pother,  46  Minn.  298,  ceased  to  represent  the  client,  as  he 
24  Am.  St.  Rep.  225;  Weil  v.  Reiss,  informed  the  party  giving  the  notice, 
167  Mo.  125;  see  Allison  v.  Falconer,  does  not  bind.  Beck  v.  Avondino,  20 
75  Ark.  343.  The  fact  that  the  Tex.  Civ.  App.  330. 
grantee  of  land  employs  to  pass  upon  Where  the  attorney's  authority  is 
the  record  title  and  draw  the  papers,  deemed  to  end  upon  the  rendition  of 
an  attorney  who  had  been  the  attor-  the  judgment,  knowledge  acquired 
ney  of  the  grantor,  does  not  charge  afterwards  is  not  imputed.  Chicago 
the  grantee  with  the  attorney's  knowl-  Sugar  Refining  Co.  v.  Jackson  Brew- 
edge  of  the  grantor's  fraudulent  pur-  ing  Co.  (Tenn.  Chan.),  48  S.  W.  275. 
poses.  Rogers  v.  Driscoll  (Tex.  Civ.  The  rule  that  notice  of  proceedings 
App.),  125  S.  W.  599.  to  the  attorney  of  record  is  notice  to 

Even   though   the   act   when   done  his  client  ceases  to  operate  when  the 

was  not  in  the  scope  of  the  attorney's  relation  ceases;   and  the  relation  or- 

employment,   its  subsequent  ratifica-  dinarily  ceases  for  this  purpose  upon 

tion  may  bring  it  within  the  rule  of  the     rendition     of     final     judgment, 

notice.     Haas  v.   Sternbach,  156   111.  Konta  v.  St.  Louis  Stock  Exchange, 

44.  150  Mo.  App.  617. 

4*  Notice  after  the  death  of  a  client  «*  Denton  v.  Ontario  Co.  Nat.  Bank, 

which  terminates  the  relation  is  not  supra. 

imputed.     Pedlar  v.  Stroud,  116  Cal.  •««  See  ante,  §  2162c. 

461.  47  See  ante,  §  2162;. 

Notice  of  a  proceedings  to  the  at-  <«  Pratt  v.  Conway,  148  Mo.  291,  71 

1760 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§  2179 


For  similar  reasons,  admissions  made  by  an  attorney  in  the  pleadings 
are  binding  upon  his  client.49 

In  any  of  these  cases  the  admission  must  be  a  formal  one  made  as  a 
step  in  the  proceedings  and  for  the  purpose  of  dispensing  with  proof.50 
The  rule  would  not  apply  to  mere  casual  conversations  or  to  informal 
and  incidental  remarks  or  statements.51 

§  2179.  Even  though  not  falling  within  the  admissions 

which  the  attorney  may  make  in  the  progress  of  the  cause,  since  they, 
were  made  when  no  cause  was  pending  or  perhaps  yet  contemplated, 
statements  made  by  an  attorney  as  an  agent  in  negotiating  have  been 
held  admissible.  Thus  in  a  case  in  Massachusetts  statements  made  by 
an  attorney,  who  afterwards  brought  suit  with  respect  to  the  matter, 
contained  in  letters  written  during  some  preliminary  negotiations  for 
a  settlement,  concerning  the  place  and  manner  in  which  plaintiff's  in- 
juries arose,  were  held  admissible  against  the  plaintiff.52  The  court  tex- 
• 


Am.  St.  Rep.  602,  citing  Oscanyan  v. 
Arms  Co.,  103  U.  S.  261,  26  L.  Ed. 
539;  Steamship  Co.  v.  Emigration 
Commrs.,  113  U.  S.  33,  28  L,  Ed.  899; 
Butler  v.  National  Home,  144  U.  S. 
64,  36  L.  Ed.  346;  Lindley  v.  Atchi- 
son,  etc.,  R.,  47  Kan.  432.  To  same 
effect:  Missouri,  etc.,  Tel.  Co.  v.  Van- 
devort,  67  Kan.  269. 

49  Union  Mutual  Life  Ins.  Co.  v. 
Thomas,  28  C.  C.  A.  96,  83  Fed.  803. 

•"'0  Treadway  v.  Sioux  City,  etc.,  R. 
R.  Co.,  40  Iowa,  526;  McKeen  v. 
Gammon,  33  Me.  187;  Rockwell  v. 
Taylor,  41  Conn.  55;  Missouri,  etc., 
Tel.  Co.  v.  Vandevort,  67  Kan.  269. 

si  This  was  the  distinction  taken 
in  Pickert  v.  Hair,  146  Mass.  1,  where 
the  court  said:  "It  was  a  conversa- 
tion relating  to  a  fact  in  controversy, 
but  not  an  agreement  relating  to  the 
trial  and  management  of  a  suit,  or 
an  admission  intended  to  influence 
the  procedure  in  the  pending  action, 
or  in  any  other."  Citing  Saunders  v. 
McCarthy,  8  Allen,  42;  Lewis  v. 
Sumner,  13  Met.  269;  Treadway  v. 
Sioux  City  &  St.  Paul  R.  R.,  40  Iowa, 
526;  Fetch  v.  Lyon,  9  Q.  B.  147;  Wag- 
staff  v.  Wilson,  4  B.  &  Ad.  339;  Moul- 
ton  v.  Bowker,  115  Mass.  36,  15  Am. 
Rep.  72;  Parkins  v.  Hawkshaw.  2 
Stark.  239;  Young  v.  Wright,  1  Camp. 


139;  Watson  v.  King,  3  C.  B.  608; 
Hulin  v.  Richards,  2  C.  &  K.  216.  , 

In  Pickert  v.  Hair,  supra,  the  state- 
ment held  to  be  inadmissible  was 
that  of  an  attorney  made  during 'an 
informal  interview  respecting  the 
ownership  of  goods. 

In  Cable  Co.  v.  Parantha,  118  Ga. 
913,  a  statement  made  by  one  attor- 
ney to  the  other,  in  a  conversation 
between  them  respecting  the  acts  and 
intentions  of  the  client  of  the  former, 
was  held  not  admissible. 

In  Fetch  v.  Lyon,  9  Q.  B.  147,  Den- 
man,  C.  J.,  said:  "We. are  of  opinion 
that  what  was  said  by  the  plaintiff's 
attorney  in  conversation  with  the  de- 
fendant's attorney  was  not  receiv- 
able in  evidence.  It  appears  not  to 
have  been  said  as  an  admission  of 
any  disputed  fact  in  the  cause,  but  as 
merely  a  loose  conversation;  and, 
though  spoken  to  the  defendant's  at- 
torney and  not  to  a  mere  stranger. 
Yet  we  think  the  principle  laid  down 
in  Parkins  v.  Hawkshaw  (2  Stark.  N. 
P.  C.  240),  applies." 

52  Loomis  v.  New  York,  etc.,  R.  Co., 
159  Mass.  39.  Same  effect:  Logre  v. 
Galveston  Elec.  Co.,  -  -  Tex.  Civ. 
App.  — ,  146  S.  W.  303.  But  compare 
Cassels  v.  Usry,  51  Ga.  621,  in  which 
the  court  said:  "We  do  not  think  that 


III 


1761 


§    2l8o]  THE   LAW  OF   AGENCY  [BOOK   V 

pressly  distinguished  between  the  mere  casual  conversations  of  the  at- 
torney which  do  not  bind ;  the  formal  admissions  respecting  the  manage- 
ment of  the  cause,  which  do  bind ;  and  the  admissions  in  question.  An 
attorney  or  agent  employed  to  collect  a  claim,  said  the  court,  is  impliedly 
authorized  to  state  to  the  debtor  what  the  claim  is,  and  as  part  of  this 
statement,  where  it  is  contended  that  the  claim  arose  from  the  other 
party's  negligence,  to  state  in  what  the  negligence  consisted.  Two 
judges  dissented. 

§  2180.  Authority  to  receive  payment. — An  attorney  to  whom  a 
debt  or  demand  is  intrusted  for  collection  has  undoubted  authority  to 
receive  payment,  and  payment  to  him  will  discharge  the  debtor.53 

This  power  to  receive  payment  depends  upon  the  fact  that  the  at- 
torney is  authorized  to  collect,  and  this  authority  may  be  withdrawn  by 
the  client  at  any  time.  It  is  essential  to  the  protection  of  a  debtor  who 
would  make  payments  to  an  attorney,  to  ascertain  that  the  attorney  is 
authorized  to  receive  them,  and,  if  he  does  not,  he  pays  at  his  peril.  If 
the  client  has  held  the  attorney  out  as  authorized  to  receive  payment, 
third  persons  may  rely  upon  the  authority  as  in  other  cases,  until  they 
have  notice  that  it  is  withdrawn.54  Before  such  notice,  payment  to  the 
attorney  binds  his  client,  but  after  such  notice,  it  does  not.55 

In  ordinary  cases  the  authority  of  the  attorney  may  be  shown,  either 
by  direct  evidence  of  his  appointment  or  by  acquiescence  or  course  of 
dealing  or  be  confirmed  by  a  subsequent  ratification.58  But  where 
money  is  due  upon  a  written  security,  and  authority  to  receive  payment 
is  sought  to  be  deduced  from  the  possession  of  the  security,  a  somewhat 
stringent  rule  applies,  as  has  been  already  seen.57  In  such  cases  it  is 
incumbent  upon  the  debtor,  if  he  pays  to  an  attorney,  to  show,  in  each 
instance,  that  the  attorney  then  had  the  security  in  his  possession ;  for 
if  the  possession  of  the  securities  be  withdrawn,  although  the  debtor  may 
have  had  no  notice  of  the  withdrawal,  the  attorney's  authority  to  re- 
ceive payment  upon  them  ceases  with  their  withdrawal  unless  some 

a  letter  which  an  attorney  may  write  Vorley    v.    Garrard,    2    Dowl.    490; 

to  the  opposite  party,  and  that,  too,  Powell  v.  Little,  1  W.  Black.  8;  Hud- 

before  suit,  and  upon  which  no  action  son  v.  Johnson,   1  Wash.    (Va.)    10; 

on  the  part  of  that  other  party  was  Carroll  County  v.  Cheatham,  48  Mo. 

claimed  to  have  been  taken,  or  any  385. 
injury  thereby  accrued  to  him,  can          ei  See  ante,  §  628. 
be  used  as  evidence  on  the  trial  s-im-          55  Weist  v.  Lee,  3  Yeates   (Penn.), 

ply  to    prove    or    disprove    facts  on  47. 

which  the  merits  of  the  case  rest."          se  Smith  v.  Kidd,  68  N.  Y.  130.  23 

The  facts,  however,  were  distinguish-  Am.  Rep.  157. 
able.  57  See  ante,  §§  935-937. 

53  Yates  v.  Freckleton,  2  Doug.  623; 

1762 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2l8l 

actual  authority  can  be  shown  or  an  estoppel  can  be  established.38  The 
fact  that  the  attorney  negotiated  the  loan,  or  transacted  the  business,  for 
which  the  securities  were  given,  furnishes  no  exception  to  this  rule.5* 

§  2181. Authority  to  receive  payment  carries  with  it,  as 

a  necessary  incident,  the  power  to  deliver  to  the  debtor  such  discharges; 
acquittances  or  evidences  of  payment  as  the  debtor,  upon  payment,  is 
entitled  to  receive.00  The  attorney  would  also  under  many  circum1 
stances  be  authorized  to  accept  partial  payments  to  apply  on  the  debt,81 
but  he  has  no  implied  authority  to  accept  part  in  satisfaction  of  the 
whole,62  or  to  grant  to  the  debtor,  in  consideration  of  a  partial  payment, 
any  extensions  of  time  or  other  indulgences  as  to  the  balance.63 

Like  other  agents  for  collection,  the  attorney  would  have  ordinarily 
no  implied  power  to  receive  any  thing  but  money  in  payment  of  the 
claim  ;64  or  to  release  or  compromise  the  claim  ;65  or  to  change  the  terms 
of  the  contract  ;66  or  to  sell,  assign  or  transfer  the  claim  to  another. eT 
Authority  to  receive  payment  does  not  usually  carry  with  it  implied 
power  to  receive  payment  before  it  is  due,68  especially  where  the  result 
would  be  to  cut  off  the  client's  right  to  interest  or  otherwise  prejudicially 
affect  him.  The  circumstances  may,  however,  show  that  the  client  in- 
tended the  attorney  to  secure  what  he  could  at  any  time  and  to  accept 

a  part  payment  in  case  the  whole  could  not  be  immediately  recovered. ; 

(>uB      : 

58  See  Williams  v.  Walker,  2  Sandf.  Minn.  528;   Sawyer  v.  Vermont  Loan 

(N.  Y.)  Ch.  325;  Doubleday  v.  Kress,  &  Trust  Co.,  41  Wash.  524;    Sherrill 

50  N.  Y.  410,  10  Am.  Rep.  502;  Smith  v.  Weisiger  Clo.  Co.,  114  N.  Car.  436; 

v.  Kidd,  68  N.  Y.  130,  23  Am.  Rep.  Hartman  Steel  Co.  v.  Hoag,  104  Iowa, 

157;  Crane  v.  Gruenewald,  120  N.  Y.  269. 

274,    17   Am.    St.   Rep.    643;    Central  To  same  effect:  Smith  v.  Jones,  47 

Trust  Co.  v.  Folsom,  167  N.  Y.  285,  Neb.  108,  53  Am.  St.  Rep.  519. 

and  other  cases  cited,  ante,  §§  935-  Has  ordinarily  no  authority  to  ac- 

937.  cept  a  check,  but  if  he  does  do  so  and 

s»  Henn  v.  Conisby,  1  Ch.  Gas.  93;  gets  the  money  upon  it,  it  is  a  good 

Smith  v.  Kidd,  supra.  payment  to  him.     Harback  v.  Colvin, 

eo  See  ante,  §  962.  73  Iowa,  638. 

«i  See  ante,  §  955.  May  not  accept  bill  of  sale.    Finley 

Pickett  v.   Bates,  3  La.  Ann.   627;  v.  Hey  ward,  35  Misc.  266. 

Rogers  v.   McKenzie,   81   N.   C.   164;  Attorney  may  endorse  and  collect 

Whelan  v.  Reilly,  61  Mo.  565.  draft  given  him  in  payment  of  claim. 

62  See  ante,   §   955;    Hall's   Safe  &  National    Fire    Ins.    Co.    v    Eastern 

Lock    Co.    v.  Harwell,  88    Ala.    441;  Bldg.  &  Loan  Ass'n,  63  Neb.  698. 

Wood  v.  Bangs,  2  Penn.   (Del.)   435;  esWatt   v.    Brookover,  35    W.    Va. 

Sonneborn  v.  Moore,  105  Ga.  497.  323,  29  Am.  St.  Rep.  811. 

es  See  ante,  §§  956,  957.  66  Haselton    v.    Florentine    Marble 

wPitkin  v.  Harris,   69  Mich.   133;  Co.,   94   Fed.  701;    Mason  v.  Thomp1- 

Cram  v.  Sickel,  51  Neb.  828,  66  Am.  son  Co.,  94  Minn.  472. 

St.  Rep.   478;    Moore  v.   Murrell,   56  6?  Feiner  v.  Puetz,  77  Mo.  App.  405. 

Ark.    375;    Davis    v.    Severance,    49  ss  See  ante,  §  958. 

1763 


§    2182] 


THE   LAW   OF   AGENCY 


[BOOK  v 


In  all  of  these  respects  the  attorney  stands  upon  the  same  footing  as 
any  other  agent  authorized  to  receive  payment,  and  the  whole  matter 
has  been  much  more  fully  considered  in  earlier  sections.69 

§  2182.  After  judgment. — Although  some  and  particu- 
larly the  early  cases  lay  down  the  rule  that  the  attorney's  authority 
ceases  with  the  rendition  of  the  judgment,  the  general  rule  is  well  estab- 
lished that  the  authority  of  an  attorney  who  has  obtained  a  judgment 
for  his  client,  continues  by  virtue  of  his  general  retainer,  for  the  col- 
lection of  the  judgment,70  and  he  may  receive  the  money  on  it,  even  after 
the  levy  of  the  execution  until  the  debtor's  right  to  redeem  has  ex- 
pired.71 

Payment  of  the  judgment  to  him,  even  by  a  stranger,  it  is  said,72  is 
binding  upon  the  client,  and  upon  payment  the  attorney  is  authorized 


«o  See  ante,  §§  932  et  seq. 

TOFrazier  v.  Parks,  56  Ala.  363; 
Miller  v.  Scott,  21  Ark.  396;  Conway 
County  v.  Little  Rock,  etc.,  Ry.  Co., 
39  Ark.  50;  Williams  v.  State,  65  Ark. 
159;  Black  v.  Drake,  2  Colo.  330; 
Brackett  v.  Norton,  4  Conn.  517,  10 
Am.  Dec.  179;  Hendry  v.  Benlisa,  37 
Fla.  609,  34  L.  R.  A.  283  (by  stat- 
ute); Smyth  v.  Harvie,  31  111.  62,  83 
Am.  Dec.  202;  Newman  v.  Riser,  128 
Ind.  258  (by  statute);  McCarver  v. 
Nealey,  1  G.  Greene  (Iowa),  360; 
Canterberry  v.  Com.,  1  Dana  (Ky.), 
415;  McGill  v.  McGill,  59  Ky.  258; 
Rhinehart  v.  New  Madrid  Banking 
Co.,  99  Mo.  App.  381;  White  v.  John- 
son, 67  Me.  287;  Gray  v.  Wass,  1  Me. 
257;  Baltimore,  etc.,  Ry.  Co.  v.  Fitz- 
patrick,  36  Md.  619;  Wycoff  v.  Ber- 
gen, 1  N.  J.  L.  (Coxe)  214;  (in  N.  Y. 
compare  Conner  v.  Watson,  27  Misc. 
444;  Davis  v.  Solomon,  25  Misc. 
695) ;  Gordon  v.  City  of  Omaha,  77 
Neb.  556;  Rogers  v.  McKenzie,  81 
N.  Car.  164;  Mordecai  v.  Charleston 
County,  8  S.  Car.  100;  Maxwell  v. 
Owen,  7  Coldw.  (Tenn.)  630;  Cart- 
wright  v.  Jones,  13  Tex.  1;  Branch 
v.  Burnley,  1  Call  (Va.),  147; 
Yoakum  v.  Tilden,  3  W.  Va.  167,  100 
Am.  Dec.  738;  Flanders  v.  Sherman, 
18  Wis.  575;  Erwin  v.  Blake,  8  Pet. 
(U.  S.)  18,  8  L.  Ed.  852;  Lesher  v. 
Radel,  170  Fed.  723. 


The  authority  of  defendant's  attor- 
ney ends  with  final  judgment  Bert- 
hold  v.  Fox,  21  Minn.  51;  Hillegrass 
v.  Bender,  78  Ind.  225. 

71  Gray  v.  Wass,  1  Me.  257;  White 
v.  Johnson,  67  Me.  287;   State  v.  Bal- 
linger,  41  Wash.  23,  3  L.  R.  A.   (N. 
S.)    72,   to   the   effect   that   attorney 
may    receive    payment    of    judgment 
and  have  it  marked  satisfied. 

Where  an  attorney  is  employed  to 
foreclose  a  mortgage  under  a  power 
of  sale,  while  he  would  usually  be 
deemed  to  have  authority  to  receive 
the  money  if  a  third  person  buys  at 
the  sale,  he  would  not  ordinarily 
have  authority,  where  the  land  has 
been  bought  in  by  his  client  and  is 
later  redeemed,  to  subsequently  re- 
ceive the  redemption  money.  In  re 
Grundysen,  53  Minn.  346. 

72  See  Frazier  v.  Parks,  supra.    Al- 
though   the    money    was    paid  by  a 
stranger,  it  was  paid  at  the  request 
of  one  of  the  defendants,  who  after- 
wards gave  the  payer  security  for  it. 
In  Miller  v.  Scott,  21  Ark.  396,  it  was 
held  that  where  an  attorney  has  ob- 
tained   a    judgment    for    his    client 
against  the  state,  and  the  legislature 
has  made  an  appropriation  to  pay  it, 
he  has  implied  authority  to  receive 
the  money  from  the  auditor  of  state 
and  give  a  receipt  for  it 


1764 


CHAP.  l] 


OF  ATTORNEYS  AT   LAW 


[§ 


to  execute  and  deliver  to  the  debtor  a  proper  satisfaction  and  dis- 
charge of  the  judgment.73 

But  this  rule  applies  only  to  the  attorney  of  record  in  the  case.  Pay- 
ment to  an  attorney  who  was  employed  for  some  specific  purpose,  as  to 
assist  upon  the  trial  only,  or  to  argue  a  motion,  or  to  collect  the  evidence, 
would  not  be  payment  to  the  client.7* 

It  is  understood  also  that  the  question  is  now  as  to  the  authority  im- 
plied from  a  general  retainer.  The  client,  may,  of  course,  expressly 
confer  more ;  or  he  may  limit  the  implied  authority  by  notice  of  a  con- 
trary purpose. 

§  2183.  What  constitutes  payment. — But  this  authority  of 

the  attorney  to  receive  payment  is  authority  to  receive  payment  in  full 
only,  and  in  money  alone.75  He  has  no  authority  to  release  or  discharge 
his  client's  claim  or  judgment  without  the  actual  payment  of  its  full 
amount.76  And  the  payment  must  be  in  money77.  The  attorney  can 
neither  sell,  assign  or  compromise  the  debt  or  judgment,  nor  receive 
notes,  warrants,  goods,  chattels  or  land  in  payment.78  The  money  he 

receives  must  also  be  that  which,  by  the  common  consent  of  the  com- 

J 


73  Miller  v.  Scott,  supra. 

™  Cameron  v.  Stratton,  14  111.  App. 
270. 

"Watt  v.  Brookover,  35  W.  Va. 
323,  29  Am.  St.  Rep.  811;  McMurray 
v.  Marsh,  12  Colo.  App.  95;  Faugh- 
nan  v.  City  of  Elizabeth,  58  N.  J. 
Law,  309;  Wood  v.  City  of  New  York, 

44  N.  Y.  App.  Div.  299;   Tito  v.  Sea- 
bury,  18  N.  Y.  Misc.  283. 

But  where  the  judgment  in  a  lien 
upon  land,  and  the  attorney  marks 
the  judgment  satisfied  without  re- 
ceiving payment,  third  persons  sub- 
sequently relying  thereon  in  good 
faith  will  not  be  prejudiced.  Wheeler 
v.  Alderman,  34  S.  Car.  533,  27  Am. 
St.  Rep.  842. 

76  Beers  v.  Hendrickson,  45  N.  Y. 
665;  De  Mets  v.  Dagron,  53  N.  Y.  635; 
Mandeville  v.  Reynolds,  68  N.  Y.  528; 
Rice  v.  Troup,  62  Miss.  186;  Miller 
v.  Lane,  13  111.  App.  648;  Robinson 
v.  Murphy,  69  Ala.  543;  Harrow  v. 
Farrow's  Heirs,  7  B.  Mon.  (Ky.)  126, 

45  Am.  Dec.  60;  Gilliland  v.  Gasque, 
6  S.  Car.  406;    Tankersley  v.  Ander- 
son, 4  Desaus.   (8.  Car.)   44;    Jewett 
v.    Wadleigh,    32    Me.    110;    Vail   v. 

1765 


'-•<   A 

Conant,  15  Vt.  314;  Bigler  v.  Toy,  68 
Iowa,  687. 

77  Walker   v.    Scott,    13    Ark.    644; 
McCarver    v.    Nealey,    1    G.    Greene 
(Iowa),   360;    Herriman  v.   Shomon, 
24  Kan.  387,  36  Am.  Rep.  261;   Lord 
v.  Burbank,  18  Me.  178;   Vanderline 
v.    Smith,    18    Mo.    App.    55;    Davis 

v.  Home  Ins.  Co.,  Tenn.  ,  155 

S.  W.  131;   Wiley  v.  Mahood,  10  W. 
Va.  206;  Kent  v.  Chapman,  18  W.  Va. 
485. 

78  Herriman   v.    Shomon,    24    Kan. 
387,  36  Am.  Rep.  261;  Miller  v.  Lane, 
13   111.  App.   648;    Fassitt  v.  Middle- 
ton,   47   Pa.   214,   86   Am.   Dec.   535; 
Campbell's  Appeal,  29  Pa.  401,  72  Am. 
Dec.   641;    Rowland  v.   Slate,  58  Pa. 
196;    Kirk's   Appeal,    87    Pa.    243,   30 
Am.  Rep.   357;    Gray  v.  Howell,   205 
Pa.  211;    Boren  v.  McGehee,  6  Port. 
(Ala.)  432,  31  Am.  Dec.  695;  Hendry 
v.  Benlisa,  37  Fla.  609,  34  L.  R,   A. 
283. 

No  implied  authority  to  assign  the 
judgment  he. has  obtained.  Gardner 
v.  Mobile,  etc.,  R.  Co.,  102  Ala,  635, 
48  Am.  St  Rep.  84. 


§    2184]  THE   LAW   OF   AGENCY  [BOOK    V 

munity,  passes  as  such  at  its  par  value.79  Thus  he  may  not  receive  in 
payment,  a  county  warrant  ;80  or  a  bond  ;81  or  the  note  of  the  debtor  or 
of  a  third  person  ;82  or  a  draft  on  a  third  person  payable  in  the  future  ;S3 
or  a  judgment  against  another;8*  nor  can  he  accept  real  estate  in  satis- 
faction of  a  money  judgment;  85  nor  may  he  receive  Confederate  notes88 
in  payment  or  depreciated  bills  of  any  kind.87 

So  the  attorney  has  no  authority  to  apply  his  client's  claim  or  judg- 
ment in  payment  of  any  debt  of  his  own,  or  to  receive  his  own  note  or 
obligation  in  payment,  or  to  permit  a  debt  owing  from  himself  to  be  set 

off  against  his  client's  claim.88 

0      _  tn1' t     mvfid  gaiLrtttanoa  IsiiW  c8ri    '6 

The  client  may  of  course  expressly  authorize  any  of  these  modes  of 

payment  to  be  adopted,  but  the  authority  does  not  flow  from  the  general 

retainer 

'['•ytn  'CO  [nul')£  ^rlJ  Juorfliy/   irrtKirdhui   10  mi.s!'>  ••'iftoilo  ^ifi 
The  client  may  also,  as  in  other  cases,  ratify  an  unauthorized  act  of 

the  attorney,  thus  giving  it  validity  from  the  beginning. 

Quite  obviously,  even  an  actual  receipt  of  the  money  by  the  attorney 
will  not  constitute  a  payment  to  his  client  if  it  was  received  in  a  trans- 
action in  which  the  attorney  was  not  acting  as  attorney  for  that  client  at 
all.*9 

§  2184.  Authority  to  enforce  judgment. — And  not  only  has  the 
attorney  authority  to  receive  payment  of  the  judgment,  but  he  has  also 

fa  See  ante,  §  946  et  seq.  »«  Harper  v.  Harvey,  4  W.  Va.  539: 

so  Her  rim  an  v.  Shomon,  supra.  Railey  V.   Bagley,   19  La.   Ann.   172; 

si  Smock  v.   Bade,   5   Rand.    (Va.)  Davis  v.  Lee,  20  La.  Ann.  248. 
b'39;  16  Am.  Dec.  780;  Kirk  v.  Glover,          s 7  West  v.  Ball,  12  Ala.  340;   Chap- 

5  Stew.  &  P.  (Ala.)   340.  man  v.  Cowles,  41  Ala.  103,  91  Am. 

82  Jeter  v.   Haviland,   24   Ga.    252;  Dec.    508;     Lawson    v.    Bettison,  12 

Langdon  v.  Potter,  13  Mass.  319;  Gar-  Ark.    401;     Trumbull    v.    Nicholson, 

vin  v.  Lowry,  7  Smed.  &  M.   (Miss.)  27  111.  148;  Commissioners  v.  Rose,  1 

24;    Jones    v.    Ransom,    3    Ind.    327;  Desaus.     (S.    Car.)    461;     Walker    v. 

Baldwin      v.      Merrill,      8      Humph.  Scott,  13  Ark.  644. 
(Tenn.)   132.  sa  Cost  v.    Genette,  1    Port    (Ala.) 

8s  Moye  v.  Cogdell,  69  N.  Car.  93.  212;  Craig  v.  Ely,  5  Stew.  &  P.  (Ala.) 

Even  if  he  had  authority  to  take  a  354;  Gullett  v.  Lewis,  3  Stew.  (Ala.) 

check  in  the  client's   name,   he  has  23;    Keller   v.    Scott,   2   Smed.   &   M. 

thereby  no  implied  authority  to  en-  (Miss.)    81;    Wenans   v.    Lindsey,    1 

dorse    it    and    receive    the    money.  How.  (Miss.)  577;  Hamrick  v.  Combs, 

Brown    v.    People's    Nat.    Bank,  170  14  Neb.  381;  Child  v.  Dwight,  1  Dev. 

Mich.  416.  &  Bat.  (N.  C.)  Eq.  171;  Wilkinson  v. 

s*  Clark  v.   Kingsland,   1   Smed.   &  Holloway,  7  Leigh  (Va.),  277;  Wiley 

M.  (Miss.)  248.  v.  Mahood,  10  W.  Va.  206. 

*B  stackhouse  v.  O'Hara,  14  Pa.  88;  89  Kelsay    v.    Taylor,    56    Ore.    13, 

Huston  v.  Mitchell,  14  S.  &  R.  (Pa.)  where  the  attorney  was  acting  upon 

307,  16  Am.  Dec.  506;  Stokely  v.  Rob-  an  entirely  outside  matter, 
inson,  34  Pa.  315;   Kirk's  Appeal,  87 
Pa.  243,  30  Am.  Rep.  357. 

1766 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§ 


general  authority  to  take  the  steps  necessary  to  enforce  its  payment. 
For  this  purpose  he  may  sue  out  the  necessary  execution  or  other  pro- 
cess,90 direct  its  service  by  the  proper  officer,91  and,  as  had  been  seen, 
may,  in  some  cases,  indemnify  the  officer  against  liability  on  account 
of  the  service.92  The  authority  of  the  attorney  to  control  the  execution 
is  quite  plenary.  Thus,  under  varying  circumstances,  it  has  been  held 
that  he  may  give  the  officer  directions  relative  to  his  management  of  the 
execution ; 93  he  may  direct  the  time  and  manner  of  enforcing  it ;  °*  he 
may  agree  to  delay  its  issue  for  a  limited  time,95  or  may  stay  proceed- 
ings under  it,  when  issued,  during  a  reasonable  period,96  if  it  be  done 
honestly  and  in  the  exercise  of  a  reasonable  discretion ;  and,  if  the  lien 
of  the  judgment  or  execution  will  not  thereby  be  lost,  he  may  direct  its 
return  to  be  delayed ; 97  he  may  direct  a  sale  under  it  to  be  suspended ; 98 
and  may  direct  a  postponement  of  the  sale  after  a  levy.99 

It  is  held  in  New  York  that  the  attorney  has  no  implied  authority  to 
direct  the  officer  as  to  what  property  he  shall  levy  upon,  and  that,  if 
he  does  so,  his  client  incurs  thereby  no  liability;1  but  the  contrary  has 
been  held  in  several  cases.2 


»o  Union  Bank  v.  Geary,  5  Pet.  (U. 
S.)  99,  8  L.  Ed.  60;  Conway  County 
v.  Little  Rock,  etc.,  Ry.  Co.,  39  Ark. 
50;  Farmers'  Bank  v.  Mackall,  3  Gill 
(Md.),  447;  Barber  v.  Dewes,  101  N. 
Y.  App.  Div.  432. 

9iWillard  v.  Goodrich,  31  Vt.  597; 
Gorham  v.  Gale,  7  Cow.  (N.  Y.)  739, 
17  Am.  Dec.  549;  Lynch  v.  Common- 
wealth, 16  Serg.  &  R.  (Pa.)  368,  16 
Am.  Dec.  582;  Brackett  v.  Norton,  4 
Conn.  517,  10  Am.  Dec.  179;  Morgan 
v.  Joyce,  66  N.  H.  538. 

92  See  ante,  §  2171. 

93  Brackett  v.  Norton,  4  Conn.  517, 
10  Am.  Dec,  179. 

»*  Gorham  v.  Gale,  7  Cow.  (N.  Y.) 
739,  17  Am.  Dec.  549;  Lynch  v.  Com- 
monwealth, 16  Serg.  &  R.  (Pa.)  368, 
16  Am.  Dec.  582. 

osWielaud  v.  White,  109  Mass.  392; 
Silvis  v.  Ely,  3  W.  &  S.  (Pa.)  420. 


9«Wieland  v.  White,  supra;  Silvis 
v.  Ely,  supra. 

97  McClure  v.  Colclough,  5  Ala.  65 
(here,  to   protect  the  sheriff).     See 
Crenshaw   v.   Harrison,    8   Ala.    342; 
Albertson  v.  Goldsby,  28  Ala.  711,  65 
Am.  Dec.  380. 

98  Lynch  v.  Commonwealth,  supra. 
The  court  thinks  the  rule  in  Penn- 
sylvania is  unusually  liberal. 

After  the  foreclosure  proceedings 
are  ended,  the  attorney  has  no  im- 
plied authority  to  agree  that  land  or- 
dered to  be  sold  under  a  decree  of 
foreclosure  of  trust-deed  shall  be  sold 
in  solido.  Person  v.  Leathers,  67 
Miss.  548. 

so  Albertson  v.  Goldsby,  28  Ala.  711, 
65  Am.  Dec.  380. 

lAverill  v.  Williams,  4  Denio  (N. 
Y.),  295,  47  Am.  Dec.  252;  Welsh  v. 
Cochran,  63  N.  Y.  181,  20  Am.  Rep. 


2  Vaughn  v.  Fisher,  32  Mo.  App.  29; 
Howell,  etc.,  Co.  v.  Caryl  &  Co.,  50 
Mo.  App.  440;  Morgan  v.  Joyce,  66 
N.  H.  538;  Feury  v.  McCormick  Har. 
Co.,  6  S.  Dak.  396.  See  also,  Parker 
v.  Bldg.  Loan  Ass'n,  114  Ga.  702. 

In  Morris  v.  Salberg,  22  Q.  B.  Div. 


614,  it  was  held  that  the  client  was 
bound  by  directions  of  the  attorney 
as  to  the  levy  on  particular  goods,  en- 
dorsed on  the  execution  writ;  but  in 
Smith  v.  Keal,  9  Q.  B.  Div.  340,  it 
was  held  that  he  was  not  bound 
where  the  directions  were  oral. 


1767 


§§  2185,  2186] 


THE  LAW   OF   AGENCY 


[BOOK  v 


§  2185.  But  it  is  held  that  the  attorney  has  no  implied  au- 
thority to  release  the  lien  of  the  judgment  or  of  the  execution  upon 
goods,3  or  land,4  or  discharge  the  defendant  from  imprisonment,  with- 
out full  payment  or  satisfaction  ;5  nor  has  he  authority  to  stay  the  issue 
of  the  execution  for  so  long  a  period  that  the  lien  of  the  judgment  will 
be  lost  ;6  nor  may  he  postpone  his  client's  lien  to  that  of  others.7  Neither 
has  the  attorney  implied  authority  to  bid  for,  or  purchase,  property  for 
his  client  at  an  execution  sale,  or  to  authorize  any  one  else  to  bid  or  pur-1 
chase  for  him.8 

§  2186.  •  The  authority  of  the  attorney  to  issue  execution 

extends  to  the  issuing  of  an  alias,  when  that  becomes  necessary.8  So  in 
a  proper  case,  he  may  institute  supplementary  proceedings,10  or  author- 
ize the  issue  of  a  sclre  facias,  to  facilitate  or  enforce  the  collection.11 

So  it  has  been  held  that  "when  an  attorney  who  has  been  acting  for 
the  defendant  up  to  judgment  on  which  execution  is  promptly  issued, 

519;  Oestrich  v.  Gilbert,  9  Hun  (N. 
Y.),  242;  Wiegmann  v.  Morimura,  12 
Misc.  37;  Fischer  v.  Hetherington,  11 
Misc.  575. 

It  is  often  stated  in  the  New  York 
cases  that  the  authority  of  the  attor- 
ney is  to  do  legal  acts  only,  and  that 
therefore  the  client  is  not  liable 
where  the  attorney  directs  the  seiz- 
ure of  goods  which  do  not  belong  to 
the  defendant.  The  same  reason  is 
assigned  in  Moore  v.  Cohen,  128  N. 
Car.  345.  But  as  has  been  seen  in 
many  other  places  in  the  law  of 
agency,  this  reason  is  ordinarily  not 
conclusive  of  the  principal's  liability. 
If  the  principal  has  authorized  the 
doing  of  a  lawful  act,  he  is  often  held 
liable  for  the  unlawful  or  illegal 
things  which  his  servant  or  agent 
may  do  in  the  execution  of  the  au- 
thority. 

In  Hamel  v.  Brooklyn  Heights  R. 
R.  Co.,  59  N.  Y.  App.  Div.  135,  it  was 
held  that  the  mere  relation  of  attor- 
ney and  client  does  not  make  the 
client  responsible  for  an  attempt  on 
the  part  of  the  attorney  to  induce  a 
witness  called  by  the  adverse  party 
to  testify  falsely,  where  there  is  no 
evidence  that  the  client  was  party 
or  privy  to  the  design.  See  also,  Mc- 


Coy v.  Munro,  76  N.  Y.  App.  Div. 
435. 

» Banks  v.  Evans,  10  Smed.  &  M. 
(18  Miss.)  35,  48  Am.  Dec.  734; 
Jewett  v.  Wadleigh,  32  Me.  110. 

*Fritchey  v.  Bosley,  56  Md.  94; 
Phillips  v.  Dobbins,  56  Ga.  617. 

"Kellogg  v.  Gilbert,  10  Johns.  (N. 
Y.)  220,  6  Am.  Dec.  335;  Treasurers 
v.  McDowell,  1  Hill  (S.  C.),  184,  26 
Am.  Dec.  166;  Jackson  v.  Bartlett,  8 
Johns.  (N.  Y.)  361;  Scott  v.  Seller,  5 
Watts  (Pa.),  235;  Lewis  v.  Gamage, 
1  Pick.  (Mass.)  347;  Savory  v.  Chap- 
man, 11  Ad.  &  Ell.  829;  Connop  v. 
Challis,  2  Exch.  484. 

e  Reynolds  v.  Ingersoll,  11  Smed. 
&  M.  (19  Miss.)  249,  49  Am.  Dec.  57. 

TFritchey  v.  Bosley,  56  Md.  94; 
Phillips  v.  Dobbins,  56  Ga.  617. 

s  Beardsley  v.  Root,  11  Johns.  (N. 
Y.)  464,  6  Am.  Dec.  386;  Averill  v. 
Williams,  4  Denio  (N.  Y.),  295,  47 
Am.  Dec.  252;  Washington  v.  John- 
son, 7  Humph.  (26  Tenn.)  468;  Sav- 
ery  v.  Sypher,  6  Wall.  (U.  S.)  157, 
18  L.  Ed.  822;  Bauman  v.  Eschallier, 


107  C.  C.  A.  44,  184  Fed.  710. 
»  Cheever  v.  Mirrick,  2  N.  H.  376. 

10  Ward  v.  Roy,  69  N.  Y.  96. 

11  Dearborn  v.  Dearborn,  15  Mass. 
3~16;  Nichols  v.  Dennis,  R,  M.  Char  It. 
(Ga.)  188. 

1768 


CHAP,  ij 


OF    ATTORNEYS    AT    LAW 


[§§2187,2188 


files  a  waiver  of  inquisition,  it  is  to  be  presumed,  that  he  is  acting  under 
authority,  and  if  the  client  desires  to  disavow  he  must  do  so  within  a 
reasonable  time."12 

§  2187.  Ratification. — Even  though  a  given  act  of  the  attorney 
may  be  unauthorized,  either  because  it  was  not  within  his  peculiar  power 
as  manager  of  the  procedure,  or  because  it  was  not  within  any  other 
power  of  agency  conferred  upon  him,  the  client  may  become  liable  by  his 
subsequent  ratification,  and  approval  of  the  act.  The  ordinary  rules  of 
ratification  in  general  operate  here,  and  these  have  been  so  fully  consid- 
ered in  a  previous  chapter  that  it  is  unnecessary  to  repeat  them  in  this 
connection.13  The  cases  are  nurr_i-ous.  however,  in  which  it  has  been 
held  that  if  the  client  with  knowledge  of  the  unauthorized  act  appro- 
priates the  benefit  of  it,14  or  fails  to  repudiate  it  within  a  reasonable 
time,  or  otherwise  acquiesces  in  it,1B  he  thereby  ratifies  the  act  and 
cannot  afterwards  repudiate  it. 

/  f [}O ,  JOf?   b  [uoilz  .  ?.Stil}  [> . 


V. 


DUTIES  AND  LIABILITIES  OF  ATTORNEY  TO  CLIENT. 

§  2188.  Bound  to  highest  honor  and  integrity. — The  exigencies 
of  life  require  not  only  that  the  client  should  often  entrust  to  his  at- 


12  Kissick  v.  Hunter,  184  Pa.  174. 

is  See  ante,  Book  I,  Chap.  VII. 

i*Ives  v.  Ives,  80  Hun  (N.  Y.), 
136;  Traveller's  Ins.  Co.  v.  Patten, 
119  Ind.  416;  Patterson  v.  McGovern, 
44  N.  Y.  App.  Div.  310;  Collins  v. 
Trust  Co.,  33  Wash.  136;  Beagles  v. 
Robertson,  135  Mo.  App.  306. 

"Gardner  v.  Mobile  &  N.  W.  Ry. 
Co.,  102  Ala.  635,  48  Am.  St.  Rep.  84; 
Hines-  v.  Stephens,  90  Ark.  518;  Bab- 
cock  v.  United  Rys.  Co.,  158  Mo.  App. 
275;  Finlay  v.  Hey  ward,  35  N.  Y. 
Misc.  266;  Bradt  v.  Scott,  63  Hun  (N. 
Y.),  632;  Denney  v.  Parker,  10  Wash. 
218;  Lambert  v.  Gillette,  24  Wash. 
726. 

In  City  of  Hammond  v.  Evans,  23 
Ind.  App.  501,  the  court  said:  "It 
was  not  necessary  that  appellee  [the 
client]  should  expressly  disavow  the 
act  of  the  attorney,  and  her  silence 
would  not  be  conclusive  of  ratifica- 
tion." Silence  after  knowledge  "Is 
evidence  of  ratification,  of  more  or 


less  force,  according  to  the  circum- 
stances in  which  it  occurs,"  citing 
Haggerty  v.  Juday,  58  Ind.  154. 

An  inquiry  addressed  by  a  party  to 
his  attorney  as  to  why,  if  he  had 
made  a  collection  of  notes,  he  did  not 
pay  over  the  proceeds,  was  held  not 
to  be  a  ratification  of  a  compromise 
of  the  claim.  Humphrey  v.  Thorp, 
89  Fed.  66. 

An  attorney  for  collection  took  a 
note  without  authority,  and  sent  it 
to  his  client,  who  at  once  repudiated 
the  act  and  sent  the  note  back  to  the 
attorney.  After  about  twenty  days 
the  attorney  returned  the  note  to  the 
debtor  and  told  him  of  the  client's 
refusal  to  accept  it.  Held,  no  ratifi- 
cation by  client.  Reinhart  Grocery 
Co.  v.  Powell,  158  Mo.  App.  458. 

No  ratification  where  client  re- 
tained only  what  he  was  entitled  to 
independently  of  the  alleged  transac- 
tion. Buhl  Malleable  Co.  v.  Cronan, 
59  Ore.  242. 


1769 


§    2189]  THE   LAW  OF  AGENCY  [BOOK   V 

torney,  the  care  and  management  of  important  affairs  of  business,  in- 
volving, perhaps,  the  client's  entire  property  and  possessions,  but  also, 
in  many  cases,  that  the  client's  reputation,  liberty  or  life  should  depend 
upon  the  skill,  judgment  and  ability,  and  above  all,  upon  the  integrity, 
honor  and  devotion,  of  the  attorney  to  whom  he  has  confided  them.  The 
proper  discharge  of  his  duty  demands  also,  in  many  cases,  that  the  at- 
torney should  be  made  the  confidant  to  whom  the  secrets  of  individuals 
and  families,  cherished  often  like  life  or  reputation,  or  concealed  from 
all  other  eyes,  must  be  disclosed  and  communicated.  The  necessities 
of  the  client,  too,  are  known,  often,  only  to  his  attorney,  and  strong 
temptations  may  present  themselves  to  the  latter  to  make  profit  from  his 
knowledge  and  advantages. 

These  considerations,  and  many  others  which  readily  suggest  them- 
selves, demand  that  he,  who  holds  himself  out  to  the  public  as  one  quali- 
fied to  accept  and  perform  these  important  trusts,  responsibilities  and 
duties,  should  not  only  bring  to  their  performance  an  adequate  degree 
of  skill,  learning  and  ability,  but  that  he  should  also  be  bound  to  exer- 
cise towards  his  client,  in  his  relations  with  him,  the  highest  degree  of 
honor,  integrity  and  fidelity  to  his  client's  interests.  And  this  is  the 
law.18  The  relation  is  one  of  trust  and  confidence  and  the  rules  which 
govern  the  conduct  of  other  persons  standing  in  fiduciary  relations,  ap- 
ply with  special  force  to  the  dealings  of  the  attorney  with  his  client. 

§  2189.  Duty  to  disclose  adverse  interests — Must  not  assume  an- 
tagonistic positions. — It  is  a  necessary  corollary  to  the  principles  of 
the  preceding  section,  that  it  is  the  duty  of  the  attorney  to  freely  and 
fully  disclose  to  his  client  any  interest  which  he  may  have  in  the  sub- 
ject-matter, any  previous  obligation  which  he  has  incurred  in  reference 
to  it,  and  every  other  bias,  interest  and  undertaking  which  may  disqual- 

is  Cox   v.    Sullivan,   7   Ga.   144,   50  which  truth   and   honesty   can   sane- 

Am.  Dec.  386;   Sanguinetti  v.  Rossen,  tion.     The   obligation   hath   this   ex- 

12  Gal.  App.  623;    Peirce  v.  Palmer,  tent;   no  greater." 
31  R.  I.  432.    x  See  the  following  cases  involving 

In  Agnew  v.  Walden,  84  Ala.  502,  disbarment:  In  re  Boone,  83  Fed.  944; 

Stone,  C.  J.,  said  of  the  retainer:  "It  United  States  v.  Costen,  38  Fed.  24; 

exacts    undivided    loyalty    and    alle-  In  re  Duncan,  64  S.  Car.  461;   In  re 

glance   to   the   client,   equal   to   that  McDermit,  63  N.  J.  L.  476;    State  v. 

demanded  by  the  veriest  despot  that  Cadwell,    16    Mont.    119;     People    v. 

ever  scourged  a  people.    In  that  par-  Frisch,    218    111.    275;    Fairfield   City 

ticular  service  his  talents  and  skill  Bar  v.  Taylor,  60  Conn.  11,  13  L.  R. 

are   not   his   own;  they   are    bought  A.  767;  People  v.  Sindlinger,  28  Colo, 

with  a  price.    These  he  must  bestow  258;  People  v.  Waldron,  28  Colo.  249; 

with  all  the  zeal  and  earnestness  of  In  re  Danford,  157  Gal.  425;   State  v. 

his  nature,  and  in  all  the  methods  Johnson,  149  Iowa,  462. 

1770 


CHAP.  l] 


OF  ATTORNEYS   AT   LAW 


[§    2189 


ify  or  disable  him  from  rendering  to  his  client  that  full  and  perfect  al- 
legiance which  this  relation  requires.17 

If  there  be  any  such  adverse  interest,  it  is  improper  for  the  attorney 
to  undertake  the  employment,  unless,  after  disclosure  of  it,  the  client 
consents.  Where,  however,  after  a  full  and  frank  disclosure  the  client 
does  consent  he  cannot  afterwards  object.18 

The  general  rule,  moreover,  applies  only  to  such  interests  as  are  ad- 
verse. It  is  often  entirely  proper  and  possible  for  the  same  attorney  to 
represent  a  number  of  persons  interested  in  the  same  general  proceed- 
ing, and  it  is  only  where  his  interest  with  reference  to  one  party  is  such 
as  to  at  least  furnish  a  temptation  to  sacrifice  the  interest  of  another 
that  his  relations  to  the  first  render  it  improper  for  him  to  accept  em- 
ployment by  the  second.19 


"Williams  v.  Reed,  3  Mason  (U. 
S.  C.  C.),  405,  Fed.  Cas.  No.  17,733; 
In  re  Lydall,  70  L.  J.  Q.  B.  5,  83  Law 
T.  (N.  S.)  484;  Pilling  v.  Benson,  — 

R.  I.  ,  84  Atl.  1005.  See  also, 

Peirce  v.  Palmer,  31  R.  I.  432. 

Where  attorneys  have  withdrawn 
from  a  case,  acting,  as  the  court 
found,  in  entire  good  faith,  and  be- 
cause they  believed  the  litigation  had 
been  terminated  by  an  assignment 
of  Interests,  they  will  not  be  re- 
strained from  acting  for  the  other 
parties  in  case  the  litigation  is  con- 
•  tinued. 

The  court  will  assume  until  the 
contrary  is  shown  that  no  violation 
of  confidence  and  honor  to  the  for- 
mer client  will  be  made.  Lalance,  etc., 
Co.  v.  Haberman  Mfg.  Co.,  93  Fed. 
197.  An  attorney,  who,  on  finding 
that  a  suit  in  which  he  has  been  en- 
gaged involves  matters  hostile  to  the 
interests  of  a  prior  client,  and  who 
then  withdraws  from  the  second  re- 
tainer, will  not  thereby  lose  his  right 
to  recover  for  services  to  the  prior 
client.  Asher  v.  Beckner  (Ky.),  41 
S.  W.  35. 

In  Davis  v.  Chattanooga  Union  Ry. 
Co.,  65  Fed.  359,  the  court  said:  "It 
is  the  duty  of  counsel  to  abandon 
one  claim,  or  to  inform  their  client 
of  the  conflict,  and  have  a  thorough 
understanding  that,  with  respect  to 
this  conflict,  one  or  the  other  must 


look  to  other  representation."  But 
held  that  there  had  been  sufficient 
disclosure. 

In  In  re  Luce,  etc.,  83  Cal.  303,  it 
was  held  that  where  one  of  a  firm  of 
attorneys  who  held  a  small  claim  for 
collection  for  a  creditor  of  an  in- 
solvent debtor,  and  who  temporarily 
forgetting  about  it  become  attorneys 
for  the  debtor,  but  who  promptly  ex- 
plained the  matter  fully  to  such  cred- 
itor, who  did  not  complain,  will  not 
be  disbarred  for  unprofessional  con- 
duct upon  complaint  of  another  cred- 
itor. 

is  Brodie  v.  Parsons,  23  Ky.  Law 
Rep.  831,  64  S.  W.  426;  Mealer  v.  Gil- 
bert, 22  Ky.  L.  R.  1523,  60  S.  W.  8; 
Jenkins  v.  Barber,  85  Miss.  666;  Cul- 
ver v.  Nester,  116  Mich.  191. 

!9  An  attorney  who  holds  a  mort- 
gage second  to  that  of  a  former  client 
violates  no  duty  to  that  client 
by  redeeming  the  land  after  the  fore- 
closure of  his  client's  mortgage  has 
been  completed  and  the  attorney  has 
retired  from  the  case.  Sheehan  v. 
Farwell,  135  Mich.  196.  There  is  no 
necessary  inconsistency  in  an  attor- 
ney's representing  both  the  interest 
of  the  husband  and  the  administrator 
in  the  wife's  estate.  In  re  Jones'  Es- 
tate, 118  Cal.  499.  The  fact  that  one 
was  attorney  for  a  contractor,  for 
whom  he  was  about  to  file  a  lien 
against  the  owner  of  the  property 


1771 


§  2190] 


THE    LAW   OF   AGENCY 


[BOOK  v 


§  2190.  Duty  to  remain  loyal — Incapacities  resulting. — Equally 
obvious  and  imperative  is  the  duty  of  the  attorney  to  keep  himself,  dur- 
ing the  continuance  of  the  relation,  free  from  entangling-  or  compromis- 
ing alliances.  Like  every  other  servant,  he  can  not  serve  two  masters, 
and,  having  undertaken  the  service  of  one,  he  is  bound,  by  all  legal  and 
moral  rules,  to  absolutely  refrain,  not  only  from  putting  himself  volun- 
tarily in  a  situation  where  his  duty  and  his  own  interest  will  conflict,  but 
from  undertaking  or  accepting  any  duties  or  obligations  to  those  whose 
interests  are  opposed  to  those  of  his  client.20 

The  general  duty  of  an  agent  to  be  loyal  to  his  principal's  interests 
and  the  consequences  which  flow  from  his  failure  to  perform  this  duty, 
have  been  fully  discussed  in  an  earlier  chapter,21  and  the  rules  there  con- 
sidered apply  in  general  to  the  attorney.  It  is,  therefore,  not  necessary  to 
repeat  them  here.  Under  these  rules  the  attorney  will  not  be  permitted 


does  not  preclude  him  from  being  at- 
torney of  another  in  regard  to  filing 
a  lien  against  the  same  property  for 
materials  furnished  the  contractor. 
Perkins  v.  West  Coast  Lumber  Co., 
129  Cal.  427.  In  condemnation  pro- 
ceedings the  employment  of  an  attor- 
ney by  a  property  owner  whose  land 
it  is  proposed  to  take,  and  who  de- 
sires to  have  It  taken,  does  not  neces- 
sarily make  improper  his  employ- 
ment by  other  owners  whose  prop- 
erty has  been  assessed  for  the  im- 
provement but  who  are  not  hostile 
to  it.  Stone  v.  Slattery's  Adm'r,  71 
Mo.  .App.  442.  There  is  no  necessary 
impropriety  in  the  attorney  for  a 
trustee  in  bankruptcy  acting  for  the 
creditors  in  making  out  and  present- 
ing the  formal  proof  of  their  claims. 
In  re  McKenna,  137  Fed.  611.  See 
also,  National  Hollow  Brake  Beam 
Co.  v.  Bakewell,  224  Mo.  203;  Graves 
v.  Long,  87  Ky.  441;  Butler  Paper 
Co.  v.  Regan  Ptg.  Co.,  35  111.  App.  152. 
Where  a  claim  is  sent  an  attorney 
for  collection  and  judgment  is  ob- 
tained on  it,  but  without  disclosing 
that  he  held  a  prior  mortgage  on  the 
judgment  debtor's  property,  such  con- 
duct will  not  estop  the  attorney  from 
enforcing  the  mortgage  after  the 
clients  "had  taken  the  collection  of 
the  judgment  out  of  his  hands 


and  caused  the  goods  to  be  levied 
upon  on  an  execution  taken  out  at 
their  instance,  and  after  they  had 
learned  of  the  existence  of  the  mort- 
gage." State  ex  rel.  Kennan  v.  Fidel- 
ity &  Deposit  Co.,  94  Mo.  App.  184. 
The  fact  that  an  attorney  was  con- 
sulted generally  by  the  present  de- 
fendant in  respect  to  the  collection 
of  a  claim  will  not  debar  him  from 
later  representing  the  plaintiff  in  a 
suit  for  the  wrongful  attachment  of 
property  on  that  claim,  it  not  appear- 
ing that  the  attorney  had  advised  de- 
fendant with  reference  to  such  at- 
tachment or  acquired  any  informa- 
tion which  he  could  use  to  his  injury. 
Messenger  v.  Murphy,  33  Wash.  353. 

20  Parker  v.  Parker,  99  Ala,  239,  42 
Am.  St.  R.  48;  Bryant  v.  Mclntosh,  3 
Cal.    App.    95;   Smith    v.    Jordan,  77 
Conn.    469;     Michigan    Stove    Co.    v. 
Harwood  Co.,   71   111.   App.   240;    Mc- 
Lead  v.  Applegate,  127  Ind.  349. 

"An  attorney  who  has  appeared 
and  answered  for  one  of  the  parties 
in  an  action  cannot  be  allowed  to 
disregard  such  appearance  and  seek 
to  bind  his  client  by  the  service  of  a 
notice  of  motion  upon  him  person- 
ally." Bennett  v.  Weed,  38  N.  Y. 
Misc.  290. 

21  See  ante,  §§  1188  et  seq. 


1772 


CHAP.  l]  OF  ATTORNEYS   AT   LAW  [§    2IQI 

without  his  client's  consent  to  buy  or  sell  on  his  own  account  that  which 
it  is  his  duty  to  sell  or  buy  for  his  client;  to  acquire  for  himself  rights 
or  interests  at  the  expense  of  his  client's  interests ;  or  to  take  advantage 
of  his  position  to  acquire  benefits  for  himself  to  the  detriment  of  his 
client.  In  all  such  cases  the  client  may  disaffirm  transactions  had  with 
himself,  or  may  compel  the  attorney  to  account  to  the  client  for,  or  hold 
for  the  benefit  of  the  client,  all  rights  or  interests  acquired  by  the  attor- 
ney which  should  have  been  acquired  on  the  client's  account.22  With 
respect  of  compensation,  the  attorney,  like  other  agents,  will  forfeit  his 
right  by  conduct  which  amounts  to  a  betrayal  of  the  client's  interests.28 

§  2191.  Effect   on   opposite   party. — And    not   only    may 

transactions  thus  be  avoided  as  between  the  attorney  and  client,  but  as 
between  the  client  and  the  opposite  party  the  transactions  are  often 
voidable  at  the  option  of  the  client.  This  is  unquestionably  true  where 
there  has  been  collusion  between  the  opposite  party  and  the  client's  at- 
torney ; 24  but  even  where  there  has  been  no  such  collusion,  the  oppo- 
site party,  however  personally  innocent,  will  not  be  allowed  to  reap  or 
retain  benefits  which  could  only  result  to  him  from  the  acts  of  his  own 
attorney,  who  was  at  the  same  time  assuming  to  act  as  attorney  for  the 
client,  in  disregard  of  his  duty  of  loyalty  to  the  latter.  In  such  a  case 
agreements,  settlements,  orders,  judgments,  or  decrees  may  be  set  aside 
upon  the  application  of  the  injured  client,  if  he  moves  without  unreason- 
able delay.25 

a2  Where  an  attorney  has  been  con-  by  another  but  on  his  own  account, 
suited  about  the  title  to  land  he  will  the  client  may  buy  in  the  property 
not  be  permitted  to  purchase  an  out-  from  the  purchaser  and  recover  from 
standing  title,  and  then  set  it  up  in  the  attorney  the  excess  paid.     Rob- 
opposition  to  his  client.   Even  though  erts  v.  Gates,  146  Mich.  169. 
he  does  not  buy  it  until  after  the  re-  See  also,  Home  Inv.  Co.  v.  Strange, 
lation    of    attorney    and    client  has  —  Tex.  Civ.  App.  — ,  152  S.  W.  510. 
ended,  if  during  the  continuance  of  23  See  ante,  §  2137  et  seg;  Harding 
the  client's  interest,  he  will  hold  it  v.  Helmer,  193  111.  109. 
in  trust  for  the  client.    Eoff  v.  Irvine,  24  Haverty  v.  Haverty,  35  Kan.  438. 
108   Mo.    378,   32   Am.   St.   Rep.    609;  25  Marcom    v.    Wyatt,    117   'N.    Car. 
Davis  v.  Kline,  96  Mo.  401,  2  L.  R.  A.  129;  Kannally  v.  Renner,  84  111.  App. 
78.     Likewise  where  an  attorney  em-  51,  affirmed  in  193  111.  213. 
ployed   to   buy   for   the  clients   buys  See  Webster  v.  Diamond,  36  Ark. 
for   himself.     Nichols   v.   Riley,   118  532. 

App.  Div.  (N.  Y.)  404;  Baker  v.  Where  the  trustee  under  an  assign- 
Humphrey,  101  U.  S.  494,  25  L.  Ed.  ment  was  also  attorney  for  a  credi- 
1065.  Also  where  attorney  for  cred-  tor,  a  judgment  against  the  assignor 
itor  buys  on  execution  sale,  for  less  in  favor  of  the  creditor  and  obtained 
than  the  amount  of  their  claims.  by  the  attorney  will  be  set  aside. 
Whitman  v.  O'Brien,  29  Pa.  Super.  Wilson  Cotton  Mills  v.  Randleman 
Ct.  208.  And  if  the  attorney  collu-  Cotton  Mills,  116  N.  Car.  647.  Where 
sively  causes  the  land  to  be  bought  an  attorney  acts  both  for  the  bank- 

1773 


§    2192]  THE   LAW  OF  AGENCY  [BOOK   V 

§  2192.  Duty  to  use  reasonable  care  and  skill.-— *"It  is  the  mis- 
fortune of  members  of  the  learned  professions,"  said  Judge  Cooley, 
"that,  in  a  very  considerable  proportion  of  all  the  cases  in  which  their 
services  are  employed,  their  efforts  must  necessarily  fall  short  of  ac- 
complishing the  purpose  desired,  so  that  if  they  do  not  disappoint  expec- 
tations, they  must  at  least  fail  to  fulfill  hopes.  For  this  reason  they  are 
peculiarly  liable  to  the  charge  of  failure  in  the  performance  of  profes- 
sional duty,  and  it  is  therefore  important  to  know  exactly  what  it  is  that 
the  professional  man  promises  when  he  engages  his  services."26 

The  proper  performance  of  the  duties  of  the  attorney  at  law, — partic- 
ularly where,  as  in  the  United  States,  the  same  practitioner  often  under- 
takes to  act  in  all  of  the  various  departments  of  the  profession, — requires 
upon  the  part  of  the  attorney  the  possession  and  exercise  of  an  adequate 
degree  -of  learning,  skill  and  diligence.  The  law,  however,  is  not  free 
from  doubt,  and  it  is  impossible  for  any  man  to  know  it  all.  The  wisest 
men  in  the  profession  often  differ,  not  only  as  to  what  the  law  is,  but 
also  as  to  how  it  shall  be  applied.  No  attorney,  therefore,  can  be  rightly 
held  to  infallibility.27  At  the  same  time,  there  are  certain  rules  and 
principles  of  which  no  one,  who  undertakes  to  practice  the  profession, 
should  be  permitted  to  be  ignorant.  It  is  impossible  for  any  man  to  ex- 
ercise perfect  care  and  diligence,  but  there  are  certain  things  which  no 
man,  who  assumes  the  responsibilities  of  attorney,  could  be  allowed  to 
overlook.  Again,  it  is  not  unreasonable  to  expect  that  the  attorney 
whose  practice  lies  in  the  courts  of  the  metropolis  should  be  chargeable 
with  a  higher  degree  of  skill,  in  certain  departments,  than  the  members 
of  a  rural  bar,28  but,  on  the  other  hand,  the  latter,  as  to  the  general  prin- 
ciples of  the  profession,  should  be  no  more  ignorant  than  the  former. 
It  is  obvious,  therefore,  that  there  must  be  a  rule  of  responsibility  which 
will  neither  impose  upon  the  practitioner  an  unreasonable  and  hazardous 
responsibility,  nor  relieve  him  from  all  responsibility  whatever. 

rupt  and  a  creditor  his  admissions  even  a  judge  is  bound  to  know  all 

will    not    bind    the    client.      In    re  the  law;    or  that  an  attorney  Is  to 

Wooten,  118  Fed.  670.    Release  given  lose  his  fair  recompense  on  account 

by  client  through  his  attorney  who  of  an  error,  being  such  an  error  as  a 

was  then,  unknown  to  the  client,  in  cautious  man   might   fall   into."     In 

the  retainer  of  the  opposite  party  in  Montriou  v.  Jefferys,  2  C.  &  P.  113. 
other    matters,    may    be    set    aside.          One  who  falsely  represents  himself 

Pilling  v.  Benson,  R.   I.  ,  84  as  an  attorney  at  law  and  secures  em- 

Atl.  1006.  ployment  on  that  basis,  is  responsible 

ae  Cooley  on  Torts,  p.   648.  to  his  client  for  good  faith,  fair  deal- 

27  "No    attorney,"    said    Abbott,    C.  ing  and  skill  to  the  same  extent  as 

J.,  "is  bound  to  know  all  the  law;  he  would  be  if  he  were  really  such. 

God  forbid  that  it  should  be  imagined  Miller  v.  Whelan,  158  111.  544. 
that   an   attorney,   or   a   counsel,   or          2»  Weeks  on  Attorneys,  §  289. 

1774 


CHAP.  l] 


OF  ATTORNEYS   AT   LAW 


[§    2193 


§    2193. 


This   rule  of  responsibility  may  be  stated  as  fol- 


lows :  A  person  who  holds  himself  out  to  the  public  for  employment,  as 
an  attorney  at  law,  impliedly  undertakes  with  those  who  employ  him : 

1.  That  he  possesses  that  reasonable  degree  of  learning,  skill  and  ex- 
perience which  is  ordinarily  possessed  by  attorneys  at  law,  and  which 
is  ordinarily  regarded  by  the  community  and  by  those  conversant  with 
that  employment,  as  necessary  and  sufficient  to  qualify  him  to  engage 
in  that  business. 

2.  That  he  will  use  reasonable  and  ordinary  care  and  diligence  in  the 
exertion  of  his  skill  and  the  application  of  his  knowledge  to  accomplish 
the  purpose  for  which  he  is  employed.     But  he  does  not  undertake  for 
extraordinary  care  or  diligence  or  for  uncommon  skill. 

3.  That,  in  exerting  his  skill  and  in  applying  such  care  and  diligence; 
he  will  exercise  his  best  judgment.29 

In  other  words,  he  agrees  that  he  possesses  at  least  the  average  degree 
of  skill  and  learning  in  his  profession  in  that  part  of  the  country  in 
which  he  practices,  and  that  he  will  exercise  that  learning  and  skill  with 
reasonable  care 'and  diligence.30 

29  See    Cooley    on    Torts,    p.    649,      51,   5   Am.   Dec.   77;    Caverly  v.   Me- 


where  the  learned  author  approves 
the  rule  laid  down  in  Leighton  v. 
Sargent,  27  N.  H.  460,  59  Am.  Dec. 
388,  upon  which  the  rule  given  in  the 
text  is  based.  See  generally  that  at- 
torney is  hound  to  the  possession  and 
exercise  of  reasonable  skill,  care  and 
diligence.  Goodman  v.  Walker,  30 
Ala.  482,  68  Am.  Dec.  134;  Evans  v. 
Watrous,  2  Port.  (Ala.)  205;  Mardis 
v.  Shoekleford,  4  Ala.  493;  Sevier  v. 
Holliday,  2  Ark.  512;  Palmer  v.  Ash- 
ley, 3  Ark.  75;  Pennington  v.  Yell,  11 
Ark.  212,  52  Am.  Dec.  262;  Chase  v. 
Heaney,  70  111.  268;  Stevens  v. 
Walker,  55  111.  151;  Morrison  v.  Bur- 
nett, 56  111.  App.  129;  Strong  v.  In- 
ternational Bldg.,  etc.,  Union,  82  111. 
App.  426;  Newman  v.  Schueck,  58  111. 
App.  328;  Reilly  v.  Cavanaugh,  29 
Ind.  435;  Kepler  v.  Jessup,  11  Ind. 
App.  241;  Citizens  Loan,  etc.,  Ass'n  v. 
Friedley,  123  Ind.  143,  18  Am.  St. 
Rep.  320,  7  L.  R.  A.  669;  Rooker  v. 
Bruce,  45  Ind.  App.  57;  Humboldt  Co. 
v.  Ducker's  Ex's,  23  Ky.  L.  R.  1073, 
64  S.  W.  671;  Cochrane  v.  Little,  71 
Md.  323;  Gilbert  v.  Williams,  8  Mass. 


Owen,  123  Mass.  574:  Wilson  v.  Russ, 
20  Me.  421;  Eggleston  v.  Boardman, 
37  Mich.  14;  Babbitt  v.  Bumpus,  73 
Mich.  '331,  16  Am.  St.  Rep.  585; 
Fitch  v.  Scott,  3  How.  (Miss.)  314, 
34  Am.  Dec.  86;  National  Hollow 
Brakebeam  Co.  v.  Bakewell,  224  Mo. 
203;  Reumping  v.  Wharton,  56  Neb. 
536;  French  v.  Armstrong,  80  N.  J. 
L.  152;  A  very  v.  Jacob,  59  N.  Y. 
Super.  Ct.  585;  Harriman  v.  Baird, 
6  N.  Y.  App.  Div.  518;  Holmes  v. 
Peck,  1  R.  I.  242;  Hill  v.  Mynatt 
(Tenn.  Ch.),  59  S.  W.  163;  Morrill  v. 
Graham,  27  Tex.  646;  Pitt  v.  Yalden, 
4  Burr.  2060;  Kemp  v.  Burt,  4  B.  & 
Ad.  424;  Godefroy  v.  Dalton,  6  Bing. 
460;  Laidler  v.  Elliott,  3  B.  &  C.  738; 
Lee  v.  Dixon,  3  Fost.  &  F.  744; 
Parker  v.  Rolls,  14  Com.  B.  691;  Mon- 
triou  v.  Jefferys,  2  Car.  &  P.  113; 
Elkington  v.  Holland,  9  M.  &  W.  659. 
so  Cooley  on  Torts,  p.  649.  The 
rule  is  frequently  laid  down,  particu- 
larly in  the  older  cases,  that  the  at- 
torney is  liable  only  for  gross  ignor- 
ance or  neglect.  Gross  negligence 
has  been  well  said  to  be  simply  neg- 


1775 


§    2IQ4]  THE   LAW  OF  AGENCY  [BOOK  V 

§  2194.  •  Errors  in  law  or  judgment. — The  law  is  not  only 
one  of  the  most  comprehensive  of  sciences,  but  it  is  also  a  constantly 
progressing  one.  The  daily  demands  made  upon  it,  by  the  necessities 
of  our  modern  civilization,  require  not  only  that  it  should  be  called  upon 
to  adjust  new  phases  of  old  questions,  but  that  it  should  prove  adequate 
to  the  determination  of  problems  entirely  new  in  the  history  of  jurispru- 
dence. Under  our  complex  political  system,  each  State  is,  within  cer- 
tain limits,  the  final  arbiter  of  the  legal  rules  which  shall  prevail  within 
its  jurisdiction,  and  it  is  inevitable  that  more  or  less  of  conflict  should 
exist.  Although  the  decisions  of  other  States  are  looked  upon  with  re- 
spect, and  frequently  followed,  they  are  not  authoritative,  and  until  a 
question  has  been  directly  passed  upon  by  the  court  of  last  resort,  the 
practitioner  in  any  State  can  feel  no  absolute  certainty  as  to  what  the 
law  in  his  State  is  upon  the  question.  Upon  certain  questions,  too,  the 
decisions  of  the  State  courts  are  subject  to  review  by  the  Supreme  Court 
of  the  United  States.  Solemn  decisions  pronounced  by  the  court  at  one 
period  are  not  infrequently  overruled  by  the  same  court  at  a  later 
period,  and  rules  which  have  been  regarded  and  acted  .upon,  as  sound, 
for  years,  are  often  found  to  have  been  erroneous. 

With  that  part  of  the  law  which  has  been  made  the  subject  of  statu- 
tory enactment,  less  uncertainty  exists,  but  statutes  are  frequently  de- 
clared to  be  unconstitutional  by  the  courts,  or  are  repealed  by  subse- 
quent legislatures. 

It  is,  therefore,  not  only  impossible  for  airy  man  to  know  all  the  law, 
but  it  is  also,  in  many  cases,  impossible  for  him  to  say  with  certainty 
what  is  the  law  in  reference  to  a  particular  subject.81 

ligence  with  an  epithet.    The  expres-  Stone,  J.,  in  Goodman  v.  Walker,  30 

sion    is    not    accurate.     "Some    law-  Ala.  482,  68  Am.  Dec.  134. 
writers  and  some  adjudged  cases  are          Approved  in  Hill  v.  Mynatt  (Tenn. 

guilty  of  inaccuracy  in  the  employ-  Ch.),  59  S.  W.  163;  Ahlhauser  v.  But- 

ment  of  the  phrase  'gross  negligence.'  ler,  57  Fed.  121,  affirmed  11  C.  G.  A. 

Our  own  court  fell  into  this  error  in  434,  63  Fed.  792. 
the  case  of  Evans  v.  Watrous,  2  Port.          si  in   Citizens   Loan,   etc.,   Ass'n  v. 

205.    It  is  there  said  that  an  attorney  Friedley,    123    Ind.    143,    18   Am.    St. 

is    not    liable  'unless    he    has    heen  Rep.  320,  7  L.  R.  A.  669,  it  was  said: 

guilty  of  gross  negligence.'     In  the  "The   practice  of  law  is  not  merely 

same  paragraph  it  is  asserted,  that  an  art,  it  is  a  science  which  demands 

he  'is  bound  to  use  reasonable  care  from   all  who  engage   in   it  without 

and  skill;'  and  the  meaning  attrib-  detriment  to  the  public,  special  quali- 

uted  by  the  writer  of  that  opinion  to  fications  which  can  only  be  attained 

the   expression   'gross   negligence*   is  by    careful    preliminary    study    and 

the   want   or   absence   of  'reasonable  training,  and  by  constant  and  unre- 

care  and  skill.'    Thus  explained,  that  mitting   investigation   and    research, 

opinion  defines  the  true  measure  of  But  as  the  law  is  not  an  exact  sci- 

an    attorney's    duty    and    liability."  ence,  there  is  no  attainable  degree  of 

1776 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2195 


§  2195.  But  at  the  same  time,  the  main  body  of  the  law  is 

reasonably  definite,  and  there  certainly  are  principles  so  well  established 


skill  or  excellence  at  which  all  dif- 
ferences of  opinion  or  doubts  in  re- 
spect to  questions  of  law  are  removed 
from  the  minds  of  lawyers  and 
judges.  Absolute  certainty  is  not  al- 
ways possible." 

In  Babbitt  v.  Bumpus,  73  Mich.  331, 
16  Am.  St.  Rep.  585,  it  was  said:  "A 
lawyer  is  not  an  insurer  of  the  re- 
sult in  a  case  in  which  he  is  em- 
ployed, unless  he  makes  a  special 
contract  to  that  effect,  and  for  that 
purpose.  Neither  is  there  any  implied 
contract,  when  he  is  employed  in  a 
case,  or  any  matter  of  legal  business, 
that  he  will  bring  to  bear  learning, 
skill  or  ability  beyond  that  of  the 
average  of  his  profession.  Nor  can 
ny»re  than  ordinary  care  -and  dili- 
xje  be  required  of  him,  without  a 
•  ,  jcial  contract  is  made  requiring  it. 
Any  other  rule  would  subject  his 
rights  to  be  controlled  by  the  va- 
garies and  imaginations  of  witnesses 
and  jurors,  and  not  infrequently  to 
the  errors  committed  by  courts. 
This  the  law  has  never  done;  and  the 
fact  that  the  best  lawyers  in  the 
country  find  themselves  mistaken  as 
to  what  the  law  is,  and  are  constantly 
differing  as  to  the  application  of  the 
law  to  a  given  state  of  facts,  and  even 
the  ablest  jurists  find  themselves  fre- 
quently differing  as  to  both,  shows 
both  the  fallacy  and  the  danger  of 
any  other  doctrine;  and  especially  is 
this  so  as  to  questions  of  practice, 
the  construction  of  statutes,  and  par- 
ticularly those  arising  under  our 
criminal  and  probate  laws.  Fre- 
quently we  find  the  decisions  of 
courts  of  last  resort  in  the  different 
states  directly  opposed  to  each  other 
upon  the  same  questions,  and  resting 
upon  the  same  state  of  facts.  These 
all  admonish  courts  and  jurors  that 
great  care  and  consideration  should 


be  given  to  questions  involving  the 
proper  service  to  be  rendered  by  at- 
torneys when  they  have  acted  in 
good  faith,  and  with  a  fair  degree  of 
intelligence,  in  the  discharge  of  their 
duties  when  employed  under  the 
usual  implied  contract." 

In  Humboldt  B.  Ass'n  Co.  v.  Duck- 
er's  Ex.,  23  Ky.  L.  R.  1073,  64  S. 
W.  671,  the  court  said:  "He  does  not 
agree,  in  the  absence  of  special  con- 
tract to  that  effect,  that  .he  will  make 
no  mistake  of  judgment.  On  the  con- 
trary the  law  recognizes,  in  fixing 
this  liability  of  the  attorney,  that 
human  judgment  is  fallible.  Courts, 
as  well  as  lawyers,  do  disagree  about 
many  matters  about  which  each  one 
may  have  a  firmly  fixed  opinion.  The 
law  is  a  science,  it  is  true,  but  an 
imperfect  one,  for  the  reason  that  it 
depends  for  exemplification  and  en- 
forcement upon  the  imperfect  judg- 
ments and  consciences  of  men. 
Therefore,  when  the  attorney  has 
used  ordinary  care  in  acquainting 
himself  with  the  facts,  his  misjudg- 
ment  as  to  law  thereon  will  not  gen- 
erally render  him  liable." 

See  also,  Hill  v.  Mynatt  (Tenn. 
Ch.),  59  S.  W.  163;  Kepler  v.  Jessup, 
11  Ind.  App.  241;  Morrison  v.  Bur- 
nett, 56  111.  App.  129. 

Where  the  client  is  himself  a  com- 
petent lawyer  and  takes  an  active 
part  in  directing  what  is  done  and 
acquiesces  in  it  all,  he  cannot  after- 
wards complain  of  the  attorney's  neg- 
ligence. Carr  v.  Glover,  70  Mo.  App. 
242. 

An  attorney  cannot  ordinarily  be 
held  liable  to  his  client  for  negli- 
gence where  he  pursues  the  very 
course  of  conduct  required  by  his 
client  Lord  v.  Hamilton,  34  Ore. 
443. 


112 


1777 


§  2195]  THE  LAW  °F  AGENCY  [BOOK  v 

that  no  lawyer  could  be  permitted  to  remain' in  ignorance  of  them.  Thus, 
in  one  case,32  it  is  said  that  he  is  liable  for  the  want  of  proper  knowledge 
of  all  matters  of  law  in  common  use,  or  of  such  plain  and  obvious  prin- 
ciples as  every  lawyer  is  presumed  to  understand.  So,  in  another  case,38 
it  has  been  said  that  he  is  bound  to  understand  the  leading  and  funda- 
mental principles  of  the  common  law,  and  cannot  be  excused  for  ignor- 
ance of  the  public  statutes  of  the  State.  Many  attempts  have  been  made 
to  state  a  comprehensive  rule  upon  this  subject,  and,  in  a  well  considered 
case,34  the  court  lay  down  the  rule  to  be  that,  if  the  law  governing  the 
matter  in  question  was  well  and  clearly  defined,  both  in  the  text-books 
and  in  the  decisions  of  his  own  State,  and  if  it  has  existed  and  been 
published  long  enough  to  justify  the  belief  that  it  was  known  to  the  pro- 
fession, then'  a  disregard  of  it,  by  an  attorney  at  law,  renders  him  ac- 
countable for  the  losses  caused  by  such  negligence  or  want  of  skill ; — 
negligence,  if,  knowing  the  rule,  he  disregarded  it ;  want  of  skill,  if  he 
was  ignorant  of  it.35 

But,  in  general,  no  more  definite  rule  upon  the  subject  can  be  laid 
down  than  that  already  given; — that  the  attorney  undertakes  for  r^"^ 
sonable  skill  and  reasonable  diligence,  but  not  for  infallibility,  or  fre 
dom  from  error.  He  cannot,  therefore,  be  held  liable  for  an  error  of  law 
or  judgment  such  as  a  cautious  man  might  fall  into ; 38  nor  for  an  error 
in  construing  a  doubtful  act  of  the  legislature ; 87  nor  for  an  error  upon 

82Morrill  v.  Graham,  27  Tex.  646.  reason    of    the    advice    and    counsel 

as  Estate  of  A.  B.,  1  Tucker  (N.  Y.  of    the    defendant,    the    client    was 

Surrogate),  247.  damaged,  is  sufficient.     And  the  tes- 

3*  Goodman  v.  Walker,  30  Ala.  482,  timony  of  other  attorneys  is  admia- 

68  Am.  Dec.  134;   Citizens  Loan,  etc.,  sible  to  show  that  the  advice  proved 

Ass'n  v.  Priedley,  supra.  to  have  been  given  was,  in  their  opin- 

35  In  Cochrane  v.  Little,  71  Md.  323,  ion,  not  such  as  a  prudent,  careful 

a     declaration     was     held     sufficient  lawyer  of  ordinary  capacity  and  in- 

which    charged    that    the    defendant  telligence,  would  have  given  or  ought 

was  retained  or  employed  as  an  attor-  to  have  given. 

ney  to    advise   his   client  "as   to  his          36  Montriou  v.  Jefferys,  2  Car.  &  P. 

legal   responsibility   and   liability   as  113. 

surety   upon    a    certain    bond"    (the          In  Fenaille  v.  Coudert,  44  N.  J.  L. 

bond  was  set  out  in  full)    and  that  286,  it  was  held  that  an  attorney  in 

the  attorney,  having  accepted  the  em-  New  York,  employed  to  draw  a  con- 

ployment,   "did   not  nor  would   give  tract  for  the  erection  of  a  building 

proper,   intelligent   and   legal   advice  in  New  Jersey,  does  not  impliedly  un- 

in    a    proper,    skillful    and    diligent  dertake  that    he    knows    the  law  in 

manner,  but  on  the  contrary  thereof,  New  Jersey  as  to  the  filing  of  the 

advised  and  counselled     ...     in  contract  to  prevent  mechanics  liens 

an     improper,     unskillful,     ignorant,  attaching. 

and      negligent     manner"      (stating          ^  Elkington  v.  Holland,  9  M.  &  W. 

the    advice);    that    the    client   acted  659;   Bulmer    v.    Gilman,  4    Man.    & 

upon     the     advice,     and     that     by  Grang.  108. 

1778 


CHAP.  l] 


OF   ATTORNEYS   AT   LAW 


[§    2196 


a  point  of  law  upon  which  a  reasonable  doubt  may  be  entertained ; 38 
nor  for  an  error  of  judgment  upon  points  of  new  occurrence,  or  of  nice 
or  doubtful  construction.39  So  he  cannot  be  held  chargeable  with  negli- 
gence if  he  accepts,  as  a  correct  exposition  of  the  law,  a  solemn  deci- 
sion of  the  supreme  court  of  his  State,  in  the  absence  of  a  contrary  de- 
cision of  the  Supreme  Court  of  the  United  States,  upon  a  question  there 
subject  to  review.40  He  is,  however,  liable  for  the  consequences  of  ig- 
norance or  non-observance  of  the  ordinary  rules  of  practice  of  the  courts 
in  which  he  undertakes  to  do  business ;  for  the  want  of  reasonable  care 
in  the  preparation  of  his  cases  for  trial,  in  his  attendance  at  the  court 
with  his  witnesses,  and  in  the  management  of  so  much  of  the  conduct 
of  the  cause  as  is  entrusted  to  him.41 

So  he  is  bound  to  take  notice  of  changes  in  or  by  the  public  statutes 
of  his  State,  and  will  be  liable  to  his  client  for  losses  caused  by  his  neg- 
lect to  do  so.*2 

§  2196.  Negligence  in  collecting  or  enforcing  claim. — It  is 

the  duty  of  the  attorney,  who  undertakes  the  collection  or  enforcement 
of  a  claim,  to  prosecute  that  object  with  reasonable  diligence.  He  does 
not  undertake  at  all  events  to  make  the  money,  nor  does  he  guarantee 
the  solvency  of  the  debtor.  Neither  does  he  impliedly  agree  that  he 


ss  Kemp  v.  Burt,  1  Nev.  &  Man. 
262. 

An  attorney  cannot  be  held  respons- 
ible for  lack  of  professional  skill  or 
knowledge  as  to  the  effect  of  a  judg- 
ment in  one  action  to  bar  another 
when  both  the  trial  court  and  the  gen- 
eral term  of  the  supreme  court  sus- 
tained his  view.  Avery  v.  Jacob,  15 
N.  Y.  Supp.  564.  In  Ahlhauser  v. 
Butler,  57  Fed.  121,  affirmed  11  C.  C. 
A.  434,  63  Fed.  792,  the  question  was 
whether  an  affidavit  for  attachment 
under  the  New  York  practice  was  suf- 
ficient. The  decisions  of  the  General 
Term  of  the  Supreme  Court  of  New 
York  were  in  conflict.  The  question 
had  not  been  clearly  decided  by  the 
Court  of  Appeals,  though  the  prac- 
tice adopted  appeared  to  have  the 
sanction  of  that  court.  Under  simi- 
lar code  provisions  in  other  states 
such  affidavits  had  been  held  good. 

Held,  that  the  question  was  not  so 
clear  as  to  render  defendants  liable. 
The  mere  fact  that  the  court  had  sub- 


sequently held  the  affidavit  to  be  in- 
sufficient was  not  conclusive.  The 
question  was  whether  it  was  reason- 
ably thought  to  be  sufficient  at  the 
time  of  bringing  the  action. 

See  also,  Boynton  v.  Brown,  — i 
Ark.  ,  145  S.  W.  242. 

s»Godefroy  v.  Dalton,  6  Bing.  460. 

40  Marsh  v.  Whitmore,  88  U.  S.  (21 
Wall.)    178,  22  L.  Ed.  482;    Hastings 
v.  Halleck,  13  Cal.  203. 

41  Godefroy  v.  Dalton,  6  Bing.  460; 
Citizens    Loan    Fund,    etc.,  Ass'n  v. 
Friedley,  supra;  Hillegass  v.  Bender, 
78  Ind.  225. 

42  Estate  of  A.  B.,  1  Tucker  (N.  Y. 
Surrogate),    247;     Humboldt    Co.    v. 
Ducker's  Ex.,  supra;  in  Hillegass  v. 
Bender,    supra,    the   court   said:    "A 
lawyer  who  does  not  know  whether 
the  duties  of  the  clerk  of  the  court 
in  which  his  professional  duties  are, 
or  are  not,  defined  by  statute,  cannot 
be    deemed    to    possess    competent 
skill." 


1779 


§  2197] 


THE   LAW   OF  AGENCY 


[BOOK  v 


will  resort  to  all  or  any  means  to  secure  the  money,  or  that  he  will  pur- 
sue the  debtor  with  unceasing  exertions.  He  does,  however,  agree  that 
he  will  use  all  reasonable  and  proper  means  to  make  the  money,  and 
that  he  will  not  permit  the  claim  to  be  lost  through  his  negligent  inat- 
tention to  his  duty.43 

This  undertaking  imposes  upon  the  attorney  the  duty  to  sue  out  all 
process,  mesne  as  well  as  final,  which  may  be  necessary  to  effect  the  ob- 
ject ;  and  to  pursue  the  cause,  through  all  its  stages,  until  the  money  is 
made  or  it  is  demonstrated  that  it  can  not  be  made  by  legal  process.44 
This  rule,  however,  is  subject  to  the  exception  that  the  attorney  may  be 
justified  in  ceasing  to  proceed  with  the  cause,  unless  specially  instructed 
otherwise,  when  he  is,  in  good  faith,  influenced  to  this  course  by  a  pru- 
dent regard  for  the  interests  of  his  client.45  Such  delay  must,  however, 
be  prudent,  and  reasonable  in  duration,  and  must  not  contravene  posi- 
tive directions. 

§  2197.  In  accordance  with  this  rule  it  is  his  duty  to  sue 

out  execution  and  alias  writs  if  necessary ;  to  pursue  the  bail,  and  all 
those  who  have  become  bound  with  the  defendant,  either  before  or  after 
judgment  in  the  progress  of  the  suit;  to  pursue  the  sureties  on  a  forth- 
coming bond;  and  to  take  all  such  other  steps  as  may  reasonably  be 


« Cox  v.  Sullivan,  7  Ga.  144,  50 
Am.  Dec.  386;  Goodman  v.  Walker, 
30  Ala.  482,  68  Am.  Dec.  134;  Cox  v. 
Livina-ston,  2  W.  &  S.  (Pa.)  103,  37 
Am.  Dec.  486;  Gilbert  v.  Williams, 
8  Mass.  51,  5  Am.  Dec.  77;  Fitch  v. 
S«ott,  3  How.  (Miss.)  314,  34  Am. 
Dec.  86;  Stevens  v.  Dexter,  55  111. 
151. 

In  Carter  v.  Baldwin,  95  Cal.  475, 
the  court  said:  "It  is  undoubtedly 
true  that  in  many  cases  the  contract 
employing  an  attorney  to  prosecute 
an  action  would  be  construed  as  con- 
taining an  implied,  if  not  express,  di- 
rection to  the  attorney  to  bring  such 
action  without  further  request  upon 
the  part  of  the  client."  Here,  how- 
ever, the  attorneys  were  employed,  un- 
der a  contract,  to  assist  other  coun- 
sel in  the  suit  and  after  the  employ- 
ment neither  the  client  nor  the  other 
counsel  ever  called  upon  them  to 
serve,  and  it  was  held  that  having 
waited  a  reasonable  time,  until  the 
statute  of  limitations  had  run,  they 

1780 


were  justified  in  thinking  the  client 
had  waived  the  performance  and 
were  entitled  to  recover  upon  the 
contract  as  if  the  stipulated  service 
had  been  actually  performed. 

An  attorney  who  undertakes  the 
collection  of  a  note  on  which  he  was 
himself  an  endorser  is  liable  for  neg- 
ligence in  not  taking  judgment 
against  himself,  as  well  as  against 
the  other  parties  liable.  Moorman  v. 
Wood,  117  Ind.  144. 

«Pennington  v.  Yell,  11  Ark.  212, 
52  Am.  Dec.  262;  Crocker  v.  Hutch- 
inson,  2  D.  Chip.  (Vt.)  117;  Small- 
wood  v.  Norton,  20  Me.  83,  37  Am. 
Dec.  39,  where  it  was  held  that  an 
attorney  having  attached  property 
on  claim  given  him  for  collection 
owed  a  duty  to  defend  a  replevin 
suit  against  the  sheriff,  and  so  was 
liable  if  he  neglected  on  a  non-suit 
of  the  claimant  to  see  that  the  judg- 
ment was  properly  entered. 

«  Pennington  v.  Yell,  supra, 
Crooker  v.  Hutchinson,  supra. 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    2198 

necessary,  either  before  or  after  judgment,  to  recover  from  any  party 
who  has  become  liable.40 

The  attorney  is  not,  however,  bound  to  institute  new  collateral  suits 
without  special  instructions  to  do  so, — as  actions  against  the  clerk  or 
sheriff  for  neglect  in  the  issuing  or  serving  of  process.  Nor  is  he  bound 
to  attend,  in  person,  to  the  levy  of  the  execution,  or  to  search  for  prop- 
erty upon  which  to  make  the  levy.  That  is  the  business  of  the  sheriff.47 
Nor  is  he  liable  for  the  neglect  of  the  sheriff. 

So,  it  has  been  held,  that,  where  a  writ  of  attachment  issues  only  upon 
the  filing  of  the  necessary  affidavit  and  bond,  the  attorney  is  under  no 
obligation  to  swear  to  his  client's  cause  of  action  or  to  furnish  the  re- 
quired bond.48 

It  has  been  stated  that,  in  the  absence  of  peremptory  instructions,  the 
attorney  may  exercise  a  reasonable  discretion  as  to  when  to  sue ;  and 
what  is  reasonable  is  a  question  to  be  determined  from  all  the  facts  and 
circumstances  of  the  case.49  But  this  discretion  can  not  overrule  ex- 
press directions,  and  if  the  attorney  is  instructed  to  sue  at  once  and 
fails  to  do  so,  he  will  be  liable  for  a  consequent  loss  of  the  debt,  not- 
withstanding the  attorney  may,  in  good  faith,  have  believed  that  the  de- 
lay would  promote  the  interests  of  his  client.50  So  if  the  attorney  delays 
action  until  the  statute  of  limitations  has  run  against  the  claim,  he  will 
be  liable  for  the  loss  sustained.51 

§  2198.  Negligence  in  bringing  suit. — The  same  degree  of 

skill  and  diligence  is  requisite  here  as  in  other  cases : — that  which  is  rea- 
sonable under  the  circumstances.  The  negligence  complained  of  may 
consist,  (a)  in  not  bringing  the  action  in  the  proper  court,  or,  (&)  in 
omitting  or  disregarding  a  rule  of  law  or  practice  in  commencing  the 
action  or  (c)  in  suing  out  or  using  defective  process  or  papers. 

a.  It  is  reasonable  and  proper  to  hold  the  attorney  chargeable  with 
knowledge  of  the  ordinary  and  well  settled  rules  which  govern  and  de- 
termine the  jurisdiction  of  the  courts  in  which  he  practices,  and  if. 
through  ignorance  or  inattention,  he  violates  them,  thereby  causing  in- 

46  Pennington  v.  Yell,  supra.  failing  debtor  was  held  unreasonable; 

47  Pennington  v.  Yell,  supra.  Fitch  v.  Scott,  3  How.  (Miss.)  314,  34 

48  Folks  v.  Falls,  91  Ind.  315.  Am.  Dec.  86,  where  he  permitted  one 
40  Rhines  v.   Evans,   66  Pa.   192,  5      term  to  go  by  without  commencing 

Am.  Rep.  364.  suit. 

so  Gilbert  v.  Williams,  8  Mass.  51,          51  Oldham  v.  Sparks,  28  Tex.  425; 

5  Am.  Dec.  77;    Cox  v.  Livingston,  2  Hunter    v.    Caldwell,    10    Q.    B.   69; 

W.  &  S.  (Pa.)   103,  37  Am.  Dec.  486;  Wain  v.  Beaver,  161  Pa.  605;    Drury 

Livingston    v.    Cox,  6    Pa.    360;     in  v.    Butler,  171    Mass.    171;    King    v. 

which   six   months   delay   against   a  Fourchy,  47  La.  Ann.  354. 

1781 


§§    2I99,22OO]  THE  LAW  OF  AGENCY  [BOOK   V 

jury  to  his  client,  he  is  liable.52  Thus  it  is  held,  that  if  an  attorney 
"takes  out  a  writ  and  proceeds  thereon,  in  a  court  of  special  and  pecu- 
liar jurisdiction,  he  is  bound  to  acquaint  himself  with  the  machinery  by 
which  the  practice  of  that  court  is  regulated,  and  to  see  that  it  is  ade- 
quate to  the  carrying  out  of  the  objects  of  the  suit ;"  and  if  he  fails  to  do 
so,  and  the  client  suffers  loss  from  a  subsequent  discovery  that  the  pro- 
cess of  the  court  is  not  sufficient  for  the  well  known  needs  of  the  action, 
the  attorney  is  liable.58  So  if  he  brings  an  action  in  a  court  of  limited 
jurisdiction  on  a  cause  of  action  arising  beyond  that  jurisdiction,  he 
has  been  held  to  be  liable.5* 

§  2199.  b.  An  attorney  may  also  reasonably  be  held  bound 

to  know  and  observe  the  well  settled  rules  of  law  and  practice  which 
govern  and  determine  the  form  of  action,  the  joinder  of  parties,  and 
the  form  and  sufficiency  of  the  pleadings ;  and  a  failure  to  do  so  would 
constitute  actionable  negligence. 

Thus  where  an  attorney  filed  a  declaration  in  the  name  of  a  plaintiff 
different  from  the  one  in  whose  favor  the  writ  was  issued,  the  Supreme 
Court  of  Alabama,  referring  to  the  well  known  rule  laid  down  by  Mr. 
Chitty,  and  adopted  by  that  court  nearly  twenty  years  before,  that  "the 
declaration  must  pursue  the  writ  in  regard  to  the  Christian  and  sur- 
names of  the  parties."65  said :  "This  rule,  then,  had  existed  and  been  de- 
fined, both  in  the  text-books  and  our  own  decisions,  for  a  period  of  time, 
before  the  commencement  of  this  suit,  long  enough  to  justify  the  belief 
that  it  was  known  to  the  profession.  The  disregard  of  so  plain  a  rule 
betrayed  a  palpable  want  of  reasonable  skill  or  of  reasonable  dili- 
gence," 56  and  the  attorney  was  held  liable.57 

So  where  an  attorney  being  instructed  to  bring  an  action,  under  a 
statute  against  apprentices,  proceeded  specifically  under  a  section 
which  applied  to  servants  only,  he  was  held  to  be  liable  for  a  loss  result- 
ing from  the  error.58 

§  2200.  c.  It  is  also  the  duty  of  the  attorney  to  use  a  rea- 
sonable degree  of  skill  and  diligence  in  the  preparation  of  the  process, 
notices,  and  other  papers,  which  he  issues  or  uses  in  the  institution  or 

"Forrow  v.  Arnold,  22  R.  I.  305;  1  Ch.  474;  Harbin  v.  Masterman, 
Godefroy  v.  Dalton,  6  Bing.  460.  [18961  1  Ch.  351. 

ss  Cox  v.  Leech,  1  Conn.  B.  (N.  S.)  "  Williams  v.  Gibbs,  6  Nev.  &  Man. 
617.  788. 

In  a  number  of  English  cases,  at-          "  1  Chitty's  Pleading,  279. 
torneys  who  negligently  brought  ill-          BO  Citing   Chapman    v.    Spence,    22 
advised  suits,  have  been  required  to      Ala.  588. 

protect  their  clients  against  the  "  Goodman  v.  Walker,  30  Ala.  482, 
costs.  See  Sawyer  v.  Goddard,  [1895]  68  Am.  Dec.  134. 

ss  Hart  v.  Frame,  6  01.  &  Fin.  193. 
1782 


CHAP.  l]  OF    ATTORNEYS    AT    LAW  [§§  22OI,  22O2 

progress  of  the  suit.59  And  although  the  paper  be  one  which  it  was  not 
his  duty,  as  the  attorney,  to  prepare,  yet  if  he  does  undertake  to  pre- 
pare it,  he  is  bound  to  reasonable  care.60  Thus  where  an  attorney  in 
preparing  a  writ,  made  use  of  a  printed  blank  containing  the  common 
counts,  with  blank  spaces  for  the  insertion  of  the  amounts,  but  which 
omitted  the  word  "hundred"  which  had  formerly  been  printed  in  the 
blank,  and  the  attorney,  not  noticing  the  omission,  neglected  to  write 
in  the  word  hundred,  thus  reducing  the  amount  claimed  from  twelve 
hundred  dollars  to  twelve  dollars,  it  was  held  that  he  was  liable  for  a 
loss  of  the  demand  occasioned  by  the  error.  It  appeared  that  the  new 
blank  had  been  in  use  for  about  a  year,  and  that  the  attorney,  in  filling 
out  a  similar  writ  for  one  of  the  same  parties,  had  inserted  the  word  hun- 
dred in  its  proper  place.61 

§  2201.  Negligence  in  trial  of  action. — The  attorney,  who 

undertakes  the  trial  of  a  cause  in  court,  does  not  thereby  agree  that  he 
will  win  it  at  all  events,  or  that  he  will  conduct  it  with  the  highest  de- 
gree of  learning,  skill  or  eloquence ;  but  his  contract  is  simply  for  a  rea- 
sonable degree,  as  in  other  cases.  But  if  the  attorney  fails  without  good 
cause  to  attend  the  trial  at  all,62  or  if  he  permits  the  cause  to  be  called 
on  without  seeing  that  it  is  in  readiness  for  trial,*3  or  if,  without  suffi- 
cient reason,  he  abandons  the  action,64  or  withdraws  the  defense,65  or 
if  the  action  or  defense  fails  by  reason  of  his  neglect  to  make  that  prep- 
aration, or  to  take  those  steps,  which  the  circumstances  reasonably  re- 
quired, and  his  client  thereby  suffers  loss,  the  attorney  will  be  responsi- 
ble.66 

§  2202.  Negligence  in  examining  titles. — An  attorney  who 

undertakes  the  examination  of  titles  to  real  estate,  the  searching  of  the 

to  at  9H     ?e>WjJlaw».i.v-gtel-j*«,xo  oj  gi*K'f    .0   ,jnos 

50  Goodman  v.  Walker,  30  Ala.  482,  eo  Goodman  v.  Walker,  supra. 

68  Am.  Dec.  134;  Varnum  v.  Martin,  «i  Varnum  v.  Martin,  supra. 

15  Pick.   (Mass.)   440.  62  Swannel  v.  Ellis,  1  Bing.  347. 

In  Patterson  v.  Frazer,  [Tex.  Civ.  63  Reece  v.  Righy,  4  B.  &  Aid.  202. 
App.]  79  S.  W.  1077,  93  S.  W.  146,  100  64  Tenney  v.  Berger,  93  N.  Y.  524, 
Tex.  103,  an  order  had  been  entered  45  Am.  Rep.  263;  Evans  v.  Watrous, 
requiring  the  plaintiff  to  give  bond  2  Port.  (Ala.)  205. 
as  security  for  costs.  Plaintiff's  at-  65  Godefroy  v.  Jay,  5  Moo.  &  P.  284. 
torneys  undertook  to  look  after  the  60  De  Roufigny  v.  Peale,  3  Taunt, 
filing  of  the  bond,  but,  though  their  484;  Walsh  v.  Shumway,  65  111.  471; 
attention  was  several  times  called  to  Burnett  v.  Elliott,  72  Kan.  624,  [fail- 
it  by  the  plaintiff,  they  neglected  to  ure  to  file  an  answer  or  make  a  de- 
give  it  until  the  action  was  dismissed  fense];  Flynn  v.  Judge,  149  N.  Y. 
for  want  of  the  bond  and  the  cause  App.  Div.  278,  [lack  of  skill  in  the 
of  action  had  been  barred  by  the  preparation  and  presentation  of  mat- 
statute  of  limitations.  The  attorneys  ters  relating  to  the  settlement  of  the 
were  held  liable.  accounts  of  executors]. 

1783 


§    22O2] 


THE   LAW   OF   AGENCY 


[BOOK  v 


records,  the  preparation  of  abstracts  thereof  or  the  giving  of  opinions 
upon  such  titles,  impliedly  contracts,  with  those  who  employ  him,  that 
he  possesses  that  reasonable  degree  of  knowledge  and  skill  which  is  req- 
uisite and  necessary  under  such  circumstances ;  and  that  he  will  per- 
form the  duty  with  reasonable  and  ordinary  care  and  diligence.  His 
failure  to  possess  such  reasonable  knowledge  and  skill,  or,  if  possessing 
it,  his  failure  to  exercise  it,  or  his  failure  to  use  such  reasonable  care 
and  diligence,  constitutes  negligence,  and  he  will  be  liable  to  his  client 
for  a  loss  or  injury  occasioned  thereby.67 

<d  IDHOIWJO  Ln^rnob  arft  lo  asol 


v.r>,!  -.-.'::  icm  bdifi'jqofi;  rl  .10110 
«T  Mr.  Justice  Clifford  in  Savings 
Bank  v.  Ward,  100  U.  S.  195,  lays 
down  the  rules  as  follows:  "Attor- 
neys employed  by  the  purchasers  of 
real  property  to  investigate  the  title 
of  the  grantor,  prior  to  the  purchase, 
impliedly  contract  to  exercise  reason- 
able care  and  skill  in  the  perform- 
ance of  the  undertaking,  and  if  they 
are  negligent,  or  fail  to  exercise  such 
reasonable  care  and  skill  in  the  dis- 
charge of  the  stipulated  service,  they 
are  responsible  to  their  employers 
for  the  loss  occasioned  by  such  neg- 
lect or  want  of  care  and  skill.  Ad- 
dison  on  Contracts  (6th  Ed.)  400. 
Like  care  and  skill  are  also  required 
of  attorneys  when  employed  to  inves- 
tigate titles  to  real  estate  to  ascertain 
whether  it  is  a  safe  or  sufficient  se- 
curity for  a  loan  of  money,  the  rule 
being  that  If  the  attorney  is  negli- 
gent, or  fails  to  exercise  reasonable 
care  and  skill,  in  the  performance  of 
the  service,  and  a  loss  results  to  his 
employers  from  such  neglect  or  want 
of  care  and  skill,  he  shall  be  responsi- 
ble to  them  for  the  consequences  of 
such  loss.  Addison  on  Torts  (Wood's 
Ed.),  615." 

See  also,  Chase  v.  Heaney,  70  111. 
268;  Ritchey  v.  West,  23  111.  385;  Mc- 
Nevins  v.  Lowe,  40  111.  209;  Clark  v. 
Marshall,  34  Mo.  429;  Rankin  v. 
Schaeffer,  4  Mo.  App.  108;  Fay  v. 
McGuire,  20  N.  Y.  App.  Div.  569; 
Watson  v.  Calvert  Bldg.  Ass'n,  91 
Md.  25. 

Compare  also,  Lawell  v.  Groman, 
180  Pa.  532,  57  Am.  St  Rep.  662. 


It  is  prime  facie  negligence  for  an 
attorney  employed  to  examine  the 
title  to  land  and  to  make  a  loan 
thereon  not  to  investigate  the  ques- 
tion of  mechanics'  liens,  when  he 
knows  a  building  is  being  con- 
structed upon  it.  Humboldt  Co.  v. 
Ducker,  26  Ky.  L.  R.  931,  82  S.  W. 
969. 

An  attorney  employed  merely  to 
examine  the  title  and  prepare  the 
papers  for  one  proposing  to  make  a 
loan,  owes  his  client  no  duty  to  offer 
advice  as  to  the  value  of  the  security 
or  the  wisdom  of  the  loan.  Cohn  v. 
Huesner,  9  N.  Y.  Misc.  482. 

In  Byrnes  v.  Palmer,  18  N.  Y.  App. 
Div.  1,  the  court  said :  "It  is  also 
true  that  the  same  rule  that  applies 
to  the  liability  of  an  attorney  in  the 
conduct  of  a  litigation  is  applicable 
to  his  liability  in  examining  titles. 
He  is  certainly  not  a  guarantor  that 
the  titles  to  which  he  certifies  are 
perfect.  He  is  only  liable  for  negli- 
gence or  misconduct  in  their  exam- 
ination. But  in  determining  the 
question  of  negligence  on  the  part  of 
an  attorney  in  examining  a  title,  it 
is  necessary  to  bear  in  mind  the 
marked  difference  between  proper 
conduct  in  that  employment  and  in 
a  litigation.  In  a  litigation  a  lawyer 
is  well  warranted  in  taking  chances. 
To  some  extent  litigation  is  a  game 
of  chance.  The  conduct  of  a  lawsuit 
involves  questions  of  judgment  and 
discretion  as  to  which  even  the  most 
distinguished  members  of  the  profes- 
sion may  differ.  They  often  present 


1784 


CHAP.  l]  OF   ATTORNEYS   AT   LAW  [§    22O3 

He  does  not,  unless  by  express  contract,  warrant  the  title  to  be  good, 
or  the  search  or  abstract  to  be  perfect,  but  he  does  agree  that  it  is  sub- 
ject to  no  incumbrances  and  omits  no  material  facts  which,  with  rea- 
sonable and  ordinary  care  and  diligence  upon  his  part,  might  have  been 
discovered.68  He  is  not  liable  for  the  unsoundness  of  an  opinion  upon 
a  matter  upon  which  a  reasonable  doubt  might  be  entertained,69  but, 
upon  the  other  hand,  his  neglect  to  observe  a  plain  and  ordinary  precau- 
tion, as  to  look  for  judgments  where  they  are  made  a  lien  upon  the  land, 
would  render  him  responsible  for  the  consequences.70 

§  2203.  Neglect  in  preparing  contracts,  etc. — The  same 

rule  applies  to  the  attorney  who  undertakes  to  prepare  deeds,  contracts, 
or  other  conveyances  or  agreements,  for  parties  who  employ  him  for 
that  purpose.  The  attorney  is  not  bound  to  make  the  contract  for  the 
parties, — that  they  must  do  for  themselves ;  but  he  does  undertake  that 
he  possesses  reasonable  knowledge  and  skill  in  such  matters,  and  will 
use  due  and  reasonable  care  and  diligence  in  so  framing  the  written  evi- 
dence of  their  agreement  as  to  give  it  binding  and  legal  force  and  ef- 
fect.71 

The  extent  to  which  the  attorney  is  bound,  under  such  circumstances, 
for  the  sufficiency  of  the  instruments  which  he  prepares,  must  depend 
upon  the  circumstances  of  each  case.  If  he  be,  for  instance,  employed 
as  a  mere  scribe  only,  to  commit  to  writing  that  which  is  dictated  to 

subtle  and  doubtful  questions  of  law.  fact  that  he  consulted  an  eminent  at- 

If  In  such  cases  a  lawyer  errs  on  a  torney,   is  no  defense.     Goodman  v. 

question   not    elementary   or   conclu-  Walker,  30  Ala.  482,  68  Am.  Dec.  134. 

sively  settled  by  authority,  that  error  TO  Oilman    v.    Hovey,    26   Mo.   280; 

is  one  of  judgment  for  which  he  is  Renkert  v.  Trust  Co.,  102  Mo.  App. 

not  liable.     But  passing  titles,  as  a  267;  Thomas  v.  Schee,  80  Iowa,  237. 

rule,   is  of  an  entirely  different  na-  But  an  attorney  employed  by  plain- 

ture.     A  purchaser  of  real  estate  is  tiff's   agent   merely   to   examine   the 

entitled  not  only  to  a  good,  but  to  a  title  to  land,  and  who  made  a  correct 

marketable  title,  that  is,  a  title  free  search  and  report,  is  not  liable  for  a 

from  reasonable  doubt."  loss   occasioned   by  a  judgment  lien 

«s  Rankin  v.  Schaeffer,  40  Mo.  App.  attaching  after  the  date  he  finished 

108.  examining  the  title  but  before  deliv- 

«»  As  where,  being  in  doubt  upon  ering  the  abstract  and  his  certificate, 

an    uncertain    point    as    to    whether  the  agent  knowing  that  the  abstract 

an  apparent  incumbrance  was  valid,  and  certificate  were  based  upon  his 

he     took     the     precaution     to     ob-  investigation  and  were  not  brought 

tain     the     written     opinion     of     an  down   to    date.     Watson    v.    Calvert 

eminent    counsel,    who    declared    it  Bldg.  Ass'n,  91  Md.  25. 

to    be    invalid.      Watson     v.    Muir-  "  Parker  v.  Rolls,  14  Com.  B.  691; 

head,     57     Pa.     161,     98     Am.     Dec.  Taylor    v.    Gorman,    4    Ir.    Eq.    550; 

213.     But  where  an  attorney  ignores  Stott  v.  Harrison,  73  Ind.  17. 
a  well  settled  and  obvious  rule,  the 

1785 


§    22O4]  THE   LAW  OF  AGENCY  [BOOK   V 

him  by  the  parties,  his  liability  would  be  limited  to  the  performance  of 
that  undertaking,  and  if  the  instrument  failed  to  express  the  true  inten- 
tion of  the  parties,  the  attorney  could  not  be  blamed.  But  if,  on  the 
other  hand,  he  is  employed  to  prepare,  in  due  and  legal  form,  according 
to  his  knowledge  and  judgment,  an  instrument  which  shall  effect  a 
named  result,  as,  for  instance,  the  conveyance  of  a  given  interest  or 
estate  in  lands,  his  liability  would,  within  the  limits  of  the  rule  stated, 
be  commensurate  with  that  undertaking.  If,  therefore,  in  such  a  case 
the  instrument  failed  to  accomplish  the  desired  result,  from  the  at- 
torney's neglect  to  observe  the  necessary  and  established  forms,  or  from 
his  careless  misdescription  of  the  property,  or  from  his  neglectful  fail- 
ure to  use  apt  and  appropriate  language  to  express  the  real  agreement 
of  the  parties,  he  would  undoubtedly  be  liable  for  the  injury.72  It  is, 
ordinarily,  no  part  of  the  attorney's  duty  to  see  to  the  recording  of  the 
conveyances  which  he  prepares,  but  if  he  undertakes  that  duty  he  will 
be  liable  for  an  injury  which  may  result,  either  from  his  neglect  to  have 
them  recorded  at  all,73  or  not  until  another  party  has  acquired  priorities 
by  record.74 

§  2204.  Neglect  of  partners,  clerks,  etc. — Partnerships  of 

attorneys  are  governed  by  the  same  rules,  in  respect  to  the  liability  of 
one  partner  for  the  acts  of  another,  which  apply  to  trading  partnerships. 
All  the  members  of  the  firm  are  liable  for  the  negligence,  misconduct 
or  default  of  each  partner  in  the  transaction  of  the  partnership  busi- 
ness,75 and  the  liability  continues  notwithstanding  a  subsequent  dis- 
solution of  the  partnership.76  If,  therefore,  one  partner  receives,  pro- 
fessionally, money  belonging  to  a  client,  and  embezzles,  misappropri- 

*2  As  where  he  prepares  a  simple  cause  the  contract  was  not  carried 

contract  when  a  sealed  one  was  neces-  out.   Harkness  v.  Cavern,  199  Pa.  267. 

sary,  as  in  Parker  v.  Rolls,  supra;  or  73  Stott  v.  Harrison,  73  Ind.  17. 

misdescribes  the  premises,  as  in  Tay-  i*  Miller  v.  Wilson,  24  Pa.  114. 

lor    v.    Gorman,  supra;    or    omits  a  *»  Livingston    v.    Cox,    6    Pa.    360; 

requisite   formality,   e.   g.,   attaching  Wilkinson  v.   Griswold,  12  Smed.   & 

his   official  seal  in   the   acknowledg-  M.   (Miss.)   669;   D wight  v.  Simon,  4 

ment,  as  in  Stott  v.  Harrison,  supra.  La.  Ann.  490;  Poole  v.  Gist,  4  McCord 

An  attorney  employed  to  draw  a  (S.  C.),  259;  East  Rome  Town  Co.  v. 
contract  of  employment  for  a  year  is  Cothran,  81  Ga.  359;  Priddy  v.  Mack- 
liable  to  his  client  if,  on  account  of  enzie,  205  Mo.  181;  Porter  v.  Vance, 
his  negligence,  it  is  so  drawn  as  to  82  Tenn.  (14  Lea)  629;  Lupton  v. 
be  determinable  at  will.  Stein  v.  Taylor,  39  Ind.  App.  412,  affirmed  in 
Kremer,  112  N.  Y.  Supp.  1087.  Where  (Ind.)  79  N.  E.  523. 
the  attorney  properly  prepared  the  See  also,  Newman  v.  Gates,  165  Ind. 
contract  which  he  was  asked  to  pre-  171;  Hess  v.  Lowrey,  122  Ind.  225,  17 
pare  and  gave  proper  advice  upon  the  Am.  St.  Rep.  355. 
points  as  to  which  his  advice  was  re-  ™  Smyth  v.  Harvie,  31  111.  62,  83 
quested,  he  is  not  liable  merely  be-  Am.  Dec.  202. 

1786 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§§    22O5,  22O6 

ates  or  fails  to  account  for  it  ;77  or  if  any  injury  occurs  from  the  negli- 
gence or  lack  of  skill  or  knowledge  of  one  partner,78  all  are  liable  for 
the  loss. 

So  the  attorney  is  responsible  for  the  negligence  or  default  of  his 
clerk,  agent  or  servant,  in  the  same  manner  as  for  his  own  personal 
neglect  or  default,78  and  it  is  no  defense  that  the  clerk  was  himself  a 
competent  attorney.80  An  attorney  is  not,  however,  liable  for  the 
neglect  of  a  substitute  or  associate  appointed  or  employed  by  him  with 
the  client's  consent  or  authority  as  the  client's  attorney,  if  he  used  due 
care  in  his  selection  ;81  nor  would  he  be  liable  for  the  neglect  or  default 
of  a  mere  associate  not  a  partner  or  clerk,  employed  by  the  client.82 

§  2205.  Neglect  of  subagent  in  collecting. — This  question 

has  been  discussed  in  an  earlier  chapter  to  which  the  reader  is  refer- 
red.8:! 

§  2206.  Liability  for  exceeding  authority,  or  violating  instruc- 
tions.— An  attorney  at  law,  like  any  other  agent,  is  liable  to  his  prin- 
cipal for  losses  which  the  latter  may  sustain,  by  reason  of  the  attorney's 
exceeding  his  authority  or  acting  in  violation  of  express  instructions. 
Thus,  if  an  attorney  appears  in  an  action  without  authority,  and  the 
assumed  client  incurs  costs  thereby  ;84  or  if  the  attorney,  without  author- 
ity, enters  a  satisfaction  of  a  judgment  without  full  payment,  whereby 
the  client  loses  the  balance;85  or  if  he  neglects  to  bring  an  action  im- 

W  and  Y,  partners,  were  employed  Birkbeck  v.  Stafford,  14  Ab.  (N.  Y.) 

to  foreclose  a  mortgage.     They  dis-  Pr.    285;   Walker   v.    Stevens,  79  111. 

solved  partnership  and  W  formed  a  193. 

partnership  with  C.    Later  C  and  W  so  Walker  v.  Stevens,  supra. 

dissolved  partnership.     Later  W  re-  si  See  ante,  §§  332  et  seq. 

ceived    the    money    and    did    not  ac-  82  Godefroy  v.  Dayton,  6  Bing.  460; 

count  for  it.     Held,  that  C  was  not  Watson  v.  Muirhead,  57  Pa.  161,  98 

liable.     Ayrault   v.   Chamberlain,    26  Am.  Dec.  213. 

Barb.   (N.  Y.)  83.  Where  a  client  who  has  employed 

77  McFarland  v.  Crary,  8  Cow.   (N.  several   attorneys   objects   to  having 

Y.)  253;  Livingston  v.  Cox,  6  Pa.  360;  certain  of  them  prepare  the  bill  of 

Taylor   v.   Vance,   supra;   Lupton   v.  exceptions,  and  insists  that  it  shall 

Taylor,  supra.      •  be  done  by  one  of  the  others  who  un- 

If     before     the     misconduct     com-  dertakes  to  do  it,  the  first  named  at- 

plained  of,  the  relation  of  the  firm  to  torneys  are  not  liable  for  the  other's 

the  business  has  ceased,  one  partner  neglect.     Phillips  v.  Edsall,  127   111. 

is  not  liable  for  the  subsequent  mis-  535. 

conduct  of  the  other  while  not  act-  *3  See  ante,  §  1315,  and  notes, 

ing  in  behalf  of  his  firm.     Richard-  «*  O'Hara  v.  Brophy,  24  How.    (N. 

son  v.  Richardson,  100  Mich.  364.  Y.)    Pr.    379;    Mudry   v.   Newman,   1 

TS  Warner  v.  Griswold,  8  Wend.  (N  Cromp.  Mees.  &  Rose.  402;    Hubbart 

Y.)   665;   Livingston  v.  Cox,  supra.  v.  Phillips,  13  Mees.  &  W.  702. 

T»  Floyd    v.    Nangle,    3    Atk.    568;  ss  Cox  v.  Livingston,  2  Watts  &  S. 

1787 


§    220?  j 


THE  LAW   OF  AGENCY 


[BOOK  v 


mediately,  as  directed,  whereby  the  debtor  evades  the  jurisdiction,  or 
becomes  insolvent,  or  the  statute  of  limitations  operates  against  the 
claim;86  or  otherwise  occasions  loss  to  his  client  by  failing  to  observe 
the  limits  set  to  his  authority,  or  the  instructions  given  to  him,  he  is 
liable  for  the  loss.87 

§  2207.  Liability  for  money  collected. — It  is  the  duty  of  an  attor- 
ney who  receives  money  for  his  client  to  advise  him  of  its  receipt  where 
he  would  not  otherwise  have  notice,88  and  to  pay  it  to  him  within  a  rea- 
sonable time,  and,  at  all  events,  upon  proper  demand.89  Without  ex- 
press authority  from  his  client,  the  attorney  should  neither  use  the 
money  himself  nor  commingle  it  with  his  own.  If  it  becomes  necessary 
to  deposit  it,  he  should  make  the  deposit  in  the  name  of  his  client,  for 
if  he  deposits  it  in  his  own  name,  though  in  a  separate  account,  it  has 
been  held  to  be  his  loss,  if  the  bank  fails  before  payment.00 

If  the  attorney  neglects  or  refuses  to  pay  the  money  to  his  client,  the 
latter  may  maintain  an  action  against  the  attorney  for  its  recovery.91 
Usually  the  courts  of  law  afford  an  adequate  remedy  and  there  is  no 
occasion  for  resort  to  equity.92 

In  several  of  the  states,  by  statute,  summary  proceedings  against  the 
attorney  are  provided,  in  accordance  with  which  the  court  may  make  a 
rule  against  him  directing  payment.93  In  a  few  states  also  his  refusal 


103,  37  Am.  Dec.  486;  Gilbert  v.  Will- 
iams, 8  Mass.  51,  5  Am.  Dec.  77; 
Burgraf  v.  Byrnes,  94  Minn.  418. 

se  People  v.  Cole,  84  111.  327. 

ST  Where  a  plaintiff  who  had  made 
a  conditional  sale  of  property  put  the 
claim  into  the  hands  of  defendant, 
an  attorney,  for  collection,  with  the 
instructions  to  do  nothing  whereby 
plaintiff's  title  would  be  lost  and  the 
attorney  brought  suit  for  the  whole 
purchase  price,  although  part  was  not 
yet  due,  thereby  manifesting  an  elec- 
tion to  treat  the  title  as  having 
passed  to  the  vendee,  who  soon  be- 
came bankrupt,  the  attorney  was  held 
liable.  Whitney  v.  Abbott,  191  Mass. 
59. 

An  attorney  is  liable  for  consent- 
ing to  the  continuance  of  a  case,  in 
opposition  to  his  client's  express  in- 
structions, whereby  the  client  incurs 
additional  costs.  O'Halloran  v.  Mar- 
shall, 8  Ind.  App.  394. 


ss  "It  is  the  duty  of  an  attorney 
who  has  collected  money  for  his  cli- 
ent to  give  the  latter  notice  of  such 
fact  within  a  reasonable  time." 
Spencer  v.  Smith  (Ind.  App.),  87  N. 
B.  154. 

89Lillie  v.  Hoyt,  5  Hill  (N.  Y.), 
395,  40  Am.  Dec.  360;  McRaven  v. 
Dameron,  82  Cal.  57;  Kelley  v. 
Repetto,  62  N.  J.  E.  246. 

9oNaltner  v.  Dolan,  108  Ind.  500, 
58  Am.  Rep.  61.  But  see  contra,  Mat- 
ter of  Shanley,  57  Misc.  (N.  Y.)  8; 
Jackson  v.  Moore,  72  N.  Y.  App.  Div. 
217. 

91  See  cases  cited  in  the  following 
notes. 

92  Pfau  v.  Fullenwider,  102  111.  App. 
499;  Schofield  v.  Woolley,  98  Ga.  548, 
58  Am.  St.  Rep.  315. 

93  in    Alabama,    see    McCarley    v. 
White,  154  Ala.  295. 

District  of  Columbia:  Dean  v.  Bige- 
low,  19  D.  C.  App.  570. 


1788 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2208 


to  pay  is  by  statute  made  a  penal  offence,  for  which  fine  may  be  im- 
posed.84 

Even  in  the  absence  of  such  a  statute,  courts  frequently  exercise  a 
jurisdiction  to  proceed  summarily  against  an  attorney  who  appears  to 
have  been  guilty  of  oppressive  or  dishonest  conduct,  though  where  there 
are  no  such  circumstances  the  parties  will  usually  be  left  to  their  ordina- 


ry legal  remedies." 


§  2208. 


— —  .£&«:  g 
When  action  may  be  brought. — Ordinarily  an  ac- 


tion will  not  lie  against  an  attorney  for  the  recovery  of  money  collected 
by  him  until  after  a  demand  has  been  made  upon  him  for  the  money, 
and  he  has  neglected  or  refused  to  comply  with  it  ;9a  but  where  the  at- 


Oeorgia:  Ewing  v.  Freeman,  103 
Ga.  811;  Haygood  v.  McKenzie,  119 
Ga.  466. 

Iowa:  Union  Bldg.,  etc.,  Ass'n  v. 
Soderquist,  115  Iowa,  695. 

Kentucky:  McGath  v.  Maus  Bros. 
Boot  &  Shoe  Co.,  12  Ky.  Law  Rep. 
952,  15  S.  W.  879;  Commonwealth  v. 
McKay  (Ky.),  20  S.  W.  276. 

New  Jersey:  Strong  v.  Mundy,  52 
N.  J.  Eq.  833;  Mundy  v.  Schantz,  52 
N.  J.  Eq.  744. 

New  Yorfc:  Batterson   v.   Osborne, 

63  Hun  (N.  Y.),  633;  Gabriel  v.  Schil- 
linger   Asphalt   Co.,    24   N.   Y.    Misc. 
R.  313;  In  re  Keen,  39  N.  Y  Misc.  374; 
Gillespie    v.    Mulholland,    12    N.    Y. 
Misc.  40;  In  re  Raby,  29  N.  Y.  App. 
Div.   225;    In  re  Redmond,   54  N.  Y. 
App.   Div.   454;    Matter   of   McBride, 
«  N.  Y.  App.  Div.  376;  In  re  Schell,  58 
Hun  ('N.  Y.),  440;  Post  v.  Evarts,  56 
Hun   (N.  Y.),  641;   In  re  Sardy,  65 
Hun  (N.  Y.),  619;   Sackett  v.  Breen, 
50  Hun   (N.  Y.),  602;   In  re  Smyley, 

64  Hun     (N.    Y.),    639;     Bowen    v. 
Smidt,    66    Hun  (N.   Y.),    627;   In-re 
Ernst,  54  N.  Y.  App.  Div.  363;    Kent 
v.   Rockwell,    89   Him    (N.    Y.),    88; 
In   re   Wolf,    51    Hun    (N.    Y.),    407; 
Rose   v.   Whiteman,   52   N.   Y.    Misc. 
210;    Cartier   v.    Spooner,   118   N.   Y. 
App.    Div.    342;    Matter   of   Ney   Co., 
114  N.  Y.  App.  Div.  467;  In  re  Klein, 
101  N.  Y.  Supp.  663;   Matter  of  Burn- 
ham,  58  N.  Y.  Misc.  576;    Matter  of 
Jones  &  Co.,  117  N.  Y.  App.  Div.  775. 


Pennsylvania:  In  re  Kennedy,  120 
Pa.  497,  6  Am.  St.  Rep.  724. 

s*  In  Hamel  v.  People,  97  111.  App. 
527,  such  a  statute  was  said  to  be 
highly  penal  and  the  evidence  must 
be  clear. 

With  reference  to  the  attorney's 
right  to  retain  possession  of  money 
by  virtue  of  his  lien,  see  post,  §  2269; 
Scott  v.  Darling,  66  Vt.  510. 

95  See  In  re  Paschal,  10  Wall.  (U. 
S.)  483;  Lynde  v.  Lynde,  62  N.  J. 
Eq.  736,  97  Am.  St.  Rep.  692,  58 
L.  R.  A.  471;  Strong  v.  Mundy,  52 
N.  J.  Eq.  833;  Bullock  v.  Angleman, 

N.  J.  Eq.  ,  87  Atl.  627;  Dean 

v.  Bigelow,  19  D.  C.  App.  570;  Peo- 
ple v.  Feenaughty,  51  N.  Y.  Misc.  468. 

se  Roberts  v.  Armstrong,  1  Bush 
(Ky.),  263,  89  Am.  Dec.  624;  Black 
v.  Hersch,  18  Ind.  342,  81  Am.  Dec. 
362;  Pierse  v.  Thornton,  44  Ind.  235; 
Claypool  V.  Gish,  108  Ind.  424; 
Whinery  v.  Brown,  36  Ind.  App.  276 ; 
Madden  v.  Watts,  59  S.  C.  81;  Metz 
v.  Abney,  64  S.  C.  254;  Taylor  v. 
Bates,  5  Cow.  (N.  Y.)  376;  Chap- 
man v.  Burt,  77  111.  337. 

But  see  Lillie  v.  Hoyt,  5  Hill  (N. 
Y.),  395,  40  Am.  Dec.  360;  Schroep- 
pel  v.  Corning,  6  N.  Y.  107;  Douglas 
v.  Corry,  46  Ohio  St.  349,  15  Am.  St. 
Rep.  604. 

In  Goodyear  Metallic  Rubber  Co.  v. 
Baker's  Estate,  81  Vt.  39,  15  Ann.  Cas. 
1207,  17  L.  R.  A.  (N.  S.)  667,  it  is 
said:  "The  cases  differ  as  to  when 


1789 


§    2209]  THE  LAW  OF  AGENCY  [BOOK    V 

torney  owes  a  duty  to  pay  it  over  without  a  demand,  or  where  he  has 
retained  the  morrey  for  an  unreasonable  time  and  its  retention  is  unex- 
plained,97 and  where  he  converts  it  to  his  own  use,98  and  the  like,  it  is 
held  that  an  action  may  be  maintained  without  a  previous  demand.  This 
question  has  been  more  fully  discussed  in  earlier  sections,  to  which  the 
reader  is  referred." 

§  2209.  Statute  of  limitations. — It  is  also  the  general  rule, 

as  has  been  more  fully  seen  in  previous  sections,  that  the  statute  of  lim- 
itations begins  to  run  against  a  principal  when  his  cause  of  action  ac- 
crues against  the  agent,  and  this  has,  in  general,  been  seen  to  be  only 
when  he  has  made  a  report  showing  a  certain  sum  due  from  him  which 
the  principal  may  call  for,  or  when  he  has  been  called  upon  to  pay  over 
but  has  failed  or  refused  to  do  so,  or  where  he  owes  a  duty  to  pay  over 
the  money  at  once  without  waiting  for  any  further  notice  or  demand, 
and  the  like.1  This  general  rule  which  is  one  designed  to  protect  the 
agent  against  suits  brought  too  soon  and  before  he  has  had  an  oppor- 
tunity to  perform  his  duty  without  suit,  seems  somewhat  inappropriate 
when  it  is  urged  by  the  attorney  against  his  client  upon  the  ground  that 
the  suit  was  not  brought  soon  enough,  particularly  where  the  client  has 
been  relying  upon  the  attorney  to  at  least  inform  him  when  the  money 
has  been  received.  As  a  consequence  there  is  much  conflict  in  the  de- 
cisions. The  case  of  the  attorney,  moreover,  is  not  entirely  like  that  of 
an  ordinary  collecting  agent.  In  the  latter  case,  it  is  more  easy  usually 

a  client  can  sue  his  attorney  for  it  is  a  breach  of  his  contract,  and 
money  collected  and  not  paid  over.  in  assumpsit  the  breach  is  the  cause 
All  agree,  however,  that  the  attorney  of  action,  and  the  statute  begins  to 
is  not  to  be  subjected  to  the  annoy-  run  from  the  time  of  the  breach,  if 
ance  and  expense  of  a  suit  the  mo-  there  is  nothing  to  stay  it.  This  rule 
ment  he  receives  the  money.  Some  means  that  he  is  to  pay  over  in  a 
say  that  a  demand  is  necessary,  or  reasonable  time  in  the  circumstances- 
directions  to  remit,  if  the  attorney  of  the  case." 

is  not  guilty  of  laches,  has  not  con-          ^  Chapman   v.    Burt,    77    111.   337; 
verted  the  money  to  his  own  use,  and  Goodyear    Metallic    Rubber    Co.    v. 
is  not  otherwise  in  fault  in  not  pay-  Baker's  Estate,  supra. 
ing.     Others  say  that  the  statute  be-          os  Chapman    v.    Burt,    supra.      See 
gins  to  run  from  the  time  the  money  also,  Jordan  v.  Westerman,  62  Mich, 
should  have  been  paid  over,  in  the  170,  4  Am.  St.  Rep.  836;  Cummins  v. 
absence    of    fraudulent   concealment.  Heald,  24  Kan.  600,  36  Am.  Rep.  261. 
Eliminating   fraudulent   concealment          "  See  ante,  §  1339  et  seq. 
for  present  purposes,  we  think  this          1  See  ante,  §  1346;    cases  cited  in 
the     better     rule,     and     more     con-  preceding  notes.     Schofield  v.  Wool- 
sonant  with  legal  principles,   for  it  ley,  98  Ga.  548,  58  Am.  St.  Rep.  315; 
is  the   duty  of  an   attorney   to  pay  Teasley  v.  Bradley,  110  Ga.  497,  78 
over   promptly,   which   he   impliedly  Am.  St.  Rep.  113. 
agrees  to   do;    and   if  he   does   not, 

1790 


-CHAP.  l]  OF  ATTORNEYS  AT  LAW          [§§  22IO,  2211 

for  the  principal  to  know  when  payment  may  be  expected  and  he  may 
make  inquiry  or  demand  of  the  agent  accordingly.  But  claims  are  not 
ordinarily  put  into  the  hands  of  an  attorney  at  law  for  collection  until 
-they  are  past  due  and  the  ordinary  means  of  collection  have  failed. 
When  a  past  due  debt  will  be  collected  by  legal  process  is  not  easy  for 
the  client  to  determine,  and  he  naturally  looks  to  the  attorney  to  keep 
him  advised.  To  permit  the  attorney  who  has  failed  in  this  respect  to 
nevertheless  insist  upon  the  statute  of  limitations,  seems  often  to  be  an 
unjust  conclusion.  Statutes  sometimes  make  exceptions  where  the 
cause  of  action  has  been  fraudulently  concealed :  and  courts  have  often 
sought  to  make  exceptions  in  fact  by  requiring  notice  to  the  client  of 
the  collection.2  Other  courts,  however,  have  refused  to  make  any  ex- 
ceptions not  provided  for  by  the  terms  of  the  statute.3 

§  2210.  Liability  for  interest. — As  has  also  been  seen  in 

an  earlier  section,*  the  same  general  rules  govern  the  liability  of  the  at- 
torney for  interest  upon  the  money  received  by  him.  Ordinarily  he 
will  not  be  chargeable  with  interest  until  a  demand  has  been  made  for 
the  money  ;5  but  if  he  retains  it  unreasonably  without  explanation,6  or 
if  he  uses  it  himself,7  or  if  he  wrongfully  converts  it  to  his  own  use,8 
or  if,  upon  a  dispute  arising  as  to  the  amount  due  the  client,  the  attor- 
ney makes  the  client  a  tender  which  proves,  upon  a  suit  brought,  to  be 
insufficient,9  and  the  like,  the  client  may  recover  interest. 

§  221 1.  Attorney  liable  though  acting  gratuitously. — It  is  no  de- 
fense to  an  action  against  an  attorney  for  negligence  or  misconduct  in 
the  line  of  his  profession  that  he  acted  gratuitously.  He  is  under  no 
obligation  to  so  act,  but  if  he  does  undertake  the  performance,  he  must 
answer  for  his  negligence  or  default  in  the  same  manner  as  though  he 
were  to  receive  a  reward.10 

2  See  Guernsey  v.  Davis,  67  Kan.          «  Chapman  v.  Burt,  swpra;  Dwight 
378;    Wilder  v.   Secor,  72   Iowa,  161,      v.  Simon,  4  La.  Ann.  490. 

2  Am.  St.  Rep.  236;   Vigus  v.  O'Ban-  t  Mansfield  v.  Wilkerson,  26  Iowa, 

non,    118    111.    334    and    other    cases  482;  Smith  v.  Alexander,  87  Ala.  387; 

«ited,  ante,  §  1347.  Goodin  v.  Hays,  28  Ky.  L,  Rep.  112, 

3  See    Ott   v.    Hood,    152   Wis.    97;  88  S.  W.  1101. 

Douglas   v.   Corry,   46   Ohio   St.    349,  s  Walpole  v.   Bishop,   31  Ind.   156; 

15  Am.  St.  Rep.  604;   Cook  v.  Rives,  Chapman  v.  Burt,  supra;  Cummins 

21  Miss.   (13  Sm.  &  M.)   328,  53  Am.  v.  Heald,  24  Kan.  600,  36  Am.  Rep. 

Dec.  88.  264. 

See  also,  Hasher  v.  Hasher,  96  Va.  »  Ketchum  v.  Thorp,  91  111.  611. 

584;   Jackson  v.  Combs,  18  D.  C.   (7  ™  Eccles    v.    Stephenson,    3    Bibb 

Mack.)  608,  1  L.  R.  A.  742  and  other  (Ky.),    517;     Stephens    v.    White,    2 

cases  cited,  ante,  §  1347.  Wash.    (Va.)    203;   Bradt  v.  Walton, 

*  See  ante,  §  1341.  8    Johns.    (N.    Y.)     298;     O'Hara    v. 

r.  Walpole  v.   Bishop,   31   Ind.  156;  Brophy,    24   How.   Pr.    (N.  Y.)    379; 

Johnson  v.  Semple,  31  Iowa,  49.  Bourne    v.     Diggles,     2     Chit.     311; 

1791 


2212 


THE  LAW   OF  AGENCY 


[BOOK   V 


This  rule  is  in  accordance  with  the  well  settled  rule  applicable  to 
agents  generally  which  has  been  discussed  in  an  earlier  portion  of  this 
work. 

§  2212.  The  burden  of  proof  and  measure  of  damages. — The 
measure  of  damages,  in  an  action  against  the  attorney,  is  the  actual  loss 
sustained  as  the  natural,  direct  and  proximate  result  of  his  negligence 
or  default.11  Compensation  to  the  client  is  the  result  aimed  at,  and  it  is 
to  be  compensation  for  something  which,  but  for  the  attorney's  negli- 
gence he  would  have  enjoyed.  The  burden  of  proving  negligence,  and 
that,  by  it,  he  has  sustained  loss,  is  upon  the  client.12  If,  therefore, 
though  the  attorney  may  have  been  negligent,  the  client  has  suffered  no 
injury,  there  is  no  cause  of  action.13  And  in  an  action  against  the  attor- 


Whitehead  v.  Greetham,  2  Bing.  464; 
Lawall  v.  Groman,  180  Pa.  532,  57 
Am.  St.  Rep.  662;  In  re  Kruger's 
Estate,  130  Cal.  621. 

11  Pennington  v.  Yell,  11  Ark.  212, 
52  Am.  Dec.  262;  Mardis  v.  Shackle- 
ford,  4  Ala.  493;  Dearborn  v.  Dear- 
born, 15  Mass.  316;  Crocker  v.  Hutch- 
inson,  2  D.  Chip.  (Vt.)  117;  Cox  v. 
Sullivan,  7  Ga.  144,  50  Am.  Dec.  386; 
Nisbet  v.  Lawson,  1  Ga.  275;  Stevens 
v.  Walker,  55  111.  151;  Grayson  v. 
Wilkinson,  5  Smed.  &  M.  (Miss.)  268; 
Suydam  v.  Vance,  2  McLean  (U.  S. 
C.  C.),  99,  Fed.  Cas.  No.  13,657;  Eccles 
v.  Stephenson,  3  Bibb  (Ky.),  517; 
Rootes  v.  Stone,  2  Leigh  (Va.)  650; 
Forrow  v.  Arnold,  22  R.  I.  305;  Ma- 
lone  v.  Gerth,  100  Wis.  166. 

Where  an  attorney  negligently 
loses  his  client's  lien  on  chattels  and 
the  buyer  is  personally  insolvent,  the 
attorney  is  liable  for  the  value  of  the 
chattels.  Whitney  v.  Abbott,  191 
Mass.  59. 

Where  the  plaintiff  in  an  action 
for  slander  has  lost  his  cause  of  ac- 
tion through  the  negligence  of  his 
attorney  in  conducting  the  proceed- 
ings the  plaintiff  is  entitled  to 
recover  against  the  attorney  the 
amount  of  damages,  actual  and  ex- 
emplary, which  he  would  have  been 
entitled  to  recover  in  the  action  of 
slander.  Patterson  v.  Frazer  (Tex. 
Civ.  App.),  79  S.  W.  1077;  S.  C. 


(Tex.  Civ.  App.),  93  S.  W.  146,  100 
Tex.  103. 

An  attorney  was  employed  to  ob- 
tain a  divorce  for  a  woman  but 
failed  to  prosecute  the  action. 
Nevertheless,  for  the  sake  of  obtain- 
ing his  fee,  he  told  her  that  the  di- 
vorce had  been  granted  and  that  she 
was  free  to  marry  again,  and  she  did 
so,  thereby  making  herself  liable  for 
bigamy.  Held,  that  the  attorney  was 
liable  to  exemplary  damages.  Hill 
v.  Montgomery,  84  in.  App.  300,  af- 
firmed 184  111.  220. 

Where  an  attorney  without  author- 
ity caused  a  suit  to  be  started,  he 
was  ordered  to  pay  the  costs  awarded 
against  his  alleged  client,  the  costs 
incurred  by  the  latter  in  getting  the 
proceedings  discontinued,  and  also 
all  the  costs  which  the  defendant  had 
been  compelled  to  pay.  Fricker  v. 
Van  Grutten,  [1896]  2  Ch.  649. 

12  Pennington  v.  Yell,  supra;  Keith 
v.  Marcus,  181  Mass.  377;  Vooth  v. 
McEachen,  181  N.  Y.  28,  2  Ann.  Gas. 
601;  Quinn  v.  Van  Pelt,  56  N.  Y. 
417. 

See  all  cases  cited  in  preceding 
note. 

is  Barter  v.  Norris,  18  Ohio  St. 
492;  Hinckley  v.  Krug  (Cal.),  34 
Pac.  118. 

Damages  for  not  prosecuting  an 
action  taken  on  a  contingent  fee  are 
to  be  estimated  upon  the  basis  of 


1792 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2213 

ney  for  negligence  in  collecting,  the  amount  of  the  debt  is  not  necessa- 
rily the  measure  of  damages.  In  order  to  make  it  so,  the  client  must 
show  that  it  was  a  valid  subsisting  debt,  that  the  debtor  was  solvent,  and 
that  the  attorney,  with  reasonable  diligence,  might  have  collected  the 
full  amount.1*  And  it  is  only  for  the  proximate  results  of  his  own  neg- 
ligence, that  the  attorney  is  liable.  Thus  after  a  client  has  taken  a  claim 
out  of  the  hands  of  one  attorney,  that  attorney  is  not  responsible  for  a 
loss  subsequently  resulting  from  the  delay  or  negligence  of  the  client 
or  of  another  attorney  to  whom  the  claim  is  entrusted.15 
i  il—  .aldsif  ad  bluow  ari  rb: 


tl}  rbiriw  ni  ^<R^  'to  >fnirfi  o*  ,i 
VI 

LIABILITY  OF  ATTORNEY  TO  THIRD  PERSONS. 
'  1  1  i  '/•/ 

§  2213.  Not  liable  for  breach  of  duty  owing  to  client  only.  —  The 

duties  of  the  attorney  which  arise  from  the  relation  of  attorney  and 
client,  are  due  from  the  attorney  to  his  client  only,  and  not  to  third 
persons.  The  latter  have  not  retained  or  employed  the  attorney,  nor 
has  he  rendered  any  services  for  them,  at  their  request  or  in  their  be- 
half. No  privity  of  contract  exists  between  them  and  the  attorney. 
For  such  injuries,  therefore,  as  third  persons  may  sustain  by  reason  of 
the  failure  or  neglect  of  the  attorney  to  perform  a  duty  which  he  owed 
to  his  client  only,  they  have  no  right  of  action  against  the  attorney.16 

Thus  it  has  been  held  that  one  who  purchases  real  estate  in  reliance 
upon  an  opinion  of  its  title  given  to  the  vendor  by  the  latter's  attorney,17 
or  who  purchases  a  mortgage  given  to  secure  a  loan  made  upon  the 
strength  of  a  search  made  by  the  attorney  of  the  original  mortgagee,18 

what  the  client's  share  was   to  be.  Mortg.   &   Trust   Co.   v.   Hughes,    20 

Childs   v.   Comstock,   69   N.   Y.  App.  Fed.    39;    Fish    v.    Kelly,  .17    C.    B. 

Div.  160.  (N.    S.)    194;    Houseman   v.    Girard 

i*  Pennington  v.  Yell,  supra;  Cox  etc.,  Ass'n,  81  Penn.  St.  256;  Buckley 

v.  Sullivan,  supra;  Eccles  v.  Stephen-  v.  Gray,  110  Cal.  339,  52  Am.  St.  Rep. 

son,  supra;  Crooker  v.   Hutchinson,  88,  31  L.  R.  A.  862. 

supra;    Collier    v.    Pulliam,    13    Lea  An  attorney  giving  advice  to  his 

(Tenn.),  114;   Bruce  v.  Baxter,  7  Id.  client,  on  which  the  client  acted,  Is 

477;  Siddall  v.  Haight,  132  Cal.  320;  not  liable  for  damage  to  a  third  per- 

Goldzier  v.  Poole,  82  111.  App.  469;  son  who  claims  to  have  been  injured 

Staples  v.  Staples,  85  Va.  76.  by   the   client's   action.       Meyers   v. 

is  Read     v.     Patterson,     11     Lea  Seinsheimer,  5  Ohio  N.  P.  281. 

.(Tenn.),    430.      See    also,    Batty    v.  IT  Savings  Bank  v.  Ward,  supra. 

Fout,  54  Ind.  482.  is  Dundee     Mtg.     Co.     v.     Hughes, 

is  National  Savings  Bank  v.  Ward,  supra;    Houseman    v.    Girard,    eta, 

100  U.  S.  195,  25  L.  Ed.  621;  Dundee  Ass'n,  supra.    See  also,  ante,  §  1480. 

H3  1793 


§§    2414-2216]  THE    LAW  OF  AGENCY  [BOOK  V 

cannot  maintain  an  action  against  the  attorney  for  damages  if  the  title 
prove  defective  or  the  search  incomplete. 

So  it  has  been  held  that  a  legatee  named  in  a  will  cannot  maintain  an 
action  to  recover  for  alleged  negligence  of  an  attorney  employed  by  the 
testator  to  draw  the  will,  in  so  drawing  it  as  not  to  express  legally  the 
desires  or  direction  of  the  testator  as  to  the  exclusion  of  grandchildren, 
by  which  exclusion  the  legatee  would  have  been  benefited,  and  in  fur- 
ther causing  the  legatee  to  become  one  of  the  subscribing  witnesses, 
thus  rendering  the  will  void  as  to  him.19 

§  2214.  •  Cases  in  which  he  would  be  liable. — It  is  not  dif- 

ficult, however,  to  think  of  cases  in  which  the  attorney  would  doubtless 
be  held  liable.  Thus  in  the  leading  case  in  this  country,20  it  was  said  by 
Waite  C.  J. :  "I  think  if  a  lawyer,  employed  to  examine  and  certify  to 
the  recorded  title  of  real  property,  gives  his  client  a  certificate  which  he 
knows  or  ought  to  know  is  to  be  used  in  some  business  transaction  with 
another  person  as  evidence  of  the  facts  certified  to,  he  is  liable  to  such 
other  person  relying  on  his  certificate  for  any  loss  resulting  from  his 
failure  to  find  on  record  a  conveyance  affecting  the  title,  which  by  the 
use  of  ordinary  professional  care  and  skill  he  might  have  found." 

§  2215.  Cases  in  which  the  attorney  has  been  guilty  of 

fraud  or  collusion  with  intent  to  injure  or  deceive  the  third  person  also 
stand  upon  a  different  footing.  These  do  not  rest  upon  a  privity  of 
contract,  but  upon  intentional  wrong  doing,  and  the  victim  of  the  wrong 
has  undoubtedly  a  remedy  for  it  against  the  attorney  as  in  other  cases.21 

§  2216.  Liable  where  he  contracts  personally. — As  has  been  seen, 
it  is  the  presumption  that  a  known  agent  while  acting  for  his  principal, 
intends  to  bind  the  latter  and  not  himself  by  the  contracts  which  he 
makes ;  but  it.  is  always  competent  for  the  agent  to  charge  himself  per- 
sonally if  he  so  elects.22  The  same  rule  applies  to  attorneys  and  their 
clients.  The  attorney  occupies  a  position  of  greater  prominence  than 
agents  generally,  but  his  duty  requires,  and  his  position  gives  him,  less 
authority  to  enter  into  contracts  than  is  usually  conferred  upon  business 

agents.     He  acts  primarily  for  his  client  and  his  authorized  engage- 

H   .Y  "i-j^ooiD  \  o*vQvifc  ,noa 

19  Buckley  v.  Gray,  supra.  136   Am.    St.   Rep.   503,   32   L.   R.   A. 

20  Savings   Bank   v.    Ward,   supra.  (N.   S.)    980,   as   to   the   liability  of 
This  quotation  is  from  the  opinion  one     who     puts     out     a     dangerous 
of  Waite  C.  J.,  with  whom  Swayne  instrumentality  to  third  persons  al- 
and  Bradley,   J.   J.,   concurred,   and  though  he  has   no  contractual  rela- 
who  contended  that  the  facts  of  the  tions  with  them. 

case  brought  it  within  that  rule.  21  See  discussions  in  Savings  Bank 

See  also,  the  elaborate  discussion  v.  Ward,  supra. 

and  citation  of  cases  in  O'Brien  v.  22  See  ante,  §  1419  et  seq. 
American  Bridge  Co.,  110  Minn.  364, 

1794 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    22l6 


ments,  where  he  is  known  to  be  acting  as  such,  should  be  held  binding 
upon  the  client  rather  than  upon  himself,  in  the  absence  of  evidence 
that  he  intended  to  bind  himself.23 

He  may,  of  course,  bind  himself  personally,  and  it  is  usually  a  ques- 
tion of  fact  whether  he  has  done  so.24  His  immunity  from  liability,  like 
that  of  other  agents,  depends  upon  the  fact  that  his  position  is  known ; 
and  if  he  conceals  the  fact  of  his  agency,25  or  assumes  to  act  for  a  non- 
existent 26  or  legally  incompetent  principal,27  he  will  ordinarily  be  per- 
sonally bound.  So,  also,  where  he  undertakes  to  act  without  sufficient 
authority. 


23  Preston     v.     Preston,     1     Doug. 
(Mich.)    292;   Wires  v.  Briggs,  5  Vt. 
101,    26    Am.    Dec.    284;    Russell    v. 
Ferguson,  77  Vt.  433. 

In  Argus  Co.  v.  Hotchkiss,  121  N. 
Y.  App.  Div.  378,  it  was  held  that 
an  attorney  who  contracts  for  hav- 
ing a  brief  printed  in  a  divorce  case 
is  presumed  to  intend  to  bind  his 
client  only;  that  the  printer  is 
chargeable  with  notice  from  the  na- 
ture of  the  action  that  the  attorney 
had  no  personal  interest  in  it;  and 
that  a  statement  that  he  is  person-  • 
ally  interested  in  having  the  work 
done  cheaply  cannot  be  construed  as 
a  personal  promise. 

The  attorney  is  not  personally  lia- 
ble for  printing  brief  unless  he  has 
pledged  his  personal  credit.  Tyrrel 
v.  Hammerstein,  33  Misc.  505. 

24  Where  an  attorney  promises  to 
pay  for  printing  briefs  for  his  client 
and  the  printer  looks  to  the  attorney 
for  payment,  he  is  liable.     Cameron 
Bun   v.    McAnaw,    72   Mo.    App.    196. 
"An  attorney  at  law  may  make  him- 
self liable  by  a  special  promise  for 
the  compensation  of  an  expert  wit- 
ness called  to  testify  for  the  client, 
especially  if  there  be  evidence  In  the 
case  to  warrant  the  jury  in  believ- 
ing that  the  attorney  had  a  personal 
financial  interest  in  the  result  of  the 
trial."  Pessano  v.  Eyre,  13  Pa.  Super. 
Ct.    157.     Where   an   attorney   hires 
another   attorney  in  his  own  name 
he  is  liable.     Meany  v.  Rosenberg,  28 
N.  Y.  Misc.  520   (where  the  client's 
local  attorney  employed  an  attorney 


to  defend  a  suit  brought  in  another 
state) ;  Maddox  v.  Cranch,  4  Har. 
&  McHen.  (Md.)  343  (attorney  held 
liable  for  sheriff's  fees  on  writs 
which  he  had  caused  to  be  served 
for  non-resident  clients). 

Custom  to  charge  attorney. — 
Though  the  attorney  may  not  be  lia- 
ble merely  by  reason  of  the  relation 
of  attorney  and  client,  he  may  be- 
come so  by  custom,  but  the  custom 
"must  be  certain,  uniform,  and  either 
known  to  the  party  sought  to  be 
charged  thereby,  or  so  general  and 
notorious  that  the  knowledge  and 
adoption  of  it  may  be  presumed." 
Russell  v.  Ferguson,  77  Vt.  433. 

25  An  attorney  who  makes  a  con- 
tract in  his  own  name  without  dis- 
closing the  name  of  his  client,  is 
like  other  agents,  personally  liable 
upon  the  contract,  although  the  other 
party  knew  that  he  was  the  attorney 
of  some  one.  Good  v.  Rumsey,  50 
N.  Y.  App.  Div.  280;  Gray  v.  Journal, 
etc.,  Pub.  Co.,  2  N.  Y.  Misc.  260. 

In  Trimmier  v.  Thomson,  41  S. 
Car.  125,  it  seems  to  be  held  that  the 
attorney  who  contracts  for  printing 
briefs  has  the  burden  of  showing 
that  he  did  not  contract  personally. 

ze  Where  an  attorney  brings  an  ac- 
tion in  the  name  of  a  non-existing 
principal,  he  is  personally  liable  to 
the  defendant  for  costs  in  the  suit. 
Attleboro  National  Bank  v.  Wendell, 
64  Hun  (N.  Y.),  208. 

27  An  attorney  who,  though  in  good 
faith  and  in  ignorance  of  the  insan- 
ity, begins  an  action  after  his  client 


1795 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2217-  Liability  for  clerk's,  officer's,  witness's,  and  other  fees.— 

While  recognizing  this  general  rule,  (and  in  pursuance  of  it,  as  is  said 
in  some  cases,  though  others  declare  it  an  exception),  it  is  held  that  the 
attorney  is  personally  liable  to  clerks  of  courts  and  to  sheriffs  for  serv- 
ices performed  by  these  officers,  at  the  attorney's  request,  in  issuing, 
filing  and  serving  writs  and  other  papers  in  the  cause.28 

r;  •»(.)}  jus  of  asrtiMeaB.W^wfi^sc  shHoi  tofil  'adJ  dB93no3  t>fHi  -bflK 

ance  it.  It  is  true  that  an  officer  can 
refuse  to  serve  a  writ  unless  his  fees 
are  paid  or  secured,  but  this  right  is 
practically  of  little  advantage  to  him. 
A  writ  is  sent  him  by  mail  by  an  at- 
torney of  some  other  town  or  county. 
It  requires  immediate  service.  The 
officer  desires  to  be  prompt  and  faith- 
ful. It  is  putting  upon  him  an  un- 
necessary burden  to  require  him  to 
take  the  risk  of  losing  his  fees,  or  to 
wait  till  he  can  hear  from  the  plain- 
tiff or  his  attorney  at  the  risk  of 
losing  all  opportunity  to  make  service 
of  the  writ.  It  is  perfectly  easy  for 
the  attorney,  if  he  does  not  wish  to 
be  personally  responsible,  so  to  in- 
form the  officer  when  he  gives  him 
the  writ.  It  is  to  be  borne  in  mind 
that  the  attorney  knows  the  plaintiff, 
while  the  officer  may  know  nothing 
of  him.  It  is  generally  the  case  that 
an  attorney  has  a  runniug  account 
with  certain  officers  who  serve  a  large 
number  of  writs  for  him,  and  who 
would  be  put  to  great  inconvenience 
if  compelled  to  make  their  charges  in 
each  case  to  the  plaintiff,  especially 
when  they  have  no  knowledge  that 
the  attorney  has  received  actual  au- 
thority to  bring  the  suit.  The  attor- 
ney has  already  his  account  with  his 
client,  knows  what  the  fact  is  as  to 
his  authority  to  bring  the  suit,  and 
could,  without  inconvenience,  have 
required  a  prepayment  of  the  ex- 
penses of  instituting  the  suit,  and 
ought  to  have  done  so.  In  every  view 
of  the  case,  the  rule  seems  a  reason- 
able one,  and  the  only  reasonable  one, 
that  an  attorney  placing  a  writ  in  an 
officer's  hands  for  service  is  to  be  re- 
garded as  personally  requesting  the 
service  and  as  personally  liable  for  it, 


lias  become  insane,  Is  liable  to  the 
opposite  party  for  the  costs.  Yonge 
v.  Toynbee,  [1910]  1  K.  B.  215,  79 
L,.  J.  Rep.  K.  B.  208. 

28  Heath  v.  Bates,  49  Conn.  342,  44 
Am.  Rep.  234;  Tliton  v.  Wright,  74 
Me.  214,  43  Am.  Rep.  578;  Adams  v. 
Hopkins,  5  Johns.  (N.  Y.)  252;  Ous- 
terhout  v.  Day,  9  Id.  113;  Trustees  of 
Watertown  v.  Cowen,  5  Paige  (N. 
Y.),  510;  Campbell  v.  Cothran,  56  N. 
Y.  279,  (where  an  attorney  procured 
a  sheriff  to  levy  an  attachment  which 
was  invalid  on  account  of  insuffi- 
ciency of  papers  on  which  writ  was 
granted  the  attorney  was  held  liable 
td  the  sheriff  for  poundage) ;  Gadskl 
v.  Graff,  44  N.  Y.  Misc.  418;  Towle  v. 
Hatch,  43  N.  H.  270;  Tarbell  v.  Dick- 
inson, 3  Gush.  (Mass.)  345. 

In  Heath  v.  Bates,  supra,  Park,  C. 
J.,  says:  "In  most  cases  of  agency 
the  principal  is  what  the  name  im- 
ports— the  leading  person  in  the 
transaction.  The  agent  is,  as  the 
term  implies,  a  mere  subordinate, 
Important  only  as  the  representative 
of  the  principal;  often  representing 
only  one  principal.  An  attorney  at 
law,  on  the  other  hand,  occupies  a 
position  of  recognized  importance  in 
itself,  not  infrequently  of  great  prom- 
inence before  the  public,  in  which  he 
often  has  a  large  number  of  clients, 
his  relations  to  whom  are  full  of  de- 
tail, and  who  are  little  noticed  by  the 
public.  In  these  circumstances,  if 
every  officer  who  serves  a  writ  at  the 
attorney's  request,  if  every  clerk  of 
court  who  enters  a  case  for  him  upon 
the  docket,  is  to  look  only  to  his 
clients  as  their  debtors,  an  inconven- 
ience will  be  wrought  that  has  no 
commensurate  good  to  counterbal- 


1796 


CHAP.    l]  OF  ATTORNEYS  AT  LAW 

This  doctrine  by  which  a  known  agent,  known  to  be  acting  as  such, 
is  held  personally  liable  without  a  personal  promise,  is  wholly  excep- 
tional as  a  general  rule.29 

It  is  based  in  some  cases  upon  the  fact  that  the  sheriff  and  clerk  are 
bound  to  act,  are  expected  to  act  promptly,  have  usually  no  means  of 
knowing  the  client,  and  are  therefore  entitled  to  rely  upon  the  attorney 
who  requests  them  to  act ;  in  some  cases,  upon  the  ground  that  it  is  a 
fair  inference  from  his  so  doing,  without  giving  notice  to  the  contrary, 
that  he  intends  to  be  personally  liable ;  while  in  others,  it  is  sustained 
only  upon  the  ground  of  usage  or  convenience.  In  several  States  the 
liability  is  denied  altogether.80 

But  the  reasons  assigned  for  the  rule  do  not  usually  extend  to  other 
kinds  of  services  and  it  is  held  that  the  attorney  is  not  presumably  liable 
for  witness  fees,31  or  the  fees  of  a  referee,32  or  of  a  stenographer  em- 
ployed in  the  case,88  or  an  accountant  to  examine  books  to  prepare  the 
case  for  trial,3*  or  the  commissioner  in  partition  proceedings.35 

§  2218.  Liability  to  third  person  in  tort. — For  such  wrongs  and 
injuries  as  an  attorney  may  commit  in  his  private  and  individual  capac- 
ity, he  is,  of  course,  liable  like  any  other  person.  The  fact  that  a  wrong- 
doer happens  to  be,  by  profession,  an  attorney  at  law,  furnishes  no  more 
justification  than  as  if  he  were  engaged  in  any  other  occupation. 

unless  he  expressly  informs  him  that  solicitors  have  been  held  liable  for 

he  will  not  be  personally  liable,  or  the  fees  of  the  officers  of  the  court, 

there  are  circumstances  which  make  upon   a   promise   implied   from  their 

it  clear  that  that  was  the  understand-  acts  done  as  attorneys  merely,  are  in 

ing  of  the  parties.  conflict  with  principle,  and  with  the 

"This  is  really  no  departure  from  whole  current  of  authorities  else- 
the  general  law  of  agency.  An  agent  where  on  the  subject."  See  also, 
can  always  bind  himself  personally,  Bonynge  v.  Field,  81  N.  Y.  159. 
where  such  is  his  intention.  Here  it  30  Wires  v.  Briggs,  5  Vt.  101,  26  Am. 
is  merely  held  to  be  a  fair  inference  Dec.  284;  see  also,  Russell  v.  Fergu- 
from  the  act  of  the  attorney  in  plac-  son,  77  Vt.  433;  Preston  v.  Preston, 
ing  the  writ  in  an  officer's  hands  and  1  Doug.  (Mich.)  292;  Moore  v.  For- 
giving no  notice  to  the  contrary  ter,  13  S.  &  R.  (Pa.)  100. 
that  he  intends  to  be  personally  liable  si  Robins  v.  Bridge,  3  M.  &  W.  114; 
for  his  fees.  And  this  inference  un-  Sargeant  v.  Pettibone,  1  Aik.  (Vt.) 
doubtedly  accords  with  the  actual  355. 

fact  in  the  great  majority  of  cases.  32  Judson   v.    Gray,  11   N.   Y.  408; 

Indeed  the   exceptions  are   probably  Ho  well  v.  Kinney,  1  How.  Pr.  (N.  Y.) 

so  few  as  hardly  to  be  entitled  to  con-  105. 

sideration."  33  Boynge  v.  Field,  44  N*  Y.  Super. 

29  This  is  nowhere  more  fully  rec-  Ct.  581;  s.  c.  81  N.  Y.  159. 

ognized  than  in  New  York.    Thus  in  34  Covell  v.  Hart,  14  Hun  (N.  Y.), 

Judson   v.   Gray,  11   N.   Y.    408,  it  is  252. 

said:   "It  is  clear  that  the  decisions  35  Lamoreux  v.  Morris,  4  How.  Pr. 

in  this  state,  in  which  attorneys  and  (N.  Y.)  245. 

1797 


§§    2219,  222O]  THE  LAW  OF  AGENCY  [BOOK   V 

But  an  important  question  arises  how  far  an  attorney  is  liable  to  third 
persons,  for  injuries  which  they  may  sustain  from  the  act  of  the  attor- 
ney, committed  while  he  was  acting  either  really  or  ostensibly  for  his 
client  and  in  his  cause. 

This  question  may  present  itself  under  two  states  of  fact: — I.  Where 
the  attorney  is  acting  in  good  faith  for  the  benefit  of  his  client,  and  2. 
Where  the  attorney,  though  acting  ostensibly  for  his  client,  is  really  in- 
stigated by  private  malice  against  the  other  party,  or  becomes  a  party 
to  his  client's  malice. 

Each  of  these  questions,  also,  subdivides  itself  into  two  branches: 
a.  How  far  the  attorney  is  liable  for  the  institution,  conduct  and  result 
of  the  suit ;  and  b.  How  far  he  is  liable  for  process  which  he  causes  to 
be  served. 

§  2219.  i.  a  An  attorney  at  law,  who  acts  in  good  faith 

and  is  prompted  only  by  professional  duty  and  fidelity  to  his  client,  is 
not  liable  to  the  other  party  for  injuries  which  the  latter  may  sustain 
from  the  fact  that  the  action  was  begun  or  prosecuted,  by  the  attorney's 
client,  either  maliciously  or  without  probable  cause.  The  wrong  inten- 
tions of  the  client  are  not  to  be  imputed  to  his  attorney  who  was  ignor- 
ant of  them,  and  who,  himself,  had  no  such  intentions.  This  rule  is 
absolutely  imperative  for  the  attorney's  protection.  He  can  rely  in  the 
first  instance  only  upon  the  advice  and  instructions  of  his  client,  and  it 
would  impose  upon  the  attorney  a  perilous  responsibility  if  he  could 
justify  his  participation  in  the  suit  only  by  its  result.36  As  is  said  by  a 
learned  judge:  "When  the  client  will  assume  to  dictate  a  prosecution 
upon  his  own  responsibility,  the  attorney  may  well  be  justified  in  rep- 
resenting him  so  long  as  he  believes  his  client  to  be  asserting  what  he 
supposes  are  his  rights,  and  is  not  making  use  of  him  to  satisfy  his 
malice."37 

§  2220.  '  2.  a.  "But,"  proceeds  the  same  judge,  "when  an 
attorney  submits  to  be  made  the  instrument  of  prosecuting  and  impris- 
oning a  party  against  whom  he  knows  his  client  has  no  just  claim,  or 
cause  of  arrest,  and  that  the  plaintiff  is  actuated  by  illegal  or  malicious 
motives,  he  is  morally  and  legally  just  as  much  liable  as  if  he  were 
prompted  by  his  own  malice  against  the  injured  party.  If  he  will  know- 

36  Burnap    v.    Marsh,  13    111.    535;  Dec.  582;  Bicknell  v.  Dorion,  16  Pick. 

Peck  v.  Cfeouteau,  91  Mo.  138,  60  Am.  (33  Mass.)  478;  Farmer  v.  Crosby,  43 

Rep.    236;    Stockley    v.    Hornidge,    8  Minn.  459;   Scholk  v.  Kingsley,  42  N. 

Car.    &    P.    11;   Lynch    v.    Common-  J.  L.  32. 

wealth,  16  S.  &  R.  (Pa.)  368,  16  Am.  "  In  Burnap  v.  Marsh,  supra. 

1798 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2221 

ingly  sell  himself  to  work  out  the  malicious  purposes  of  another,  he  i* 
a  partaker  of  that  malice  as  much  as  if  it  originated  in  his  own  bosom. "88 
In  order,  however,  to  render  the  attorney  liable  for  a  malicious  prose- 
cution by  his  client,  it  must  not  only  appear  that  the  attorney  knew  that 
the  prosecution  was  malicious,  but  that  he  also  knew  that  it  was  without 
cause.  It  is  not  enough  that  he  might,  with  reasonable  diligence,  have 
ascertained  that  there  was  no  probable  cause  for  the  prosecution.  The 
attorney  has  a  right,  in  good  faith,  to  advise  and  act  upon  the  facts 
which  he  gets  from  his  client,  and  it  is  not  his  duty  to  go  elsewhere  for 
information  39 

i>»  In-^l'k 

An  attorney  who,  while  acting  ostensibly  for  his  client,  but  actuated 
by  his  own  personal  malice,  commences  or  carries  on  a  malicious  prose- 
cution in  order  to  gratify  some  private  purpose  of  his  own  is  undoubt- 
edly liable  to  the  party  injured  for  the  wrong  inflicted.40  In  such  a  case 
there  is  neither  good  faith  nor  advice  of  client  to  justify  the  action. 

§  2221.  i.  b.  All  persons  who  direct,  cause  or  participate 

in  a  trespass  upon  another  party  are,  in  accordance  with  well  settled 
rules,  liable  to  that  party  for  the  injury  inflicted.  An  attorney  who  de- 
livers to  an  officer  a  writ  for  service  impliedly,  if  not  expressly,  directs 
the  officer  to  proceed  to  serve  the  process  in  accordance  with  its  com- 
mand. If  the  writ  be  valid  and  regular  the  attorney  is,  of  course,  not 
liable  no  matter  how  much  loss  or  inconvenience  the  other  party  may 
suffer  from  it.41  But  if  the  writ  be  illegal  or  void,  so  as  to  furnish  the 
officer  no  protection  for  his  proceedings  under  it,  he  is,  of  course,  a 
trespasser,  and  the  attorney  is  liable  with  him  to  the  person  injured  as 
having  directed  the  commission  of  the  trespass.42  The  attorney  may 
also  be  liable  although  the  sheriff  would  not  be;  as  where  the  attorney 

directs  the  service  of  a  writ,  fair  upon  its  face,  but  actually  invalid  as 

hotoVftb  »rf  9'iertw  ft  '.B  8  /snlH 
>1j£  efli  M9d.7',S3r  .fll  .83 

ss  in  Burnap  v.  Marsh,  supra.    See  Campbell   v.    Brown,    2   Woods,    349, 

also,  Farmer  v.  Crosby,  supra;  Davies  Fed.    Cas.    No.    2355;     Williams    v. 

v.  Jenkins,  11  M.  &  W.  745.  Smith,  14  Com.  B.  (N.  S.)  596. 

3»  Peck  v.  Chouteau,  supra;  Burnap  Compare    Davies    v.    Jenkins,    11 

v.  Marsh,  supra;  Hunt  v.  Printup,  28  Mees.  &  Wels.  745. 

Ga.  297.  *2  Burnap    v.    Marsh,    13    111.    535; 

40  Stockley  v.  Hornidge,  8  C.  &  P.  Cook  v.  Hopper,  23  Mich.  511.     But 
11;  Burnap  v.  Marsh,  13  111.  535.  see  Ross  v.  Griffin,  53  Mich.  5. 

In  order  to  recover  against  the  at-          Where  an  attorney,  after  receiving 

torney,    malice    and    want    of   cause  payment  of  a  claim  in  full  from  the 

must  be  shown.    Smits  v.  Hogan,  35  principal  debtor,  causes  the  property 

Wash.  290,  1  Ann.  Cas.  297.    To  same  of  the  surety  to  be  seized  and  sold 

effect:   Heffner  v.  Wise,  51  La.  Ann.  and  the  money  again  collected,  he  is 

1637.  liable  to  the  surety.    Parsons  v.  Max- 

41  See  Hunt  v.  Printup,  28  Ga.  297;  well,  53  W.  Va.  39. 

1799 


§   2222]  THE  LAW  OF  AGENCY  [BOOK   V 

the  attorney  knows  or  ought  to  know.48  The  party  for  whom  both  the 
attorney  and  the  officer  were  acting  is  also  liable,  as  the  principal  in  the 
transaction.44  The  liability  of  the  parties,  in  this  event,  does  not  depend 
upon  their  motive.  Although  each  may  have  acted  in  entire  good 
faith, — the  client  in  the  prosecution  of  his  supposed  rights,  the  attorney 
in  rendering  professional  assistance  to  the  client,  and  the  officer  in  un- 
dertaking to  execute  the  writ, — yet  mere  good  faith  will  not  excuse  the 
trespass.45  The  attorney  would  not  be  liable  to  the  person  injured,  if 
the  client  delivered  the  writ  to  the  officer  and  directed  its  service,  or  if 
the  attorney  merely  communicated  to  the  officer  the  instructions  of  his 
client.48 

§  2222.  But  the  attorney  by  the  delivery  of  a  writ  to  an 

officer  for  service  presumptively  directs  the  officer  to  proceed  accord- 
ing to  its  command  only,  and  if  the  officer  exceeds  its  command,  or  does 
anything  which  the  writ,  if  legal,  would  not  justify, — as  if  he  seizes 
property  exempt  from  execution,  or  levies  upon  goods  of  another  than 
the  defendant, — the  attorney  would  not  be  liable.47  Even  in  this  case, 
however,  if  the  attorney  directs  or  advises  the  particular  act  which  con- 
stitutes the  trespass,  or  if  he  participates  in  the  act,  either  in  person  or 
by  his  own  ckrk,  servant  or  agent,  the  attorney  is  liable  with  the  officer 
to  the  person  trespassed  upon  for  the  injury  inflicted.48  The  client 
would  not,  however,  be  liable  in  this  case  unless  he  advised,  directed, 
participated  in  or  ratified  the  act.4*  In  this  case,  too,  the  trespassers  are 
none  the  less  liable  because  they  acted  in  good  faith.50 

43  Williams  v.   Inman,  1   Ga.  App.  and  directed;  Peckinbaugh  v.  Quillin, 

321.  12  Neb.  586,  where  he  directed  and 

"Foster  v.  Wiley,  27  Mich.  244,  15  participated;    Arnold  v.  Phillips,   59 

Am.   Rep.   185;    Newberry  v.  Lee,   3  111.  App.  213,  where  he  assisted;   Mc- 

Hill  (N.  Y.),  523;  Barker  v.  Braham,  Dougald    v.    Dougherty,  12    Ga.    613, 

3  Wils.  368;   Bates  v.  Pilling,  6  B.  &  where  he  directed;   Hardy  v.  Keeler, 

C.  38.  56  111.  152,  where  the  attorney  sent 

45  See  Cooley  on  Torts,  Chap  22.  his  clerk;   Cook  v.  Hopper,  23  Mich. 

4«Cook   v.    Hopper,  23    Mich.  511;  511,   where  the   attorney   refused   to 

Ford  v.  Williams,  13  N.  Y.   577,   67  consent     that     property     unlawfully 

Am.  Dec.  83;    Dawson  v.  Buford,  70  seized  should  be  released.     Compare 

Iowa,  127;  Hargrave  v.  Le  Breton,  4  Rice  v.  Melendy,  41  Iowa,  395. 
Burr.  2423.  40  Welsh  v.  Cochran,  63  N.  Y.  181, 

«  Ford  v.  Williams,  supra;  Cook  v.  20  Am.  Rep.  519;  Averill  v.  Williams, 

Hopper,    supra;    Seaton   v.    Cordray,  4    Denio  (N.  Y.),  295,    47    Am.    Dec. 

Wright  (Ohio),  102;  Averill  v.  Will-  252;    Vanderbilt   v.  Richmond   Turn- 

iams,  1  Denio  (N.  Y.),  501;  Adams  v.  pike  Co.,  2  N.   Y.    479,  51    Am.  Dec. 

Freeman,  9  Johns.  (N.  Y.)  117;  Van-  315;    Freeman   v.    Rosher,  13    Q.    B. 

derbilt   v.    Richmond    Turnpike   Co.,  780;    Kirksey   v.   Jones,   7   Ala.   622; 

2  N.  Y.  479,  51  Am.  Dec.  315;   Baker  Pollock  v.  Gantt,  69  Ala.  373,  44  Am. 

v.  Secor,  51  Hun  (N.  Y.),  643.  Rep.  519. 

48  Smith    v.    Gayle,    58    Ala.    600,          eo  See  note  45,  ante. 
where    the    attorney    superintended 

1800 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [.§§    2223-222$ 

§  2223.  -  2.  b.  A  fortiori  will  the  attorney  be  liable  where 
he  causes,  directs  or  participates  in,  the  service  of  process,  whether  it 
be  valid  or  invalid,  without  the  instruction  or  knowledge  of  his  client, 
and  without  any  reasonable  or  probable  cause  for  so  doing,  but  simply 
to  gratify  some  malicious  purpose  of  his  own.51 

He  would  also  be  liable  with  his  client  where,  knowing  that  the  client 
was  acting  maliciously  and  without  probable  cause,  he  co-operated  with 
or  assisted  him  in  the  issuing  or  serving  of  process.52 

§  2224.  -  Liability  for  words  written  or  spoken.  —  An  attor- 
ney at  law,  according  to  the  rule  generally  prevailing  in  the  United 
States,  is  not  liable  to  third  persons  for  defamatory  words  used  by  him 
in  the  pleadings,  arguments,  and  other  proceedings  in  a  case  in  which 
he  is  employed,  no  matter  what  the  motive  with  which  they  were  used, 
provided  they  were  relevant  to  the  subject  matter  of  the  proceeding. 
To  this  extent  they  are  absolutely  privileged.53  This  privilege,  however, 
does  not  extend  to  defamatory  words,  though  used  in  the  course  of  the 
proceeding,  which  have  no  materiality  or  relevancy  to  the  subject 
in  hand,  and  which  the  attorney  merely  takes  advantage  of  the  oppor- 
tunity to  write  or  utter. 

§  2225.  Liability  for  money  received.  —  The  question  of  the  lia- 
bility of  an  agent  to  third  persons  for  money  received  has  been  fully 
considered  in  a  preceding  chapter.54  The  rules  there  considered  are 
usually  applicable  in  the  case  of  the  attorney,55  and  therefore  they  need 
not  be  repeated  here.  Many  of  the  cases  there  referred  to  will  be  seen 
to  have  involved  attorneys  at  law.56 


si  Burnap    v.    Marsh,    13    111.    535;  Mass.  316;    s.  c.  131  Mass.  70;   Hyde 

Stockley  v.  Hornidge,  8  Car.  &  P.  11;  v.  McCabe,  100  Mo.  412;  Youmans  v. 

Wood  v.  Weir,  5  B.  Mon.  (Ky.)   544;  Smith,  153  N.  Y.  214;   Marsh  v.  Ells- 

Warfield   v.   Campbell,   35   Ala.   349;  worth,  50  N.  Y.  309;  Dada  v.  Piper,  41 

Kirksey  v.  Jones,  7  Ala.  622.  Hun  (N.  Y.),  254;   Davis  v.  McNees, 

52  Burnap  v.  Marsh,  supra;  Peck  v.  8  Hump.  (Tenn.)  40. 
Chouteau,  91  Mo.   138,  60  Am.  Rep.          54  See  ante,  §  1430  et  seq. 
236.  55  See  Blizzard  v.  Brown,  152  Wis. 

KB  Carpenter  v.  Ashley,  148  Cal.  422,  160    (attorney   personally    liable   for 

7  Ann.  Cas.  601;   Hollis  v.  Meux,  69  money  wrongfully  received  and  paid 

Cal.  625,  58  Am.  Rep.  574;   Conley  v.  over  after  notice). 
Key,  98  Ga.  115;   Atlanta  News  Pub.          se  See,  e.  g.,  Smith  v.  Binder,  75  111. 

Co.  v.  Medlock,  123  Ga.  714,  3  L.  R.  492;  Langley  v.  Warner,  3  N.  Y.  327; 

A.  .(N.  S.)   1139;   McDavitt  v.  Boyer,  McDowell    v.    Napier,    14    Ga.    89; 

169  111.   475;    Maulsby  v.  Reifsnider,  Wright  v.  Aldrich,  60  N.  H.  161;  Met- 

69    Md.  143;   Hartung    v.    Shaw,  130  calf  v.  Denson,  63  Tenn.  565. 
Mich.  177;  McLaughlin  v.  Cowley,  127 

1801 


§§    2226,  2227]  THE  LAW  OF  AGENCY  [BOOK   V 


VII. 

//Mll/i     I'-) 

LIABILITY  OF  CLIENT  TO  THIRD  PERSON. 

§  2226.  In  contract. — The  question  of  the  personal  liability  of  the 
client  upon  contracts  which  his  attorney  has  attempted  to  make  for  him 
has  already  been  sufficiently  considered  in  an  earlier  section.67  It  has 
there  been  seen  that  the  attorney  at  law  has  by  virtue  of  his  retainer 
alone  power  to  bind  his  client  by  many  stipulations  respecting  matters 
of  procedure,  but  has  no  general  power  to  bind  him  by  contracts  as  his 
agent.  Authority  to  act  as  agent  in  such  cases  may  of  course  be  given, 
as  in  other  cases  of  agency,  or  its  lack  may  be  supplied  by  subsequent 
ratification. 

§  2227.  In  tort. — Several  aspects  of  the  client's  liability  in  tort 
have  already  been  considered.58  In  some  cases,  as  has  been  already 
seen,  the  client  may  be  held  liable  either  with  or  without  the  attorney, 
upon  the  ground  that  he  has  caused,  directed,  or  participated  in  wrong- 
ful arrests  or  seizures,  or  has  instituted  or  carried  on  malicious  prose- 
cutions, the  reason  of  his  liability  being  found  in  the  fact  that  these 
were  his  personal  and  direct  acts  and  not  acts  performed  by  his  servant 
or  agent.  The  client  is  not  ordinarily  liable  for  the  unlawful  acts  of  the 
sheriff  which  the  client  has  neither  directed  nor  participated  in,  because 
the  sheriff  ordinarily  acts  as  a  public  officer,  and  not  as  the  servant  or 
agent  of  the  client.69  With  respect  to  the  attorney,  however,  the  case 
is  often  otherwise.  In  many  instances  the  attorney  acts  as  agent  for 
his  client  in  directing  proceedings  in  the  cause,  and  the  client  may  be 
liable  upon  the  ordinary  doctrines  of  agency  for  acts  of  the  attorney  in 
which  the  client  did  not  participate  and  which  he  has  never  authorized 
nor  directed.  Thus  it  is  said  by  the  Court  of  Appeals  in  New  York  :60 
"A  party  is  bound  by  the  acts  of  his  attorney  although  he  does  not  give 
immediate  direction  as  to  the  proceedings  in  an  action  or  is  not  with  him 
at  its  successive  stages.  If  he  sets  the  attorney  in  motion  he  becomes 
liable  as  the  cause  progresses,  and,  if  the  result  is  in  his  favor,  is  re- 
sponsible for  the  methods  resorted  to  for  the  enforcement  of  the  judg- 
ment." In  another  case  in  the  same  court  it  is  said  :01  "When  a  demand 

"  See  ante,  §  2170.  Fischer    v.    Hetherington,  11    N.    Y. 

88  Ante,  §  2221.  Misc.  575. 

B»  Shaw  v.  Rowland,  32  Kan.  154;  «°  Guilleaume   v.    Rowe,    94    N.   Y. 

Corner   v.   Mackintosh,    48   Md.    374;       268,  46  Am.  Rep.  141. 
Peterson    v.     Foli,     67     Iowa,     402;         ei  Poucher   V.   Blanchard,    86   N.   Y. 

256. 
1802 


CHAP.    l] 


[§    2227 


is  placed  in  the  hands  of  an  attorney  for  collection  by  some  legal  pro- 
ceeding, he  may  determine  what  proceeding  he  will  take ;  whether  he 
will  simply  commence  an  action,  and  what  the  nature  of  the  action  shall 
be,  whether  at  law  or  in  equity,  or  ex  delicto,  or  ex  contra  ctu;  and 
whether  he  will  obtain  an  attachment  or  an  order  of  arrest.  If,  in  mak- 
ing such  determination,  or  if,  in  the  conduct  of  the  action  or  proceed- 
ing, he  makes  a  mistake  and  commits  a  trespass,  acting  within  the  scope 
of  his  authority  in  his  effort  to  collect  the  demand,  his  client  may  be 
held  responsible  for  his  acts  to  the  party  injured." 

In  accordance  with  this  doctrine  the  client  has  been  held  liable  in 
many  cases  for  unjustifiable  prosecutions,  seizures  of  goods,  or  arrests 
of  the  person  caused  by  the  negligence  or  mistake  of  the  attorney  in 
the  prosecution  of  the  action  which  he  was  employed  to  conduct.82 


;>  nr, 

02  In  Caswell  v.  Cross,  120  Mass. 
545,  the  client  who  had  given  general 
instructions  to  collect  to  a  collecting 
firm  which  advertised  that  they  were 
ready  to  "take  most  energetic  steps 
to  compel  reluctant  and  dilatory 
debtors  to  settle,"  and  that  they  were 
ready  to  take  his  instructions 
whether  to  treat  his  debtors  "with 
delicacy  so  as  not  to  offend  them  or 
with  such  severity  as  to  show  that 
no  trifling  is  intended,"  was  held  lia- 
ble for  false  imprisonment  where  the 
attorneys  had  caused  the  debtor  to  be 
arrested  upon  a  judgment  not  great 
enough  in  amount  to  justify  arrest 
under  the  statute. 

In  Guilleaume  v.  Rowe,  supra,  the 
client  was  said  to  be  liable  for  the 
arrest  of  the  debtor  upon  an  execu- 
tion which  the  law  did  not  justify, 
though  there  was  also  evidence  in  the 
case  tending  to  show  acquiescence  by 
the  client. 

In  Howell  v.  Caryl,  50  Mo.  App. 
440,  the  defendant  sent  an  attorney 
a  note  for  collection  by  suit.  The 
attorney  obtained  judgment  and  di- 
rected a  levy  on  property  previously 
mortgaged  by  the  debtor  to  the  pres- 
ent plaintiff.  Held,  that  the  defend- 
ant is  liable  for  the  directions  of  the 
attorney. 

Where  the  attorney,  in  an  action 
to  recover  goods,  indorsed  on  the  af- 


fidavit a  direction  to  take  the  specific 
goods  therein  described,  which  were 
in  fact  not  subject  to  the  writ,  the 
client  was  held  liable.  Feury  v.  Mc- 
Cormick  Har.  Mach.  Co.,  6  S.  Dak. 
396. 

In  Foster  v.  Pitts,  63  Ark.  387,  the 
attorney  was  given  a  claim  to  collect, 
with  the  instruction:  "In  case  of  any 
danger  protect  us,"  the  attorney 
without  further  instructions  sued  out 
an  attachment  without  justification. 
Held,  that  the  client  was  liable  for 
compensatory  damages,  but  not  for 
punitive  damages.  In  many  states 
the  client  would  be  liable  for  puni- 
tive damages  also. 

On  the  other  hand  in  Moore  v. 
Cohen,  128  N.  Car.  345,  an  attorney 
to  whom  a  claim  had  been  sent  for 
collection,  with  no  specific  directions 
as  to  the  manner,  had  the  debtor  ar- 
rested. Held,  on  the  authority  of 
Cooley  on  Torts,  above  referred  to, 
that  the  client  was  not  liable. 

In  West  v.  Messick  Grocery  Co., 
138  N.  Car.  166,  defendant  instructed 
his  attorney  to  bring  action  to  attach 
plaintiff's  goods.  The  attorney  had 
plaintiff  arrested.  Held,  defendant 
not  liable. 

In  Fire  Association  of  Philadel- 
phia v.  Fleming,  78  Ga,  733,  the  court 
said:  "Directions  of  an  attorney  to 
stop  a  witness  about  to  leave  the  city 


1803 


§    2228] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2228.  '  Granting  the  agency  of  the  attorney,  it  of  course 

does  not  follow  here,  any  more  than  in  other  cases  of  agency,  that  the 
client  is  responsible  for  everything  which  the  attorney  may  undertake 
to  do  in  the  conduct  of  the  case.  As  in  other  cases  of  agency,  the  act 
must  be  "within  the  scope  of  the  authority,"  or  "done  in  the  course  of 
the  employment."  A  rule  which  has  been  widely  quoted  is  that  the 
client  "is  not  responsible  for  any  illegal  action  taken  or  directed  by  the 
attorney  which  the  client  did  not  advise,  consent  to  or  participate  in, 
and  which  was  not  justified  by  any  authority  he  had  given."03  Under 
this  rule,  however,  the 'crucial  point  is  found  in  the  last  clause,  and  the 
difficult  question  still  remains,  what  acts  are  so  justified?  It  is  some- 
times said  that  the  client  contemplates  and  Authorizes  the  use  of  lawful 
methods  only,6*  and  is  therefore  not  responsible  for  the  attorney's  il- 


do  not  justify  an  arrest,  and  such  ac- 
tion, if  had,  was  not  in  the  line  of 
duty  of  such  servant  or  attorney  so 
as  to  bind  his  client." 

In  Graham  v.  Reno,  5  Colo.  App. 
330,  it  is  said  that  the  rule  seems  to 
be  that  the  client  is  not  liable  for  the 
wrongful  act  of  the  attorney  in  di- 
recting a  writ  against  A  to  be  served 
on  the  property  of  B. 

Many  of  these  cases  are  believed 
not  to  be  in  harmony  with  the  gen- 
eral rules  now  prevailing  with  re- 
spect to  the  liability  of  a  principal 
for  the  acts  of  his  agent.  Several  of 
them  rely  upon  a  rule  laid,  down  in 
Cooley  on  Torts  (2  ed.),  pp.  148,  *129, 
which  probably  does  not  justify  the 
conclusions  drawn.  Fergusons  v. 
Terry,  40  Ky.  (1  B.  Mon.)  96,  is  often 
cited,  but  this  case  if  properly  re- 
ported is  not  in  harmony  with  the 
modern  rules  respecting  the  liability 
of  the  master  for  the  torts  of  his  serv- 
ant. Wallace  v.  Finberg,  46  Tex.  35, 
is  also  cited.  So  far  as  that  case 
turns  upon  the  .malicious  use  of 
process,  it  is  at  least  questionable 
whether  the  case  is  in  accord  with 
the  rules  now  generally  prevailing 
respecting  the  liability  of  the  master 
for  the  malicious  acts  of  his  servant. 
As  to  this  see  ante,  §  1926,  et  sequitur. 

As  has  been  stated  in  an  earlier 
section,  it  is  held  in  New  York  that 
it  is  not  within  the  implied  power  of 


an  attorney  to  direct  the  seizure  of 
specific  property.  Averill  v.  Wfll- 
iams,  4  Denio  (N.  Y.),  295,  47  Am. 
Dec.  252;  Welsh  v.  Cochran,  63  N.  Y. 
181,  20  Am.  Rep.  519 ;  Oestrich  v.  Gil- 
bert, 9  Hun  (N.  Y.),  242;  Wiegmann 
v.  Morimura,  12  N.  Y.  Misc.  37; 
Fisher  v.  Hetherington,  11  N.  Y.  Misc. 
575;  Hamel  v.  Brooklyn  Heights  R. 
R.  Co.,  59  N.  Y.  App.  Div.  135. 

Contra:  Vaughn  v.  Fisher,  32  Mo. 
App.  29;  Howell  v.  Caryl,  50  Mo.  App. 
440;  Morgan  v.  Joyce,  66  N.  H.  538; 
Feury  v.  McCormick  Har.  Co.,  6  S.  D. 
396;  Parker  v.  Bldg.  &  Loan  Ass'n, 
114  Ga.  702. 

In  England  the  client  is  bound  by 
the  attorney's  indorsement  on  the 
writ.  Morris  v.  Salberg,  22  Q.  B.  D. 
614;  but  not  by  oral  directions. 
Smith  v.  Keal,  9  Q.  B.  D.  340. 

ea  Cooley  on  Torts  (2  Ed.),  pp.  148, 
*129. 

64  Thus  in  Hamel  v.  Brooklyn 
Heights  Co.,  59  N.  Y.  App.  Div.  135, 
it  is  said:  "The  authority  of  the  at- 
torney under  the  retainer  is  only  to 
do  lawful  acts."  Citing  Averill  v. 
Williams,  1  Denio  (N.  Y.),  501,  504, 
and  Welsh  v.  Cochran,  63  N.  Y.  181, 
20  Am.  Rep.  519.  The  conclusion  in 
the  latter  case  is,  as  has  been  seen 
in  the  note  to  the  preceding  section, 
not  unquestionable  and  the  contrary 
result  has  been  reached  in  several 
cases. 


1804 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§§    2229,  223Q 

legal  acts.  If  what  is  meant  by  "illegal"  is  that  the  act  could  under  no 
circumstances  be  justified  by  such  an  employment,  the  rule  is  undoubt- 
edly sound ;  but  if  what  is  meant  by  illegal  is  merely  that  the  attorney,, 
through  ignorance  or  neglect,  has  taken  a  step  which  cannot  lawfully 
be  justified  in  that  case  upon  the  showing  made,  or  which  is  taken  pre- 
maturely, or  which  is  not  available  because  of  the  amount  involved,  or 
which  is  taken  in  the  wrong  jurisdiction,  and  the  like,  the  rule  is  not 
sound  in  view  of  the  general  principles  of  agency  now  prevailing. 

VIII. 

LIABILITY  OF  CLIENT  TO  ATTORNEY. 

I.  Attorney's  right  to  Reimbursement  and  Indemnity. 

§  2229.  Attorney  entitled  to  reimbursement  and  indemnity. — Like 
other  agents,  the  attorney  is  entitled  to  be  reimbursed  by  his  client  for 
costs,  charges  and  expenses  which  the  attorney  has  fairly  and  in  good 
faith  incurred  in  the  prosecution  of  his  client's  business,  and  which 
were  not  rendered  necessary  by  the  attorney's  own  negligence  or  de- 
fault, or  which  were  not  incurred  in  violation  of  the  express  instruc- 
tions of  his  client,65  and  which  were  not  covered  by  any  agreement  as 
to  compensation.68  So  if  the  attorney  for  his  client's  benefit  and  within* 
the  scope  of  his  authority,  has  incurred  a  contingent  liability,  as  by  in- 
demnifying an  officer  from  the  consequences  of  levying  the  client's  pro- 
cess, and  has  satisfied  such  liability  or  sustained  a  loss  thereby,  he  is 
entitled  to  be  idemnified  by  his  client.67 

2.  Attorney's  right  to  Compensation. 
a.  In  general. 

§  2230.  Attorney  entitled  to  compensation. — An  attorney  at  law 
is  prima  facie  entitled  to  compensation  for  the  services  which  he  renders 
at  the  request  of  his  client.  He  may  specially  agree  that  he  will  serve 
gratuitously,68  or  that  he  will  make  no  charge  unless  successful,  or  un- 

65  Clark  v.  Randall,  9  Wis.  135,  76  don,  75  Wis.  8,  where  disbursements 

Am.   Dec.   252;    Campion   v.  King,   6  were    not    allowed    because    it    was 

Jur.  35;   Sibley  v.  Rice,  58  Neb.  785.  found  that  the  agreed  compensation 

As  to  the  distinction  between  costs  was  to  cover  the  attorney's  expenses, 

and  disbursements,  see  Durham  Fer-  67  Clark  v.  Randall,  supra. 

tilizer  Co.  v.  Glenn,  48  S.  Car.  494.  es  Lilly  v.  Pryse    (Ky.),  54   S.  W. 

No  reimbursement  where  attorney  961;    Martin    v.    Campbell,    11    Ricb. 

was  at  fault  or  exceeded  his  author-  Eq.    (S.    Car.)    205.     See    Brown    v_ 

Ity.    Hughes  v.  Zeigler,  69  111.  38.  Remington,    90    Hun    (N.    Y.),    214, 

8«  See  Hooker  v.  Village  of  Bran-  where  there  was  evidence  that  the  at- 

1805 


THE  LAW  OF  AGENCY 


[BOOK   V 


less  his  services  are  satisfactory  to  his  client;  and  such  agreements, 
when  fairly  made,  will  be  enforced.  But  when  an  attorney  is  employed 
to  render  services  in  the  course  of  his  profession,  the  presumption  is  that 
the  party  who  employs  him  expected  to  pay  him,69  and  if  such  is  not  the 
case  the  burden  of  proving  it  is  upon  the  client.70 

The  fact  that  the  attorney  was  mayor  of  the  city  for  which  the  serv- 
ices were  rendered ; 71  or  was  a  stockholder  in  the  corporation  which 


torney  undertook  to  serve  gratui- 
tously, unless  the  client,  after  the 
service  was  rendered,  should  see  fit 
to  make  him  a  present.  Cicotte  v. 
St.  Anne's  Church,  60  Mich.  552, 
where  the  jury  found  that  a  lawyer 
who  was  a  trustee  of  a  church  for 
which  he  had  rendered  legal. services 
did  so  without  expecting  to  be  paid. 

Compare  Tiffany  v.  Morgan  (R.  I.), 
73  Atl.  465,  where  there  was  an  un- 
successful attempt  to  show  that  the 
attorney  was  to  perform  the  service 
for  the  sake  of  the  practice  and  the 
prominence  the  case  would  give  him. 
A  substantially  similar  claim  was 
made  in  Gorrell  v.  Payson,  170  111.  213. 

See  also,  Fraser  v.  Haggerty,  86 
Mich.  521,  where  the  client  contended 
that  there  was  an  express  under- 
standing that  the  attorney  was  to 
make  no  charge  for  certain  services 
and  testified  that  the  attorney  de- 
clared he  .was  acting  simply  as  a  mat- 
ter of  courtesy  for  the  attorney  of 
record  and  did  not  expect  to  be  paid. 
Walsh  v.  School  Board,  17  Mont.  413, 
where  it  was  held  that  the  attorney 
was  bound  by  the  understanding  as 
to  the  basis  upon  which  he  was  ren- 
dering the  services. 

Where  a  firm  of  attorneys,  one  of 
whom  was  to  be  and  did  become  a 
stockholder  and  director  in  a  pro- 
posed corporation,  gave  advice  and 
rendered  services  in  preparation  of 
the  papers  for  the  organization  of 
such  corporation,  it  was  held  that  the 
lower  court  was  justified  in  finding 
that  it  was  not  contemplated  that  he 
should  be  paid  by  the  other  incor- 
porators,  who  were  no  more  inter- 
ested than  he  was  in  the  success  of 


the  enterprise.  Humphreys  v.  Jacoby, 
41  Minn.  226. 

Where  plaintiff,  who  was  an  attor- 
ney, and  defendant  were  jointly  sued 
for  false  imprisonment  and  defend- 
ants employed  another  attorney  to 
plaintiff's  knowledge,  to  look  after 
his  interests,  there  is  no  implied  ob- 
litigation  on  defendant  to  pay  the 
plaintiff  for  the  common  defense,  al- 
though the  plaintiff  did  all  the  work 
and  the  defendant  had  the  benefit  of 
it.  Muscott  v.  Stubbs,  24  Kan.  520. 

One  member  of  a  mercantile  firm, 
who  is  also  a  lawyer,  has  no  implied 
claim  to  payment  for  services  ren- 
dered by  him  in  collecting  accounts 
due  the  firm.  The  legal 'presumption 
is  that  he  did  it  as  partner.  If  it 
were  necessary  to  bring  suit  and  he 
acted  therein  as  an  attorney  at  law, 
a  fee  might  perhaps  be  recovered. 
Vanduzer  v.  McMillan,  37  Ga.  299. 

69  Hallett  v.  Oakes,  1  Cush.  (Mass.) 
296;  Webb  v.  Browning,  14  Mo.  354; 
Smith  v.  Davis,  45  N.  H.  566;  Vilas 
v.  Downer,  21  Vt.  419. 

In  New  Jersey  the  attorney  is  not 
entitled  to  compensation  in  the  ab- 
sence of  an  express  agreement  to  pay. 
Bentley  v.  Fidelity  Co.,  75  N.  J.  L. 
828,  127  Am.  St.  Rep.  837,  15  Ann. 
Cas.  1178;  Zabriskie  v.  Woodruff,  48 
N.  J.  L.  610;  Hopper  v.  Ludlum,  41 
N.  J.  L.  182;  Schomp  v.  Schenck,  40 
N.  J.  L.  195,  29  Am.  Rep.  219. 

This  rule  only  applies  to  counsel 
fees  for  advocacy.  Strong  v.  Mundy, 
52  N.  J.  Eq.  833. 

TO  Brady  v.  Mayor,  1  Sandf.  (N.  Y.) 
569. 

71  Niles  v.  Muzzy,  33  Mich.  61,  20 
Am.  Rep.  670. 


1806 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2230 


employed  him ; 72  or  was  also  employed  to  negotiate  loans  for  the  in- 
surance company  for  which  he  rendered  other  professional  services , n 
will  not  defeat  his  right  to  compensation. 

The  mere  fact  that  the  alleged  client  received  the  benefit  of  the  serv- 
ice is  not  enough  to  make  him  liable,  but  the  service  must  have  been, 
rendered  on  his  account  and  at  his  express  or  implied  request.74  Al- 


In  Hooker  v.  Village  of  Brandon, 
75  Wis.  8,  it  was  said: 

"The  mere  fact  that  the  president 
of  the  village  knew  that  the  plaintiffs 
were  preparing  to  take  an  appeal 
from  the  judgment  rendered  against 
the  village  does  not,  standing  alone, 
amount  to  a  consent  by  the  proper  au- 
thorities of  the  village,  that  the  plain- 
tiffs should  act  for  the  village  in  pre- 
paring to  take  such  appeal." 

72  Reynolds  v.  McMillan,  63  111.  46. 
See  Ward    v.    Craig,  87    N.    Y/550; 
Barker  v.  Cairo,  3  Thomp.  &  C.    (N. 
Y.  Supreme  Ct.)  328. 

73  Insurance  Co.  v.  Buchanan,  100 
Ind.  63. 

74  In  Rives  v.  Patty,  74  Miss.  381, 
60  Am.  St.  Rep.  510,  it  is  said:  "The 
relation  of  attorney  and  client  is  cre- 
ated   by    contract,  and    we    are    not 
aware  of    any    principle    of    law  or 
equity  which  would  justify  the  im- 
position of  attorneys'  fees  upon  liti- 
gants who  have  not  assumed  liability 
therefor,    either    because    they    have 
other  counsel  of  their  own  selection, 
or  because  they  have  elected  to  em- 
ploy no  counsel,  and  take  the  chances 
of  success  in  the  courts  without  rep- 
resentation of  lawyers.    It  appears  to 
us  that  it  would  be  a  dangerous  prece- 
dent   for    litigants,    however    advan- 
tageous to  lawyers,  if  we  should  hold 
that   counsel  may  intervene  to  pro- 
tect   the    interests    of    persons    who 
have  not  signified  any  desire  for  the 
services  of  counsel,  and,  upon  success 
crowning  the  efforts  of  such  counsel, 
impose  liability  upon  the  unwilling 
litigants  to  pay  attorneys'  fees."     In 
Paul  v.  Wilbur,   189  Mass.  48,  it  is 
said:  "To  render  such  party  liable  as 
a  debtor  under  an  implied  promise, 


it  must  be  shown,  not  only  that  the 
services  were  valuable,  but  also  that 
they  were  rendered  under  such  cir- 
cumstances as  to  raise  the  fair  pre- 
sumption that  the  parties  intended 
and  understood  that  they  were  to  be 
paid  for;  or,  at  least,  that  the  cir- 
cumstances were  such  that  a  reason- 
able man  in  the  same  situation  with 
the  person  who  receives  and  is  bene- 
fited by  them  would  and  ought  to  un- 
derstand that  compensation  was  to  be 
paid  for  them." 

To  same  effect:  Chicago,  etc.,  R.  R. 
v.  Lamed,  26  111.  218;  Tascott  v. 
Grace,  12  111.  App.  639;  Forman  v. 
Sewerage,  etc.,  Board  of  New  Or- 
leans, 119  La.  49,  12  Ann.  Gas.  773; 
Dreifus  v.  Colonial  Bank,  127  La. 
1086;  In  re  McPherson's  Estate,  129 
La.  182;  Cleveland,  etc.,  Ry.  Co.  v. 
Shrum,  24  Ind.  App.  96;  Safford  v. 
Vermont  &  C.  R.  Co.,  60  Vt.  185;  Ir- 
vin  v.  Strother,  163  Ala.  484;  Estate 
of  Cole,  102  Wis.  1,  72  Am.  St.  Rep. 
854;  Wailes  v.  Brown,  27  La.  Ann.  411; 
Seeley  v.  North,  16  Conn.  92;  Muscott 
v.  Stubbs,  24  Kan.  520;  Chicago,  etc, 
v.  Larned,  26  111.  218;  Duckwall  v. 
Williams,  29  Ind.  App.  650;  White  v. 
Esch,  78  Minn.  264. 

The  employment  need  not  be  by  the 
client  in  person,  it  may  be  by  an 
agent,  provided  the  agent  has  author- 
ity to  do  it.  See  Cecil  v.  Clark,  69 
W.  Va.  641.  As  has  already  been 
seen,  an  attorney  at  law  has  ordina- 
rily no  implied  authority  to  delegate 
his  powers  or  employ  counsel  or 
other  attorneys  on  his  client's  behalf. 
See  ante,  §§  2164  et  seq. 

The  mere  fact  that  all  the  creditors 
of  an  estate  get  the  benefit  of  serv- 
ices rendered  by  an  attorney  en> 


1807 


§§  2231,2232] 


THE  LAW  OF  AGENCY 


[BOOK   V 


though  the  contract  was  not  originally  made  with  his  authority,  the 
client  may  by  subsequent  ratification  or  adoption  make  it  his  own  and 
become  liable  to  pay.75 

An  attorney  who  has  no  legal  right  to  practice,  as  where  he  is  not 
licensed,78  or  acts  in  violation  of  a  statute  forbidding  judges  to  prac- 
tice in  their  own  courts,77  and  the  like,  cannot  recover  compensation. 

§  2231.  Attorney  may  sue  for  compensation. — Attorneys  at  law  of 
all  grades  in  the  United  States,  though  a  different  rule  at  one  time  pre- 
vailed, may  maintain  an  action  at  law  to  recover  their  compensation.78 

b.  Amount  of  Compensation. 

§  2232.  In  general. — It  having  been  determined  in  any  given  case 
the  attorney  is  entitled  to  compensation,  the  next  question  will  be  as 
to  the  amount.  This  question  may  arise,  (i)  where  the  parties  have 
attempted  to  fix  the  amount  by  express  agreement,  and  (2)  where  no 
such  agreement  was  made.  Each  form  will  be  separately  considered. 


ployed  by  part  of  them  only  does  not 
of  itself  make  the  creditors  who  did 
not  employ  him  liable.  Rives  v. 
Patty,  74  Miss.  381,  60  Am.  St.  510. 

A  client  who  employs  an  attorney 
to  prosecute  a  case  and  pay  expenses 
for  a  contingent  fee  is  not  liable  to 
another  lawyer  employed  by  the  at- 
torney to  assist  him.  Evans  v.  Mohr, 
153  111.  561. 

A  creditor  employing  a  collection 
agency  to  collect  a  claim  is  not  liable 
to  an  attorney  hired  by  such  agency: 
Mussey  v.  Vanstone,  82  Mo.  App.  353. 

Where  a  foreign  corporation  as- 
signs a  claim  to  one  of  its  officers  to 
enable  him  to  sue  upon  it,  he  has  im- 
plied authority  to  employ  an  attorney 
on  the  account  of  the  corporation. 
Simon  v.  Sheridan  &  Shea  Co.,  21 
Misc.  (N.  Y.)  489. 

Where  an  agent  refuses  to  take  out 
a  license  to  carry  on  the  principals 
business  in  the  state  to  make  a  test 
case  and  is  indicted,  the  principal, 
who  has  not  authorized  it  or  prom- 
teed  to  pay  for  it,  is  not  liable  to  an 
attorney  employed  by  the  agent  to 
defend  himself.  Bush  v.  Southern 
Brew.  Co.,  69  Miss.  200. 

«  See  International,  etc.,  R.  R.  Co. 


v.  Clark,  81  Tex.  48;  Abel  v.  Hansen, 
62  Wash.  492. 

76McIver  v.  Clarke,  69  Miss.  408; 
Sellers  v.  Phillips,  37  111.  App.  74; 
Hughes  v.  Dougherty,  62  111.  App. 
464;  Browne  v.  Phelps,  211  Mass.  376 
(one  member  of  firm  not  entitled  to 
practice) . 

"Evans  v.  Funk,  151  111.  650. 

78  This  rule  prevails  in  practically 
all  the  states.  Stanton  v.  Embrey,  93 
U.  S.  548,  23  L.  Ed.  983;  Wylie  v. 
Coxe,  15  How.  (U.  S.)  415,  14  L.  Ed. 
753;  Mowat  v.  Brown,  19  Fed.  87; 
Hazeltine  v.  Brockway,  26  Colo.  291; 
Stevens  v.  Monges,  1  Harr.  (Del.) 
127;  Miller  v.  Beal,  26  Ind.  234;  Mc- 
Bratney  v.  Chandler,  22  Kan.  692,  31 
Am.  Rep.  213;  Morrison  v.  Flournoy, 
23  La.  Ann.  593;  Eggleston  v.  Board- 
man,  37  Mich.  14;  Webb  v.  Browning, 
14  Mo.  354;  Smith  v.  Davis,  45  N.  H. 
566;  Stevens  v.  Adams,  23  Wend. 
(N.  Y.)  57;  Spencer  v.  Busch,  50 
Misc.  (N.  Y.)  284;  Foster  v.  Jack,  4 
Watts  (Pa.),  334;  Goldthwaite  v. 
Dent,  3  McCord  (S.  Car.),  296; 
Nichols  v.  Scott,  12  Vt.  47. 

As  to  the  rule  in  New  Jersey,  see 
§  2230,  n.  69. 


1808 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§§    2233,2234 


1.  Where  there  was  a  special  contract. 

§  2233.  Parties  may  agree  upon  amount  of  compensation. — It  is 
entirely  competent  for  the  parties  to  agree,  at  the  time  of  the  employ- 
ment of  the  attorney,  not  only  upon  the  amount  of  his  compensation, 
but  also  as  to  the  time,  manner  and  medium  of  its  payment,  and  such 
an  agreement  is  highly  desirable,  both  to  the  client  and  the  attorney,  as 
obviating  many  of  the  unpleasant  and  unseemly  controversies  which 
sometimes  occur  when  the  amount  is  left  unfixed  until  the  termination 
of  the  employment. 

§  2234.  Where  such  a  contract  is  fairly  made  it  is  conclu- 
sive upon  both  parties,  unless  its  provisions  have  been  waived  ;79 
(if  it  be  not  illegal  or  opposed  to  public  policy  within  the  general  rules 
already  fully  considered  in  an  earlier  chapter),  and  the. attorney  can- 
not ordinarily  recover  more  nor  is  he  usually  required  to  accept  less, 
than  the  amount  so  stipulated  for  the  services  covered  by  the  contract. 
The  fact  that  performance  involved  more  or  less  time  and  labor  than 
was  originally  expected,  would  ordinarily  be  immaterial.80  In  the  face 


"  Stanton  v.  Embrey,  93  U.  S.  548, 
23  L.  Ed.  983;  Planters'  Bank  v. 
Hornberger,  4  Cold.  (Tenn.)  531; 
Bright  v.  Taylor,  4  Sneed.  (Tenn.) 
159;  Tapley  v.  Coffin,  12  Gray 
(Mass.),  420;  Yates  v.  Robertson,  80 
Va.  475;  Badger  v.  Gallagher,  113  111. 
662;  Ripley  v.  Bull,  19  Conn.  53; 
Walker  v.  Clay,  21  Ala.  797;  Allard 
v.  Lamirande,  29  Wis.  502;  Hitchings 
v.  VanBrunt,  38  N.  Y.  335;  Broadman 
v.  Thompson,  25  Iowa,  487;  Lindsay 
Co.  v.  Carpenter,  90  Iowa,  529;  Schul- 
theis  v.  Nash,  27  Wash.  250;  Etzel  v. 
Duncan,  112  Md.  346;  Andirac  v. 
Richardson,  125  La.  883. 

Parties  may  agree  simply  that  the 
compensation  shall  not  be  more  than 
a  certain  sum,  leaving  the  amount 
within  that  limit  to  be  fixed  in  the 
ordinary  way.  Russell  v.  Young,  36 
C.  C.  A.  17,  94  Fed.  45. 

An  ambiguous  contract  drawn  by 
the  attorney  himself  will  be  most 
strongly  construed  against  him. 
Hawke  v.  Dorf,  148  N.  Y.  App.  Div. 
326;  Samuels  v.  Simpson,  144  N.  Y. 
App.  Div.  466. 

Contracts  opposed  to  public  policy. 
— The  general  question  of  the  valid- 


ity of  contracts  for  services  opposed 
to  public  policy,  like  those  to  encour- 
age crime,  stifle  prosecutions,  prevent 
indictment,  stimulate  perjury,  and 
the  like,  has  already  been  sufficiently 
considered  in  Book  I,  Chapter  III. 
See  also,  for  illustrations,  Bowman 
v.  Phillips,  41  Kan.  364,  36  Am.  St. 
Rep.  292,  3  L.  R.  A.  631,  with  elab- 
orate notes  in  both,  (contracts  to  de- 
fend liquor  dealers  for  future  viola- 
tions) :  Weber  v.  Shay,  56  Ohio  St. 
116,  37  L.  R.  A.  230  (contract  to  pre- 
vent indictment). 

Contracts  for  more  than  statutory 
rates,  as  in  pension  cases  (whether 
one  be  a  regular  pension  attorney  or 
not),  fall  within  the  same  category. 
See  Caverly  v.  Robbins,  149  Mass.  16, 
2  L.  R.  A.  745.  :,y  .' 

so  Where  the  amount  of  the  com- 
pensation has  been  fairly  fixed,  the 
contract  must  govern,  although  the 
case  requires  more  work  than  was 
contemplated.  Nathan  v.  Halsell,  91 
Miss.  785;  or  though  it  is  found  that 
the  attorney  made  a  bad  bargain  for 
himself.  Reynolds  v.  Sorosis  Fruit 
Co.,  133  Cal.  625. 

To  the  same   effect:    Schaffner  v. 


114 


1809 


§  2235] 


THE    LAW    OF    AGENCY 


[BOOK  v 


of  such  a  contract  evidence  of  the  reasonable  value  of  the  service  ren- 
dered would  ordinarily  be  irrelevant.81 

§  2235.  Extra    compensation. — While    the    contract    sum 

thus  covers  all  services  which  properly  fall  within  it,82  there  may  be  a 
right  to  additional  compensation  for  extra  services ;  though  from  the 
situation  of  the  parties  it  is  obviously  necessary  that  such  claims  be 
closely  scrutinized,  and  that  extra  compensation  be  allowed  only  where 
there  is  a  clear  understanding  as  to  the  facts.83  Where  lawful  condi- 
tions have  been  imposed  by  the  agreement,  it  is  incumbent  upon  the 

attorney  to  show,  either  that  he  had  fully  performed  the  contract  ac- 
o  r.i  ji  dliEcn  vinfii  21  ?3E~i?fic}  B  rouci  sisffivv       ••  .££ss  g 

1  8ei»f nt;    ,!>9MTj;q    (Ijotf   noun  ,  avie 
peal,  that  would  usually  be  enough. 
See  St.  Louis,  etc.,  Ry.  Co.  v.  Clark, 

2  C.  C.  A.  331,  51  Fed.  483. 

82  No  extra  compensation  can  be 
had  for  any  service  fairly  falling 
within  the  scope  of  the  services  un- 
dertaken for  a  fixed  fee,  e.  g.,  con- 
testing a  counterclaim  interposed. 
Lindsay  Co.  v.  Carpenter,  90  Iowa, 
529;  Payne  v.  Davis  County,  150 
Iowa,  597;  or  an  amended  petition, 
McKay  v.  Lancaster,  15  Ky.  L.  Rep'r, 
159;  or  dissolving  an  injunction 
which  had  to  be  done  before  the  at- 
torney could  proceed  to  do  what  he 
had  agreed  to  do.  Darrin  v.  Clay,  143 
N.  Y.  App.  Div.  937. 

ss  See  Isham  v.  Parker,  3  Wash. 
755  (allowed);  Waterbury  v.  Laredo. 
68  Tex.  565  (disallowed) ;  Bartlett  v. 
Odd  Fellows  Sav.  Bank,  79  Cal.  218, 
12  Am.  St.  R.  139  (allowed) ;  Lindsay 
Co.  v.  Carpenter,  90  Iowa,  529  (dis- 
allowed) ;  Willard  v.  Pittsburg,  etc., 
R.  Co.,  155  111.  App.  410  (disallowed). 

Aditional  compensation  allowed 
on  the  ground  that  there  had  been  a 
practical  abandonment  of  the  first 
contract  and  the  making  of  a  new 
one,  where  what  was  supposed  to  be 
a  friendly  suit  proved  to  be  a  hostile 
one,  and  client  then  said  to  go  ahead 
and  fight  it.  Tong  v.  Orr,  44  Ind. 
App.  681.  Also  allowed  for  expense 
of  looking  up  testimony  where  client 
was  taken  ill  and  could  not  do  it. 
Forbes  v.  Chicago,  etc.,  Ry.  Co.,  150 
Iowa,  177.  Same  effect:  Barcus  v. 
Gates,  130  Fed.  364. 


Kober,  2  Ind.  App.  409 ;  Heilberger  v. 
Worthington,  23  App.  D.  C.  5C5 :  In  re 
Rapp's  Estate,.  77  Neb.  674;  Mcllvoy 
v.  Russell  (Ky.),  24  S.  W.  3;  Murray 
v.  Trumbull,  62  Wash.  336. 

The  same  is  true  if  less  labor  and 
trouble  were  required  than  was  an- 
ticipated. Browder  v.  Long,  23  Ky.  L. 
Rep.  2068;  Codres  v.  Bailey,  39  Ind. 
App.  83;  Murray  v.  Waring,  etc., 
Mfg.  Co.,  142  N.  Y.  App.  Div.  514. 

si  Heiberger  v.  Worthington.  surpa: 
Matter  of  Dept.  of  Works,  167  N.  Y. 
501;  Fuller  v.  Stevens  (Ala.),  39  So. 
623;  Marston  v.  Baerenklau,  13  N.  Y. 
Misc.  13. 

The  fact  that  the  agreed  compensa- 
tion is  very  much  more  than  would 
otherwise  have  been  deemed  reason- 
able is  immaterial,  if  the  parties  have 
fairly  agreed  upon  it.  Ransom  v. 
Ransom,  147  N.  Y.  App.  Div.  835; 
Werner  v.  Knowlton,  107  N.  Y.  App. 
Div.  158;  Morehouse  v.  Brooklyn 
Heights  R.  Co.,  185  N.  Y.  520,  7  Ann. 
Gas.  377;  McCoy  v.  Gas  Engine  Co., 
71  Misc.  537. 

Where  the  attorney  was  to  receive 
as  compensation  part  of  a  claim,  to 
which  the  client  said  there  was  no 
defense,  when  he  knew  there  was  and 
the  attorney  found  this  out  before 
bringing  suit,  the  attorney  cannot  re- 
cover on  quantum  meruit.  Lavenson 
v.  Wise,  131  Cal.  369. 

A  contract  to  pay  only  if  the  result 
be  successful  is  not  necessarily  to  be 
determined  merely  by  the  outcome  in, 
the  trial  court;  if  it  be  won  upon  ap- 


1810 


CHAP.    l] 


AS   TO   ATTORNEYS   AT   LAW 


[§    2236 


cording-  to  its  terms,84  or  that  such  performance  has  been  prevented 
or  waived  by  the  client.85 

Under  the  general  rule,  it  is  entirely  competent  for  the  parties  to 
agree  that  the  amount  of  the  compensation  shall  be  fixed  by  the  client 
or  by  a  third  person,  or  shall  depend  upon  the  client's  satisfaction  with 
the  result,  within  the  principles  governing  similar  contracts  in  other 
cases.88 

§  2236.  Contracts  for  contingent  compensation. — A  contract  by 
which  the  attorney  agrees  to  render  professional  services  upon  the  con- 
dition that,  if  unsuccessful,  .he  shall  receive  no,  or  little,  compensation ; 
while  if  successful,  he  shall  receive  a  large,  or  increased,  compensation, 
is  valid.87  Such  a  contract  does  not  necessarily  involve  any  idea  of 
sharing  in  the  recovery,88  and  may  be  made  with  the  defendant  as  well 
as  the  plaintiff.  It  may  be  thought  that  its  tendency  is  to  unduly  stim- 
ulate activity,  but  it  is  not  generally  regarded  as  objectionable  for  this 
reason  only. 

By  the  weight  of  authority,  moreover,  the  contract  is  none  the  less 
valid  because  the  attorney  is  to  receive  as  his  compensation  a  portion 
of  the  money  or  thing  recovered.89  Whatever  may  be  thought  of  the 


s*  Moses  v.  Bagley,  55  Ga.  283. 

ss  Meyters  v.  Crockett,  14  Tex.  257; 
Kersey  v.  Garton,  77  Mo.  645;  Bates 
v.  Desenberg,  47  Mich.  643. 

so  Contract  that  client  shall  fix  the 
compensation  is  valid  and  his  deter- 
mination of  amount  is  final  if  made 
in  good  faith.  Tennant  v.  Fawcett, 
94  Tex.  Ill;  Howe  v.  Kenyon,  4 
Wash.  677;  Boyd  v.  Boyce  (Tex.  Civ. 
App.),  53  S.  W.  720. 

ST  Polsey  v.  Anderson,  7  W.  Va.  202, 
23  Am.  Rep.  613;  Tron  v.  Lewis,  31 
Ind.  App.  178. 

See  also,  Wylie  v.  Coxe,  15  How. 
(U.  S.)  415,  14  L.  Ed.  753;  Wright  v. 
Tebbitts,  91  U.  S.  252,  23  L.  Ed.  320; 
Stanton  v.  Embrey,  93  U.  S.  548,  23 
L.  Ed.  983;  Taylor  v.  Bemiss,  110 
U.  S.  42,  28  L.  Ed.  64;  Duke  v.  Har- 
per, 66  Mo.  51,  27  Am.  Rep.  314;  Blais- 
dell  v.  Ahern,  144  Mass.  393,  59  Am. 
Rep.  99;  Allard  v.  Lamirande,  27 
Wis.  502;  Kusterer  v.  City  of  Beaver 
Dam,  56  Wis.  471,  43  Am.  Rep. 
725;  .  Perry  v.  Dicken,  105  Pa. 
83,  51  Am.  Rep.  181;  Miles  v. 
O'Hara,  1  S.  &  R.  (Pa.)  32;  Boul- 


den  v.  Hebel,  17  Id.  312;  Strohecker 
v.  Hoffman,  19  Pa.  223,  227;  Dick- 
erson  v.  Pyle,  4  Phila.  259;  Chester 
County  v.  Barber,  97  Pa.  463;  Will- 
iams v.  Philadelphia,  208  Pa.  282; 
Stewart  v.  Houston,  etc.,  Ry.  Co.,  62 
Tex.  246;  Meyers  v.  Crockett,  14  Tex. 
285;  Hill  v.  Cunningham,  25  Tex. 
26;  Quint  v.  Ophir,  etc.,  Co.,  4  Nev. 
304;  Andirac  v.  Richardson,  125  La. 
883. 

ss  Wheeler  v.  Harrison,  94  Md.  147 
(where  suits  were  against  the  clients 
for  subscriptions  to  stock,  it  was  held 
that  an  agreement  to  pay  counsel  a 
percentage  on  the  amount  from  which 
the  clients  should  be  released  was 
valid) ;  Moss  v.  Richie,  50  Mo.  App. 
75;  Dorr  v.  Camden,  55  W.  Va.  226,  65 
L.  R.  A.  348  (where  attorney  was  to 
have  one  dollar  for  every  acre  of  land 
recovered ) . 

so  Davis  v.  Webber,  66  Ark.  190,  74 
Am.  St.  Rep.  81,  45  L.  R.  A.  196;  Haz- 
eltine  v.  Brockway,  26  Colo.  291;  Van 
Gieson  v.  Magoon,  20  Hawaii,  146; 
Graham  v.  Dubuque,  etc.,  Works,  138 
Iowa,  456,  15  L.  R.  A.  (N.  S.)  729; 


1811 


§  2236] 


THE    LAW    OF   AGENCY 


[BOOK  v 


moral  or  ethical  effects  of  such  contracts,  it  is  quite  generally  held  in 
modern  times  that  they  are  not  invalid.  Indeed  it  is  urged,  with  much 
plausibility,  that  such  contracts,  under  the  peculiar  and  unequal  con- 
ditions of  many  of  the  parties  to  modern  litigation,  are  absolutely  in- 
dispensable to  the  maintenance  and  administration  of  justice.  Con- 
tracts of  this  nature,  however,  to  be  enforced,  must  appear  not  to  be 
excessive  or  extortionate,  and  to  have  been  fairly  made,  after  full  in- 
formation and  without  undue  advantage  being  taken  of  the  ignorance 
or  necessities  of  the  client.90 
Wallace  v.  Milwaukee,  etc.,  R.  R.  Co.,  549;  Perry  v.  Dicken,  105  Pa.  83,  51 


112  Iowa,  565;  Rickel  v.  Chicago,  etc., 
R.  Co.,  112  Iowa,  148;  Dunne  v.  Her- 
rick,  37  111.  App.  180;  Succession  of 
Landry,  11'6  La.  970;  Millard  v.  Jor- 
dan, 76  Mich.  131;  Wildey  v.  Crane, 
63  Mich.  720;  Fletcher  v.  Me  Arthur, 
117  Fed.  393,  54  C.  C.  A.  567;  Taylor 
v.  St.  Louis  Transit  Co.,  198  Mo.  715; 
Yonge  v.  St.  Louis  Transit  Co.,  109 
Mo.  App.  235;  Morehouse  v.  Brooklyn 
Heights  R.  R.  Co.,  185  N.  Y.  520,  7 
Ann.  Gas.  377;  Ransom  v.  Cutting, 
188  N.  Y.  447;  Williams  v.  Philadel- 
phia, 208  Pa.  282;  Wheeler  v.  Riviere 
(Tex.  Civ.  App.),  49  S.  W.  697;  Lewis 
v.  Brown,  36  W.  Va.  1.  This  rule  can 
not  be  applied  to  recoveries  of  ali- 
mony; Lynde  y.  Lynde,  64  N.  J.  Eq. 
736,  58  L.  R.  A. '471;  Newman  v.  Frei- 
tas,  129  Cal.  283,  50  L.  R.  A.  548.  And 
in  Newman  v.  Freitas,  supra,  it  was 
also  held  generally  that  contracts 
for  the  procuring  of  divorce  for  con- 
tingent compensation  are  opposed  to 
public  policy. 

»o  See  Taylor  v.  Bemiss,  110  U.  S. 
42,  28  L.  Ed.  64.  To  the  same  effect: 
Barngrover  v.  Pettigrew,  128  la.  533, 
2  L.  R.  A.  (N.  S.)  260;  McCurdy  v. 
Dillon,  135  Mich.  678;  Jordan  v. 
Westerman,  62  Mich.  170,  4  Am.  St. 
R.  836;  Wright  v.  Tebbetts,  91  U.  S. 
252,  23  L.  Ed.  320;  Jeffries  v.  Mutual 
L.  Ins.  Co.,  110  U.  S.  305,  28  L.  Ed. 
156;  Muller  v.  Kelly,  60  C.  C.  A.  170, 
125  Fed.  212;  Bailey  v.  Garrison,  68 
Neb.  779;  Schultheis  v.  Nash,  27 
Wash.  250;  Dockery  v.  McLellan,  93 
Wis.  381;  Whinery  v.  Brown,  36  Ind. 
App.  276;  Shoemaker  v.  Stiles,  102  Pa. 


Am.  Rep.  181;  In  re  Pieris,  82  App. 
Div.  466,  aff'd,  176  N.  Y.  566;  Davis  v. 
Webber,  66  Ark.  190,  74  Am.  St.  Rep. 
81,  45  L.  R.  A.  196;  Humphreys  v. 
McLachlan,  87  Miss.  532;  Door  v.  Cam- 
den,  55  W.  Va.  226,  65  L.  R.  A.  348. 

The  question  whether  the  contract 
was  unconscionable  is  to  be  deter- 
mined by  the  circumstances  of  each 
case,  the  nature  and  difficulty  of  the  • 
case,  the  amount  of  work  involved, 
the  prospect  of  success,  the  situation 
of  the  client,  his  ability  to  look  out 
for  his  own  interests,  his  financial  sit- 
uation, whether  he  was  fully  inform- 
ed, whether  fraud  or  concealment  was 
practiced  upon  him,  and  the  like. 
Contracts  for  50  per  cent  of  the  re- 
covery have  been  sustained  in  several 
cases,  and  also  in  several  others  con- 
demned as  unconscionable.  See  Her- 
man v.  Street  Ry.  Co.,  121  Fed.  184; 
Muller  v.  Kelly,  supra;  Turnbull  v. 
Banks,  22  N.  Y.  App.  Div.  508;  Robin- 
son v.  Sharp,  201  111.  86;  Cooper  v. 
Bell,  —  Tenn.  — ,  153  S.  W.  844. 

But  compare  Morehouse  v.  Brook- 
lyn Heights  R.  Co.,  185  N.  Y.  520,  7 
Ann.  Cas.  377;  Matter  of  Fitzsimons, 
174  N.  Y.  15;  Ransom  v.  Cutting,  112 
App.  Div.  150,  188  N.  Y.  447  (con- 
tract sustained). 

In  Fellows  v.  Smith,  190  Pa.  301, 
a  contract  for  $7,000  out  of  a  possible 
$10,000  to  $12,000,  was  held  under  the 
circumstances,  not  to  be  unconscion- 
able. In  Ransom  v.  Ransom,  70  N.  Y. 
Misc.  30,  a  very  large  fee  bargained 
for,  was  cut  down  where,  though 
there  was  no  fraud,  it  appeared 


1812 


CHAP.    l] 


AS   TO   ATTORNEYS   AT   LAW 


[§    2237 


§  2237.  What  contracts  champertous. — In  many  cases  it  has  been 
considered  that  the  mere  agreement  that  the  attorney  should  conduct 
the  suit  for  a  part  of  the  money  or  thing  recovered,  rendered  the  con- 
tract champertous  and  void ; 91  but  it  is  now  generally  held  that  this 
alone  is  not  enough,  and  that,  to  vitiate  the  contract  on  this  account, 
it  is  essential  that  it  should  also  appear  that  the  attorney  was  to  carry 
on  the  suit  at  his  own  expense ; 92  although  in  some  cases  it  has  been 


that  the  attorney  overestimated  the 
difficulty  and  the  client  was  not  fully 
informed.  A  contract  giving  an  at- 
torney one-half  of  the  proceeds  to  be 
collected  on  life  insurance  policies 
was  set  aside,  under  much  the  same 
circumstances,  in  Robinson  v.  Sharp, 
201  111.  86.  See  also  Blaikie  v.  Post, 
137  N.  Y.  App.  Div.  648. 

si  See  Thurston  v.  Percival,  1  Pick. 
(Mass.)  415;  Lathrop  v.  Amherst 
Bank,  9  Mete.  (Mass.)  489;  Scobey  v. 
Ross,  13  Ind.  117;  Rust  v.  Larue,  4 
Litt.  (Ky.)  411,  14  Am.  Dec.  172; 
Davis  v.  Sharron,  15  B.  Mon.  (Ky.) 
64;  Brown  v.  Beauchamp,  5  T.  B. 
Mon.  (Ky.)  413,  417,  17  Am.  Dec.  81; 
Backus  v.  Byron,  4  Mich.  535  (now 
changed). 

In  Ware's  Adm.  v.  Russell,  70  Ala. 
174,  45  Am.  Rep.  82,  Brickell,  C.  J., 
said:  "Champerty,  with  us,  is  the  un- 
lawful maintenance  of  a  suit  in  con- 
sideration of  some  bargain  to  have  a 
part  of  the  thing  in  dispute,  or  some 
profit  out  of  it;  and  covers  all  trans- 
actions and  contracts,  whether  by 
counsel  or  others,  to  have  the  whole 
or  part  of  the  thing  or  damages  re- 
covered; Poe  v.  Davis,  29  Ala.  676; 
Holloway  v.  Lowe,  7  Port.  (Ala.)  488." 

"An  agreement,  to  be  champertous, 
must  stipulate  for  the  prosecution  or 
defense  of  a  suit."  Burnham  v.  Hes- 
elton,  84  Me.  578. 

02  Bayard  v.  McLane,  3  Harr.  (Del.) 
212;  Moses  v.  Bagley,  55  Ga.  283; 
Coleman  v.  Billings,  89  111.  183;  Cal- 
kins v.  Pease,  125  111.  App.  270;  Gran- 
at  v.  Kruse,  114  111.  App.  488,  213  111. 
328;  Boardman  v.  Thompson,  25 
Iowa,  487;  Barngrover  v.  Pettigrew, 
128  Iowa,  533,  2  L.  R.  A.  (N.  S.)  260; 


Tron  v.  Lewis,  31  Ind.  App.  178; 
Moreland  v.  Devenney,  72  Kan.  471; 
Stevens  v.  Sheriff,  76  Kan.  124,  11  L. 
R.  A.  (N.  S.)  1153;  Duke  v  Harper, 
G6  Mo.  51,  27  Am.  Rep.  314;  Comstock 
v.  Flower,  109  Mo.  App.  275;  Omaha, 
etc.,  Ry.  Co.  v.  Brady,  39  Neb.  27; 
Arden  v.  Patterson,  5  Johns.  (N.  Y.) 
Ch.  44  (but  see  Chester  v.  Jumel,  53 
Hun  (N.  Y.),  629,  by  statute) ;  Orr  v. 
Tanner,  12  R.  I.  94;  Martin  v.  Clarke, 
8  R.  I.  389,  5  Am.  Rep.  586;  Croco  v. 
Oregon  R.  Co.,  18  Utah,  311,  44  L. 
R.  A.  285;  Nelson  v.  Evans,  21  Utah, 
202;  In  re  Evans,  22  Utah,  366,  83 
Am.  St.  R.  794,  53  L.  R.  A.  952,  s. 
c.  —  Utah,  — ,  130  Pac.  217;  Kelly  v. 
Kelly,  86  Wis.  170;  Dockery  v.  Mc- 
Lellan,  93  Wis.  381. 

The  vice  of  champerty  "exists 
where  an  attorney  purchases  the 
claim  of  his  client  in  suit  with  the 
intent  to  thereafter  carry  on  the  liti- 
gation at  his  own  expense  and  for 
his  own  benefit,  the  same  as  where 
he  agrees  to  carry  on  litigation  at  his 
own  expense,  in  whole  or  in  part,  in 
the  name  of  another.  .  .  .  Cham- 
perty need  not  be  pleaded  and  the 
issue  need  not  be  formed  in  regard 
thereto  in  order  that  it  may  be  es- 
tablished and  taken  advantage  of  in 
the  suit.  It  cannot  be  waived  by  any 
party  to  the  litigation,  nor  stipulated 
out  of  the  case.  The  taint  of  cham- 
perty does  not  affect  the  merits  of  a 
case  at  all,  but  affects  the  right  of 
the  champertor  to  use  the  court,  re- 
gardless of  the  mere  merits  of  his 
claim.  Barker  v.  Barker,  14  Wis. 
131."  Miles  v.  Mutual,  etc.,  Asso., 
108  Wis.  421. 

In  Reece  v.  Kyle,  49  Oh.  St.  475,  16 


1813 


§   2238] 


THE   LAW   OF  AGENCY 


[BOOK  v 


said  that  the  attorney  who  furnished  his  services  upon  the  contingency 
of  success  was,  in  a  measure,  sustaining  the  suit  at  his  own  expense.93 
In  Massachusetts,  the  contract  is  said  to  be  champertous  where  the  at- 
torney agrees  to  look  solely  to  the  fund  or  thing  recovered,  with  no 
personal  claim  against  the  client.9* 

§  2238.  Statutory  changes. — In  many  of  the  States,  stat- 
utes have  been  enacted  leaving  the  client  and  his  attorney  free  to  make 
such  contracts  in  reference  to  the  latter's  compensation  as  they  deem 


L.  R.  A.  723,  the  attorney  had  already 
obtained  judgment  for  his  client, 
which  remained  unpaid.  The  attor- 
ney had  a  lien  upon  the  judgment  for 
his  fees  in  procuring  it  and  the  client 
had  then  no  means  of  paying  the  at- 
torney for  his  services.  An  agree- 
ment was  then  made  by  which  the 
judgment  was  assigned  to  the  attor- 
ney to  collect,  the  expenses  of  collec- 
tion to  be  advanced  by  the  attorney 
and  in  case  of  failure  to  collect  any- 
thing one-half  of  the  expenses  to  be 
repaid  by  the  client,  while  if  collect- 
ed the  net  proceeds  wer/e  to  be  divid- 
ed. Held:  The  agreement  was  valid. 
But  in  Brown  v.  Ginn,  66  Ohio  St. 
316,  where  several  claimants  assigned 
their  respective  claims  to  an  attorney 
who  was  to  prosecute  their  collection 
at  his  own  risk  and  pay  each  claim- 
ant his  share  of  the  net  proceeds  af- 
ter deducting  fees  and  expenses,  the 
contract  was  held  to  be  champertous 
and  invalid.  See  also,  Pennsylvania 
Co.  v.  Lombardo,  49  Ohio  St.  1,  14  L. 
R.  A.  785;  Pittsburgh,  etc.,  Ry.  Co.  v. 
Volkert,  58  Ohio  St.  362;  Stewart  v. 
Welch,  41  Ohio  St.  483. 

The  contract  is  not  champertous 
where  the  attorney  has  a  personal 
interest  of  his  own.  Gilbert-Arnold 
Land  Co.  v.  O'Hare,  93  Wis.  194. 

as  in  Backus  v.  Byron,  4  Mich.  535, 
an  agreement  by  which  the  client 
was  to  pay  the  expenses  and  the  at- 
torney was  to  have  part  of  the  recov- 
ery was  held  void. 

»*Blaisdell  v.  Ahern,  144  Mass.  393, 
59  Am.  Rep.  99.  In  this  case  it  was 
held  that  a  contract  by  which  an  at- 


torney depends  on  the  contingency  of 
success  for  payment  for  all  services, 
and  the  client  agrees  to  furnish  evi- 
dence and  pay  all  actual  costs,  and 
that  the  attorney  shall  be  entitled  to 
large  and  liberal  fees,  not  to  exceed 
fifty  per  cent,  of  the  amount  col- 
lected, is  not  champertous  nor  void 
for  maintenance.  W.  Allen,  J.,  said: 
"There  was  no  agreement  that  the 
plaintiff  should  receive  a  share  of  the 
amount  recovered  as  compensation 
for  his  services.  It  is  immaterial  that 
the  avails  of  the  suit  were  the  means 
or  the  security  on  which  he  relied 
for  payment,  if  it  was  to  be  payment 
of  a  debt  due  from  the  defendants. 
Thurston  v.  Percival,  1  Pick.  415; 
Lathrop  v.  Amherst  Bank,  9  Mete. 
489.  Ackert  v.  Baker,  131  Mass.  436, 
and  Belding  v.  Smythe,  138  Mass.  530, 
are  cases  of  champerty,  where  a  part 
of  the  amount  recovered  was  to  be 
received  in  compensation  for  serv- 
ices, and  there  was  to  be  no  personal 
liability.  Where  the  right  to  compen- 
sation is  not  confined  to  an  interest 
in  the  thing  recovered,  but  gives  a 
right  of  action  against  the  party, 
though  pledging  the  avails  of  the 
suit,  or  a  part  of  them,  as  security 
for  payment,  the  agreement  is  not 
champertous.  Tapley  v.  Coffin,  12 
Gray,  420;  Scott  v.  Harmon,  109 
Mass.  237;  s.  c.,  12  Am.  Rep.  685;  Mc- 
Pherson  v.  Cox,  96  U.  S.  404;  Christie 
v.  Sawyer,  44  N.  H.  298;  Anderson  v. 
Radcliffe,  E.  B.  &  E.  806,  817." 

The  distinction  in  Blaisdell  v. 
Ahern,  supra,  is  still  maintained. 
Gargano  v.  Pope,  184  Mass.  571,  100 


1814 


CHAP.    l] 


AS    TO   ATTORNEYS   AT   LAW 


[§    2239 


best.95  In  several  of  these  states  as,  for  example,  in  New  York,  the 
statutes  have  provided  a  complete  and  elaborate  code  governing  the 
relation  of  attorney  and  client  and  have  practically  or  expressly  abol- 
ished all  of  the  common-law  rules  respecting  champerty  and  mainten- 
ance.96 The  right  of  the  courts  to  refuse  to  enforce  unconscionable 
agreements  is,  however,  not  affected  by  these  statutes. 

§  2239.  The  effect  of  champerty  is  usually  only  to  make 

the  contracts  impeachable  as  between  the  parties  to  it,  and  it  furnishes 
no  defense  available  to  the  defendant  in  the  action  to  which  it  relates.97 

The  attorney,  of  course,  cannot  recover  upon  the  contract,  though 
as  will  be  seen,  by  the  weight  of  authority  he  may  recover  quantum 
mcruit.9B 

The  attorney  when  called  upon  by  the  client  to  pay  over  money  re- 
ceived by  the  attorney  cannot  set  up  the  champertous  contract  and  de- 
feat the  client's  claim  upon  the  theory  of  equal  guilt.  The  client  is 
held  not  to  be  in  pari  delict o.99 


Am.  St.  Rep.  575;  Hadlock  v.  Brooks, 
178  Mass.  425;  Lancy  v.  Havander, 
146  Mass.  615. 

In  Manning  v.  Sprague,  148  Mass. 
18, 12  Am.  St.  Rep.  508, 1  L.  R.  A.  516, 
a  distinction  was  made  in  the  case 
of  claims  against  the  government. 

Butler  v.  Legro,  62  N.  H.  350,  13 
Am.  St.  Rep.  573,  apparently  adopts 
the  Massachusetts  view.  In  Ken- 
tucky, see  Leonard  v.  Boyd,  24  Ky. 
L.  Rep.  1320,  71  S.  W.  508.  In  Iowa, 
Boardman  v.  Thompson,  25  Iowa,  487; 
Kauffman  v.  Phillips,  154  Iowa,  542. 

95  Thus  in  Michigan  it  is  provided 
by  How.  Stats.  §  9004  "That  all  ex- 
isting laws,  rules  and  provisions  of 
law,  restricting  or  controlling  the 
right  of  a  party  to  agree  with  an  at- 
torney, solicitor,  or  counsel,  for  his 
compensation,  are  repealed,  and  here- 
after the  measure  of  such  compensa- 
tion shall  be  left  to  the  agreement, 
express  or  implied,  of  the  parties." 

In  Utah  the  statute  provides,  Sec- 
tion 3683,  C.  L.  U.  1888:  "The  meas- 
ure and  mode  of  compensation  of  at- 
torneys and  counsellors  at  law,  is 
left  to  the  agreement,  express  or  im- 
plied, of  the  parties." 

In  Missouri  (Laws  1901,  p.  46) : 
"The  compensation  of  an  attorney  or 


counsellor  for  his  services  Is  govern- 
ed by  agreement,  express  or  implied, 
which  it  not  restrained  by  law, 
etc., — "  New  York  has  the  same  stat- 
ute, Sec.  66. 

oo  Nevertheless,  in  New  York,  a 
contract  by  which  an  attorney  agrees 
to  bring  a  "test-case"  at  his  own  ex- 
pense for  a  contingent  fee,  to  recover 
money  alleged  to  have  been  illegally 
demanded  as  duties  by  the  govern- 
ment, is  held  to  be  champertous : 
Stedwell  v.  Hartman,  74  N.  Y.  App. 
Div.  126,  affirmed  no  opinion,  173  N. 
Y.  624  (distinguished  in  Matter  of 
Fitzsimmons,  174  N.  Y.  15) ;  Taylor  v. 
Enthoven,  88  N.  Y.  Supp.  138;  Begly 
v.  Weddigen,  86  N.  Y.  App.  Div.  629. 

97  Davis  v.  Settle,  43  W.  Va.  17; 
Omaha,  etc.,  R.  Co.  v.  Brady,  39  Neb. 
27;  Cleveland,  etc.,  Ry.  Co.  v.  Davis, 
10  Ind.  App.  342;  Croco  v.  Oregon 
Short  Line  R.  Co.,  18  Utah,  311,  44 
L.  R.  A.  285;  Potter  v.  Ajax  Mining 
Co.,  22  Utah,  273. 

»8  See  post,  §  2241. 

99  Ackert  v.  Barker,  131  Mass.  436; 
Belding  v.  Smythe,  138  Mass.  530; 
Butler  v.  Legro,  62  N.  H.  350,  13  Am. 
St.  Rep.  573.  Same  under  New  York 
statutes:  Irwin  v.  Curie,  171  N.  Y. 
409,  58  L.  R.  A.  830. 


1815 


§§    2240-2242]  THE   LAW   OF  AGENCY  [BOOK   V 

§  2240.  What  contracts  barratrous. — Even  though  the  contract 
be  not  void  for  champerty,  it  may  be  so  for  barratry,  as  where  the  pur- 
pose is  the  general  and  systematic  hunting  up  of  possible  causes  of 
action  with  a  view  to  causing  suits  to  be  brought  upon  them;  and  no 
recovery  can  be  had  for  services  in  furtherance  of  such  a  scheme.1 
There  must  be  more  than  isolated  instance.  Three  cases  at  least  are 
said  to  be  necessary  to  constitute  common  barratry.2  In  the  case  cited 
for  the  text,  in  which  the  question  was  fully  discussed,  there  were 
seventy-one  cases  worked  up  and  action  caused  to  be  begun  or  threat- 
ened. 

§  2241.  Quantum  meruit  when  contract  void  for  champerty. — By 
the  weight  of  authority,  even  though  the  contract  as  to  the  method 
and  amount  of  payment  be  void  on  the  ground  of  champerty,  the  at- 
torney may  nevertheless  recover  the  reasonable  value  of  his  services.3 
A  few  cases  hold  the  contrary.*  It  is  to  be  observed  that  this  is  not 
the  case  of  an  agreement  to  pay  compensation  for  doing  an  illegal  act, 
but  at  most  a  contract  to  fix  by  an  illegal  method  the  compensation  for 
doing  a  lawful  act.5 

§  2242.  Agreements  restricting  settlement. — Similar  conflict, 
though  apparently  with  less  reason,  prevails  respecting  an  agreement 
not  to  settle  without  the  attorney's  consent.  Although  this  agreement, 
as  has  been  seen,  is  usually  held  to  be  opposed  to  public  policy,  most 
courts  regard  the  stipulation  as  severable  and  not  invalidating  the 
whole  contract.6  A  few  cases  hold  the  contrary.7 

i Gammons   v.   Johnson,   76   Minn,  was  said:     "In  many  of  the  cases 

76;  Gammons  v.  Guloranson,  78  Minn.  champertous  contracts  were  involved, 

21;   Gammons  v.  Honerud,  82  Minn.  and  in  all  the  services  actually  ren- 

264.  dered  were  not  in  themselves  illegal; 

2  Commonwealth   v.   McCulloch,   15  while  in  the  case  at  bar  the  services 

Mass.  229;   Commonwealth  v.  Tubbs,  rendered  were  in  themsslves  illegal, 

1  Gush.  (Mass.)  3.  because  their  object  was  to  procure 

s  Gammons  v.  Johnson,  69  Minn.  a  divorce  for  defendant." 
488;  Leonard  v.  Boyd,  24  Ky.  L.  Rep.  eGranat  v.  Kruse,  114  111.  App.  488; 
1320,  71  S.  W.  508;  Stearns  v.  Felker,  Davis  v.  Webber,  66  Ark.  190,  74  Am. 
28  Wis.  594;  McCurdy  v.  Dillon,  135  St.  Rep.  81,  45  L.  R.  A.  196;  Gam- 
Mich.  678;  Donaldson  v.  Eaton,  136  mons  v.  Johnson,  supra:  Matter  of 
Iowa,  650,  125  Am.  St.  Rep.  275,  14  Snyder,  190  N.  Y.  66,  123  Am.  St.  R. 
L.  R.  A.  (N.  S.)  1168.  533,  14  L.  R.  A.  (N.  S.)  1101,  13  Ann. 

*  Butler  v.  Legro,  62  N.  H.  350,  13  Cas.    441;    Howard   v.   Ward,   —    S. 

Am.   St.  Rep.   573;    Moreland  v.   De-  Dak.  — ,  139  N.  W.  771. 

venney,  72  Kan.  471.  *  Kansas  City  Elev.  R.  Co.  v.  Serv- 

B  In  Barngrover  v.  Pettigrew,  128  ice,  77  Kan.  316,  14  L.  R.  A.  (N.  S.) 

Iowa,  533,  2  L.  R.  A.  (N.  S.)  260,  It  1105;   Moreland  Y.  Devenney,  gupra. 

1816 


CHAP.    l] 


AS   TO   ATTORNEYS   AT   LAW 


[§    2243 


"S 

§  2243.  Contracts  for  contingent  fees  do  not  defeat  settlement 
by  client. — An  attorney,  as  •  will  be  seen  hereafter,8  has  ordinarily 
no  lien  upon  his  client's  cause  of  action  and  a  contract  for  contingent 
compensation,  in  the  absence  of  a  statute,  gives  him  no  such  interest 
in  the  cause  of  action,  before  judgment,  as  will  defeat  a  settlement  made 
by  the  client  with  the  opposite  party  in  disregard  of  the  attorney,  al- 
though the  opposite  party  had  notice  of  the  contract.9  In  order  to 

s  See  post,  §  2279. 

» Kusterer  v.  City  of  Beaver  Dam, 
56  Wis.  471,  43  Am.  Rep.  725;  Cough- 
lin  v.  New  York  Central,  etc.,  R.  R. 
Co.,  71  N.  Y.  443,  27  Am.  Rep.  75; 
Wells  Fargo  Co.  v.  Moore,  31  Okla. 
135;  Howard  v.  Ward,  —  S.  Dak.  — , 
139  N.  W.  771;  Winslow  v.  Murphy, 
—  Ga.  — ,  77  S.  E.  25;  Lament  v. 
Washington,  etc.,  R.  R.  Co.,  2  Mackey 
(D.  C.)  502,  47  Am.  Rep.  268;  McBrat- 
ney  v.  Railroad  Co.,  17  Hun  (N.  Y.), 
285;  Quincey  v.  Francis,  5  Abb.  (N. 
Y.)  N.  Cas.  286;  Sullivan  v.  O'Keefe, 
53  How.  Pr.  426;  Swanston  v.  Mining 
Co.,  13  Fed.  215;  Pulver  v.  Harris,  62 
Barb.  (N.  Y.)  500,  affirmed,  52  N.  Y. 
73.  In  Christie  v.  Sawyer,  44  N.  H. 
298,  it  was  held  that  if  a  third  person 
fraudulently  and  collusively  takes  an 
assignment  of  the  plaintiff's  claim, 
knowing  of  the  contract  with  the  at- 
torney and  keeps  the  assignment  se- 
cret while  the  attorney  is  prosecut- 
ing the  cause  and  then  settles  with 
the  opposite  party,  thus  getting  into 
his  hands  the  fund  upon  which  the 
attorney  relies  and  is  equitably  en- 
titled to,  he  is  liable  for  the  attor- 
ney's compensation. 

Even  after  the  verdict,  If  before 
judgment;  Miller  v.  Newell,  20  S.  C. 
123,  47  Am.  Rep.  833;  Boogren  v.  St. 
Paul  City  Ry.  Co.,  97  Minn.  51,  114 
Am.  St.  R.  691,  3  L.  R.  A.  (N.  S.) 
379;  Van  Der  Beek  v.  Thomason,  50 


Misc.  Rep.  524;  McRea  v.  Warehime, 
49  Wash.  194;  Alexander  v.  Grand 
Ave.  Ry.  Co.,  54  Mo.  App.  66;  Camer- 
on v.  Boeger,  200  111.  84,  93  Am.  St. 
Rep.  165. 

An  agreement  for  a  contingent  fee 
does  not    per  se  amount  to  an  equit- 


able or  other  assignment  of  the  cause 
of  action:  Story  v.  Culber,  143  111. 
506;  Gillette  v.  Murphy,  7  Okla.  91; 
Stearns  v.  Wollenberg,  51  Oreg.  88, 
14  L.  R.  A.  (N.  S.)  1095;  Howard  v. 
Ward,  —  S.  Dak.  — ,  139  N.  W.  771. 

Contra:  Milmo  Nat.  Bank  v.  Con- 
very,  8  Tex.  Civ.  App.  181. 

Certain  cases  do,  it  is  true,  assert  a 
different  rule.  Thus  in  Potter  v.  Ajax 
Mining  Co.,  19  Utah,  421,  it  Is  said 
that  "at  common  law,  without  the  in- 
tervention of  the  statute,  it  has  long 
been  the  practice  of  courts  to  inter- 
vene to  protect  attorneys  against  set- 
lements  made  by  their  clients  to 
cheat  them  out  of  their  costs.  If  an 
attorney  has  commenced  an  action, 
and  his  client  settles  it  with  the  op- 
posite party  before  judgment,  collus- 
ively in  fraud  of  his  rights,  and  to 
deprive  him  of  his  costs,  the  court 
will  permit  the  attorney  to  go  on  with 
the  suit  for  the  purpose  of  collecting 
his  costs."  Citing  Coughlin  v.  N.  Y. 
C.  R.  Co.,  71  N.  Y.  443,  27  Am.  Rep. 
75;  Randall  v.  Van  Wagenen,  115  N. 
Y.  527,  12  Am.  St.  Rep.  828;  Weeks  v. 
Wayne  County  Judges,  73  Mich.  256. 

But  this  doctrine,  as  is  expressly 
stated  in  Coughlin  v.  N.  Y.  Central 
R.  Co.,  supra,  is  quite  extraordinary 
and  is  purely  an  arbitrary,  interfer- 
ence by  the  court  to  protect  the  at- 
torney who  confessedly  had  neither 
a  lien  nor  an  assignment.  See  also 
Schriever  v.  Brooklyn  Heights  R. 
Co.,  30  Misc.  145;  National  Exhibi- 
tion Co.  v.  Crane,  167  N.  Y.  505.  It 
was  also  confined  to  the  taxable 
costs,  a  definite  and  ascertainable 
sum.  Randall  v.  Van  Wagenen, 
supra,  also  recognizes  the  extraordi- 


1817 


§  2243] 


THE  LAW  OF  AGENCY 


[BOOK  v 


protect  the  attorney  in  such  a  case  as  against  the  other  party  before 
judgment  there  must  be  an  assignment  to  him  of  an  interest  in  the 
cause  of  action,  of  which  notice  must  be  given  to  the  other  party,  and 
this  method  will  avail  only  in  those  cases  in  which  the  cause  of  ac- 
tion is  legally  assignable.10 

It  has  been  attempted  in  many  cases  by  express  contract  to  prevent 
a  settlement  by  the  client  without  the  consent  of  the  attorney  serving 
for  a  contingent  compensation;  but  such  contracts  have  usually  been 
held  to  be  opposed  to  public  policy  and  therefore  unenforceable.11  In 
a  few  cases,  however,  in  which  the  cause  of  action  has  been  deemed  as- 
signable, it  has  been  held  that  such  a  contract  accomplished  no  more 
than  would  have  been  accomplished  by  an  assignment  of  an  interest  in 
the  cause  of  action ;  and  since  this  would  have  been  permissible  the 
contract  is  enforceable.12 


nary  nature  of  the  proceeding  and 
confines  it  to  cases  of  collusive  settle- 
ments made  for  the  purpose  of  de- 
frauding the  attorney.  Weeks  v. 
Wayne  Circuit  Judges,  supra,  presses 
the  doctrine  still  further  and  so  do 
Potter  v.  Ajax  Mining  Co.,  supra; 
Miedreich  v.  Rank,  40  Ind.  App.  393. 

See  also,  Stearns  v.  Wollenberg,  51 
Oreg.  88,  14  L.  R.  A.  (N.  S.)  1095; 
Jackson  v.  Stearns,  48  Oreg.  25,  5  L. 
R.  A.  (N.  S.)  390. 

i«  Causes  of  action  for  personal 
torts  are  generally  not  assignable  in 
the  absence  of  a  statute.  The  cases 
are  too  numerous  for  citation  here. 
See  the  following  recent  cases  apply- 
ing the  principle  to  these  contracts 
with  attorneys: — Tyler  v.  Superior 
Court,  30  R.  I.  107,  23  L.  R.  A.  (N.  S.) 
1045  (an  action  for  assault  and  bat- 
tery) ;  Hanna  v.  Coal  Co.,  5  Ind.  App. 
163,  51  Am.  St.  R.  246  (action  for  per- 
sonal injuries  resulting  from  negli- 
gence) ;  Weller  v.  Jersey  City  R.  Co., 
68  N.  J.  Eq.  659,  6  Ann.  Cas.  442  (per- 
sonal injuries) ;  Flynn  v.  Butler,  189 
Mass.  377  (personal  injury);  Boogren 
v.  St.  Paul  City  Ry.  Co.,  97  Minn.  51, 
114  Am.  St.  R.  691,  3  L.  R.  A.  (N.  S.) 
379  (personal  injury);  Howard  v. 
Ward,  —  S.  Dak.  — ,  139  N.  W.  771. 

See  also  De  Graffenried  v.  St.  Louis 
Ry.  Co.,  66  Ark.  260. 
^"Kansas  City  Elevated  Ry.  Co.  v. 


Service,  77  Kan.  316,  14  L.  R.  A.  (N. 
S.)  1105  [Compare  Topeka  Water  Co. 
v.  Root,  56  Kan.  187];  Curtis  v. 
Metropolitan  St.  Ry.  Co.,  118  Mo.  App. 
341;  Lee  v.  Vacuum  Oil  Co.,  126  N.  Y. 
579;  Fischer-Hansen  v.  Brooklyn,  etc., 
R.  R.  Co.,  173  N.  Y.  492;  Huber  v. 
Johnson,  68  Minn.  74,  64  Am.  St.  Rep. 
456;  Lewis  v.  Lewis,  15  Ohio,  715; 
North  Chicago,  etc.,  R.  Co.  v.  Ackley, 
171  111.  100,  44  L.  R.  A.  177;  Davis  v. 
Webber,  66  Ark.  190,  74  Am.  St  Rep. 
81,  45  L.  R.  A.  196;  Boardman  v. 
Thompson,  25  la.  487;  Weller  v.  Jer- 
sey City,  etc.,  R.  Co.,  68  N.  J.  Eq.  659; 
Davis  v.  Chase,  159  Ind.  242,  95  Am. 
St.  Rep.  294;  Brown  v.  Ginn,  66  Ohio, 
316;  Anderson  v.  Itasca  Lumber  Co., 
86  Minn.  480;  Mosely  v.  Jamison,  71 
Miss.  456;  Snyder  v.  Snyder,  190  N. 
Y.  66,  14  L.  R.  A.  (N.  S.)  1101;  Gran- 
at  v.  Kruse,  114  111.  App.  488;  Emslie 
v.  Ford  Plate  Glass  Co.,  25  Ohio  C.  C. 
548;  Jackson  v.  Stearns,  48  Or.  25,  5 
L.  R.  A.  (N.  S.)  390;  Key  v.  Vattier. 
1  Ohio,  132;  Newport  Rolling  Mills 
Co.  v.  Hall,  147  Ky.  598;  Kauffman  v. 
Phillips,  154  Iowa,  542. 

12  Thus  in  Ft  Worth,  etc.,  Ry.  Co. 
V.  Carlock,  33  Tex.  Civ.  App.  202,  it 
was  held  that,  since  in  that  State 
causes  of  action  for  personal  injury 
are  now  assignable  by  statute,  there 
could  be  no  objection  to  a  contract 
giving  the  attorney  the  right  to  pre- 


1818 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2244 


§  2244.  But  attorney  may  recover  from  client. — But  where  the 
contract  is  a  valid  one  the  client  will  not  be  permitted,  by  settling  with 
the  adverse  party,  to  deprive  the  attorney  of  his  compensation;  and  if 
the  client  thus  prevents  the  attorney  from  completing  his  contract,  by 
settling  and  dismissing  the  suit,  the  attorney  will  be  entitled  to  recover 
from  the  client  damages  for  the  breach  of  the  contract,  or  if  the  con- 
tract has  been  substantially  performed,  and  there  are  any  means  of  de- 
termining what  full  performance  would  have  realized,  then  the  amount 
fixed  by  it,18  and,  in  any  event,  what  the  services  rendered  were  rea- 
sonably worth,  may  be  recovered.14 


vent  a  settlement  without  his  con- 
sent. See  also  Galveston,  etc.,  R.  Co. 
v.  Ginther,  96  Tex.  295;  Missouri, 
etc.,  Ry.  Co.  v.  Wood,  —  Tex.  Civ. 
App.  — ,  152  S.  W.  487. 

Although  not  discussing  this  point, 
the  case  of  Topeka  Water  Co.  v.  Root, 
56  Kan.  187,  is  doubtless  also  of  this 
class. 

In  Stearns  v.  Wollenberg,  51  Oreg. 
88,  14  L.  R.  A.  (N.  S.)  1095,  it  is  said: 
"Before  judgment  in  the  absence  of 
any  agreement,  the  attorney  has  no 
lien  upon  or  interest  in  the  cause  of 
action;  but  if  the  cause  of  action  be- 
fore judgment  be  in  its  nature  as- 
signable, the  owner  may  assign  and 
by  agreement  create  legal  and  equit- 
able interest  therein,  and  such  agree- 
ments may  be  made  with  attorneys,  as 
well  as  with  other  persons,  and  when 
such  interests  have  been  created  and 
and  notice  given  of  them,  they  must 
be  respected." 

In  Burkhart  v.  Scott,  69  W.  Va.  694, 
it  was  said  that  while  a  contract  for 
a  contingent  fee  may  not  amount  to 
an  assignment  of  an  interest  in  the 
chose  itself,  still  the  effect  of  it  is  to 
give  him  such  an  inchoate  right  there- 
in, after  the  suit  is  brought,  as  cannot 
be  defeated  by  a  collusive  settlement 
between  the  parties. 


is  In  Kersey  v.  Garton,  77  Mo.  645, 
where  the  client  had  agreed  to  pay 
the  attorneys  a  certain  fee  contingent 
upon  the  recovery  of  certain  land,  and 
had  settled  the  matter  before  the  suit 
was  determined,  it  was  held  that  the 
attorneys  might  recover  "as  if  the 
contract  were  fully  performed  on 
their  part." 

In  Polsley  v.  Anderson,  7  W.  Va. 
202,  23  Am.  Rep.  613,  the  attorney 
was  to  receive  one  hundred  dollars 
for  prosecuting  a  suit  and  two  hun- 
dred dollars  additional  if  successful. 
The  client  settled  the  suit  without 
the  attorney's  consent,  and  he 
brought  suit  The  declaration  alleged 
that  he  had  been  prevented  from 
performing  and  asked  damages  for 
breach.  There  was  also  a  count  for 
quantum  meruit.  Held:  declaration 
sufficient;  and  measure  of  damages  is 
the  reasonable  value  of  the  services 
plus  any  other  damages  arising  from 
the  breach. 

In  Hill  v.  Cunningham,  25  Tex.  26, 
where  the  attorney  was  to  receive  a 
contingent  fee  and  the  client  settled 
before  determination,  it  was  held 
that  the  sum  fixed  could  be  recov- 
ered. 

But  in  Merchants'  Nat.  Bank  v. 
Eustis,  8  Tex.  Civ.  App.  350,  it  was 


i*  Quint  v.  Ophir,  etc.,  Co.,  4  Nev. 
304;  Western  Union  Tel.  Co.  v.  Sem- 
mes,  73  Md.  9;  Herndon  v.  Lammers 
(Tex.  Civ.  App.),  55  S.  W.  414. 

In  Bissell  v.  Zarn,  122  Mo.  App.  688, 


it  was  held  that,  though  the  attorney 
had  performed  the  services  under  the 
erroneous  belief  that  there  was  a  stip 
ulation  in  regard  to  the  fee,  he  might 
nevertheless  recover  a  reasonable  fee 


1819 


§  2245] 


THE  LAW  OF  AGENCY 


[BOOK  v 


2.  Where  there  was  no  special  contract. 

§  2245.  Attorney  entitled  to  statutory  or  usual  rate,  if  any,  other- 
wise to  reasonable  value  of  his  services. — Where  no  express  contract 
is  made  fixing  the  amount  which  the  attorney  is  to  receive  from  his 
client,  he  is  entitled  to  recover  the  amount  fixed  by  a  public  rule  or  stat- 


held  that  an  attorney  who  was  to  re- 
ceive a  fee  contingent  upon  the  re- 
covery of  land,  cannot  recover  if,  on 
account  of  client's  lack  of  title,  the 
suit  would  have  failed  anyway. 

In  MacKie  v.  Rowland,  3  App.  D. 
C.  461,  where  the  contract  was  for 
services  upon  a  contingent  compen- 
sation, the  court  said  that,  even  if  the 
client  had  a  right  to  terminate  the 
service  and  make  a  settlement,  "he 
certainly  could  not  thus  abrogate  the 
contract,  or  escape  the  liability  that 
had  been  incurred  under  the  con- 
tract, when  the  stipulated  services 
had  all  been  substantially  rendered, 
and  the  attorney  was  ready,  willing 
and  able  to  complete  the  small  resi- 
due of  the  contract  that  remained  to 
be  performed." 

In  Millard  v.  Jordan,  76  Mich.  131, 
the  attorney  was  to  receive  one-half 
the  land  involved  or  $300,  if  success- 
ful. Held:  that,  where  the  client  set- 
tled before  suit,  the  jury  should  have 
been  instructed  that  if  the  attorney 
was  thereby  prevented  from  perform- 
ing his  contract,  he  would  be  entitled 
to  recover  as  damages  the  sum  of 
$300. 

In  Moyer  v.  Cantieny,  41  Minn. 
242,  where  the  defendant  agreed  to 
pay  plaintiff  $200  for  procuring  a 
pardon,  it  was  said:  "If,  upon  the 
eve  of  success,  or  at  any  time  after 
the  plaintiff  entered  upon  the  under- 
taking, the  other  party  assumed  to 
put  an  end  to  the  contract,  it  would 
be  impossible  to  justly  measure  the 
plaintiff's  damages  by  any  apportion- 
ment of  the  sum  agreed  upon.  He 
was  not  only  entitled  to  compensa- 
tion for  what  he  had  done,  measured 
by  the  nature  and  terms  of  the  con- 
tract, but  be  was  entitled  either  to  be 


allowed  to  perform  It,  and  thus  to  se- 
cure the  agreed  sum,  or  else  to  be  in- 
demnified for  not  being  allowed  to  do 
so." 

In  Topeka  Water  Supply  Co.  v. 
Root,  56  Kan.  187,  the  attorney  was 
to  receive  as  a  contingent  fee  one- 
half  of  the  land  recovered.  Before 
suit  was  determined  the  client  sold 
to  the  defendant  in  the  suit  his  inter- 
est in  the  land.  Held:  The  attorney 
may  recover  for  his  services  one-half 
the  land,  and  not  merely  the  reason- 
able value  of  his  services. 

In  Lamed  v.  City  of  Dubuque,  86 
Iowa,  166,  the  client  agreed  to  pay 
one-fourth  of  the  amount  recovered 
on  city  bonds.  Client  settled  before 
suit  was  determined.  The  court  said: 
"The  full  performance  of  the  con- 
tract on  the  part  of  the  intervenor 
was  prevented  by  Mrs.  Porter  (cli- 
ent), and  she  cannot  thus  rob  the  in- 
tervenor of  the  benefits  of  the  con- 
tract which  would  have  accrued  to 
him  in  case  he  had  been  permitted 
to  fully  perform  on  his  part.  Her  act 
in  settling  with  the  defendant  city 
was  a  waiver  of  her  right  to  insist  on 
the  collection  of  the  full  amount  of 
the  bonds  and  interest,  as  a  prerequi- 
site to  his  receiving  the  compensa- 
tion provided  in  the  contract." 

In  Agnew,  Adm'r  v.  Walden, 
84  Ala.  502,  the  client  agreed  to  pay 
his  attorneys  $500  for  conducting  his 
defense  for  murder.  Before  the  trial 
the  client  was  hanged  by  a  mob.  The 
court  said:  "Compensation  in  this 
case  should  not  be  scaled  down  to  a 
mere  equivalent  for  the  actual  serv- 
ices shown  to  have  been  rendered. 
The  fact  that  the  plaintiffs  disabled 
themselves  to  accept  a  retainer  on 
the  opposite  side  is  itself  a  consider- 


1820 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2245 


ute,  if  any ; 15  if  not  then  the  amount  fixed  by  any  legal  usage  in  con- 
templation of  which  the  parties  have  dealt ; 16  and  if  the  amount  be  not 
fixed  in  either  of  these  ways,  then  the  attorney  is  entitled  to  recover  the 
reasonable  value  of  the  service  rendered.17 

hog  JOKJ •  .fltoifeinqsT  .'griirrfftjJ  /..onsno-p.')  .•yfiiLr.'&Jc  -.rij  ;  ioV.q 

See  Western  Union  Tel.  Co.  v.  Sem- 
mes,  73  Md.  9,  where  after  making 
agreement  to  pay  one-sixth  of  land 
recovered,  the  client  bought  the  land; 
French  v.  Cunningham,  149  Ind.  632, 
where  client  without  cause  dismissed 
attorney;  Tenney  v.  Berger,  93  N.  Y. 
524,  45  Am.  Rep.  263. 

is  Where  the  attorney  was  em- 
ployed and  the  services  were  to  be 
rendered  in  Ontario,  though  the  cli- 
ent lived  in  Michigan,  the  amount 
of  the  fee  will  be  determined  by  a 
statute  of  Ontario.  Dawson  v.  Peter- 
son, 110  Mich.  431.  See  also  In  re 
Purdy,  28  Misc.  (N.  Y.)  303;  People 
V.  Heiselbetz,  30  N.  Y.  App.  Div.  199. 

is  Bingham  v.  Spruill,  97  111.  App. 
374;  Louisville,  etc.,  R.  Co.  v.  Wal- 
lace, 136  111.  87,  11  L.  R.  A.  787. 

"Where  services  of  the  same  gen- 
eral nature  and  extent  are  of  such 
frequent  recurrence  among  the  legal 
profession  that  a  certain  fee,  or  a 
certain  basis  for  its  estimation,  has 
become  customary  and  usual  in  such 
cases,  evidence  thereof  is  proper  to 
show  what  is  reasonable."  Faulk  v. 

Hobbie  Grocery  Co.,  Ala.  — ,  59 

So.  450,  citing  Stanton  v.  Embry,  93 
U.  S.  548,  23  L.  Ed.  983;  Knight  v. 
Russ,  77  Cal.  410;  Vilas  v.  Downer, 
21  Vt.  419;  Nathan  v.  Brand,  167  111. 
607. 

17  Eggleston  v.  Boardman,  37  Mich. 
14;  Britt  v.  Burghardt,  16  Tex.  Civ. 
App.  78;  Isham  v.  Parker,  3  Wash. 
755;  Simmons  v.  Davenport,  140  N.  C. 
407;  Niemann  v.  Collyer,  71  Hun  (N. 
Y.),  612;  Cranmer  v.  Bldg.,  etc., 
Ass'n,  6  S.  Dak.  341;  Cowles  v. 
Thompson,  31  Neb.  479. 

Where,  though  the  parties  attempt- 
ed to  make  a  contract,  no  contract 
was  ever  consummated  because  the 
minds  of  the  parties  never  met  upon 


ation.  The  magnitude  of  the  issue, 
and  the  responsibilities  attendant  up- 
on such  service,  should  be  considered. 
And  the  consultation  and  counsel 
presumed  to  have  been  had  and  given 
at  the  time  of  the  retainer,  and  pos- 
sibly other  things  must  enter  into 
the  estimate." 

But  where  an  attorney  takes  a 
claim  to  collect  for  one-half  and  the 
client  notifies  him  of  an  opportunity 
to  collect,  which  is  refused,  the  client 
may  settle  and  is  not  liable  to  the  at- 
torney for  any  fee:  Pennington  v. 
Underwood,  56  Ark.  53. 

See  also  Baldwin  v.  Bennett,  4  Cal. 
392;  Hunt  v.  Test,  8  Ala.  713,  42  Am. 
Dec.  659;  McElhinney  v.  Kline,  6  Mo. 
App.  94. 

But  in  Harris  v.  Root,  28  Mont.  159, 
an  attorney  was  to  receive  $100,000 
in  case  a  will  was  defeated.  A  set- 
tlement was  made,  in  which  the  at- 
torney participated.  The  court  said: 
"Where  the  stipulation  is  for  a  con- 
tingent fee,  no  matter  whether  the 
rendering  of  the  services  is  prevented 
by  the  client,  or  by  circumstances 
over  which  he  has  no  control,  the 
measure  of  recovery  by  the  attorney 
is  the  value  of  the  services  actually 
rendered,  and  not  the  amount  of  the 
stipulated  fee."  The  court  also  said 
it  would  have  made  no  difference  if 
the  settlement  had  been  made  with- 
out the  consent  of  the  attorney. 

Where,  under  a  contract  for  con- 
tingent fee,  the  client,  after  adverse 
judgment,  appealed,  but  later,  on  the 
advice  of  other  attorneys,  dismissed 
the  appeal,  the  attorney  can  recover 
only  in  quantum  meruit:  Foley  v. 
Kleinschmidt,  28  Mont.  198. 

To  the  effect  that  where  the  client 
prevents  performance  only  reasonable 
value  of  services  can  be  recovered. 


1821 


§  2246] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2246.  What  evidence  admissible. — In  determining  what  this 
reasonable  value  is,  a  variety  of  elements  are  to  be  taken  into  consider- 
ation. The  nature  of  the  controversy  and  the  questions  involved;  the 
amount  at  issue;  the  skill  and  labor  required;  the  responsibility  im- 
posed ;  the  standing,  experience,  learning,  reputation,  tact,  assiduity  and 
integrity  of  the  attorney ;  the  success  achieved ;  all  of  these  are  properly 
to  be  considered  in  determining  the  value  of  the  service  rendered.18 


the  same  terms,  the  attorney  may  re- 
cover the  reasonable  value.  Thayer 
v.  Harbican,  70  Wash.  278. 

For  some  cases  holding  certain 
fees  not  excessive  see:  In  re  Assign- 
ment of  Commercial  Bank,  3  Ohio 
N.  P.  193 i  Tuttle  v.  Claflin,  86  Fed. 
964;  Sanders  v.  Seelye,  128  111.  631, 
10  L.  R.  A.  (N.  S.)  1136;  In  re  Leech, 
45  La.  Ann.  194;  Vinson  v.  Cantrell 
(Tenn.  Ch.),  56  S.  W.  1034;  Aultman 
&  Taylor  Co.  v.  Gibert,  28  S.  C. 
303;  Nat'l  Home  Bldg.,  etc.,  Ass'n  v. 
Fifer,  71  111.  App.  295;  Patterson  v. 
Fleenor,  28  Ky.  L.  R.  582,  89  S.  W. 
705;  Eakin  v.  Hotel  Co.  (Tenn.  Ch.), 
54  S.  W.  87. 

On  the  other  hand,  see  Baldwin  v. 
Mills,  66  Wash.  302;  Szymanski  v. 
Szymanski,  151  Wis.  145. 

Where  certain  charges  were  held 
excessive,  see  also,  Oliver  v.  Exposi- 
tion Co.,  68  S.  C.  568;  Proulx  v.  Stet- 
son, etc.,  Co.,  6  Wash.  478;  In  re 
Becher,  5  Pa.  Co.  Ct.  Rep.  115;  Breen 
v.  Union  Ry.  Co.,  9  N.  Y.  App.  Div. 
122;  In  re  Roby,  25  Misc.  Rep.  (N. 
Y.)  240;  Reisterer  v.  Carpenter,  124 
Ind.  30;  In  re  Ludeke,  22  Misc.  R. 
(N.  Y.)  676;  Butler  v.  King  (Tenn. 
Ch.),  48  S.  W.  697. 

In  MacDonald  v.  Tittman,  96  Mo. 
App.  536,  it  was  held  that  where  two 
attorneys  were  severally  employed 
each  was  entitled  to  recover  the  rea- 
sonable value  of  his  own  labor  and 
not  half  the  value  of  the  labor  of  the 
two  combined. 

is  Rachels  v.  Doniphan  Lumber  Co., 
98  Ark.  529;  Davis  v.  Webber,  66 
Ark.  190,  74  Am.  St.  Rep.  81,  45  L.  R. 
A.  196;  Cusick  v.  Boyne,  1  Cal.  App. 
643;  Willard  v.  Williams,  10  Colo. 


App.  140;  Phelps  v.  Hunt,  40  Conn. 
97;  Stoddard  v.  Sagal,  86  Conn.  346, 
85  Atl.  519;  Stewart  v.  Beggs,  56  Fla. 
565;  Bruce  v.  Dickey,  116  111.  527; 
Campbell  v.  Goddard,  17  111.  App. 
385;  Levinson  v.  Sands,  74  111.  App. 
273;  Clark  v.  Ellsworth,  104  Iowa, 
442;  Graham  v.  Dubuque,  etc., 
Works,  138  Iowa,  456,  15  L.  R.  A.  (N. 
S.)  729;  Stevens  v.  Ellsworth,  95 
Iowa,  231;  Smith  v.  Chicago,  etc.,  Ry. 
Co.,  60  Iowa,  515;  Cooper  v.  Harvey, 
77  Kan.  854;  Germania  Co.'s  Assignee 
v.  Hargis,  23  Ky.  L.  Rep.  874,  64  S. 
W.  516;  Lungerhausen  v.  Crittenden, 
103  Mich.  173;  Chamberlain  v. 
Rogers,  79  Mich.  219;  Kelley  v.  Rich- 
ardson, 69  Mich.  430;  Babbitt  v. 
Bumpus,  73  Mich.  331,  16  Am.  St.  Rep. 
585;  Eggleston  v.  Boardman,  37 
Mich.  14;  Selover  v.  Bryant,  54  Minn. 
434,  40  Am.  St.  Rep.  349,  21  L.  R.  A. 
418;  Randall  v.  Packard,  142  N.  Y. 
47;  People  v.  Bond  Street  Savings 
Bank,  10  Abb.  N.  Cas.  15;  Mellon  v. 
Fulton,  22  Okla.  636,  19  L.  R.  A.  (N. 
S.)  960;  Heblich  v.  Slater,  217  Pa. 
404;  Kentucky  Bank  v.  Combs,  7  Pa. 
St.  543;  Gorman  v.  Bannigan,  22  R. 
L  22;  Vilas  v.  Downer,  21  Vt  419; 
Stanton  v.  Embrey,  93  U.  S.  548,  23 
L.  Ed.  983;  Gilmore  v.  McBride,  156 
Fed.  464,  84  C.  C.  A.  274. 

Age  and  experience  may  be  consid- 
ered. In  Szymanski  v.  Szymanski, 
151  Wis.  145,  138  N.  W.  53,  the  court 
speaks  reproachfully  of  the  "notion 
that  any  young  gentleman  two  or 
three  years  out  of  the  law  school  has 
a  right  to  charge  at  the  rate  of  $50 
per  day  for  his  services,  because  men 
of  age,  experience,  and  established 
reputation  and  capacity  to  perform 


1822 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2246 


For  the  purpose  of  aiding  the  court  or  jury  in  arriving  at  the  value, 
the  testimony  of  attorneys  or  others  having  knowledge  of  it,  as  to  what, 
in  their  opinion,  the  services  were  reasonably  worth  under  the  circum- 
stances, is  properly  admissible,19  though  not  conclusive.20  And  so  it  is 
proper  to  receive  evidence  as  to  the  price  usually  charged  and  received 
for  similar  services  by  other  persons  of  the  same  profession,  practicing 
in  the  same  court.21 


much  legal  work  in  one  day  some- 
times, or  ordinarily,  receive  that 
much." 

Location  may  also  be  considered, 
e.  g.,  in  estimating  the  reasonable 
value  of  an  attorney's  services  in  a 
large  city,  the  amount  that  country 
lawyers  charge  would  not  be  very  ma- 
terial. Ward  v.  Kohn,  7  C.  C.  A.  314, 
58  Fed.  462. 

19  Thompson  v.  Boyle,  85  Pa.  477; 
Williams  v.  Brown,  28  Ohio  St.  547; 
Covey  v.  Campbell,  52  Ind.  157;  Hart 
v.  Vidal,  6  Cal.  56;  Lamoure  v.  Caryl, 
4  Denio  (N.  Y.),  370. 

See  upon  this  subject  the  exhaus- 
tive discussion  in  Kelley  v.  Richard- 
son, 69  Mich.  430,  and  Turnbull 
v.  Richardson,  69  Mich.  400. 

See  also,  Bachman  v.  O'Reilly,  14 
Colo.  433;  Bourke  v.  Whiting,  19 
Colo.  1;  Willard  v.  Williams,  10  Colo. 
App.  140;  Louisville,  etc.,  R.  Co.  v. 
Wallace,  136  111.  87,  11  L.  R.  A.  787; 
McMannomy  v.  Chicago,  etc.,  R.  Co., 
167  111.  497;  Roche  v.  Baldwin,  143 
Cal.  186;  Schlesinger  v.  Dunne,  36 
N.  Y.  Misc.  529;  Cosgrove  v.  Leonard, 
134  Mo.  419;  Arndt  v.  Hosford,  82 
Iowa,  499;  Clark  v.  Ellsworth,  104 
Iowa,  442;  Greef  v.  Miller,  87  Fed. 
33;  Sanders  v.  Graves,  105  Fed.  849. 

The  plaintiff  himself  may  testify 
as  to  the  value.  Chamberlain  v. 
Rogers,  79  Mich.  219;  Babbitt  v.  Bum- 
pus,  73  Mich.  331,  16  Am.  St  Rep. 
585. 

A  witness  cannot  testify  as  to  rea- 
sonable value  unless  he  be  shown  to 
be  an  attorney  or  otherwise  qualified 
to  express  an  opinion.  Frye  v.  Estes, 
52  Mo.  App.  1;  Hart  v.  Vidal,  6  Cal. 
56;  Howell  v.  Smith,  108  Mich.  350. 


20  Sanders  v.  Graves,  105  Fed.  849; 

Lilly  v.  Robinson  Merc.  Co., Ark. 

,  153  S.  W.  820;    Bourke  v.  Whit- 
ing, 19  Colo.  1;   Willard  v.  Williams, 
10    Colo.   App.    140;    McMannomy   v. 
Chicago,    etc.,  R.    Co.,    167    111.  497; 
Arndt  v.  Hosford,  82  Iowa,  499;  Clark 
v.  Ellsworth,  104  Iowa,  442;  Cosgrove 
v.  Leonard,  134  Mo.  419;   Randall  v. 
Packard,  142  N.  Y.  47;  Schlesinger  v. 
Dunne,  36  N.  Y.  Misc.  529. 

21  Thompson  v.  Boyle,  supra;  Vilas 
v.   Downer,   21   Vt.    419;    Stanton   v. 
Embrey,  93  U.  S.  548,  23  L.  Ed.  983; 
Louisville,  etc.,  R.  Co.  v.  Wallace,  136 
111.   87,  11  L.  R.  A.  787;    Nathan  v. 
Brand,  167  111.   607;    McMannomy  v. 
Chicago,    etc.,    R.    Co.,   167    111.    497; 
Calvert  v.   Coxe,   1  Gill    (Md.),   95; 
Knight  v.  Russ,  77  Cal.  410. 

Retaining  fee. — "In  estimating  the 
value  of  an  attorney's  services,  it  is 
proper  to  include  in  the  considera- 
tion a  reasonable  retaining  fee." 
Knight  v.  Russ,  77  Cal.  698;  Roche,  v. 
Baldwin,  143  Cal.  186;  Blackman'v. 
Webb,  38  Kan.  668;  Siegel  v.  Han- 
chett,  33  111.  App.  634;  Union  Surety, 
etc.,  Co.  v.  Tenney,  200  111.  349;  Blair 
V.  Columbian  Co.,  191  Mass.  333. 

See  also,  Schmidt  v.  Curtiss,  72 
Wash  211. 

But  in  Windett  v.  Union  Mut.  L. 
Ins.  Co.,  144  U.  S.  581,  36  L.  Ed.  551, 
where  the  attorney  claimed  a  $5,000 
retaining  fee  in  respect  of  possible 
future  litigation  but  never  rendered 
any  services,  and  there  was  no  ex- 
press agreement  to  pay  it  shown  by 
the  testimony,  the  court  held  that  "an 
agreement  to  pay  a  retainer  for  serv- 
ices which  are  never  performed  is  not 
to  be  implied." 


1823 


§  2247] 


THE  LAW   OF  AGENCY 


[BOOK  v 


Where  an  attorney  was  employed  in  a  number  of  cases  involving  a 
large  amount,  and  a  few  only  of  these  cases  were  selected  and  tried,  as 
test  cases,  it  was  held  that  the  entire  amount  involved  was  to  be  con- 
sidered and  not  that  alone  which  was  represented  by  the  test  cases.22 

§  2247.  What  evidence  not  admissible. — Evidence  of  the  amount 
paid  by  the  opposite  party  to  his  attorney  is  not  admissible,23  nor,  in 
general,  is  the  amount  which  one  attorney  receives,  any  criterion  as  to 
the  value  of  the  services  of  another  attorney,  in  the  absence  of  evidence 
that  the  services  were  similar,  the  skill,  standing  and  experience  equal, 
and  the  labor  the  same.24  Even  if  they  were  similar  the  attorney  may 
have  been  overpaid  or  underpaid. 


Taxable  costs  ordinarily  belong  to 
the  client  and  not  to  the  attorney. 
Kenner  v.  Whitelock,  152  Ind.  635; 
Dwyer  v.  Ells,  208  Mass.  195. 

This  seems  to  be  the  rule  in  New 
York,  notwithstanding  an  occasional 
statement  to  the  contrary.  Barry  v. 
Third  Avenue  R.  R.  Co.,  87  N.  Y.  App. 
Div.  543;  Starin  v.  Mayor,  etc.,  of 
New  York,  106  N.  Y.  82;  Mcllvaine  v. 
Steinson,  90  N.  Y.  App.  Div.  77; 
Ear-ley  v.  Whitney,  106  N.  Y.  App. 
Div.  399;  Caccia  v.  Isecke,  123  N.  Y. 
App.  Div.  779;  Taylor  v.  Long  Island 
R.  Co.,  25  Misc.  11. 

But  see:  People  v.  Common  Coun- 
cil, etc.,  of  Buffalo,  7  Misc.  386; 
Guliano  v.  Whitenack,  9  Misc.  562; 
Kult  v.  Nelson,  25  Misc.  Rep.  238. 

22  Bruce  v.  Dickey,  116  111.  527. 
Where  the  same  case  was  argued 

on  appeal  several  times,  and  there 
was  one  re-argument,  but  always 
with  substantially  the  same  proposi- 
tions involved,  it  was  held  that  the 
fee  should  not  be  estimated  upon  the 
basis  of  so  many  separate  cases.  In 
re  Kellogg,  96  N.  Y.  App.  Div.  608. 

23  Ottawa  University  v.  Parkinson, 
14  Kan.  159;    Babbitt  v.  Bumpus,  73 
Mich.  331,  16  Am.  St.  Rep.  585. 

2*  Ottawa  University  v.  Parkinson, 
14  Kan.  159;  Ottawa  University  v. 
Welsh,  Id.  164;  Heblich  v.  Slater,  217 
Pa.  404;  Play  ford  v.  Hutchinson,  135 
Pa.  426;  Calvert  v.  Coxe,  1  Gill  (Md.), 
95. 

Where     the     attorney,     with     the 


client's  consent,  employs  another  at- 
torney to  perform  part  of  the  service, 
evidence  of  what  he  paid  the  latter 
is  not  conclusive  of  the  reasonable 
value  which  the  client  is  to  pay; 
neither  is  what  the  state  pays  its 
attorneys  relevant.  Hyde  v.  Moxie 
Co.,  160  Mass.  559. 

The  attorney  cannot  be  permitted 
to  show  that  the  other  side  tried  to 
retain  him  after  he  had  been  em- 
ployed and  to  prove  what  he  would 
have  received  on  that  side  if  he  had 
been  so  retained.  Steenerson  v. 
Waterbury,  52  Minn.  211. 

In  an  action  to  recover  for  services 
in  defending  a  client  charged  with 
assault,  evidence  that  two  years  pre- 
viously the  attorney  had  offered  to 
do  certain  other  work  for  a  certain 
sum  per  day  is  not  relevant.  Crow- 
ell  v.  Traux,  94  Mich.  585. 

Where  an  attorney  is  to  receive 
from  his  client  a  reasonable  fee  for 
selling  a  claim  against  a  railroad 
company  in  addition  to  what  he  can 
get  from  the  other  side  by  way  of  at- 
torney's fees  in  the  settlement,  it  is 
immaterial  in  an  action  by  the  attor- 
ney against  his  client  how  much  he 
received  from  the  company.  Lyon.  v. 
Wilcox,  85  N.  Y.  App.  Div.  617. 

Evidence  as  to  the  ordinary  per 
diem  charges  of  an  attorney  for  such 
services  as  a  lawyer  usually  performs 
is  not  competent  in  estimating  the 
fee  for  bringing  about  a  consolida- 
tion of  two  competing  corporations. 


1824 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2248 

The  wealth  of  the  client  is  immaterial,  except  so  far  as  it  bears  upon 
the  proposition  that,  because  attorneys  may  often  render  services  for 
poor  clients  for  less  than  a  fair  value,  they  are  not  debarred  from  re- 
covering the  reasonable  value  from  a  client  whose  wealth  makes  no  such 
consideration  necessary.25 

The  question  being  what  the  services  rendered  were  reasonably 
worth,  evidence  of  what  would  have  been,  a  fair  contingent  fee,  is  im- 
material.28 

Local  bar  rules,  prescribing  rates  of  compensation,  are  not  binding 
upon  the  client  unless  it  be  shown  that  he  had  such  knowledge  of  them 
as  to  warrant  the  presumption  that  he  employed  the  attorney  with  refer- 
ence to  them.27 

c.  When  Compensation  Deemed  to  be  Earned. 

§  2248.  In  cases  of  ordinary  retainer.— In  the  ordinary  case  of 
the  employment  of  an  attorney  it  is  entirely  competent  for  the  parties 
to  stipulate  how  and  when  the  attorney  is  to  be  paid.  If  no  stipulation 
has  been  made,  the  attorney  would  at  least  be  entitled  to  his  compensa- 
tion upon  the  performance  of  the  service,  and  he  would  not  be  obliged; 
to  wait  until  the  client  has  realized  something  from  the  service.  Thus 
for  example,  the  attorney  who  has  recovered  a  judgment  for  his  client 
would  not  be  obliged  to  wait  until  the  judgment  was  collected.  *&\ 

But  it  is  not  indispensable  that  a  judgment  shall  have  been  recovered, 
and  it  has  been  held  in  many  cases  that  the  attorney  is  entitled  to  ad- 
vances upon  his  compensation  at  reasonable  intervals,  particularly 
where  the  litigation  is  long  protracted.28 

Hughes   v.    Ferriman,    119    111.  App.  ice  was  successful  can  not  be  used  to 

169.    Where  an  attorney  was  seeking  enhance  the  recovery  beyond  the  rea- 

to    collect    the    reasonable    value    of  sonable  value.    Walbridge  v.  Barrett, 

making  a  journey  for  his  client  into  118  Mich.  433. 

another  state,  evidence  of  the  amount          The  fact  that  the  attorney  had  en- 

of  business  he  had  on  hand  or  of  the  tered  in  his  bill  a  certain  sum  as  the 

rates  fixed  by  the  local  bar  for  pro-  amount  of  his  charge  in  expectation 

fessional    services,    was    immaterial.  of  a  prompt  settlement,  does  not  pre- 

Gaither   v.   Dougherty    (Ky.),   38    S.  vent    his    claiming    and    recovering 

W.  2.  more,  in  case  of  contest,  If  the  serv- 

25  Stevens   v.    Ellsworth,    95    Iowa,  ices    were    reasonably    worth    more. 
231;  Ward  v.  Kohn,  58  Fed.  462,  7  C.  Hard  v.  Burton,  62  Vt.  314;  Williams 
C.  A.  314;    Smith  v.  Couch,  117  Mo.  v.  Glenny,  16  N.  Y.  389.     So,  of  the 
App.  267.  fact  that  he  made  no  charge  at  the 

26  Gilbert  v.  Fay,  4  App.  D.  C.  38.      time.      Crowell    v.    Truax,    94    Mich. 
Where  the  attorney  agreed  to  per-      585. 

form  the  service  for  what  it  was  rea-          27  Boylan  v.  Holt,  45  Miss.  277. 
sonably  worth  but  to  make  no  charge          28  Tenney  v.  Berger,  93  N.  Y.  524, 
if  unsuccessful,  the  fact  that  the  serv-      45  Am.  Rep.  263;  Pickard  v.  Pickard, 
115  1825 


§  2249] 


THE   LAW  OF  AGENCY 


[BOOK  v 


§  2249.  Compensation  under  express  contracts  earned  when  un- 
dertaking substantially  performed. — The  compensation  of  the  attor- 
ney serving  under  an  express  contract  will,  unless  the  contract  makes 
other  provisions,  ordinarily  be  deemed  to  have  been  earned  when  he  has 
substantially  and  in  good  faith  performed  the  service  which  formed  the 
consideration  for  the  client's  express  or  implied  promise  to  pay.29  If  the 
attorney  never  performs  or  undertakes  to  perform  the  service,  he  will 
be  entitled  to  no  compensation.30  If  he  undertakes  to  accomplish  a  cer- 
tain result  he  must  show  that  that  result  has  been  substantially  accomp- 
lished,31 or  that  performance  has  been  waived  or  prevented  by  the 


83  Hun  (N.  Y.),  338;  Young  v.  Lanz- 
nar,  133  Mo.  App.  130;  Avery  v. 
Jacob,  59  N.  Y.  Super.  Ct.  585. 

2»  In  Bogert  v.  Adams,  8  Colo.  App. 
185,  the  attorneys  in  a  personal  in- 
jury case  were  to  receive  a  percent- 
age of  any  sum  recovered.  They 
brought  suit  and  while  it  was  pend- 
ing, the  client  settled  with  the  de- 
fendant. Held,  that  the  attorneys 
had  then  performed  and  their  fee  was 
due  immediately. 

In  Ingersoll  v.  Coram,  211  U.  S. 
335,  53  L.  Ed.  208,  it  is  said  that 
where  the  case  in  which  the  attor- 
ney is  employed  on  a  contingent  fee 
Is  settled  in  such  a  manner  that  the 
clients  receive  as  much  as  though  the 
case  had  been  finally  tried  and  won, 
and  the  settlement  is  effected  after  a 
trial  and  through  the  services  of  the 
attorney,  his  contract  is  performed 
and  he  is  entitled  to  the  agreed  com- 
pensation. 

so  Thorn  v.  Beard,  135  N.  Y.  643; 
In  Bittiner  v.  Gomprecht,  28  N.  Y. 
Misc.  218,  the  attorney  was  to  receive 
$250  in  case  "not  less  than  $1,000" 
was  "realized"  out  of  a  certain  fund. 
The  clients  being  convinced  in  good 
faith  that  the  entire  fund  could  not 
be  held,  compromised  for  a  less  sum. 
Held,  that  the  attorney  can  recover 
no  fee. 

si  In  Cheney  v.  Kelly,  95  Ala.  163, 
attorneys  employed  by  an  anti-prohi- 
bition society  were  to  receive  a  cer- 
tain fee  In  case  they  demonstrated 
that  a  license  to  sell  liquor  in  a  given 


territory  could  be  legally  obtained. 
After  they  had  failed  in  their  attack 
upon  the  law,  other  parties  succeeded 
in  getting  the  prohibitory  law  de- 
clared unconstitutional.  Held,  the  at- 
torneys had  not  performed  and  could 
not  recover  the  stipulated  fee. 

In  Hargis  v.  Louisville  Gas  Co.,  15 
Ky.  L.  Rep.  369,  22  S.  W.  85,  the  at- 
torneys were  to  be  paid  a  certain  fee 
on  condition  that  they  should,  by 
certain  legal  proceedings  contem- 
plated, succeed  in  excluding  a  rival 
gas  company  in  the  city  of  Louisville 
from  competition  with  their  client 
until  a  certain  date.  For  various 
reasons,  none  of  which  was  attributa- 
ble to  the  fault  of  the  client,  they 
were  unable  to  accomplish  this. 
Held,  they  were  not  entitled  to  re- 
cover the  stipulated  fee. 

On  the  other  hand,  in  Moran  v. 
L'Etourneau,  118  Mich.  159,  where 
the  attorney  was  to  get  a  certain 
share  of  what  he  could  "secure"  for 
his  client  in  certain  estates  to  which 
she  was  an  heir,  and  did  what  was 
necessary  to  obtain  the  recognition 
of  her  rights,  it  was  held  that  he  was 
entitled  though  the  land  vested  in 
the  client  by  operation  of  law. 

In  Stoutenburgh  v.  Fleer,  87  N.  Y. 
Supp.  504,  the  attorney  was  to  re- 
ceive one-half  of  the  amount  which 
he  succeeded  in  getting  a  claim 
against  the  client's  property  reduced. 
While  he  was  at  work  another  case 
was  decided  adversely  to  claimants, 
and  the  client  made  a  settlement 


1826 


CHAP.    I 


OF  ATTORNEYS  AT  LAW 


2249 


client.32  If  performance  becomes  legally  impossible  without  the  fault 
of  the  client,  there  can  be  no  recovery  upon  the  contract,  though  there 
might  doubtless  be  recovery  in  many  cases  upon  quantum  mernit, 
where  the  client  voluntarily  accepts  and  is  benefited  by  so  much  of  the 
performance  as  has  taken  place.33  If  the  attorney  has  substantially  per- 
formed, it  would  be  immaterial  that  the  client  did  not  accept  or  receive 
the  benefits  of  the  performance.34  If  the  attorney  has  substantially  per- 

torney  as  in  Badger  v.  Mayer,  supra, 
instituted  similar  proceedings  under 
a  contract  by  which  he  was  to  re- 
ceive part  of  the  sum  recovered.  He 
died  before  the  trial,  and  before  any- 
thing had  been  recovered.  Held,  re- 
covery was  a  condition  precedent  to 
any  liability  of  the  client  for  fees, 
though  disbursements  (which  were 
not  included  in  the  contingent  fee) 
could  be  recovered. 

But  in  Sargent  v.  McLeod,  155  N".. 
Y.  App.  Div.  21,  Badger  v.  Celler  was 
distinguished,  and  it  was  held  that 
where  the  attorney,  employed  on  a 
contingent  fee  of  one-third  of  what 
was  realized  by  suit  or  compromise, 
had  performed  all  of  the  work,  except, 
trying  the  case,  and  died  before  the 
trial,  and  the  client  then,  without 
employing  another  lawyer,  settled  for 
$5,000,  while  the  best  offer  made  be- 
fore the  attorney  took  hold  of  the 
matter  was  $600,  there  was  enough 
to  justify  a  finding  that  the  attorney 
was  so  far  the  procuring  cause  of  the 
settlement  as  to  entitle  his  adminis- 
tratrix to  recover  the  agreed  fee. 

Where  the  attorney  was  paid  in 
full  and  died  before  performance, 
and  after  rendering  about  one-sixth 
of  the  service  in  value,  the  client  was 
allowed  to  recover  back  the  unearned 
portion  of  the  fee  in  McCammon  v. 
Peck,  9  Ohio  Cir.  Ct.  589  (Coe  v. 
Smith,  4  Ind.  75;  Hubbard  v.  Belden, 
27  Vt.  645;  Patrick  v.  Putnam,  27  Vt. 
759;  Lakeman  v.  Pollard,  43  Me.  463; 
Hargrave  v.  Conroy,  19  N.  J.  Eq.  281, 
were  relied  upon.  Cutler  v.  Powell, 
6  T.  R.  320  was  denied). 

a*  In  Majors  v.  Hickman,  2  Bibb 
(Ky.),  217,  where  the  attorney  was  to 
have  a  certain  sum  for  successfully 


which  saved  him  a  large  amount. 
Held,  that  the  attorney  may  recover 
at  the  agreed  rate. 

In  Moss  v.  Richie,  50  Mo.  App.  75, 
the  attorneys,  employed  to  defend 
client  in  ejectment  suit,  were  to  re< 
ceive  $300  if  they  "gained"  the  suit. 
After  filing  an  answer,  etc.,  the  attor- 
neys advised,  client  to  get  an  abstract, 
which  he  did.  The  abstract  disclosed 
that  the  plaintiff  had  no  title,  but 
that  the  title  was  in  a  third  person 
from  whom  the  client  purchased. 
The  ejectment  suit  was  dismissed. 
Held,  the  suit  had  been  "gained" 
within  the  meaning  of  the  contract, 
although  the  attorneys  had  done 
much  less  work  than  was  at  first  con- 
templated. 

32  Cases  wherein  the  attorney  has 
been  prevented  from  earning  a  con- 
tingent  fee   by    reason   of   the   com- 
promise  of  the  claim   by  the  client 
have  been    cited    in   the   note   to  an 
earlier  section.     See  ante,  §  2243. 

Where  the  attorney  undertook  for 
contingent  compensation  to  prose- 
cute actions  for  injunctions  or  dam- 
ages for  the  erection  of  an  elevated 
railroad  in  front  of  his  client's  prem- 
ises, and  the  client,  after  the  suit  had 
been  begun  and  considerable  services 
rendered,  sold  the  premises  without 
notice  to  the  attorney  and  without 
reserving  any  right  of  action,  it  was 
held  that,  since  the  client  had  pre- 
vented performance  under  the  con- 
tract, the  attorney  was  entitled  to 
recover  compensation  for  the  serv- 
ices already  performed.  Badger  v. 
Mayer,  8  N.  Y.  Misc.  533. 

33  See  Campbell  v.  Kincaid,  3  T.  B. 
Mon.  (Ky.)  68.    In  Badger  v.  Celler, 
41  N.  Y.  App.  Div.  599,  the  same  at- 


1827 


§§    225O,225l]  THE  LAW   OF  AGENCY  [BOOK   V 

formed,  it  would  also  ordinarily  be  immaterial  that  the  client  himself, 
or  other  attorneys  employed  by  him,  contributed  to  the  result,  their  serv- 
ice not  having  been  rendered  at  the  request  and  on  the  account  of  the 
attorney.35 

§  2250.  Lack  of  success  no  defense. — It  is  no  part  of  the  implied 
contract  of  the  attorney  that  he'  will  be  successful  in  everything  which 
he  undertakes.  He  may  stipulate  that  unless  successful  he  shall  have  no 
pay;  but  unless  he  does  so,  the  fact  that  his  efforts  were  unsuccessful 
will  not  deprive  him  of  his  compensation,  if  he  brought  to  the  task  a 
reasonable  degree  of  skill  and  learning,  and  performed  the  service  with 
reasonable  care  and  diligence.38  Other  attorneys  might  have  been  more 
successful ;  other  methods  might  have  been  more  effective ;  greater  zeal 
and  diligence  might  have  accomplished  more ;  but  if  the  attorney  has  not 
been  negligent  and  has  acted  in  good  faith,  his  lack  of  success  will  not 
defeat  his  right  to  compensation,  although,  as  has  been  seen,  the  ques- 
tion of  the  degree  of  success  is  usually  one  element  in  fixing  the  value 
of  the  service. 

§  2251.  Negligence  or  bad  faith  may  be  shown. — But  the  client 
may  always  show,  either  in  bar  or  in  mitigation  of  damages,  that  the  at- 
torney so  negligently  performed  his  undertaking,  or  so  abused  the  con- 
fidence and  trust  which  were  imposed  in  him,  that  his  services  were  of 
no,  or  little,  value  to  his  client.87  This  may  be  done  whether  the  amount 
of  the  attorney's  compensation  were  fixed  by  special  contract  or  not. 

defending  his  client  and  the  attorney          se  Bills  v.  Polk,  4  Lea  (Tenn.),  494; 

was  present  and  ready  to  proceed  on  Bracket!  v.  Sears,  15  Mich.  244;  Rush 

the  day  fixed   for   the   trial,  but  the  v.  Cavenaugh,  2  Pa.  187;    French  v. 

defendant  forfeited  his  recognizance  Cunningham,  149  Ind.  632;  Harriman 

and  did  not  appear,  it  was  held  that  v.  Beard,  158  N.  Y.  691;    Sanford  v. 

the  attorney  was  entitled  to  recover  Bronson,  109    N.    Y.    App.    Div.  835 

as  for  a  substantial  performance.  (where  the  services  failed  of  success 

In  Carlisle  v.  Barnes,  102  N.  Y.  because  the  statute  under  which  they 
App.  Div.  573,  an  attorney  who  had  were  taken  was  later  held  to  be  un- 
agreed to  prosecute  certain  claims  constitutional);  Foltz  v.  Cogswell,  86 
for  a  percentage,  but  was  prevented  Cal.  542;  Fenner  v.  Succession  of  Mc- 
from  doing  so  by  the  client  who  em-  Can,  49  La.  Ann.  600. 
ployed  another  attorney  to  collect  In  Tinney  v.  Pierrepont,  45  N.  Y. 
them,  was  held  entitled  to  recover  the  Supp.  977,  where  the  court  found 
agreed  fee.  that  the  client  was  an  exacting  one, 

In    Agnew,    Adm'r,  v.    Walden,    84  and  demanded  a  great  many  personal 

Ala.  502,  where  the  client  was  killed  interviews   when   fewer  would   have 

by  a  mob  before  the  trial  it  was  held  sufficed  or  correspondence  would  have 

that  the  attorney  could  recover  a  rea-  served   the   purpose,   the   court   held 

sonable  value  but  not  the  agreed  fee.  that  a  reasonable  allowance  for  this 

ssLuco    v.  De    Toro,    91    Cal.  405;  unnecessary  service  should  be  made. 
Townsend  v.  Rhea    (Ky.),  38   S.  W.          ST  Chatfield  v.  Simonson,  92  N.  Y. 

865;  Raley  v.  Smith  (Tex.  Civ.  App.),  209;    Cole  v.  Roby,  61  Hun   (N.  Y.), 

73  S.  W.  54.  <524;    Armin  v.  Loomis,  82  Wis.  86; 

1828 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2252 


The  general  rules,  heretofore  considered,  which  govern  the  recoup- 
ment of  damages  in  other  cases,  are  applicable  here.38 

§  2252.  Fees  forfeited  by  breach  of  trust. — An  attorney  who  col- 
lects or  receives  money  for  his  client,  and  neglects  or  refuses,  without 
cause,  to  pay  it  to  him,  thereby  compelling  the  client  to  resort  to  an  ac- 
tion to  recover  it,  will  not  be  allowed  fees  for  making  the  collection.  If 
the  client  be  compelled  to  employ  and  pay  other  attorneys  and  enter  into 
litigation  with  an  attorney  to  enforce  performance  of  a  duty  which  the 
latter  should  have  performed  voluntarily,  it  would  be  highly  unjust  that 
he  should  be  obliged  to  pay  the  defaulting  attorney  also.39 


Caver ly  v.  McOwen,  126  Mass.  222; 
Pearson  v.  Darrington,  32  Ala.  227; 
Maynard  v.  Briggs,  26  Vt.  94;  Nixon 
v.  Phelps,  29  Vt.  198;  Hopping  v. 
Quin,  12  Wend.  (N.  Y.)  517;  Brackett 
v.  Norton,  4  Conn.  517,  10  Am.  Dec. 
179;  Morehead  v.  Anderson,  30  Ky. 
L.  Rep.  1137.  Attorney  who  com- 
promises the  case  contrary  to  the 
client's  express  directions  can  not 
recover  compensation.  Rogers  v. 
Pettigrew,  138  Ga.  528.  Attorneys 
negligent.  Dickerson  v.  Mashek  Eng. 
Co.,  76  N.  Y.  Misc.  263.  Prema- 
ture suit  for  fees  does  not  work  for- 
feiture of  right  to  compensation.  Por- 
ter v.  Ruckman,  38  N.  Y.  210.  No  de- 
duction if  client  suffered  no  injury 
from  alleged  negligence,  even  though 
he  might  properly  have  discharged 
him  therefor;  but  if  attorney  advises 
the  client  to  take  proceedings  which 
the  attorney  knows  or  ought  to  know 
would  be  of  no  avail,  he  can  recover 
no  compensation  therefor.  Hinckley 
v.  Krug  (Cal.),  34  Pac.  118. 

But  where  attorney  is  guilty  of 
breach  of  trust,  e.  g.,  accepting  em- 
ployment from  opposite  side,  he  can 
have  no  compensation,  and  it  is  not 
necessary  to  show  actual  injury. 
Strong  v.  International  Invest.  Union, 
183  111.  97,  47  L.  R.  A.  792.  To  same 
effect:  Ballis  v.  Easton,  96  Iowa,  513. 
(No  such  breach  of  trust  shown. 
Robertson  v.  Chapman,  152  U.  S.  673, 
38  L.  Ed.  592.)  After  full  and  proper 
performance  by  the  firm,  the  fact  that 
one  of  the  firm  is  later  guilty  of  a 
personal  breach  of  duty  does  not  de- 

I 


feat  firm's  right  to  fees.  Richardson 
v.  Richardson,  100  Mich.  364.  Bad 
faith  and  actual  fraud  work  forfeit- 
ure. In  re  Skoll,  78  Minn.  408,  79 
Am.  St.  Rep.  400;  Donaldson  v.  Eat- 
on, 136  Iowa,  650,  125  Am.  St.  Rep. 
275,  14  L.  R.  A.  (N.  S.)  1168;  Rosen- 
baum  v.  Syverson  Lumber  Co.,  65 
Wash.  459;  Board  of  Education  v. 
Rankin,  142  Ky.  324. 

Where  the  attorney  for  a  public 
body  performs  valuable  service,  but 
then  without  protest  or  effort  to  pre- 
vent it,  while  he  was  still  in  charge, 
allows  a  public  officer  without  au- 
thority to  destroy  the  effect  of  his 
service,  he  cannot  recover  for  it. 
Board  of  Education  v.  Rankin,  142 
Ky.  324. 

ss  See  ante,  §  1594. 

39  Gray  v.  Conyers,  70  Ga.  349; 
Large  v.  Coyle  (Pa.),  12  Atl.  343; 
Wills  v.  Kane.  2  Grant  (Pa.),  60; 
Fisher  v.  Knox,  13  Pa.  622,  53  Am. 
Dec.  503. 

See  also,  the  cases  on  forfeiture  of 
fees  for  breach  of  trust  in  preceding 
section. 

In  Martin's  Petition,  237  Pa.  159, 
the  court  says:  "Anything  which 
savors  of  lack  of  good  faith  upon  the 
part  of  an  attorney,  such  as  the  re- 
ceipt of  money  without  giving  notice 
to  the  client  within  a  reasonable 
time,  or  the  refusal  or  neglect  to  pay 
over  promptly  upon  demand,  calls  for 
forfeiture  of  all  claim  to  compensa- 
tion. Balsbaugh  v.  Frazer,  19  Pa, 
95." 

829 


§    2253]  THE  LAW  OF  AGENCY  [BOOK   V 

§  2253.  How  when  attorney  abandons  service. — An  attorney  who 
is  retained  generally  to  conduct  a  legal  proceeding,  is  presumed,  in  the 
absence  of  anything  to  indicate  a  contrary  intent,  to  enter  into  an  entire 
contract  to  conduct  the  proceeding  to  its  termination;  and  he  cannot 
lawfully  abandon  the  service,  before  such  termination,  without  justifi- 
able cause  and  reasonable  notice.40  A  fortiori  is  this  true  where  there  is 
an  express  contract  on  the  attorney's  part  to  act  until  the  termination 
of  the  cause,  or  until  a  recovery  has  been  had,  and  the  like.41 

If,  therefore,  an  attorney,  without  just  cause,  abandons  his  client  be- 
fore the  proceedings  for  which  he  was  retained  have  been  conducted  to 
a  termination,  he  will,  in  those  jurisdictions  where  the  stricter  require- 
ment of  an  entire  performance  prevails,  forfeit  all  right  of  payment  for 
any  services  which  he  has  rendered.42  Where,  however,  the  more  liberal 
rule  of  Britton  v.  Turner  prevails,  the  attorney  would  undoubtedly  be 
permitted  to  recover  the  reasonable  value  of  the  service  rendered,  less 
any  damages  which  the  client  might  have  sustained  by  reason  of  the 
abandonment.43 

But  if  the  attorney  has  sufficient  reason  to  justify  his  abandonment, 
he  may  in  all  cases  recover  what  the  services  already  rendered  are  rea- 
sonably worth,44  and  if  the  service  had  been  undertaken  for  a  fixed 
sum,  it  has  been  held  in  a  number  of  cases  that  he  may  treat  the  cause 
for  abandonment  as  a  prevention  of  completion  by  the  client,  and  re- 
cover the  stipulated  price.45 

*o  Tenney  v.  Berger,  93  N.  Y.  524,  «  See  ante,  §  1578  et  seq. 

45  Am.  Rep.  263;  Bathgate  v.  Haskin,  «  Tenney  v.   Berger,   supra;  Eliot 

59  N.  Y.  535;   Davis  v.  Smith,  48  Vt.  v.  Lawton,  supra;  Young  v.  Lanznar, 

52;  Eliot  v.  Lawton,  7  Allen  (Mass.),  133   Mo.  App.   130;    Pickard  v.  Pick- 

274,    83    Am.    Dec.    683;    Menzies    v.  ard,  83  Hun   (N.  Y.),  338;   Campbell 

Rodrigues,  1  Price  Exch.  92;    Stokes  v.  Goodman,  23  Pa.  Co.  Ct.  R.  609; 

v.  Trumper,  2  K.  &  J.  232;  Cresswell  Cullison  v.   Lindsay,  108   Iowa,  124; 

v.  Byron,  14  Vesey,  Jr.,  272;  Nicholls  Powers   v.   Manning,   154   Mass.   370, 

v.  Wilson,  11  M.  &  W.  106;    Harris  13  L.  R.  A.  258;   Matheney  v.  Farley, 

v.  Osbourn,  2  C.  &  M.  629.  66  W.  Va.  680. 

Where  the  attorney  repudiates  the  45  See  McElhinney  v.  Kline,  6  Mo. 

contract  under  which  he  is  perform-  App.  94;   Myers  v.  Crockett,  14  Tex. 

ing  the  service,  the  client  is  freed  257;  Webb  v.  Trescony,  76  Cal.  621; 

from  his  obligation  to  proceed   and  Scheinesohn  v.  Lemonek,  84  Ohio  St. 

is  under    no    obligation    to    pay  for  424;    Kersey  v.  Garton,  77   Mo.   645, 

what  has  been  done.     McDonald  v.  and  other  cases  cited  in  the  second 

De  Vito,  118  N.  Y.  App.  Dlv.  566.  section  following. 

*iBlanton   v.    King,    73    Mo.   App.  For   cases   involving   the   right   to 

148.  recover  where  an  action  undertaken 

42  Tenney  v.  Berger,  93  N.  Y.  524,  upon    a    contingent    fee    is    compro- 

45  Am.  Rep.  263;    Halbert  v.  Gibbs,  mised  by  the  client,  see  ante,  §  2243. 
16  N.  Y.  App.  Div.  126. 

1830 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2254 

A  withdrawal  by  the  attorney  with  the  consent  of  his  client  will,  of 
course,  not  be  chargeable  to  him  as  an  abandoment.46 

§  2254.  What  will  justify  abandonment. — No  general  rule 

can  be  laid  down  by  which  it  can,  in  all  cases,  be  determined  what  cause 
will  be  sufficient  to  justify  an  attorney  in  abandoning  a  case  in  which 
he  has  been  retained.  But,  for  example,  it  is  said  that  if  the  client  re- 
fuses to  advance  money  to  pay  the  expenses  of  the  litigation,  or  if  he 
unreasonably  refuses  to  advance  money,  during  the  progress  of  a  long 
litigation,  to  his  attorney  to  apply  upon  his  compensation,  sufficient 
cause  may  be  furnished  to  justify  the  attorney  in  withdrawing  from 
the  further  service  of  the  client.*7  So  any  misconduct  upon  the  part 
of  the  client  during  the  progress  of  the  litigation  which  would  properly 
tend  to  degrade  or  humiliate  the  attorney,  such  as  attempting  to  sus- 
tain his  case  by  the  subornation  of  witnesses,  or  any  other  unjustifiable 
means,  would  furnish  sufficient  cause.48  So  if  the  client  demanded  of 
the  attorney  the  performance  of  an  illegal  or  unprofessional  act ;  or  if 
the  client  were  seeking  to  use  the  attorney  as  a  tool  to  carry  out  the 
malicious  or  unlawful  designs  of  the  client,  the  attorney  might  lawfully 
abandon  the  service.49  So  if  the  client  insists  upon  the  employment  of 
counsel  with  whom  the  attorney  cannot  cordially  co-operate,  the  attor- 
ney will  be  justified  in  withdrawing  from  the  case.50 

« Thompson  v.  Dickinson,  159  stated  in  Burnap  v.  Marsh,  13  111. 
Mass.  210.  535;  Peck  v.  Chouteau,  91  Mo.  138,  60 

47  Tenney  v.  Berger,  93  N.  Y.  524,      Am.  Rep.  236. 

45  Am.  Rep.  263;  Eliot  v.  Lawton,  Insulting  and  untrue  charges  by 
7  Allen  (Mass.),  274,  83  Am.  Dec.  the  client  against  the  attorney  justify 
683;  Cullison  v.  Lindsay,  108  Iowa,  an  abandonment.  Genrow  v.  Flynn, 
124;  Silver  Peak  Min.  Co.  v.  Harris,  166  Mich.  564,  Ann.  Gas.  1912  D.  638, 
lie'Fed.  439;  Young  v.  Lanznar,  133  35  L.  R.  A.  (N.  S.)  960. 
Mo.  App.  130;  Pickard  v.  Pickard,  so  Tenney  v.  Berger,  supra.  "The 
83  Hun  (N.  Y.),  338;  Avery  v.  Jacob,  attorney,"  says  Earl,  J.,  in  this  case, 
59  N.  Y.  Super.  585.  "is  always  interested  to  know  with 
See  Halbert  v.  Gibbs,  16  N.  Y.  App.  whom  he  is  to  be  associated  in  the 
Div.  126.  trial  of  a  cause.  The  counsel  is  sup- 
Where  the  client  colluded  with  a  posed  to  be  his  superior,  and  is  usu- 
third  person  to  bring  a  suit  against  ally  employed  on  account  of  his  su- 
the  client  to  recover  the  land  out  of  perior  ability,  experience,  reputation 
which  the  attorney  was  to  receive  or  professional  standing,  and  after  an 
his  compensation,  in  order  to  cheat  attorney  has  engaged  in  a  cause,  it 
attorney  out  of  his  fees,  he  was  held  would  seem  to  be  quite  proper  that 
to  be  justified  in  abandoning  the  em-  he  should  be  consulted  as  to  the  per- 
ployment.  Thomas  v.  Morrison  (Tex.  son  who  is  to  bear  the  important  re- 
Civ.  App.),  46  S.  W.  46.  lation  to  him  of  counsel.  The  client 

48  Tenney  v.  Berger,  supra;  Camp-  would  certainly  have  no  right,  against 
bell  v.  Goodman,  23  Pa.  Co.  Ct.  R.  609.  the  protest  of  the  attorney,  to  intro- 

*9  See  the  liability  of  the  attorney      duce  as  counsel  in  the  case  a  person 

1831 


§    2255]  THE  LAW  OF  AGENCY  [BOOK    V 

So  where  no  express  agreement  to  the  contrary  has  been  made,  it 
is  held  that  the  attorney  "has  a  right,  at  the  beginning  of  the  litigation, 
or  pending  the  same,  to  demand  an  understanding  and  an  agreement 
as  to  his  compensation,  and,  for  the  refusal  of  the  client  to  entertain 
his  demand,  he  may,  upon  reasonable  notice,  abandon  the  conduct  of  a 
case  and  thereafter  recover  his  fees."  61 

§  2255.  When  discharged  by  client. — The  client  has  undoubted 
power  to  discharge  his  attorney  at  any  time  and  with  or  without  cause. 
The  general  retainer  of  the  attorney,  as  has  been  seen,  implies  an  un- 
dertaking on  his  part  to  continue  to  act  until  the  termination  of  the 
proceeding  and  he  cannot  abandon  the  service  before  that  time  without 
good  cause  and  reasonable  notice.  But  while  the  attorney  is  thus  bound 
to  entire  performance,  and  the  contract  as  to  him  is  treated  as  entire, 
it -is,  as  is  said  by  Judge  Earl,  "a  singular  feature  of  the  law  that  it 
should  not  be  treated  as  an  entire  contract  upon  the  other  side."  52 
Such,  however,  seems  to  be  the  law.83 

This  right  of  the  client  to  change  his  attorney  at  will  upon  compen- 
sating him  for  his  services  is  not  affected  merely  by  the  fact  that  the 
attorney  is  serving  for  contingent  compensation.54 

The  client,  however,  will  not  be  permitted  to  discharge  his  attorney 
without  cause,  unless  he  first  pays  or  secures  the  attorney's  fees  and 

of  bad  character,  or  of  much  inferior  v.   Browne,   9   Bing,   402;    Powers   v. 

standing  and   learning, — one  not  ca-  Manning,  154  Mass.  370,  13  L.  R.  A. 

pable  of  giving  discreet  or  able  ad-  258;   Avery  v.  Jacob,  59  N.  Y.  Super, 

vice.    It  would  humiliate  an  attorney  Ct.  585,  15  N.  Y.  Supp.  564.] 
to  sit  down  to  the  trial  of  a  cause          But  the  mere  failure  of  the  client 

and  to  see  his  case  ruined  by  the  mis-  to  pay  the  attorney  as  fast  as  the 

management   of   counsel.     The   rela-  attorney  demands  it  is  not  enough, 

tions  between  attorney  and  counsel,  Matter  of  H.,  93  N.  Y.  381. 
too,  are  of  a  delicate  and  confidential          52  jn   Tenney  v.   Berger,   93  N.  Y. 

nature.     They  should  have  faith  in  524,  45  Am.  Rep.  263. 
each  other,  and  their  relations  should          cs  Tenney  v.  Berger,  supra;  Ogden 

be  such  that  they  can  cordially  co-  v.  Devlin,  45  N.  Y.  Super.  Ct.,  631; 

operate.     While  a  client  has  the  un-  Trust  v.   Repoor,   15   How.   Pr.   570; 

doubted  right  to  employ  any  counsel  Gustine  v.  Stoddard,  23  Hun  (N.  Y.), 

he  chooses,  yet  it  is  fair  and  proper,  99;  Johnson  v.  Rovitch,  113  N.  Y.  App. 

and    professional   etiquette   requires,  Div.  810;  In  re  Prospect  Ave.,  35  Hun 

that  he  should  consult  the  attorney  (N.  Y.),  257;  O'Neal  v.  Spaulding,  23 

and  other  counsel  in  the  case,  so  that  Ky.  L.    R.    1729;   Root-v.  Mcllvaine 

they  can  withdraw,  if  for  any  reason  (Ky.),  56  S.  W.  498.    This  is  also  the 

they  do  not  desire  to  be  associated  rule  of  the  English  courts.     Under- 

with  him."  wood  v.  Piper,  [1894]  2  Q.  B.  306. 

See  also  Matheny  v.  Farley,  66  W.         54  Johnson     v.      Rovitch,      supra; 

Va.  680.  O'Neal  v.  Spalding,  supra;  Joseph's 

M  Chambers  v.  Gilmore,  113  C.  C.  A.  Adm'r  v.  Lapp's  Adm'r,  25  Ky.  L.  R. 

503,  193  Fed.  635   [citing  Gleason  v.  1875,  78  S.  W.  1119;    Breathitt  Coal, 

Clark,  9  Cow.  (N.  Y.)  57;  Vansandau  etc.,  Co.  v.  Gregory,  25  Ky.  L.  R.  1507, 

1832 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2256 


charges,  and  the  court  will  not  enforce  a  substitution  until  this  has  been 
done.55  The  attorney's  lien  will  also  be  protected,56  and  where  an  at- 
torney who  took  the  case  upon  a  contingent  fee,  and  has  obtained  judg- 
ment, is  discharged  without  cause,  the  client  will  be  required  to  pre- 
serve the  attorney's  lien  upon  the  judgment.57 

§  2256.  In  violation  of  agreement. — But  although  a  gen- 
eral retainer  does  not,  of  itself,  imply  a  promise  on  the  part  of  the  client 
to  continue  to  employ  the  attorney  until  the  termination  of  the  proceed- 
ings, the  client  may,  nevertheless,  bind  himself  by  contract  to  so  em- 
ploy him ;  and  where  that  is  the  case  the  compensation  must  be  ad- 
justed with  reference  to  that  fact. 


78  S.  W.  148;  Henry  v.  Vance,  23  Ky. 
L.  R.  491,  62  S.  W.  515;  Du  Bois  v. 
City  of  New  York,  69  C.  C.  A.  112,  134 
Fed.  570;  Plummer  v.  Great  Northern 
Ry.  Co.,  60  Wash.  214. 

An  authority  to  an  attorney  to  be- 
gin or  carry  on  an  action  is  ordi- 
narily revocable  like  any  other  au- 
thority, Whitesell  v.  New  Jersey,  etc., 
68  N.  Y.  App.  Dlv.  82;  but  where  the 
cause  of  action  is  assignable  and  the 
client  has. assigned  an  interest  In  it 
to  the  attorney,  an  authority  to  the 
attorney  to  prosecute  it  has  been  held 
an  authority  coupled  with  an  interest, 
and,  therefore,  not  revocable.  Gulf, 
etc.,  Ry.  Co.  v.  Miller,  21  Tex.  Civ. 
App.  609.  See  also  Phillips  v.  Sher- 
burne,  30  111.  App.  327;  Steenburgh 
v.  Miller,  11  N.  Y.  App.  Div.  286. 

ssQgden  v.  Devlin,  supra;  Super- 
visors v.  Brodhead,  44  How.  Pr.  (N. 
Y.)  411;  Barkley  v.  R.  R.,  35  N.  Y. 
App.  Div.  167;  Yuengling  v.  Betz,  58 
N.  Y.  App.  Div.  8;  British,  etc.,  Mach. 
Co.  v.  Spellissy,  83  N.  Y.  App.  Div. 
f,40,  82  N.  Y.  S.  47;  Sandberg  v.  Victor 
Mining  Co.,  18  Utah,  66;  Curtis  v. 
Richards  (Idaho),  40  Pac.  57. 

In  In  re  Mitchell,  57  N.  Y.  App. 
Dlv.  22,  it  was  said:  "There  is  a  dis- 
tinction between  cases  where  a  motion 
of  this  character  is  based  on  the  mis- 
conduct of  the  attorney  and  cases 
where  the  client  seeks  to  exercise  his 
absolute  right  to  change  his  attorney. 
In  the  former  case  the  court  may  di- 
rect an  unconditional  substitution 
and  leave  the  attorney  to  an  action 


for  his  fees.  In  the  latter  case  the 
court  will  see  that  the  attorney  is 
protected." 

In  Du  Bois  v.  Mayor,  etc.,  of  New 
York,  69  C.  C.  A.  112,  134  Fed.  570, 
where  the  attorney  was  employed  for 
a  contingent  compensation,  and  there 
was  a  disagreement  with  the  client 
due  to  no  misconduct  of  the  attorney, 
it  was  held  that  it  was  a  matter  of 
discretion  with  the  court  whether  to 
allow  the  substitution  of  another  at- 
torney, and  the  lower  court  having 
refused  to  allow  the  substitution  with- 
out first  securing  a  reasonable  fee, 
this  ruling  was  affirmed. 

In  Silverman  v.  Pennsylvania  R. 
Co.,  141  Fed.  382,  where  the  court  had 
doubt  as  to  the  validity  of  a  contract 
for  contingent  compensation  an  ap- 
plication to  require  the  security  of 
the  attorney's  fee  was  refused. 

Where,  by  reason  of  the  attorney's 
negligence,  his  services  are  of  no 
value  whatever  to  his  client,  the 
court  will  not  interfere  with  the  sub- 
stitution. Reynolds  v.  Kaplan,  3  N.  Y. 
App.  Div.  420. 

so  In  re  Hollins,  197  N.  Y.  361;  Haz- 
lett  v.  Gill,  5  Robt.  (N.  Y.)  611;  An- 
glo Continental  Works  v.  Dillon,  111 
N.  Y.  App.  Div.  418;  Hudson  Trust, 
etc.,  Inst.  v.  Paper  Mills  (N.  J.  Eq.), 
44  Atl.  638;  Kane  v.  Rose,  87  App. 
Div.  101,  177  N.  Y.  557.  See  In  re 
Department  of  Public  Works,  167  N. 
Y.  501. 

57  Ronald  v.  Mutual  Reserve  Fund 
L.  Ass'n,  30  Fed.  228. 


1833 


§  2256] 


THE  LAW  OF  AGENCY 


[BOOK  v 


If  the  attorney  is  not  employed  for  a  definite  period,  he  may  be  dis- 
charged by  the  client  at  any  time,  and  if  the  discharge  be  for  no  fault 
of  the  attorney,  he  may  recover  from  the  client,  the  reasonable  value 
of  the  service  already  rendered.08  If  the  attorney  is  employed  until  a 
particular  result  is  accomplished  or  for  a  definite  time,  and  is  dis- 
charged before  that  time  without  justifiable  cause,  he  will  be  entitled  to 
recover  from  the  client  in  addition  to  the  reasonable  value  of  the  serv- 
ice already  rendered,  the  damages  he  may  have  sustained  by  reason  of 
such  discharge,50  and  some  cases  have  allowed  him  the  full  sum  prom- 
ised, as  upon  a  substantial  performance.80  But  if  the  attorney  were 

andon  tl &&  tsdJ  "of  isorm-aisi  rillw- 

ss  Tenney  v.  Berger,  93  N.  Y.  524,  45 
Am.  Rep.  263;  Ogden  v.  Devlin,  45 
N.  Y.  Super.  Ct.  631;  Philbrook  v. 
Moxey,  191  Mass.  33;  Roake  v.  Palmer, 
119  N.  Y.  App.  Div.  64;  Matter  of 
Cable,  114  N.  Y.  App.  Div.  375;  Joseph 
v.  Lapp,  25  Ky.  L.  R.  1875,  78  S.  W. 
1119;  Dempsey  v.  Dorrance,  151  Mo. 
App.  429. 


Div.  810.  In  that  case,  the  propor- 
tion which  the  attorney  was  to  re- 
ceive was  fixed  by  the  court.  To  the 
same  effect  is  Ransom  v.  Ransom,  70 
N.  Y.  Misc.  30. 

Where  the  attorney  is  employed  up- 
on a  contingent  fee,  the  client  may 
nevertheless  settle  and  compromise 
the  action,  and  the  attorney  will  be 


Where  both  parties  were  at  fault,  as      entitled  at  least  to  quantum  meruit 


where  the  disagreement  making  it 
necessary  to  discharge  the  attorney 
was  due  both  to  the  fault  of  the  client 
and  attorney,  the  attorney  may  re- 
cover on  quantum  meruit:  Price  v. 
Western  Loan,  etc.,  Co.,  35  Utah,  379, 
19  Ann.  Cas.  589. 

«»Weil  v.  Finneran,  70  Ark.  509; 
French  v.  Cunningham,  149  Ind.  632; 
Philbrook  v.  Moxey,  suprA;  Dixon  v. 
Volunteer  Co-op.  Bank,  213  Mass.  345 
(attorney  employed  by  the  year). 

He  may  recover  the  reasonable 
value  of  the  service  already  render- 
ed: Goodin  v.  Hays  (Ky.),  28  Ky.  L. 
Rep.  112,  88  S.  W.  1101.  Where  at- 
torney acquiesces  in  his  discharge, 
the  express  contract  may  be  deemed 
terminated  and  he  may  recover  quan- 
tum meruit:  Shevalier  v.  Doyle,  88 
Neb.  560.  An  attorney  employed 
merely  for  contingent  compensation, 
e.  g.,  50  per  cent,  of  what  was  recov- 
ered, but  who  had  no  assignment  or 
lien,  may  be  discharged  by  the  client 
at  any  time  and  in  that  event  the  at- 
torney is  entitled  to  the  fair  compen- 
sation for  the  work  already  done: 
Johnson  v.  Rovitch,  113  N.  Y.  App. 


for  the  services  already  performed, 
and  where  by  reason  of  the  attorney's 
services,  the  settlement  yields  the 
client  as  much  as  though  the  litiga- 
tion has  been  successfully  terminated, 
the  attorney  may  recover  the  propor- 
tion agreed  upon.  Webster  v.  Rhodes, 
49  Colo.  203. 

«o  In  Webb  v.  Trescony,  76  Cal.  621, 
It  was  held  that  when  an  attorney  Is 
employed  to  defend  certain  suits  for 
a  fixed  price,  and  is  discharged  with- 
out cause  before  the  suits  are  con- 
cluded, having  fully  performed  upon 
his  part  until  discharged,  the  meas- 
ure of  damages  Is  the  full  price 
agreed  upon. 

In  Bartlett  v.  Odd  Fellows'  Saving 
Bank,  79  Cal.  218,  12  Am.  St.  R.  139, 
it  was  held  that  where  the  attorney 
was  wrongfully  discharged  he  may 
recover  as  though  he  had  performed, 
the  fees  agreed  upon  with  interest 
from  time  it  was  due. 

To  the  same  effect,"  Scheinesohn  v. 
Lemonek,  84  Ohio  St.  424,  Ann.  Cas. 
1912  C.  737;  Baldwin  v.  Bennett,  4 
Cal.  392;  Kersey  v.  Garton,  77  Mo. 
645;  Crye  v.  O'Neal,  —  Tex.  Civ.  App. 


1834 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2257 


discharged  for  a  cause  which  justified  it,  he  would,  under  the  strict 
rules  requiring  a  full  performance  as  a  condition  precedent  to  the  re- 
covery of  compensation,  forfeit  all  right  to  pay  for  the  services  ren- 
dered ; 61  but  under  the  rule  of  Britton  v.  Turner,  he  could  recover  the 
reasonable  value  of  his  services,  less  any  damages  which  the  client 
had  sustained  by  his  default.02 

§  2257.  What  will  justify  discharge. — What  conduct  on 

the  part  of  an  attorney  employed  for  a  specific  period  will  justify  his 
discharge  before  that  period  has  expired,  is  not  easy  of  exact  definition. 
The  same  general  principles  would  govern  here  which  apply  to  similar 
employments  of  other  agents.63  But  certainly  if  the  attorney  should 
be  disbarred  from  practice,64  or  should  prove  treacherous  to  his  client's 
interests,,85  or  should  disregard  the  instructions  or  limitations  which  the 
latter  had  a  right  to  make,  the  client  might  dismiss  him.  The  same  re- 
sult would  undoubtedly  follow  if  the  attorney  failed  to  possess  and  ex- 
ercise that  reasonable  degree  of  skill  and  knowledge  which  the  nature 
of  his  undertaking  implies,  and  so  it  has  been  held  that  if  the  attorney 
fails  to  use  reasonable  diligence  in  the  performance  of  his  duty,  he  may 
be  discharged.68 


— ,  135  S.  W.  253;  Sessions  v.  War- 
wick, 46  Wash.  165;  Hunt  v.  Test,  8 
Ala.  713,  42  Am.  Dec.  659;  Myers  v. 
Crockett,  14  Tex.  257;  McElhinney  v. 
Kline,  6  Mo.  App.  94;  Polsley  v.  An- 
derson, 7  W.  Va.  202,  23  Am.  Rep. 
613 

See  also,  Moyer  v.  Cantieny,  41 
Minn.  242  (attorney  allowed  to  re- 
cover full  sum  agreed  upon  where  the 
result  was  attained,  though  before 
the  service  was  concluded  client  at- 
tempted to  discharge  him  and  em- 
ployed others,  whose  services  may 
have  contributed  to  the  result.) 

ei  See  ante,  §  1577.  See  Walsh  v. 
Shumway,  65  111.  471,  in  following 
section,  note  66. 

62  See  ante,  §  1578.    Where  the  serv- 
ice is  substantially  completed,  attor- 
ney   entitled     to     quantum     meruit. 
Verner  v.  Sullivan,  26  S.  C.  327. 

63  See  ante,  §  1541. 

e*  Moyers  v.  Graham,  15  Lea 
(Tenn.),  57. 

65  In  McArthur  v.  Fry,  10  Kan.  233, 
It  was  held  that  the  fact  that  the  at- 
torney was  found  to  be  prosecuting 


and  continued  to  prosecute  a  claim 
adverse  to  his  client's  interest  was 
sufficient  to  justify  his  discharge. 

Likewise  in  Merchants  Nat.  Bank 
v.  Eustis,  8  Tex.  Civ.  App.  350,  it  was 
held  that  where  an  attorney  is  em- 
ployed on  the  representation  that  he 
is  not  adversely  employed  which 
proves  to  be  untrue,  he  may  be  dis- 
charged without  liability. 

In  Manning  v.  Clark,  40  Fed.  121, 
it  was  held  that  where  an  attorney 
employed  to  collect  two  claims,  and 
who  had  collected  one,  unjustifiably 
demanded  a  larger  fee  for  that  than 
had  been  agreed  upon  and  attempted 
to  coerce  payment,  he  may  be  dis- 
charged without  liability  so  far  as 
the  other  claim  is  concerned. 

ee  See  In  re  Barkley,  42  N.  Y.  App. 
Div.  597,  (where  it  was  held  that  an 
unexplained  delay  of  nearly  eleven 
years,  in  enforcing  a  verdict  recov- 
ered in  a  personal  injury  action  en- 
titled the  client  to  discharge  the  at- 
torney. Walsh  v.  Shumway,  65  111. 
471.  (In  this  case  Shumway  had 
employed  one  Sloan,  an  attorney, 


1835 


§    2258] 


THE  LAW  OF  AGENCY 


[BOOK  V 


§  2258.  Effect  of  death  of  attorney  or  client. — In  the  case  of  the 
ordinary-  retainer  of  an  attorney  by  a  client,  the  death  of  either  client 
or  attorney  will,  under  general  rules,  ordinarily  terminate  any  author- 
ity conferred  upon  the  attorney  by  the  client,67  but  in  either  case  the  at- 
torney would  be  entitled  to  receive  the  reasonable  value  of  the  service 
rendered  to  the  time  of  the  death.68  If  the  attorney  were  serving  under 
a  special  contract  to  accomplish  a  particular  result,  or  was  serving  for 
a  contingent  compensation,  and  the  attorney  dies  before  completion  he 
certainly  cannot  recover  upon  the  contract  unless  it  had  been  in  fact 


to  prosecute  an  action  of  eject- 
ment, Sloan  agreeing  to  take 
charge  of  the  litigation,  and  was 
to  receive  as  a  fee  one-fourth  of  the 
property  recovered.  After  Sloan  had 
been  employed  for  about  four  years 
with  accomplishing  anything,  Shum- 
way  took  the  case  out  of  his 
hands  and  employed  another  attorney, 
who  soon  effected  a  favorable  settle- 
ment. Lawrence,  C.  J.,  said:  "Sloan 
had  had  the  business  in  charge  about 
four  years,  and  had  not  progressed 
beyond  the  filing  of -a  declaration  in 
ejectment.  Under  such  a  contract  as 
that  existing  between  Shumway  and 
Sloan,  it  is  the  duty  of  the  attorney 
to  exercise  reasonable  diligence  in 
the  prosecution  of  the  suit,  and  if 
he  fails  to  do  so,  the  client  must  be  at 
liberty  to  seek  other  aid.  If  com- 
pelled to  do  this,  he  can  not  be  re- 
quired to  execute  the  original  agree- 
ment. .  .  .  The  delay  raises  a 
presumption  of  extreme  negligence 
on  the  part  of  Sloan,  which  has  not 
been  explained,  and  which  justified 
Shumway  in  treating  the  contract  as 
at  an  end.") 

67  Campbell  v.  Maple,  105  Pa.  304; 
Stark  v.  Hart,  22  Tex.  Civ.  App.  543. 

A  contract,  not  champertous,  made 
by  one  administrator  having  adequate 
authority,  with  an  attorney  to  prose- 
cute a  claim  belonging  to  the  estate, 
for  a  contingent  fee  is  not  terminated 
by  the  death  of  that  administrator, 
but  is  binding  upon  his  successor. 
Jeffries  v.  Mutual  Life  Ins.  Co.,  110 
U.  S.  305,  28  L.  Ed.  156. 

«s  "Where  the  relation  Is  dissolved 


1836 


by  the  operation  of  law  the  attorney 
is  entitled  to  his  quantum  meruit." 
Randolph  v.  Randolph,  34  Tex.  181, 
citing  Baird  v.  Ratcliff,  10  Tex.  81. 

To  same  effect  Landa  v.  Shook,  87 
Tex.  608;  Johnston  v.  Commissioners, 
12  N.  Mex.  237. 

In  Avery  v.  Jacob,  15  N.  Y.  Supp. 
564,  it  was  held  that  "Where  there 
Is  no  special  contract  on  the  attor- 
ney's part  to  proceed  to  the  end  of 
the  litigation,  the  client's  death  ends 
the  relation  and  the  executors  cannot 
require  the  attorney  to  proceed,  and 
the  attorney  may  recover  quantum 
meruit  up  to  client's  death. 

But  in  Succession  of  Labouve,  34 
La.  Ann.  1187,  it  is  said  that  a  con- 
tract for  the  employment  of  an  at- 
torney to  collect  a  demand  is  not  nec- 
essarily terminated  by  the  death  of 
the  client  and  that  it  Is  competent  for 
the  attorney  to  enforce  the  contract 
against  the  client's  estate  and  to  pro- 
ceed with  the  performance  unless 
discharged  by  the  administrator. 

Although  upon  the  death  of  one  of 
a  firm  of  attorneys  the  client  is  un- 
der no  obligation  to  accept  the  serv- 
ice of  the  survivor,  (and  the  court 
said  they  thought  it  made  no  differ- 
ence whether  the  services  of  that 
partner  had  been  stipulated  for  or 
not)  the  survivor  may,  upon  the  re- 
fusal of  the  client  to  allow  him  to 
proceed  to  complete  the  service,  re- 
cover, not  upon  the  contract  but  quan- 
tum meruit,  for  the  service  already 
rendered.  Landa  V.  Shook,  87  Tex. 
608. 
.;;;.  .  '  •  :i;ol  facw  ^ 


CHAP.    l]  OF  ATTORNEYS  AT  LAW 

substantially  performed;  neither  can  he  recover  quantum  meruit  unless 
there  be  such  means  of  severing  the  performance  and  apportioning  the 
benefit  as  to  make  possible  a  determination  of  the  value  of  the  service 
rendered  free  from  the  contingencies  which  the  contract  contemplated. 
Where  the  employment  is  of  a  firm  of  attorneys  and  one  of  the 
attorneys  dies  it  is  in  general  the  duty  of  the  surviving  partner,  as  be- 
tween himself  and  the  representatives  of  the  deceased  partner,  to  com- 
plete the  performance  of  the  contract,  if  permitted,69  though  the  client 
is  not  obliged  to  accept  the  services  of  the  survivors  or  of  any  new  firm 
into  which  they  may  enter.70 

§  2259.  Irrevocable  powers — Powers  coupled  with  an  in- 
terest.— Nothing  can  be  clearer,  as  has  been  already  pointed  out, 
than  that  the  ordinary  employment  of  an  attorney  by  a  client  is  a  re- 
vocable one.71  It  is  surely  not  the  case  of  a  "power  coupled  with  an 
interest."  72  In  accordance  with  familiar  rules  this  is"  true  even  though 
the  attorney  is  to  be  paid  out  of  the  proceeds  arising  from  the  execu- 
tion of  the  authority.73  A  power  given  by  way  of  security,  as,  for  ex- 
ample, where  an  attorney  incurs  an  obligation  or  advances  money  for 
his  client  in  reliance  upon  an  authority  to  collect  a  claim  and  reimburse 
himself  out  of  the  proceeds,  would  doubtless  be  deemed  irrevocable  by 
the  act  of  the  client  himself,7*  but  it  would  also  doubtless  not  be  deemed 
a  power  coupled  with  an  interest  which  would  survive  the  client's 
death.78  In  order  to  have  the  latter  effect  the  attorney  must  by  lien  or 

ob      .£&' 

«9See  Little  v.  Caldwell,  101  Cal.  ier,  8  Wheat.  (U.  S.)  174,  5  L,  Ed. 
553,  40  Am.  St.  R.  89;  Clifton  v.  -589. 

Clark,  83  Miss.  446,  102  Am.  St.  R.  ™  Shepard  v.  McNail,  122  Mo.  App. 
458,  1  Ann.  Cas.  396,  66  L.  R.  A.  821.  418,  seems  contra,  but  unless  it  can 

TO  Wright  v.  McCampbell,  75  Tex.  be  sustained  upon  the  ground  suggest- 
644.  Upon  the  death  of  one  member  ed  in  the  closing  part  of  the  opinion, 
of  a  firm  of  lawyers  employed  in  a  namely,  that  there  was  an  assign- 
case  of  a  contingent  fee,  the  survivor  ment  of  the  accounts,  it  is  respect- 
formed  a  new  firm  and  this  firm,  with  fully  submitted  that  the  case  is  un- 
the  client's  consent,  went  on  with  the  sound.  The  agent  in  the  case  was  not 
the  service.  Held,  that  this  was  a  an  attorney. 

waiver  of  the  client's  right  to  insist  Price  v.  Haeberle,  25  Mo.  App.  201, 
that  the  death  terminated  the  con-  while  it  contains  some  language 
tract.  Troy  v.  Hall,  157  Ala.  592.  which  seems  contra,  is  not  necessari- 

71  See    ante,  §    2254;    Campbell    v.      ly  in  conflict    No  question  of  the  rev- 
Maple,  105  Pa.  304.  ocation  of  the  power  was  really  in- 

72  Campbell  v.  Maple,  supra.  volved.     The  question  was  as  to  the 
TS  See  ante,  §  2254 ;  Vilhauer  v.  To-      right    of    the    attorney    to    recover 

ledo,  5  Ohio  Dec.  8,  32  Cinn.  L.  Bui.  against   the   estate   of   the   deceased 

(Ohio)  154;  Hartley's  Appeal,  53  Pa.  client,   where  an   attorney  who   had 

212,  91  Am.  Dec.  207.  made  a  contract  to  prosecute  an  ac- 

74  Terwilliger  v.  Ontario,  etc.,  R.  R.  tion  for  a  share  of  the  proceeds  had 

Co.,  149  N.  Y.  86;  Hunt  v.  Rousman-  performed  substantial  services  in  the 

1837 


§    226o] 


THE  LAW   OF  AGENCY 


[BOOK  v 


otherwise  acquire  an  interest  or  estate  in  the  subject  matter  of  the 
power  itself,  that  is  to  say,  in  the  cause  of  action  itself,  and  the  cause 
of  action  must  be  one  which  is  assignable  in  its  nature  and  which  would 
survive  death.76 

;§  2260.  But  although  the  death  of  the  client  operates  or- 
dinarily to  terminate  the  authority  of  the  attorney  to  bind  the  client  or 
his  estate  as  an  agent,  contracts  of  employment  are  not  necessarily  ter- 
minated thereby.  If  they  are  not  so  far  personal  as  to  require  the  con- 
tinued existence  of  the  client,  they  may  still  be  capable  of  performance. 
Hence  where  the  client  has  agreed  to  pay  the  attorney  a  certain  sum 
or  to  give  him  a  certain  share  if  he  will  establish  a  claim,  collect  a  debt, 
secure  a  judgment,  and  the  like,  and  the  attorney  is  able  with  the  ex- 
press or  implied  consent  of  the  administrator  or  executor  or  with  his 
active  co-operation  where  that  is  necessary ,TT  to  actually  perform  his 
undertaking,  there  is  no  reason  why  he  should  not  recover  the  agreed 
compensation.78 


life  time  of  the  clients  and  after  her 
decease  had  caused  the  action  to  be 
revived  in  the  name  of  the  adminis- 
trator, apparently  with  his  consent, 
had  obtained  a  judgment  which  had 
been  collected,  and  the  whole  amount 
was  in  the  hands  of  the  administra- 
tor. The  attorney  had  in  fact  per- 
formed his  contract  in  full  with  the 
acquiescence  of  all  parties  concerned. 

™wylie  v.  Coxe,  15  How.  (56  IT. 
S.)  415,  14  L.  Ed.  753.  [This  case- 
proceeds  upon  the  theory,  not  univer- 
sally agreed  upon,  (see  post,  §  2285) 
that  an  agreement  to  pay  out  of  a 
particular  fund  creates  a  lien  upon 
the  fund,  or  operates  as  an  equitable 
assignment  pro  tanto  of  the  fund.l 

In  Grapel  v.  Hodges,  56  N.  Y.  Su- 
preme Ct  (49  Hun)  107,  affirmed  in 
112  N.  Y.  419,  intestate  owning  cer- 
tain claims,  contracted  with  one 
Koop  to  collect  the  claims,  agreeing 
that  Koop  might  retain  one-fourth  for 
his  compensation.  Koop  was  not  an 
attorney.  After  intestate's  death, 
Koop  tendered  the  services  of  an  at- 
torney to  the  administratrix,  but  the 
administratrix  rejected  the  services 
and  had  the  claim  collected  by  an- 
other attorney.  Held:  Koop  may  re- 
cover one-fourth  of  the  claims  recov- 
ered less  what  it  would  have  cost  him 


to  collect  them.  That  Koop  had  an 
agency  coupled  with  an  interest 
which  was  not  revoked  by  death. 

The  case  is  best  resolved  by  treat- 
ing it  not  as  a  question  of  principal 
and  agent,  but  of  breach  of  an  ordi- 
nary contract. 

Morgan  v.  Gibson,  42  Mo.  App.  234, 
is  a  case  of  the  same  general  sort.  It 
does  not  appear  that  the  plaintiff  was 
an  attorney,  and  the  contract  was  to 
pay  him  and  his  mother  a  certain  por- 
tion of  the  sum  recovered  In  consider- 
ation of  his  aiding  the  attorney  em- 
ployed in  the  case  in  successfully 
prosecuting  it. 

77  The  attorney  has  no  power  to  re- 
vive a  suit  abated  by  the  death  of  the 
client,  without  the  consent  of  the  per- 
sonal representative:  Clark  v.  Parish, 
1  Bibb  (Ky.),  547;  Campbell  v.  Kin- 
caid,  3  T.  B.  Mon.  (Ky.)  68. 

In  Succession  of  Labouve,  34  La. 
Ann.  1187,  it  is  said  to  be  the  attor- 
ney's duty  to  go  on  with  the  perform- 
ance unless  it  is  forbidden  by  the 
personal  representative. 

78Wylie  v.  Coxe,  15  How.  (TT.  S.) 
415,  14  L.  Ed.  753;  Price  v.  Haeberle, 
25  Mo.  App.  201;  Morgan  v.  Gibson, 
42  Mo.  App.  234;  Shepard  v.  McNail, 
122  Mo.  App.  418. 

.v   in,  i!    ;38  .Y  .VL  6H  ,.oO 


1838 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§§    226l,  2262 


§  2261.  Right  to  interest. — The  attorney  will  be  entitled  to  in- 
terest upon  the  amount  of  his  compensation  whenever  the  amount  has 
been  ascertained  and  has  become  due  by  proper  demand  or  the  arrival 
of  the  time  expressly  or  impliedly  agreed  upon  for  payment.79 

§  2262.  When  attorney's  claim  barred  by  limitation. — The  statute 
of  limitations  begins  to  run  against  the  attorney  from  the  time  his  right 
of  action  accrues,  and  his  right  of  action  accrues  at  the  time  his  under- 
taking is  completed.  Under  a  general  retainer,  as  has  been  seen,  the 
contract  of  the  attorney  is  considered  to  be  an  entire  one  to  conduct 
the  cause  to  its  termination,  and  the  statute  would  operate  from  the 
time  of  the  entry  of  the  judgment.80  Where,  however,  the  attorney 


79  Stoddard  v.  Sagal,  86  Conn.  — , 
85  Atl.  519.  In  Mygatt  v.  Wilcox,  45 
N.  Y.  306,  6  Am.  Rep.  90,  it  is  said 
that  interest  is  recoverable  upon  an 
attorney's  account  from  the  time  it 
is  rendered  to  the  client,  since  that 
fixes  the  time  when  it  should  be  paid. 
To  same  effect,  Adams  v.  Fort  Plain 
Bank,  36  N.  Y.  255;  Rexford  v.  Corn- 
stock,  3  N.  Y.  Supp.  876. 

In  Whitney  v.  City  of  New  Orleans, 
54  Fed.  614,  4  C.  C.  A.  521,  where  it 
was  agreed  that  the  fee  should  be 
fixed  by  a  referee  it  was  held  that  in- 
terest was  properly  allowed  upon  the 
amount  so  fixed,  especially  since  the 
client's  claim  had  been  reduced  to 
judgment,  was  very  soon  collectable, 
and  itself  bore  interest  at  the  same 
rate  allowed  the  attorney. 

In  Louisville  Gas  Co.  v.  Hargis 
(Ky.),  33  S.  W.  946,  it  was  held  that 
interest  might  be  recovered  only 
from  the  date  of  a  judgment  fixing 
the  amount  of  the  compensation. 

In  Colorado  Coal  &  Iron  Co.  v. 
John,  5  Colo.  App.  213,  it  was  held 
that  there  was  nothing  in  the  Colo- 
rado statute  which  entitled  the  attor- 
ney to  interest. 

sowhitehead  v.  Lord,  7  Ex.  691; 
Harris  v.  Osbourn,  2  Cromp.  &  M. 
629;  Martindale  v.  Falkner,  2  Com.  B. 
706;  Phillips  v.  Broadley,-9  Q.  B.  Rep. 
744;  Eliot  v.  Lawton,  7  Allen  (Mass.), 
274,  83  Am.  Dec.  683;  Walker  v. 
Goodrich,  16  111.  341;  Fenno  v.  Eng- 
lish, 22  Ark.  170;  Davis  v.  Smith,  48 

1839 


Vt.  52;  Reavey  v.  Clark,  56  Hun  (N. 
Y.),  641,  9  N.  Y.  S.  216;  McCrea  v. 
Scofield,  86  N.  Y.  Supp.  10;  Dailey  v. 
Devlin,  21  N.  Y.  App.  Div.  62;  My- 
gatt v.  Wilcox,  45  N.  Y.  306,  6  Am. 
Rep.  90;  Bathgate  v.  Haskin,  59  N. 
Y.  533. 

Where  the  attorney  is  employed  to 
conduct  a  single  suit  the  statute  of 
Limitations  begins  to  run  when  the 
suit  is  ended  or  the  retainer  termi- 
nated in  some  other  manner,  Walker 
v.  Goodrich,  supra,  but  when  he  is  re- 
tained and  is  paid  on  the  basis  of  a 
fixed  salary,  which  is  paid  monthly, 
the  statute  begins  to  run  at  the  end 
of  each  month.  Ennis  v.  Pullman  Pal- 
ace-Car Co.,  165  111.  161,  citing  many 
cases. 

Where  the  same  employment  results 
in  a  number  of  suits  which  are  not 
separate  and  independent  but  all 
arise  in  one  employment,  the  statute 
does  not  begin  to  run  until  the  last 
one  of  them  is  completed.  Meyer  r. 
McCumber,  75  111.  App.  119. 

Where  the  client  who  had  employed 
an  attorney  on  a  percentage  to  col- 
lect bonds,  sold  the  bonds,  but  for  the 
purposes  of  depriving  the  attorney  of 
his  fees,  concealed  the  fact  of  the  sale 
from  him  until  the  maker  of  the 
bonds  was  insolvent,  it  was  held  that 
equity  would  restrain  the  client  from 
setting  up  the  statute  as  a  defense. 
Holloway  v.  Appelget,  55  N.  J.  Eq. 
583,  62  Am.  St.  Rep.  827. 


§§    2263,  2264]  THE  LAW  OF  AGENCY  [BOOK   V 

was  employed  specially  to  render  a  particular  service,  as  to  argue  a 
cause  or  prepare  a  brief,  the  right  of  action  would  accrue,  and  the  stat- 
ute begin  to  run,  from  the  time  the  particular  service  was  completed.81 

And  so  though  the  retainer  be  general,  yet  if  the  attorney  be  dis- 
charged by  the  client  before  the  termination  of  the  suit,  or  if,  for  suffi- 
cient reason,  the  attorney  abandons  the  cause  before  its  termination,  his 
right  of  action  would  accrue  at  once  and  the  period  of  the  statute  begin 
to  run.82 

Upon  contracts  for  payment  at  a  particular  time,  as  to  pay  when  the 
judgment  should  be  collected,  the  statute  would  operate  only  from  the 
time  when  by  the  terms  of  the  contract  the  attorney  was  entitled  to  de- 
mand his  compensation.83 

?.  Attorney's  Right  to  Lien. 

•llB<l   :01  .cjiing  .Y 
§  2263.  Two  kinds  of  lien. — The  lien  to  which  an  attorney  at  law 

may  be  entitled  is  of  two  kinds:  I.  The  general  or  retaining  lien,  and 
2.  The  special,  particular  or  charging  lien. 

. 
I.  The  general  or  retaining  lien. 

§  2264.  General  nature  of  this  lien. — An  attorney's  general  or  re- 
taining lien  is  a  common  law  lien,  to  which  the  attorney  at  law  is  enti- 
tled to  secure  the  payment  of  his  costs  and  charges  against  his  client. 
This  lien  is  based  upon  possession,  and  is  a  mere  right  of  retaining  the 
property,  money  or  papers,  to  which  it  adheres,  until  the  costs  and 
charges  are  paid.8*  Like  other  possessory  liens,  this  lien  is  purely  pas- 
sive, and  cannot,  in  the  absence  of  a  statute  permitting  it,  be  enforced 
by  a  sale  of  the  property  which  it  covers.86 

»i  Greek  v.  McDaniel,  68  Neb.  569.  v.  Nafls,  76  Hun  (N.  Y.),  344;  Matter 

82  Eliot  v.  Lawton,  -supra;  Adams  of  Ney  Co.,  114  N.  Y.  App.  Div.  467; 

v.  Fort  Plain  Bank,  36  N.  Y.  255.  Krone  v.  Klotz,  3  N.  Y.  App.  Div.  587; 

SB  Foster  v.  Jack,   4  Watts    (Pa.),  Matter  of  Smith,  111  N.  Y.  App.  Div. 

334;    Morgan  v.  Brown,  12  La.  Ann.  23;  Mathot  v.  Triebel,  98  N.  Y.  App. 

159.  Div.  328;    Hey  ward  v.  Maynard,  119 

s*  German  v.  Browne,  137  Ala.  429;  N.  Y.  App.  Div.  66;  Matter  of  Stenton, 

Meloy  v.  Meloy,  24  App.  D.  C.  239;  53  N.  Y.  Misc.  515;   In  re  Bergstrom 

Scott   v.   Morris,   131    111.   App.    605;  131  N.  Y.  App.  Div.  791;  McDonald  v. 

Sanders  v.  Seelye,  128  111.  631;   Foss  Charleston,  etc.,  R.  Co.,  93  Tenn.  281; 

v.  Cobler,  105  Iowa,  728;    Halsell  v.  Scott  v.  Darling,  66  Vt.  510;  Hazeltine 

Turner,  84  Miss.  432;  Osborne  v.  Dun-  v.  Keenan,  54  W.  Va.  600,  102  Am.  St. 

ham    (N.  J.),  16  Atl.   231;    Leask  v.  Rep.  953;  Davis  v.  Davis,  90  Fed.  791; 

Hoagland,  64  Misc.  (N.  Y.)  156;  Mat-  Finance  Co!  v.  Charleston,  etc.,  R.  Co., 

ter  of  McGuire,  106  N.  Y.  App.  Div.  46  Fed.  426. 

131;    In  re  Sweeney,  86  N.  Y.  App.          ^  In  re  Wilson,  12  Fed.  235;  Brown 

Div.    547;    Sullivan   v.   City   of   New  v.  Bigley,  3  Tenn.  Ch.  618;   Bozon  v. 

York,  68  Hun  (N.  Y.),  544;  McKibbin  Bolland,  4  Myl.  &  Cr.  354. 

1840 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§§  2265-2267 


§  2265.  Declared  by  statute  in  some  states. — Not  only  has  this 
lien,  as  will  be  seen  in  the  following  sections,  been  recognized  and  en- 
forced by  the  courts,  but  in  several  of  the  States  it  has  been  declared, 
enlarged  and  protected  by  statutory  enactments.  The  substance  of 
these  statutes  will  be  found  in  the  note.86 

§  2266.  What  this  lien  adheres  to. — This  lien  of  the  attorney  may 
attach -to,  (a)  papers,  (&)  property,  or,  (c)  money,  of  the  client  in  the 
attorney's  possession. 

a.  Upon  Papers. 

§  2267.  An  attorney  has  a  general  lien  upon  all  the  pa- 
pers, deeds,  vouchers  and  other  documents  of  his  client,  which  come 
into  the  possession  of  the  attorney  while  he  is  acting  for  his  client  in 
a  professional  capacity.87  But  in  order  to  the  creation  of  the  lien,  the 

se  The  following  states  give  a  gen-  Nebraska,  Statutes  (1909),  Ch.  7, 
eral  or  retaining  lien  by  statute: 

Alabama,  Code  of  Alabama  (1907), 
§  3011:  "Attorneys  at  law  shall  have 
a  lien  on  all  papers  and  money  of 
their  clients  in  their  possession,  for 
services  rendered  to  them,  in  refer- 
ence thereto,  and  may  retain  such  pa- 
pers until  said  claims  are  satisfied, 
and  may  apply  such  money  to  the  sat- 
isfaction of  said  claim." 

Alaska,  Code  of  Civil  Procedure 
(1900),  §  742,  has  a  statute  substan- 
tially like  Iowa,  below.  See  Nodine 
v.  Hannum,  1  Alaska,  302. 

In  Colorado,  Gen.  St.  ch.  6,  §  17,  at- 
torney has  a  lien  upon  money  or  pa- 
pers of  client. 

Georgia,  Code  of  1895,  §  2814,  gives 
the  same  lien  as  Alabama  with  the 
omission  of  the  words,  "in  reference 
thereto." 

Iowa,  Code  of  1897,  §  321:  "An  at- 
torney has  a  lien  for  a  general  bal- 
ance of  compensation  upon: 

1.  Any    papers    belonging   to    his 
client,    which    have    come    into    his 
hands  in  the  course  of  his  profession- 
al employment. 

2.  Money  in  his  hands  belonging 
to  his  client." 

Kansas,  Statutes  (1905),  §  402  has 
a  statute  substantially  like  Iowa. 

Minnesota,  Laws  of  1905,  §  2288,  has 
a  statute  substantially  like  Iowa. 


§  8,  substantially  like  Iowa. 

North  Dakota,  Statutes  (1905), 
§  4842,  gives  a  lien  like  that  of  Iowa 
"for  a  general  balance  of  compensa- 
tion in  and  for  each  case." 

Oklahoma,  Laws  of  1909,  §  261,  sub- 
stantially like  North  Dakota. 

Oregon,  Code  (1902),  §  1063,  sub- 
stantially like  Iowa. 

South  Dakota,  Code  (1903),  §  702, 
like  North  Dakota. 

Washington,  Code,  (1910),  §  136, 
substantially  like  Iowa. 

Wyoming,  Statutes  (1899),  §  2911, 
like  Iowa. 

The  similarity  In  the  above  stat- 
utes only  applies  to  the  retaining  lien. 
Each  of  these  states  gives  a  statutory 
charging  lien.  See  post,  §  2276. 

ST  Sanders  v.  Seelye,  128  111.  631; 
Osborne  v.  Dunham  (N.  J.  Eq.),  16 
Atl.  231;  Wright  v.  Cobleigh,  21  N.  H. 
339;  Bowling  Green  Savings  Bank  v. 
Todd,  52  N.  Y.  489;  Ward  v.  Craig,  87 
N.  Y.  550;  In  re  Knapp,  85  N.  Y.  284; 
In  re  Hollins,  197  N.  Y.  361;  Casey 
v.  March,  30  Tex.  180;  Hurlbert  v. 
Brigham,  56  Vt.  368;  Hutchinson  v. 
Howard,  15  Vt.  544;  Patrick  v.  Hazen, 
10  Vt.  183;  Hooper  v.  Welch,  43  Vt. 
169,  5  Am.  Rep.  267;  Weed  v.  Bou- 
telle,  56  Vt.  570,  48  Am.  Rep.  821;  Mc- 
Pherson  v.  Cox,  96  TJ.  S.  404,  24  L.  Ed. 
746;  In  re  Wilson,  12  Fed.  235;  Fi- 


1841 


§  2267] 


THE  LAW   OF  AGENCY 


[BOOK   V 


papers  must  not  only  have  come  into  the  actual  possession  of  the  at- 
torney, but  they  must  have  so  come  into  his  possession  in  his  character 
as  an  attorney  at  law.88  Thus  he  has  no  lien  on  papers  which  he  re- 
ceives as  prochicn  ami  of  an  infant,89  or  as  a  mortgagee  80  or  trustee.91 
So  as  a  lien  does  not  attach  to  papers  which  he  receives  for  a  special 
purpose,82  this  general  lien  will  not  attach,  unless  the  papers  are  volun- 
tarily left  in  his  possession  after  the  special  purpose  has  been  accom- 
plished.98 So  the  lien  does  not  attach  to  public  .records  as  to  papers 
which  constitute  part  of  the  files  of  a  case.9*  So  it  has  been  held  that 
it  did  not  attach  to  his  client's  will.05 

Letters  written  to  the  attorney  by  his  client,  and  copies  of  the  attor- 
ney's replies  hereto,  contained  in  his  own  letter-books,  are  the  attor- 
ney's own  property,  and  the  client  cannot  insist  upon  their  delivery  to 
him  on  -the  termination  of  the  relation.96 

While  the  paper  must  have  come  into  the  hands  of  the  attorney  in 
his  professional  capacity,  it  is  not  essential  that  he  should  have  been 
employed  with  a  view  to  litigation.  Unlike  the  case  of  many  other 
common  law  liens,  it  is  not  essential  that  he  shall  have  performed  labor 
upon  or  with  reference  to  that  paper.97 


nance  Co.  v.  Charleston  R.  Co.,  46  Fed. 
426;  Gottstein  v.  Harrington,  25 
Wash.  508;  Hazeltine  v.  Keenan,  54" 
W.  Va.  600,  102  Am.  St.  Rep.  953; 
Stevenson  v.  Blakelock,  1  M.  &  S.  535; 
Howell  v.  Harding,  8  East,  362;  Hol- 
lis  v.  Claridge,  4  Taunt.  807. 

The  client  cannot  require  the  at- 
torney to  produce  papers,  on  which  he 
has  a  lien,  on  a  subpoena  duces  te- 
cum:  Davis  v.  Davis,  90  Fed.  791. 

as  Stevenson  v.  Blakelock,  1  M.  &  S. 
535;  St.  John  v.  Diefendorf,  12  Wend. 
(N.  Y.)  261;  Sanders  v.  Seelye,  128 
111.  631;  Osborne  v.  Dunham  (N.  J. 
Eq.),  16  Atl.  231. 

so  Montague  on  Lien,  59. 

»o  Pelly  v.  Wathen,  7  Hare's  Ch.  351. 

si  Ex  parte  Newland,  L.  R.  4  Ch.  D. 
515. 

82  Balch  v.  Symes,  1  Turn.  &  R.  87; 
Lawson,  v.  Dickenson,  8  Mod.  306; 
Watts  v.  Newberry,  107  Va.  233 
(where  the  client  on  attorney's  ad- 
vice, bought.  New  York  drafts  and  put 
them  into  the  attorney's  hands  in  or- 
der to  enable  the  client  to  apply  them 


to  the  payment  of  his  debts  as  he 
thought  best  and  to  prevent  them  be- 
ing levied  on.  Held:  attorney  had 
no  lien  upon  them  for  fees  previously 
due  him  on  other  matters).  Bracher 
v.  Olds,  60  N.  J.  Eq.  449  (where  the 
client  put  a  will  into  the  hands  of  an 
attorney  to  make  copies  and  then  to 
deposit  in  a  safe  of  which  testator 
had  the  use.  Held:  "the  possession 
was  not  that  of  an  attorney,"  but 
"only  that  of  an  agent,"  and  incon- 
sistent with  possession  under  a  claim 
of  lien). 

"3  EX  parte  Pemberton,  18  Ves.  Jr. 
282. 

94  Wright  v.  Cobleigh,  21  N.  H.  339; 
Clifford  v.  Turrill,  2  DeG.  &  Sm.  1; 
In  re  Bergstrom,  131  N.  Y.  App.  Div. 
791. 

a*  Balch  v.  Symes,  1  Turn.  &  R.  87; 
Georges  v.  Georges,  18  Ves.  Jr.  294; 
In  re  Bracher's  Will,  60  N.  J.  Eq.  350; 
Bracher  v.  Olds,  60  N.  J.  Eq.  449. 

96  Jn  re  Wheatcroft,  6  Ch.  Div.  97. 

97  Osborne  v.  Dunham  (N.  J.  Eq.), 
16  Atl.  231. 


1842 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§§    2268,2269 

b.  Upon  Property. 

§  2268.  "  •  The  attorney's  lien  extends  to  articles  of  property 

belonging  to  the  client  which  come  into  the  attorney's  possession  while 
acting  in  a  professional  capacity,  as  upon  articles  which  are  delivered 
to  him  to  be  used  as  evidence  in  the  cause.98 

c.  Upon  Money. 

r  J 

§  2269.  An  attorney  at  law  has  a  lien  also  upon  moneys 

collected  by  him  for  the  client,  while  acting  in  a  professional  capacity." 
The  lien  attaches  whether  the  money  be  paid  by  the  debtor  without  suit, 
as  in  payment  or  compromise  of  a  demand  entrusted  to  the  attorney 
for  collection,1  or  paid  or  collected  upon  a  judgment,2  or  award.8  This 
general  or  retaining  lien  does  not  attach  until  the  money  is  collected,4 
and  is  not  to  be  confounded  with  the  attorney's  special,  particular  or 
charging  lien  to  be  hereafter  noticed. 

The  result  of  this  lien  is  that  the  attorney  may  retain,  from  the  fund 
in  his  possession,  the  amount  for  which  his  lien  attaches,  and  such 
amount  may  be  set-off  against  the  client  in  an  action  brought  by  him 
against  the  attorney  to  recover  the  fund.  Whether  the  attorney's  claim 
upon  the  fund  depends  strictly  upon  the  law  of  lien  or  upon  that  of 
set-off,5  is  a  question  upon  which  the  courts  are  not  all  agreed,  although 

es  Friswell  v.  King,  15  Sim.  191.  proportionately.    In  re  Tracy,  1  N.  Y. 

•a  German  v.  Browne,  137  Ala.  429;  App.  Div.  Ill,  aff'd,  no  opinion,  149  N. 

Cooke  v.  Thresher,  51  Conn.  105;  Far-  Y.  608. 

lardeau  v.  Washburn,  199  Mass.  363;  In  Matter  of  Smith,  111  N.  Y.  App. 

Bowling  v.  Eggemann,  47  Mich.  171;  Div.   23,   it  was  said:    "An  attorney 

Diehl  v.   Friester,   37   Ohio   St.   473;  has  a  lien  for  his  compensation  for 

Stewart  v.  Flowers,  44  Miss.  513,  7  professional  services  and  for  disburse- 

Am.   Rep.  707;    Lewis  v.  Kinealy,   2  ments  upon  the  moneys  and  property 

Mo.  App.  33;   In  re  Knapp,  85  N.  Y.  received  by  him  on  his  client's  behalf 

284;  Krone  v.  Klotz,  3  N.  Y.  App.  Div.  in  the  course  of  his  employment.  This 

587;   Sparks  v.  McDonald  (N.  J.),  41  right  of  lien  is  not  affected  by  the 

Atl.  369;   Dubois'  Appeal,  38  Penn.  St.  fact  that   the   client  is  an   executor 

231,  80  Am.  Dec.  478;  Casey  v.  March,  and  the  services  were  rendered  and 

30  Tex.   180;    Kinsey  v.   Stewart,  14  moneys  and  property  received  on  be- 

Tex.  457;  Weed  v.  Bontelle,  56  Vt.  570,  half  of  the  estate,  nor  is  it  confined 

48  Am.  Rep.  821;    Hurlbert  v.  Brig-  to  moneys  and  property  recovered  by 

ham,  56  Vt.   368;    In  re  Paschal,   10  judgment." 

Wall.  (U.S.)  483,  19  L.  Ed.  992.  2  Wells    v.    Hatch,    43    N.    H.    246: 

i  Meloy  v.  Meloy,  24  App.  D.  C.  239;  Bowling  Green  Sav.  Bank  v.  Todd,  52 

Sparks  v.  McDonald,  supra.     Where  N.  Y.  489. 

an  attorney  who  had  a  claim  for  col-  3  Ormerod  v.  Tate,  1  East,  464. 

lection  on  commission,  received  from  4  Casey  v.  March,  30  Tex.  180;    St. 

the  debtor  money  and  notes,  and  turn-  John  v.  Diefendorf,  12  Wend.  (N.  Y.) 

ed  the  notes  over  to  the  client,  it  was  261. 

held    that   he   could    not   retain   the  5  See  Wells  v.  Hatch,  43  N.  H.  246. 
whole  fee  out  of  the  money  but  only 

1843 


§    22/O]  THE  LAW  OF  AGENCY  [BOOK   V 

agreeing  upon  the  result.  In  a  Pennsylvania  case  the  court  say  that 
it  is  a  right  to  defalcate  rather  than  a  right  of  lien.6  This  right  of  lien 
does  not  depend  upon  the  question  whether  there  was  an  express  agree- 
ment as  to  the  fact  that  compensation  was  to  be  paid,  or  as  to  its  amount. 
It  applies  to  a  claim  upon  a  quantum  meruit,  as  well  as  where  the  com- 
pensation was  agreed  upon.7  In  settling  with  his  client,  and  paying 
over  the  proceeds,  the  attorney  has  the  right  to  ask  for  a  final  settle- 
ment, and  to  insist  upon  a  receipt  for  the  amount  paid.8 

And  the  attorney  may  not  only  retain  his  own  fees  and  charges,  but 
he  may  also  retain,  for  payment  to  them,  the  fees  and  charges  of  as- 
sociate attorneys  and  counsel  employed  in  the  same  case  by  the  attor- 
ney with  the  client's  consent,8  or,  it  is  held,  employed  by  the  client  him- 
self.10 

The  lien  will  not  attach  to  money  held  by  the  attorney  for  some  spe- 
cial purpose  inconsistent  with  the  existence  of  the  lien.11 

§  2270.  What  charges  the  lien  secures. — No  little  conflict  exists 
in  the  decisions  as  to  the  charges  which  are  protected  by  the  attorney's 
general  lien.  Many  of  the  cases,  particularly  the  earlier  ones,  confine 
it  to  those  fees  and  charges  which  the  attorney  is  authorized  to  tax  as 
part  of  the  costs  in  the  cause,  and  deny  it  as  to  the  general  balance  due 
to  the  attorney  by  reason  of  the  express  or  implied  agreements  between 
himself  and  his  client.12  The  strong  tendency  of  the  modern  cases, 
however,  is  to  extend  this  lien  for  the  protection  of  the  attorney's  gen- 
eral balance  of  account,  whether  the  costs  and  charges  be  those  incurred 
in  the  particular  cause  in  which  the  attorney  acquired  possession,  or  in 
other  professional  business  and  employment  in  other  causes.  And  this 

may  fairly  be  said  to  be  the  rule.18 

j          j 

.  »>9l  .T  .tt  38  ,tyY[fin2I  <n  -H'I 

8  Strong,  J.,  in  Dubois'  Appeal,  38  «  See  Waters  v.  Grace,  23  Ark.  118; 

Pa.  231,  80  Am.  Dec.  478.  McDonald  v.  Napier,  14  Ga.  89. 

i  In  re  Knapp,  85  N.  Y.  284.  "  Hurlbert  v.  Brigham,  56  Vt.  368; 

8  Dowling  v.  Eggeman,  47  Mich.  171.  Cooke    v.    Thresher,    51    Conn.    105; 

»  Harwood  v.  La  Grange,  137  N.  Y.  Hooper  v.  Welch,  43  Vt.  169,  5  Am. 

538.  Rep.    267;     Bowling    Green    Savings 

i«  Jackson  v.  Clopton,  66  Ala.   29;  Bank  v.  Todd,  52  N.  Y.  489;  Krone  v. 

Balsbaugh  v.  Frazer,  19  Penn.  St.  95.  Klotz,  3  N.  Y.  App.  Div.  587;   Mathot 

This  is  said  to  be  because  the  lien  is  v.  Triebel,  98  N.  Y.  App.  Div.  328;  In 

&  joint  one  for  the  benefit  of  all  con-  re  Paschal,  10  Wall.  (U.  S.)  483;  Weed 

cerned  and  anyone  may  enforce  it  in  v.  Boutelle,  56  Vt.  570,  48  Am.  Rep. 

behalf  of  all.  See  also,  Massachusetts,  821;  Scott  v.  Morris,  131  111.  App.  605. 

etc.,  Co.  v.  Township,  48  Fed.  145.  In  Van  Etten  v.  State,  24  Neb.  734, 

11  Anderson  v.  Bosworth,  15  R.   I.  1  L.  R.  A.  669,  it  was  said  there  was  a 

443,   2  Am.   St.  Rep.  910;    Matter  of  lien  for  a  general  balance  of  account, 

Lamer,  20  N.  Y.  Wk.  Dig.  73.  but  the  statute  there  expressly  so  de- 
clared. 
1844 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§"§    22/1,2272 

§  2271.  Against  what  parties  lien  prevails. — The  general  lien  of 
the  attorney  prevails  not  only  against  his  client,  but  also  against  all 
persons  who  claim  under  the  client.  It  is,  therefore,  valid  against  the 
client's  assignment  in  bankruptcy  or  for  the  benefit  of  creditors,14  and 
against  sales,  transfers  or  assignments  by  the  client  generally.15  It  pre- 
vails also  against  attachment  or  garnishment  by  the  client's  creditors.16 
In  all  of  these  cases,  the  possession  by  the  attorney  of  the  thing  to 
which  the  lien  attaches  is  notice  of  his  rights,17  and  parties  claiming 
through  or  under  the  client  take  only  the  client's  claim  subject  to  the 
attorney's  lien.  Neither  the  client  nor  his  assignees  can  recover  the 
subject-matter  of  the  lien  without  first  paying  to  the  attorney,  or  per- 
mitting him  to  retain,  the  general  balance  due  him  from  the  client.18 

So,  as  against  the  client  or  his  creditor,  the  attorney  may  retain  the 
entire. stipulated  price  for  services  then  in  progress  of  performance,  al- 
though not  fully  performed,  if  he  in  good  faith  intends  to  complete  the 
performance.19 

§  2272.  How  lien  may  be  lost. — As  the  general  or  retaining  lien 
of  the  attorney  depends  wholly  upon  possession,  it  necessarily  follows 
that  the  lien  will  be  lost  if  the  possession  be  voluntarily  surrendered.20 
It  is  not  lost,  however,  if  the  possession  be  wrongfully  or  fraudulently 
obtained  from  him,  and  he  may  recover  possession  by  a  proper  action.21 

The  lien  is  also  incapable  of  being  transferred  to  another,  and  such 
a  transfer  destroys  it.22  But  personal  possession  by  the  attorney  him- 
self is  not  indispensable ;  possession  by  his  servant  or  agent,  which  is 
in  law  his  possession,  is  sufficient. 

b  jrfaim  -*£TBl3&9n«*ri 

14  Ex  parte  Bush,  7  Vin.  Abr.  74;       600,  102  Am.  St.  Rep.  953;  German  v. 
Ex  parte   Sterling,  16  Ves.   Jr.  258;       Browne,    137    Ala.    429.      See    also, 
Ward  v.  Craig,  87  N.  Y.  550.  Tucker  v.  Taylor,  53  Ind.  93;   Nevan 

15  Weed  v.  Boutelle,  56  Vt.  570,  48      v.  Roup,  8  Iowa,  207;  Oakes  v.  Moore, 
Am.  Rep.  821.  24  Me.  214,  41  Am.  Dec.  379. 

is  Weed    v.    Boutelle,    supra;   Ran-  In  Winans  v.  Grable,  18  S.  Dak.  182, 

dolph  v.  Randolph,  34  Tex.  181;  Krone  it  was  said:    "It  is  quite  clear  that 

v.  Klotz,  3  N.  Y.  App.  Div.  587.  he  lost  the  same  (lien)  by  delivering 

IT  Hutchinson    v.    Howard,    15    Vt.  the  securities  to  the  receiver  and  neg- 

544;  Weed  v.  Boutelle,  supra.  lecting     thereafter     to     present    his 

is  Weed  v.  Boutelle,  supra;  Ex  parte  claim  for  more  than  three  years  after 

Sterling,  supra;  In  re  Wilson,  12  Fed.  the  receiver  was  appointed." 

235.  21  Dicas  v.  Stockley,  7  C.  &  P.  587. 

is  Randolph   v.   Randolph,   34   Tex.  22  In  re  Wilson,  12  Fed.  Rep.  235. 

Igl.  See  Lovett  v.  Brown,  40  N.  H.  511; 

20  Dubois'  Appeal,  38  Penn.  St.  231,  Meany  v.  Head,  1  Mason  (U.  S.  C.  C.), 

80  Am.  Dec.  478*;   Nichols  v.  Pool,  89  319,  Fed.  Gas.  No.  9,379;    Sullivan  v. 

111.- 491;    In  re  Wilson,  12  Fed.  235;  City  of  New  York,  68  Hun   (N.  Y.), 

Gottstein    v.    Harrington,    25    Wash.  544. 
508;   Hazeltine  v.  Keenan,  64  W.  Va. 

1845 


§§  2273,2274] 


THE  LAW  OF  AGENCY 


[BOOK  v 


An  attorney  who  without  just  cause  terminates  his  relation  with  his 
client  forfeits  his  common  law  lien  upon  the  pleadings  and  papers  in 
the  cause.28 

§  2273.  How  lien  may  be  waived. — The  attorney  may,  of  course, 
voluntarily  waive  his  lien  if  he  sees  fit,  and  such  a  waiver  may  be  pre- 
sumed from  conduct  on  his  part  which  is  inconsistent  with  an  intention 
to  claim  a  lien.2*  Thus  if  he  takes  security  for  the  demand,25  or  agrees 
to  give  credit  for  a  particular  time,28  or  takes  the  note  of  the  client  or 
a  third  person  in  payment,27  the  Hen  would  be  waived,  but  the  mere 
taking  of  the  client's  own  note  for  the  amount  would  not  be  deemed  a 
waiver,  unless  it  was  taken  as  payment.28 

§  2274.  Enforcement  of  lien. — The  general  or  retaining  lien  of 
the  attorney  upon  his  client's  papers  or  property  can  not  be  enforced  in 
the  absence  of  a  statute  by  any  proceedings,  either  at  law  or  in  equity, 
(other  than  an  ordinary  action  at  law  followed  by  execution) 
to  procure  payment  of  the  debt  out  of  the  articles  so  held.29  The  articles 
can  not  be  sold  nor  applied  to  the  attorney's  own  use,  by  virtue  of  the 
lien,  but  can  only  be  held  until  the  debt  be  paid.30  But  the  lien  endures 


zs  In  re  Rieser,  137  N.  Y.  App.  Div. 
177. 

24  In  West  v.  Bacon,  164  N.  Y.  425, 
it  was  held  that  where  an  attorney 
made  a  formal  declaration  of  trust  in 
which  he  declared  he  held  land  as 
trustee  and  in  no  other  way,  and 
bound  himself  to  transfer  it  as  the 
beneficiary  might  direct,  he  waived 
any  lien  he  might  have  had  thereon. 

In  Goodrich  v.  McDonald,  112  N.  Y. 
157,  the  administrator  of  the  attor- 
ney then  deceased,  being  notified  that 
the  money  was  about  to  be  paid  upon 
the  judgment  and  asked  to  be  present, 
wrote  saying  that  he  was  satisfied 
with  the  personal  responsibility  of 
the  client  and  that  she  might  dis- 
charge the  judgment  so  far  as  he  was 
concerned.  Held,  a  waiver. 

In  Matter  of  King,  168  N.  Y.  53,  the 
attorney  wrote  a  letter  in  which  he 
requested  payment,  saying  he  dfd  not 
desire  to  impress  a  lien  on  the  fund. 
Held:  Not  a  waiver,  as  the  letter 
clearly  amounted  only  to  a  statement 
that  in  the  first  instance  he  assumed 
his  bill  would  be  paid  on  n  resent  ation. 
Goodrich  v.  McDonald,  supra,  was  dis- 
tinguished. 


Proof  of  the  claim  against  the  es- 
tate of  the  deceased  client  was  held 
not  to  be  a  waiver  in  Scott  v.  Morris, 
131  111.  App.  605. 

In  Jones  v.  Judge,  95  Mich.  289,  it 
is  said  that  a  lien  upon  papers  is 
merged  in  a  charging  lien  upon  a 
judgment  afterwards  secured  thereon. 

25  Cowell  v.  Simpson,  16  Ves.  Jr. 
275;  Balch  v.  Syrnes,  1  T.  &  R.  87; 
Watson  v.  Lyon,  7  DeG.  M.  &  G.  288. 

28  See  Stoddard,  etc.,  Mnfg.  Co.  v. 
Huntley,  8  N.  H.  441,  31  Am.  Dec.  198. 

27  Cowell   v.   Simpson,   16  Ves.   Jr. 
275. 

28  Dennett  v.  Cutts,  11  N.  H.  163; 
Stevenson  v.  Blakelock,  1  M.  &  S.  535. 

29  In  re  Wilson,  12  Fed.  235;  Terrell 
v.   The  B.   F.   Woolsey,   4   Fed.   552; 
Brown  v.   Bigley,   3   Tenn.   Ch.   618; 
Thames  Iron  Works  v.  Patent  Derrick 
Co.,  1  John.  &.  H.  93;  Bozon  v.  Bolland, 
4  Myl.  &  C.  354;   Heslop  v.  Metcalfe, 
3  Id.  183;   Foss  v.  Cobler,  105  Iowa, 
728;    Matter   of  McGuire,   106   N.   Y. 
App.  Div.  131;   McDonald  v.  Charles- 
ton, etc.,  R.  Co.,  93  Tenn.  281;   Gott- 
stein  v.  Harrington,  26  Wash.  508. 

so  in  re  Wilson,  and  cases,  supra. 


1846 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§§    2275,  2276 

until  the  debt  is  paid,  and  is  not  defeated  by  the  fact  that  the  statute  of 
limitations  may  have  run  against  the  debt.31 

2.  Th£  special  or  charging  lien. 

"   >T~ 

§  2275.  General  nature  of  this  lien. — The  second  kind  of  lien 
which  an  attorney  has  is  that  existing  upon  a  judgment  obtained  by 
him,  or  moneys  payable  thereon,  or  some  fund  in  court  produced  there- 
from. Unlike  the  general  or  retaining  lien,  this  is  not  a  mere  passive 
right  of  retainer  of  papers  or  moneys  reduced  to  possession,  for  the  at- 
torney can  have  no  possession  of  the  judgment  or  of  the  moneys  pay- 
able thereon,  or  of  the  fund  in  court ;  but  it  is  rather  an  active  right, 
enabling  the  attorney  to  take  active  steps  to  charge  the  judgment  or 
fund  with  his  claim,  and  to  secure  the  aid  of  the  court  for  his  protec- 
tion.32 

This  lien  did  not  exist  at  common  law  and  is  said  not  to  be  of  very 
ancient  origin.33  It  had  its  source  in  the  desire  of  the  court,  based  upon 
principles  of  equity  and  justice,  to  protect  the  attorney,  by  whose  ef- 
forts, and,  in  many  instances,  by  whose  expense,  the  judgment  or  fund 
had  been  recovered.34 

This  lien  will  be  seen  to  be  radically  different  in  its  nature  from  the 
general  or  retaining  lien,  from  which  it  should  be  carefully  distin- 
guished. 

§  2276.  In  what  states  it  exists. — This  charging  lien  of  the  attor- 
ney has-been  adopted  by  statute,  or  enforced  by  the  courts,  in  some 
form,  in  a  majority  of  the  United  States,  although  it  does  not  exist  in 
all  of  them.35  These  statutes  are  by  no  means  uniform,  nor  are  the  de- 
si  in  re  Murray,  3  W.  N.  (1867)  are  obtained."  In  Read  v.  Dupper,  6 
190;  Higgins  v.  Scott,  2  B.  &  Ad.  413.  T.  R.  361. 

32Wilkins  v.  Carmichael,  1  Doug.  ^  In  Alabama,  Civil  Code  (1907), 
101;  Welsh  v.  Hole,  Id.  238;  Schoole  v.  §  3011,  the  attorney  has  a  lien  "upon 
Noble,  1  H.  Bl.  23;  Barker  v.  St.  Quin-  suits,  judgments,  and  decrees  for 
tin,  12  Mees.  &  Wels.  441;  Bozon  v.  money."  Everyone  must  take  notice 
Bolland,  4  Myl.  &  C.  354;  Turwin  v.  of  this  lien  and  the  attorney  has  the 
Gibson,  3  Atk.  720;  Read  v.  Dupper,  6  same  power  to  enforce  the  judgment 
T.  R.  361;  In  re  Wilson,  12  Fed.  235;  to  the  extent  of  his  lien  as  the  client 
Weed  v.  Boutelle,  56  Vt.  570,  48  Am.  has  for  the  money  due  him.  Also, 
Rep.  821.  "upon  all  suits  for  the  recovery  of 

as  in  re  Wilson,  supra;  Wilkins  v.  personal  property,  and  upon  all  judg- 
Carmichael,  supra.  ments  or  decrees  for  the  recovery  of 

34  "The  party"  said  Lord  Kenyon,  the  same,  attorneys  at  law  shall  have 
"should  not  run  away  with  the  fruits  a  lien  on  the  property  recovered;" 
of  the  cause  without  satisfying  the  which  lien  is  enforced  "as  liens  on 
legal  demands  6f  his  attorney,  by  personal  and  real  estate"  and  attaches 
whose  industry,  and  in  many  in-  to  the  property  until  transferred  to  a 
stances  at  whose  expense,  those  fruits  tona  fide  purchaser  without  notice. 

1847 


§  2276] 


THE  LAW  OF  AGENCY 


[BOOK  v 


cisions  harmonious.    Much  confusion  has  arisen  from  a  failure  to  dis- 
criminate between  this  lien  and  the  retaining  lien,  and  the  variety  of 


Alaska,  Carter's  Ann.  Code  (1900), 
§  742,  has  a  statute  like  that  in  Min- 
nesota, below,  with  No.  3  omitted. 

Arkansas,  Kirby's '  Digest  (1904), 
§§  4458-4462,  provides  for  a  lien  upon 
the  judgment;  proceeds  of  judgment; 
or  real  or  personal  property  recov- 
ered; with  a  provision  in  regard  to 
perfection  of  the  lien  and  notice. 
See  Lane  v.  Hallum,  38  Ark.  385; 
Gist  v.  Hanly,  33  Ark.  233;  McCain  v. 
Portis,  42  Ark.  402;  Porter  v.  Han- 
son, 36  Ark.  591. 

In  California  there  seems  to  be 
none.  Ex  parte  Kyle,  1  Cal.  331; 
Mansfield  v.  Dorland,  2  Cal.  507;  Rus- 
sell v.  Conway,  11  Cal.  93. 

In  Connecticut  attorney  has  a  lien 
upon  judgment  Andrews  v.  Morse, 

12  Conn.    444,    31    Am.    Dec.    752; 
Gager  v.  Watson,  11  Conn.  168;  Ben- 
jamin v.  Benjamin,  17  Conn.  110;  De 
Wandelaer  v.  Sawdey,  78  Conn.  654. 

In  Colorado,  Gen.  St  Ch.  6,  §  17, 
attorneys  "have  a  lien  .  .  .  upon 
any  judgment  they  may  have  ob- 
tained" for  any  fees  "which  said  lien 
may  be  enforced  by  the  proper  civil 
action."  See  Johnson  v.  McMillan, 

13  Colo.  423. 

In  Florida  attorney  has  a  lien  upon 
a  judgment  obtained  by  him  for  his 
reasonable  compensation.  Carter  v. 
Bennett,  6  Fla.  214;  Carter  v.  Davis, 
8  Fla.  183. 

Georgia,  Code  (1895),  §  2814,  has  a 
statute  like  Alabama,  supra,  except 
that  the  lien  is  given  on  both  real 
and  personal  property  recovered.  See 
Twiggs  v.  Chambers,  56  Ga.  279.  The 
lien  is  upon  the  suit  and  not  upon 
the  cause  of  action.  Brown  v.  Ry. 
Co.,  101  Ga.  80. 

In  Idaho,  no  statute.  See  Dahl- 
strom  v.  Featherstone,  18  Idaho,  179. 

Illinois.  Session  Laws  of  1909,  p. 
97,  provides  for  a  lien  on  all  claims 
"for  suit  or  collection,"  liquidated 
and  unliquidated,  for  services  ren- 

^bS\  i>ii^% 


dered  in  regard  thereto.  Notice 
must  be  given  in  writing  to  the 
debtor,  "and  such  lien  shall  attach 
to  any  verdict,  judgment  or  decree 
entered  and  to  any  money  or  prop- 
erty which  may  be  recovered."  On 
petition  the  court  will  enforce  the 
lien.  See  Standidge  v.  Chicago  Rail- 
ways Co.,  254  111.  524,  Ann.  Gas.  1913, 
C.  65,  40  L.  R.  A.  (N.  S.)  529. 

In  Indiana,  Statutes  (1901),  §  7238, 
provides  for  a  lien  on  the  judgment, 
with  a  requirement  that  the  attor- 
ney enter  on  the  judgment  docket 
his  intention  to  claim  a  lien  and  the 
amount.  See  Putnam  v.  Tennyson, 
50  Ind.  456. 

In  Iowa,  Code  (1897),  §  321,  "An 
attorney  has  a  lien  for  a  general  bal- 
ance of  compensation  upon:  .  ^j  t  j 
3.  Money  due  his  client  in  the  hands 
of  the  adverse  party"  from  the  time 
of  written  notice  given;  after  judg- 
ment such  notice  may  be  given  by  an 
entry  in  the  judgment  docket.  See 
Smith  v.  Chicago,  etc.,  Railroad  Co., 
56  Iowa,  720;  Phillips  v.  Germon,  43 
Iowa,  101;  Myers  v.  McHugh,  16 
Iowa,  335;  Fisher  v.  Oskaloosa,  28 
Iowa,  381;  Brainard  v.  Elwood,  53 
Iowa,  30. 

The  assignee  of  a  judgment  before 
entry  of  lien  in  judgment  docket  is 
not  subject  to  the  lien.  Jennings  v. 
Bacon,  84  Iowa,  403. 

The  lien  may  be  enforced  by  an 
action  at  law.  Barthell  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  138  Iowa,  688. 

In  Kansas,  .§  402  of  Statutes  (1905), 
provides  a  lien  substantially  like 
that  in  Iowa.  See  Kansas  Pac.  Ry, 
Co.  v.  Thacher,  17  Kan.  92. 

In  Kentucky,  Statutes  (1909), 
§  5005,  "Attorneys-at-law  shall  have 
a  lien  upon  all  claims  or  demands, 
including  all  claims  for  unliquidated 
damages  put  into  their  hands  for  suit 
or  collection,  or  upon  which  suit  has 
been  instituted"  and  "upon  the  judg- 

:!   ,•••..•   ••'     •-?   '•-•),'l//   }fi  890fl£?8 
' 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


statutes  and  rules  of  practice,  fixing  the  compensation  of  attorneys  or 
leaving  it  to  the  parties  to  fix  it  for  themselves,  has  increased  the  con- 
fusion. 


ment  for  money  or  property  which 
may  be  recovered"  for  their  fee  in 
the  case.  If  the  attorney's  name  ap- 
pears on  the  record  it  is  notice  of 
this  lien.  If  the  suit  is  settled  "by 
the  parties  without  payment  of  any- 
thing by  the  defendant,  the  defend- 
ant is  not  liable  for  any  part  of  the 
fee.  See  Wood  v.  Anders,  5  Bush, 
601;  Wilson  v.  House,  10  Bush,  406; 
Stephens  v.  Farrar,  4  Bush,  13;  Rob- 
ertson v.  Shutt,  9  Bush,  659. 

Lien  may  be  enforced  though  client 
was  an  infant,  the  attorney  having 
been  properly  employed  by  the  guard- 
ian. Sears  v.  Collie,  148  Ky.  444. 

In  Louisiana  attorneys  have  a 
privilege  by  statute,  Rev.  Laws,  1904, 
§  2897. 

As  to  lien,  see  Smith  v.  Vicksburg, 
etc.,  Ry.  Co.,  112  La.  985. 

In  Maine  attorney  has  a  lien  upon 
judgment  by  statute.  See  Hobson  v. 
Watson,  34  Me.  20,  56  Am.  Dec.  632; 
Potter  v.  Mayo,  3  Greenl.  34,  14  Am. 
Dec.  211;  Newbert  v.  Cunningham, 
50  Me.  231,  79  Am.  Dec.  612;  Averill 
v.  Longfellow,  66  Me.  237;  Stratton 
v.  Hussey,  62  Me.  286. 

In  Maryland  there  seems  to  be  no 
lien.  See  Marshall  v.  Cooper,  43  Md. 
46. 

In  Massachusetts,  Revised  Laws  of 
1902,  Ch.  165,  §  48,  "An  attorney  who 
is  lawfully  possessed  of  an  execu- 
tion, or  who  has  prosecuted  a  suit  to 
final  judgment  in  favor  of  his  client, 
shall  have  a  lien  thereon  for  the 
amount  of  his  fees  and  disbursements 
in  the  cause."  See  Baker  v.  Cook,  11 
Mass.  236;  Dunklee  v.  Locke,  13 
Mass.  525;  Ocean  Ins.  Co.  v.  Rider, 
22  Pick.  210;  Thayer  v.  Daniels,  113 
Mass.  129;  Simmons  v.  Alrny,  103 
Mass.  33. 

In  Minnesota,  Revised  Laws  (1905), 
§  2288,  "An  attorney  has  a  lien  for 
his  compensation,  whether  the  agree- 


ment  therefor  be  express  or  implied. 
a  Tttl  ft" 3-  Upon  the  cause  of  action 
from  the  time  of  the  service  of  the 
summons  therein.  4.  Upon  money  in 
the  hands  of  the  adverse  party. 
.  5.  Upon  a  judgment,  to  the 
extent  of  the  costs  included  therein; 
and,  if  there  be  a  special  agreement 
as  to  compensation"  for  the  whole 
fee. 

Notice  is  necessary  to  preserve  the 
attorney's  lien  on  a  judgment  as 
against  the  debtor,  but  creditors; 
levying  on  the  judgment  are  bound 
to  take  notice  of  an  attorney's  lien  on 
the  judgment.  Henry  v.  Traynor,  42 
Minn.  234.  See  also,  Dodd  v.  Brott, 
1  Minn.  270,  66  Am.  Dec.  541;  For- 
bush  v.  Leonard,  8  Minn.  303;  Crow- 
ley  v.  LeDuc,  21  Minn.  412. 

In  Michigan  an  attorney  has  a  lien 
for  his  agreed  compensation  upon  the 
judgment.  Wells  v.  Elsam,  40  Mich. 
218;  Taylor  v.  Young,  56  Mich.  285; 
Kinney  v.  Robinson,  62  Mich.  517. 

It  is  not  necessary  that  he  be  an 
attorney  of  record,  but  that  he  is  of 
counsel  is  sufficient.  People  v.  Pack, 
115  Mich.  669. 

In  Missouri,  Session  Acts,  1901, 
p.  46,  gives  the  attorney  a  lien  exactly 
like  New  York.  This  statute  is  con- 
stitutional. O'Connor  v.  St.  Louis 
Transit  Co.,  198  Mo.  622,  115  Am.  St. 
Rep.  495,  8  Ann.  Cas.  703.  Succes- 
sive attorneys  may  each  acquire  a 

lien.  Bishop  v.  United  Rys.  Co.,  

Mo.  App.  ,  147  S.  W.  170. 

In  Mississippi  an  attorney  has  a 
lien  on  the  judgment.  Stewart  v. 
Flowers,  44  Miss.  513,  7  Am.  Rep. 
707;  Pope  v.  Armstrong,  3  Sm.  &  Mar. 
214,  but  not  on  land  recovered.  Mar- 
tin v.  Harrington,  57  Miss.  208. 

In  Montana,  Rev.  Codes,  §  6422, 
like  New  York,  post  See  Walsh  v. 
Hoskins,  46  Mont.  356. 

Nebraska,   Statutes    (1909),   Ch.  7, 


1849 


THE  LAW  OF  AGENCY 


[BOOK  v 


It  is  not  possible,  within  the  limits  of  this  work,  to  give  a  full  or  sat- 
isfactory exposition  of  all  of  the  rules  which  prevail  in  each  State,  but  a 
reference  will  be  found  in  the  notes  to  the  cases  or  statutes  of  the  re- 
spective States  which  throw  light  upon  the  subject. 

ft  taatn 

§  8,  "An  attorney  has  a  lien  for  a 
general  balance  of  compensation 
upon  'money'  in  the  hands  of  the  ad- 
verse party  in  any  action  j:f>tl.  a.(tl' 
See  Zentmire  v.  Brailey,  89  Neb.  158, 
and  cases  cited;  Patrick  v.  Leach,  12 
Fed.  661. 

New  York,  Birdseye's  C.  &  G.'s  Con- 
solidated Laws  (1909),  §  475  of  Judi- 
ciary Law:  "From  the  commence- 
ment of  an  action  or  special  proceed- 
ing, or  the  service  of  an  answer  con- 
taining a  counterclaim  the  attorney 
who  appears  for  a  party  has  a  lien 
upon  his  client's  cause  of  action, 
claim  or  counterclaim,  which  at- 
taches to  a  verdict,  report,  decision, 
judgment  or  final  order  in  his  client's 
favor  and  the  proceeds  thereof  in 
whosoever  hands  they  may  come." 

See  In  re  Knapp,  85  N.  Y.  284; 
Wright  v.  Wright,  70  N.  Y.  96;  Zog- 
baum  v.  Parker,  55  N.  Y.  120;  Mar- 
shall v.  Meech,  51  N.  Y.  140,  10  Am. 
Rep.  572;  Coughlin  v.  New  York 
Cent  R.  R.  Co.,  71  N.  Y.  443,  27  Am. 
Rep.  75;  Rooney  v.  Second  Ave.  R.  R. 
Co.,  18  N.  Y.  368. 

One  who,  though  an  attorney-at- 
law  is  not  acting  as  such  in  the  case, 
e.  g.  where  he  merely  undertakes  to 
furnish  evidence,  is  not  entitled  to 
a  lien.  Holmes  v.  Bell,  139  N.  Y.  App. 
Div.  455,  aff'd  200  N.  Y.  586. 

In  "Nevada  this  lien  does  not  seem 
to  have  been  passed  upon. 

In  New  Hampshire  the  attorney 
has  a  lien  for  the  amount  of  his  tax- 
able fees  and  disbursements.  Wells 
v.  Hatch,  43  N.  H.  246;  Young  v. 
Dearborn,  27  N.  H.  324. 

In  New  Jersey  an  attorney  has  a 
lien  upon  the  judgment  for  his 
fees  and  disbursements  after  notice. 
Braden  v.  Ward,  42  N.  J.  L.  518; 
Heister  v.  Mount,  17  N.  J.  L.  438; 
Barnes  v.  Taylor,  30  N.  J.  Eq.  467. 


to       Notice 

:    10    vy.no  Hi    TO}    J 

In  North  Carolina  lien  does  not 
appear  to  have  been  passed  upon. 

.In  Ohio  lien  on  judgment  does  not 
exist.  Diehl  v.  Friester,  37  Ohio  St. 
473;  Pennsylvania  Co.  v.  Thatcher, 
78  Ohio  St.  175. 

In  North  Dakota,  Revised  Code 
(1899),  §  4842,  there  is  the  same 
statute  as  Iowa  except  that  the  lien 
is  for  "a  general  balance  of  com- 
pensation in  and  for  each  case." 

The  statute  also  provides  that  the 
lien  "is  made  effective  against  the 
judgment  debtor  by  entering  the 
same  in  the  judgment  docket."  And 
in  Clark  v.  Sullivan,  3  N.  D.  280, 
where  a  surety  on  an  appeal  bond 
bought  up  a  prior  judgment  against 
the  creditor,  it  was  held  that  the  entry 
by  the  attorney  in  the  judgment 
docket  was  not  notice  to  such  surety, 
and  that  such  set-off  could  be  set  up 
against  the  main  judgment. 

In  Oklahoma,  Compiled  Laws 
(1909),  §  261,  the  statute  is  exactly 
like  that  in  North  Dakota. 

In  Pennsylvania  the  lien  does  not 
appear  to  exist.  Cain  v.  Hocken- 
smith,  etc.,  Co.,  157  Fed.  992. 

In  Rhode  Island  attorney  has  a  lien 
for  his  costs.  Horton  v.  Champlin, 
12  R.  I.  550,  34  Am.  Rep.  722. 

In  Oregon.  Code  (1902),  §  1063,  is 
like  Minnesota,  except  it  does  not  in- 
clude No.  3. 

A  settlement  by  the  debtor  of  the 
judgment  before  notice  is  not  sub- 
ject to  the  lien.  Day  v.  Larsen,  30 
Ore.  247. 

In  South  Carolina  an  attorney  has 
a  lien  for  his  taxable  costs.  Schar- 
lock  v.  Oland,  1  Rich.  207;  Mass., 
etc.,  Const.  Co.  v.  Gills'  Creek  Tp.,  48 
Fed.  145. 

In  South  Dakota,  Code  (1903), 
§  702,  same  as  in  North  Dakota. 

In  Texas  an  attorney  has  no  lien 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2277 


§  2277.  Whom  this  lien  protects. — In  order  to  be  entitled  to  a 
lien  the  attorney  must  actually  have  been  employed  as  an  attorney  in 
the  cause,36  but  the  lien  protects  all  those  who  are  so  employed  and  who 
have  appeared  as  such  upon  the  record  or  have  given  other  appropriate 


upon  the  judgment.  Casey  v.  March, 
30  Tex.  181;  Fitzhugh  v.  McKinney, 
43  Fed.  461. 

In  Tennessee,  Shannon's  Supple- 
ment (1903),  p.  615,  the  attorney  has 
a  lien  "upon  the  plaintiff's  right  of 
action  from  the  date  of  the  filing  of 
the  suit." 

The  client  may  dismiss  the  suit, 
it  not  appearing  that  there  was  any 
collusion,  or  that  anything  was  re- 
ceived in  settlement.  Tompkins  v. 
Nashville,  etc.,  R.  Co.,  110  Tenn.  157, 
100  Am.  St.  Rep.  795,  61  L.  R.  A., 
340.  But  where  the  client  compro- 
mises and  dismisses  the  suit  before 
judgment,  the  amount  paid  by  the 
defendant  is  a  practical  concession 
of  liability  for  so  much  and  judg- 
ment for  this  amount  at  least  will  be 
entered  on  the  attorney's  application, 
in  order  that  he  may  collect  his  fee. 
Illinois  Cent.  R.  Co.  v.  Wells,  104 
Tenn.  706.  See  also,  Sidoway  v. 

Jones,  —  Tenn.  ,  143  S.  W.  893; 

In  re  Smithson,  108  Tenn.  442. 

For  the  law  before  the  statute,  see 
Hunt  v.  McClanahan,  1  Heisk.  503; 
Brown  v.  Bigley,  3  Tenn.  Ch.  618; 
Garner  v.  Garner,  1  Lea,  29;  Win- 
chester v.  Heisk  ell,  16  Lea,  556; 
Pierce  v.  Lawrence,  16  Lea,  572. 

In  Utah,  Statutes  (1907),  §  135,  the 
statute  is  exactly  like  that  in  New 
York. 

In  Vermont  an  attorney  has  a  lien 
for  his  reasonable  fees  and  disburse- 
ments. Weed  v.  Boutelle,  56  Vt.  570, 
48  Am.  Rep.  821. 

In  Virginia.  Code  (1904),  §  3201a, 
"Any  person  having  or  claiming  a 
right  of  action  sounding  in  tort,  or 
for  unliquidated  damages  on  contract, 
may  contract  with  an  attorney  at 
law  to  prosecute  the  same,  and  such 
attorney  shall  have  a  lien  upon  such 
cause  of  action  as  security  for  his 

185 


fees  for  any  services  rendered  in  re- 
lation to  said  cause  of  action  or 
claim." 

In  Washington,  Rem.  &  Bal.  Code, 
§  136,  gives  a  lien  "(3)  upon  money 
in  the  hands  of  the  adverse  party  in 
an  action  on  proceeding  in  which  the 
attorney  was  employed,  from  the 
time  of  giving  notice  of  the  lien  to 
that  party."  See  Plummer  v.  Great 
Northern  Ry.  Co.,  60  Wash.  214,  31 
L.  R.  A.  (N.  S.)  1215;  Kern  v.  Chi- 
cago, etc.,  Ry.  Co.,  201  Fed.  404. 

In  West  Virginia,  see  Burkhart  v. 
Scott,  69  W.  Va.  694. 

See  also,  Bent  v.  Lipscomb,  45  W. 
Va.  183,  72  Am.  St.  Rep.  815. 

In  Wisconsin,  Statutes  (1898), 
§  2591a,  substantially  the  same  stat- 
ute as  in  Virginia. 

In  Wyoming,  Statutes  (1899), 
§  2911,  like  Nebraska. 

United  States  Courts:  In  Gregory 
v.  Pike,  15  C.  C.  A.  33,  67  Fed.  837,  it 
was  said  by  Putnam,  J.,  "There  is  no 
federal  case  establishing  a  lien  at 
common  law  in  behalf  of  an  attorney 
beyond  that  given  by  the  local  law." 
so  See  Jackson  v.  Clopton,  66  Ala. 
29. 

An  attorney  employed  by  the  at- 
torney of  record  by  the  authority  of 
the  client  to  assist  in  the  case  would 
be  entitled  to  a  lien;  but  not  an  at- 
torney employed  by  the  attorney  of 
record  merely  as  a  private  assistant 
to  himself.  Smith  v.  Wright,  153  Mo. 
App.  719. 

A  corporation  can  not  be  an  attor- 
ney at  law  and  can  not  have  a  lien 
for  such  services.  In  re  Bensel,  68 
N.  Y.  Misc.  70. 

One  member  of  a  firm  of  attorneys 
who  has  retired  from  the  firm  but  re- 
tains an  interest  In  fees  from  pend- 
ing business,  which  is  to  be  closed  up 
by  the  other  partner,  is  not  entitled 
I 


§    2278]  .THE  LAW  OF  AGENCY  [BOOK  V 

notice  of  their  employment.  It  is  immaterial  that  the  attorney  upon  the 
record  appeared  as  "of  counsel"  rather  than  simply  as  attorney.87 

§  2278.  What  this  lien  protects. — This  lien  being  conferred  in 
consideration  of  the  services  and  expenses  of  the  attorney  in  producing 
or  securing  the  judgment  or  fund  to  which  it  applies,  it  protects  only 
those  fees,  costs  and  expenses  which  were  earned  or  incurred  in  the 
particular  suit  in  which  the  judgment  or  fund  was  recovered,  and  does 
not  secure  the  attorney's  general  balance  of  account,  nor  fees  earned  or 
expenses  incurred  in  other  suits.88 

Originally  this  lien  applied  only  to  such  costs  and  charges  of  the  at- 
torney as  were  legally  taxable  as  part  of  the  costs  in  the  cause,  and  did 
not  operate  to  secure  to  the  attorney  the  payment  of  his  reasonable  or 
agreed  charges  and  disbursements  in  the  suit,  and  this  rule  still  applies 
in  several  States.89  When  this  rule  had  its  origin,  however,  the  costs 
and  charges  taxable,  were  the  costs  and  charges  as  between  the  attorney 
and  his  client,  and  constituted  the  measure  of  his  compensation  and  re- 
imbursement, while  the  costs  taxable  under  modern  statutes  are,  as  a 
rule,  costs  as  between  party  and  party,  and  belong  to  the  prevailing 
party,  and  do  not  determine  or  constitute  the  measure  of  the  latter's 
liability  to  his  attorney.40 

In  view  of  this  distinction,  the  tendency  of  modern  cases  has  been  to 
extend  the  charging  lien  so  as  to  cover  and  protect  the  amount  due  from 
the  client  to  the  attorney  for  his  services  and  disbursements  in  the  suit, 
whether  that  amount  be  fixed  by  agreement  between  the  parties  or  be 
determined  by  the  quantum  mcruit,  and  such  is  now  the  prevailing  doc- 
trine.*1 The  modern  statutes,  also,  as  a  rule,  give  this  protection. 

to  a  lien  in  actions  thereafter  begun  Pope    v.    Armstrong,  3    Smed.    &  M. 

where  the  other  partner  only  is  the  (Miss.)    214;    Wright  v.  Cobleigh,  21 

attorney  of  record.    Schiefer  v.  Frey-  N.  H.  341;   Weed  v.  Boutelle,  56  Vt. 

gang,  141  N.  Y.  App.  Div.  236.  570,  48  Am.  Rep.  821. 

ST  People  v.  Pack,  115  Mich.  669;  88  Ex  parte  Kyle,  1  Cal.  331;  Mans- 
Harding  v.  Conlon,  146  N.  Y.  App.  field  v.  Borland,  2  Cal.  507;  Russell 
Div.  842.  v.  Conway,  11  Cal.  93;  Tyler  v.  Su- 
ss Stephens  v.  Weston,  3  B.  &  C.  perior  Court,  30  R.  I.  107,.  23  L.  R. 
535;  Hodgens  v.  Kelly,  1  Hogan,  388;  A.  (N.  S.)  1045. 
Hall  v.  Laver,  1  Hare,  571;  Lucas  v.  40  See  Weed  v.  Boutelle,  supra. 
Peacock,  9  Beav.  177;  In  re  Wilson,  12  41  Warfield  v.  Campbell,  38  Ala. 
Fed.  235;  McWilliams  v.  Jenkins,  72  527,  82  Am.  Dec.  724;  Jackson  v.  Clop- 
Ala.  480;  Mosely  v.  Norman,  74  Ala.  ton,  66  Ala.  29;  Mosely  v.  Norman,  74 
422;  Jackson  v.  Clopton,  66  Ala.  29;  Ala.  422;  Ex  parte  Lehman,  59  Ala. 
Ex  parte  Lehman,  59  Ala.  631;  Will-  631;  Andrews  v.  Morse,  12  Conn.  444, 
lams  v.  Ingersoll,  89  N.  Y.  608;  Phil-  31  Am.  Dec.  752;  McDonald  v.  Napier, 
lips  v.  Stagg,  2  Edw.  (N.  Y.)  Ch.  108;  14  Ga.  89;  Carter  v.  Davis,  8  Fla.  183; 
St.  John  v.  Diefendorf,  12  Wend.  261;  Carter  v.  Bennett,  6  Fla.  214;  Hen- 
Forbush  v.  Leonard,  8  Minn.  363;  chey  v.  Chicago,  41  111.  136;  Hum- 

1852 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2279 


§  2279.  When  lien  attaches. — In  the  absence  of  a  statute  creating 
it,  the  attorney  has  no  charging  lien  upon  his  client's  cause  of  action. 
His  right  of  lien  arises  from  the  fact,  that  his  efforts  and  disbursements 
have  led  to  the  recovery  of  a  judgment,  and  it  is  upon  that  judgment  that 
his  lien  is  to  take  effect.  The  rule  is,  therefore,  well  settled  that,  in  the 
absence  of  a  statute  giving  it  earlier  effect,  the  lien  does  not  attach  until 
the  entry  of  the  judgment  in  favor  of  his  client,  and  that  the  mere  ren- 
dition of  a  verdict  is  not  enough.42 

Prior  to  the  entry  of  the  judgment,  therefore,  the  opposite  party  may, 
except  where  some  statute  gives  the  attorney  protection,  settle  the  cause 
with  the  client  without  reference  to  the  attorney  or  liability  for  his 
fees,43  and  this  is  true  although  the  opposite  party  knew  that  the 


phrey  v.  Browning,  46  111.  476,  95 
Am.  Dec.  446;  Hill  v.  Brinckley,  10 
Ind.  102;  Kinney  v.  Robinson,  62 
Mich.  517;  Wells  v.  Elsam,  40  Mich. 
218;  Pope  v.  Armstrong,  5  Sm.  &  M. 
(Miss.)  214. 

42  Warfield  v.  Campbell,  38  Ala.  527, 
82  Am.  Dec.  724;  Ex  parte  Lehman, 
59  Ala.  631;  Jackson  v.  Clopton,  66 
Ala.  29;  Mosely  v.  Norman,  74  Ala. 
422;  Lament  v.  Washington,  etc.,  R. 
Co.,  2  Mack.  (D.  C.)  502,  47  Am.  Rep. 
268;  Henchey  v.  Chicago,  41  111.  136; 
Potter  v.  Mayo,  3  Me.  34,  14  Am.  Dec. 
211;  Gammon  v.  Chandler,  30  Me. 
152;  Hobson  v.  Watson,  34  Me.  20,  56 
Am.  Dec.  632;  Newbert  v.  Cunning- 
ham, 50  Me.  231,  79  Am.  Dec.  612; 
Averill  v.  Longfellow,  66  Me.  237; 
Getchell  v.  Clark,  5  Mass.  309;  Young 
v.  Dearborn,  27  N.  H.  324;  Wells  v. 
Hatch,  43  N.  H.  246;  Weed  v.  Bou- 
telle,  56  N.  H.  570,  48  Am.  Rep.  821; 
Rooney  v.  Second  Ave.  R.  Co.,  18  N. 
Y.  368;  Shank  v.  Shoemaker,  18  N.  Y. 
489;  Pulver  v.  Harris,  62  Barb.  500, 
52  N.  Y.  73;  Marshall  v.  Meech,  51 
N.  Y.  140,  10  Am.  Rep.  572;  Cough- 
lin  v.  New  York  Cent.  R.  Co.,  71  N.  Y. 
443,  27  Am.  Rep.  75;  Brown  v.  Big- 
ley,  3  Tenn.  Ch.  618;  Foot  v.  Tewks- 
bury,  2  Vt.  97;  Walker  v.  Sargent,  14 
Vt.  247;  Hutchinson  v.  Howard,  15 
Vt.  544;  Hooper  v.  Welch,  43  Vt.  169, 
5  Am.  Rep.  267;  Kusterer  v.  City  of 
Beaver  Dam,  56  Wis.  471,  43  Am.  Rep. 
725. 


Decision  rendered  tut  judgment  not 
entered. — Where  a  decision  has  been 
rendered  but  no  judgment  has  yet 
been  entered,  it  is  held  that  the  client 
may  settle  and  lien  does  not  attach. 
Cline  Piano  Co.  v.  Sherwood,  57 
Wash.  239;  Potter  v.  Mayo,  supra;  but 
see  Young  v.  Dearborn,  supra. 

«  See  cases  cited  in  the  preceding 
note.  There  are  some  English  cases 
in  which  It  is  held  that  a  settlement 
before  judgment  will  not  defeat  the 
attorney's  lien  for  his  costs  and  that 
he  may  prosecute  the  action  for  the 
recovery  of  his  costs,  notwithstand- 
ing the  settlement.  See  Swain  v. 
Senate,  5  Bos.  &  Pul.  99;  Cole  v.  Ben- 
nett, 6  Price,  15;  Morse  v.  Cooke,  13 
Price,  473.  The  English  cases,  how- 
ever, stand  upon  peculiar  ground  as 
the  attorney's  costs  and  charges,  as 
against  his  client,  are  subject  of  taxa- 
tion. Some  cases  in  the  United 
States  have  followed  these  English 
cases,  as  Talcott  v.  Bronson,  4  Paige 
(N.  Y.),  501;  Rasquin  v.  Knicker- 
bocker Stage  Co.,  12  Abb.  Pr.  324,  s. 
c.  21  How.  Pr.  (N.  Y.)  293;  Dietz  v, 
McCallum,  44  How.  Pr.  (N.  Y.)  493; 
Howard  v.  Osceola,  22  Wis.  453.  In 
certain  cases,  this  rule  has  been  ad- 
hered to  where  the  opposite  party 
had  been  given  notice  of  the  attor- 
ney's claim,  as  in  Owen  v.  Mason,  18 
How.  Pr.  (N.  Y.)  156;  Jones  v.  Mor- 
gan, 39  Ga.  310,  99  Am.  Dec.  458. 
But  in  nearly,  if  not  quite,  all  of 


bnsl  odJ  no 


1853 


§    2280] 


THE  LAW  OF  AGENCY 


[BOOK  v 


attorney  was  employed  for  a  compensation  contingent  upon  the  re- 
sult.44 

In  several  of  the  states,  by  statute,  the  attorney  is  expressly  given  a 
lien  before  the  recovery  of  judgment  upon  the  client's  claim,  demand, 
cause  of  action  or  counterclaim,  and  in  some  cases  upon  the  suit ;  pro- 
vision being  usually  made  as  to  time  at  which  notice  of  such  a  possible 
lien  shall  be  deemed  to  be  given. 

§  2280.  To  what  the  lien  attaches. — The  lien  of  the  attorney  at- 
taches to  the  judgment  or  decree  (or  its  proceeds)  only,  and  does  not, 
in  the  absence  of  a  statute  to  that  effect,  extend  to  the  property  of  his 
client  which  was  the  subject-matter  of  the  controversy,45  nor  does  it  at- 
tach to  land  which  was  recovered,  or  the  title  to  which  was  established, 
Vby  the  judgment  or  decree.4* 


these  cases,  the  costs  which  were  pro- 
tected were  those  only  which  were 
legally  taxable. 

This  rule  has  not,  however,  been 
generally  followed,  and  it  can  not  be 
sustained  upon  principle.  Earl,  J., 
of  the  New  York  Court  of  Appeals, 
says  of  it:  "It  is  impossible  to  as- 
certain when  this  practice  com- 
menced, nor  how  it  originated,  nor 
upon  what  principle  it  was  based.  It 
was  not  upon  the  principle  of  a  lien, 
because  an  attorney  has  no  lien  upon 
the  cause  of  action,  before  judgment, 
for  his  costs;  nor  was  it  upon  the 
principle  that  his  services  had  pro- 
duced the  money  paid  his  client  upon 
the  settlement,  because  that  could  not 
be  known,  and,  in  fact,  no  money 
may  have  been  paid  upon  the  settle- 
ment. So  far  as  I  can  perceive,  it 
was  based  upon  no  principle.  It  was 
a  mere  arbitrary  exercise  of  power  by 
the  courts;  not  arbitrary  in  the  sense 
that  it  was  unjust  or  improper,  but  in 
the  sense  that  it  was  not  based  upon 
any  right  or  principle  recognized  in 
other  cases.  The  parties  being  in 
court  and  the  suit  commenced  and 
pending,  for  the  purpose  of  protect- 
ing attorneys  who  were  their  officers 
and  subject  to  their  control,  the 
courts  invented  this  practice  and  as- 
sumed this  extraordinary  power  to  de- 
feat attempts  to  cheat  the  attorneys 
out  of  their  costs.  The  attorneys' 
fees  were  fixed  and  definite  sums. 


easily  determined  by  taxation,  and 
this  power  was  exercised  to  secure 
them  their  fees."  In  Coughlin  v.  New 
York  Central  R.  R.  Co.,  71  N.  Y.  443, 
27  Am.  Rep.  75.  See  also,  Lament  v. 
Washington,  etc.,  R.  R.  Co.,  2  Mackey 
(D.  C.),  502,  47  Am.  Rep.  268,  where 
the  question  is  fully  considered.  See 
also,  Parker  v.  Blighton,  32  Mich. 
265;  Wright  v.  Hake,  38  Mich.  525.  In 
Wisconsin  it  is  held  that  where  the 
action  is  upon  a  written  instrument 
in  the  attorney's  possession,  the  lien 
attaches  before  judgment.  Courtney 
v.  McGavock,  23  Wis.  619. 

44  Coughlin  v.  New  York  Cent  R. 
Co.,   71  N.  Y.   443,  27   Am.  Rep.   75; 
Kusterer  v.  City  of  Beaver  Dam,  56 
Wis.  471,  43  Am.  Rep.  725. 

See  also,  Hanna  v.  Island  Coal  Co., 
5  Ind.  App.  163,  51  Am.  St  Rep.  246, 
with  elaborate  note. 

But  even  here  it  is  said  that  the 
courts  will  protect  the  attorney 
against  a  collusive  settlement.  See 
post,  §  2281. 

45  McWilliams  V.   Jenkins,   72  Ala. 
480. 

In  Quakertown,  etc.,  R.  R.  Co.  v. 
Guarantors',  etc.,  Co.,  206  Pa.  350,  it 
was  held  that  the  attorney  had  no 
lien  on  bonds  recovered  and  in  the 
possession  of  the  court. 

46  In  Higley  v.  White,  102  Ala.  604, 
it  is  said:  "It  is  as  well  settled,  also, 
that  an  attorney  or  solicitor  has  no 
lien  on  the  land  of  his  client,  where 


1854 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


228O 


The  lien  of  the  attorney  upon  the  judgment  or  decree  extends  to  the 
proceeds  of  such  judgment  or  decree  in  whatsoever  form47  and  into 
whatsoever  hands  such  proceeds  may  come  until  they  come  into  the 


he  has  successfully  prosecuted  a  suit 
in  equity  to  establish  the  title  of  his 
client  to  real  estate,  or  on  land  re- 
covered in  an  action  of  ejectment 
prosecuted  by  him,  or  where  he  has 
defended  successfully  the  right  and 
title  to  land  against  an  unjust  claim, 
or  an  unwarranted  attempt  to  sub- 
ject it  to  an  alleged  lien  or  liability." 

To  same  effect:  McCullough  v. 
Flournoy,  69  Ala.  189;  Hinson  v. 
Gamble,  65  Ala.  605;  Hanger  v. 
Fowler,  20  Ark.  667;  Kelly  v.  Horse- 
ley,  147  Ala.  508;  Gladney  v.  Rush,  68 
Ark.  80;  Fuller  v.  Carson,  26  Fla. 
476;  Humphrey  v.  Browning,  46  111. 
476,  95  Am.  Dec.  446;  Keehn  v. 
Keehn,  115  Iowa,  467;  Holmes  v.  Way- 
mire,  73  Kan.  104,  9  Ann.  Cas.  624; 
Riggs  v.  Eicholz,  127  La.  745;  Stew- 
art v.  Flowers,  44  Miss.  513,  7  Am. 
Rep.  707;  Fowler  v.  Lewis'  Admr., 
36  W.  Va.  112;  City  of  Wheeling  v. 
Baer,  36  W.  Va.  777. 

Contra:  In  Tennessee  a  lien  is 
given  upon  the  property  recovered. 
Hunt  v.  McClanahan,  1  Heisk.  503; 
Perkins  v.  Perkins,  9  Heisk.  95; 
Pleasants  v.  Kortrecht,  5  Heisk.  694; 
Brown  v.  Bigley,  3  Tenn.  Ch.  618; 
Pierce  v.  Lawrence,  16  Lea,  572;  Win- 
chester v.  Heiskell,  Id.  556;  Boring 
v.  Jobe  (Tenn.),  53  S.  W.  763;  Hill  v. 
Hill  (Tenn.),  62  S.  W.  209;  Grant  v. 
Lookout  Mt.  Co.,  93  Tenn.  691,  27  L. 
R.  A.  98;  West  v.  Bacon,  13  N.  Y. 
App.  Div.  371  (based  on  statute). 

But  see  State  v.  True,  116  Tenn. 
294. 

In  Nebraska  attorney's  lien  extends 
to  lands  attached.  Zentmire  v. 
Brailey,  89  Neb.  158. 

In  Arkansas,  see  Gist  v.  Hanly,  33 
Ark.  233. 

In  New  York,  an  attorney  who 
merely  procures  the  probate  of  a  will 
does  not  thereby  acquire  a  lien  upon 
stock  which  is  given  to  the  client  in 


trust   by   the   will.     Matter    of   Has- 
brouck,  153  N  Y.  App.  Div.  394. 

47  The  attorney's  lien  extends  to 
money,  in  the  hands  of  assignees  for 
the  benefit  of  creditors,  which  is  the 
proceeds  of  the  sale  of  judgments 
procured  for  the  assignor  and  on 
which  the  attorney  had  a  lien.  Mat- 
ter of  Gates,  51  N.  Y.  App.  Div.  350. 

In  Clark  v.  Sullivan,  3  N.  Dak.  280, 
it  was  said:  "The  rights  of  an  attor- 
ney, under  his  lien,  are  those  of  an 
equitable  assignee  of  the  judgment,  to 
the  extent  of  his  lien." 

In  Illinois  Cent.  R.  Co.  v.  Wells, 
104  Tenn.  706,  it  was  said:  "The 
lien  which  the  statute  fixes  on  the 
plaintiff's  right  of  action  follows  the 
transaction  without  interruption,  and 
simply  attaches  to  that  into  which 
the  right  of  action  is  merged.  If  a 
judicial  recovery  is  obtained,  the  lien 
attaches  to  that;  if  a  compromise 
agreement  is  made,  the  lien  attaches 
to  that;  and  in  each  case  the  attor- 
ney's interest  is  such  that  it  cannot 
be  defeated  or  satisfied  by  a  volun- 
tary payment  to  his  client  without 
his  consent." 

In  Fischer-Hansen  v.  Brooklyn, 
etc.,  R.  R.  Co.,  173  N.  Y.  492,  an  at- 
torney was  retained  on  a  contingent 
fee  of  50  per  cent.  After  suit  begun, 
client  settled  for  $1,500.  Held,  that 
the  attorney  was  entitled  to  recover 
from  the  defendant  $750.  The  court 
said:  "It  (the  lien)  clings  to  any 
property  or  money  into  which  the 
subject  can  be  traced,  until  it 
reaches  the  hands  of  a  T>ona  fide  pur- 
chaser." 

In  Newbert  v.  Cunningham,  50  Me. 
231,  79  Am.  Dec.  612,  it  was  held  that 
an  attorney,  employed  to  defend  an 
action  of  replevin,  had  a  lien  on  the 
judgment,  and  was  to  that  extent  to 
be  regarded  as  an  equitable  assignee, 
and  could  maintain  an  action  against 


1855 


§    2280] 


THE  LAW   OF  AGENCY 


hands  of  a  bona  fide  purchaser,48  or  of  a  person  who  can  establish  an 
estoppel  or  waiver  against  the  attorney. 

In  several  of  the  states,  by  statute,  the  attorney  is  given  a  lien  upon 
causes  of  action  for  the  recovery  of  property,  or  upon  judgments  for  the 
recovery  of  property,  or  upon  the  property  recovered, — all  of  which 
seem  in  substance  to  amount  to  the  same  thing.49 

A  lien  will  not,  it  is  held  in  several  cases,  be  allowed  upon  sums  like 
alimony  and  provisions  for  a  wife's  support,  awarded  for  reasons  of 

special  policv  which  would  be  defeated  if  the  attorney  were  permitted 

if)  nfis  r'!i     *  !>    'lol    r> j'lff-xnq       ,ajl£io  i&uiau  tir; 

the  sheriff  for  taking  an  insufficient 
bond  for  the  return  of  the  property. 

Where  the  attorney  has  properly 
perfected  his  lien  on  the  judgment, 
but  the  judgment  is  afterwards  as- 
signed and  paid  with  notice,  the  at- 
torney may  recover  the  amount  of 
his  fees  either  from  the  judgment 
debtor  or  the  assignee.  Davidson  v. 
La  Plata,  26  Colo.  549.  To  same  ef- 
fect: Bush  v.  Froelick,  8  S.  Dak.  353; 
Stoddard  v.  Lord,  36  Ore.  412;  Loof- 
bourow  v.  Hicks,  24  Utah,  49,  55  L. 
R.  A.  874. 

Where  the  attorney  has  a  lien  on  a 
judgment,  and  this  judgment  is  a 
lien  on  land,  the  attorney  may  en- 
force his  lien  upon  it  as  against  the 
owner  and  his  creditors.  Covington 
v.  Bass,  88  Tenn.  496.  See  also, 
Fisher  v.  Mylius,  62  W.  Va.  19. 

48  See    Fischer-Hansen    v.     Brook- 
lyn, etc.,  R.  Co.,  173  N.  Y.  492;  Clark 
v.  Sullivan,  3  N.  Dak.  280;   Fitzger- 
ald v.  Irby,  99  Va.  81. 

49  in  Georgia,  where  by  statute  the 
attorney  has  a  lien  "on  the  property 
recovered,"  an  attorney  who  has  fore- 
closed a  mortgage  upon  land  and  ob- 
tained a  judgment  of  foreclosure,  un- 
der which  the  client  bids  in  the  land 
in  partial  satisfaction  of  his  claim, 
has  "recovered"  the  land  within  the 
meaning  of  the  statute.     Wooten  v. 
Denmark,  85  Ga.  578. 

In  Kentucky,  where  the  statute 
gives  a  lien  where  judgment  is  re- 
covered "upon  that  judgment  for 
money  or  property,  which  may  be 
recovered,"  an  attorney  who  success- 


fully  resists  an  action  for  the  recov- 
ery of  property,  has  not  "recovered" 
the  property  within  the  meaning  of 
the  statute:  Lytle  v.  Bach,  29  Ky.  L. 
R.  424,  93  S.  W.  608;  Thompson  v. 
Thompson,  23  Ky.  L.  R.  1535,  65  S. 
W.  457;  Greenhill  v.  Bowling,  13 
Ky.  L.  R.  495.  A  recovery  by  any 
form  of  legal  proceeding  is  held  to 
be  a  recovery  within  the  statute:  Mc- 
Intosh  v.  Bach,  110  Ky.  701. 

In  Hallam  v.  Coulter,  115  Ky.  313, 
an  attorney  employed  to  represent 
the  client  In  a  contest  for  a  seat  in 
the  legislature  was  held  not  to  have 
a  lien  on  a  sum  appropriated  by  the 
legislature  to  reimburse  the  con- 
testant for  expenses  incurred;  such 
sum  was  not  "recovered"  as  a  matter 
of  right,  nor  could  its  recovery  be 
lawfully  made  the  object  of  the  em- 
ployment of  an  attorney.  See  State 
v.  Moore,  40  Neb.  854,  25  L.  R,  A. 
774. 

"An  allotment  of  land  in  a  suit  for 
partition  is  not  a  recovery  in 
the  sense  of  [the  statute]  so  as 
to  entitle  an  attorney  to  a  lien 
upon  the  same  for  his  fee:"  Gib- 
son v.  Buckner,  65  Ark.  84,  nor  is 
the  removal  of  a  cloud  from  title: 
Hershy  v.  Du  Val,  47  Ark  86;  nor  the 
defence  of  a  suit  to  recover  land: 
Greer  v.  Ferguson,  56  Ark.  324. 

The  Georgia  statute  expressly 
gives  the  same  lien  for  resisting  a 
claim  against  property  as  for  the  re- 
covery of  property:  Lovett  v.  Moore, 
98  Ga.  158. 


1856 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


to  seize  and  apply  such  sums  for  his  own  purposes,50  though  not  all  the 
cases  take  this  view.01 

§  2281.  How  lien  protected — Settlement — Set-Off — Notice. — The 
lien  of  the  attorney,  while  it  does  not  of  itself  prevent  settlement,52  will 
be  protected  against  all  collusive  dealings  between  the  client  and  the 
party  against  whom  the  judgment  or  decree  is  rendered ; 88  but  the  lien, 


so  See  Branth  v.  Branth,  57  Hun 
(N.  Y.),  592;  Mooney  v.  Mooney,  29 
N.  Y.  Misc.  707;  In  re  Brackett,  114 
N.  Y.  App.  Div.  257;  Keane  v.  Keane, 
86  Hun  (N.  Y.),  159;  Keefer  v. 

Keefer, Ga. ,  78  S.  E.  462.  See 

also  Canney  v.  Canney,  131  Mich. 
363. 

The  lien  will,  it  is  held,  apply  to  a 
judgment  in  a  bastardy  proceeding 
instituted  by  the  mother:  Taylor  v. 
Stull,  79  Neb.  295. 

51  Distinguishing    between    tempo- 
'  ary    and    permanent    alimony    and 
holding  that  where  the  decree  of  di- 
vorce also  settles  all  property  rights, 
and  a  final  divisi&n  of  the  property 
has   been   made   or  a   lump  sum   de- 
creed as  alimony  the  lien  of  the  at- 
torney    attaches,     see     Hubbard     v. 
Ellithorpe,    135    Iowa,    259,    124   Am. 
St.  Rep.  271. 

52  See  ante,  §  2279. 

ss  in  Randall  v.  Van  Wagenen,  115 
N.  Y.  527,  12  Am.  St.  Rep.  828,  the 
court,  while  recognizing  the  right  of 
the  opposite  party  to  settle  with  the 
client  before  judgment,  if  done  in 
good  faith,  said  that  where  the  set- 
tlement is  made  collusively,  for  the 
purpose  of  cheating  or  defrauding  the 
attorney  out  of  his  fees,  the  "courts 
have  been  accustomed  to  intervene, 
and  to  protect  the  attorney  by  per- 
mitting him  to  proceed  with  the 
suit,"  etc.,  citing  Coughlin  v.  New 
York  Cent.  R.  Co.,  71  N.  Y.  443,  27 
Am.  Rep.  75. 

In  Peri  v.  New  York  Central  R. 
R.  Co.,  152  N.  Y.  521,  where  the  stat- 
ute provided  for  a  lien  on  the  cause 
of  action  "from  the  commencement 
of  the  action"  which  "cannot  be  af- 
fected by  any  settlement  between  the 


parties  before  or  after  judgment,"  the 
court  said:  "The  lien  operates  as  se- 
curity, and  if  the  settlement  entered 
into  by  the  parties  is  in  disregard  of 
It  and  to  the  prejudice  of  plaintiff's 
attorney,  by  reason  of  the  insol- 
vency of  his  client,  or  for  other  suf- 
ficient cause,  the  court  will  interfere 
and  protect  its  officer  by  vacating  the 
satisfaction  of  judgment  and  permit- 
ting execution  to  issue  for  the  en- 
forcement of  the  judgment  to  the  ex- 
tent of  the  lien,  or  by  following  the 
proceeds  in  the  hands  of  third 
parties,  who  received  them  before  or 
after  judgment  impressed  with  the 
lien." 

To  same  effect,  Poole  v.  Belcha,  131 
N.  Y.  200. 

In  Schriever  v.  Brooklyn  Heights 
R.  R.  Co.,  30  N.  Y.  Misc.  145,  it  was 
held  that  where  the  defendant  settled 
with  the  client  this  fixed  the  amount 
of  the  claim  as  a  judgment  might 
otherwise  have  done,  and  if  the 
whole  amount  is  paid  over  to  the 
client  without  the  consent  of  the  at- 
torney, he  may  enforce  his  lien 
against  the  defendant  if  the  client 
refuses  to  pay  and  is  insolvent. 

See  also,  Oishei  v.  Pennsylvania 
R.  R.  Co.,  117  N.  Y.  App.  Div.  110; 
Sullivan  v.  McCann,  113  N.  Y.  App. 
Div.  61. 

In  Nebraska,  where  settlement  has 
been  made  of  a  claim  for  personal  in- 
juries after  notice  of  the  attorney's 
lien  has  been  given,  the  court,  fol- 
lowing the  Iowa  and  Kansas  cases, 
holds  that  a  judgment  of  dismissal 
may  be  set  aside  and  the  attorney  be 
permitted  to  intervene  for  the  estab- 
lishment of  his  claim.  Corson  v. 
Lewis,  77  Neb.  449.  Compare  Phil- 


117 


1857 


§    228l] 


THE  LAW  OF  AGENCY 


[BOOK  V 


except  where  enlarged  by  statute,  is  generally  held  to  be  coextensive 
with  the  rights  of  the  client  only,  and  is  subject  to,  and  may  be  de- 


lips  v.  Hogue,  63  Neb.  192;  Elliott  v. 
Atkins,  26  Neb.  403;  Cones  v.  Brooks, 
CO  Neb.  698. 

In  Minnesota,  the  payment  by  the 
Judgment  debtor  to  the  creditor  or 
a  settlement  of  the  cause  of  action, 
is  void  as  to  the  attorney  and  the 
settlement  will  be  set  aside  or  the 
judgment  may  be  reopened  and  exe- 
cution issued  to  enforce  the  lien: 
Northrup  v.  Hayward,  102  Minn.  307, 
12  Ann.  Gas.  341;  Desaman  v.  Butler, 
114  Minn.  362;  Farmer  v.  Stillwater 
Co.,  108  Minn.  41.  No  formal  notice 
is  necessary  where  the  attorney  is 
known  to  be  the  attorney  in  the 
cause. 

In  Montana,  the  court  protects  the 
lien  in  case  of  settlement  as  in  New 
York,  and  in  reliance  upon  those 
cases.  Walsh  v.  Hoskins,  46  Mont.  356. 

In  Kentucky  the  statute  expressly 
provides  that:  "If  the  parties  before 
judgment,  in  good  faith,  compromise 
or  settle  their  differences  without  the 
payment  of  money  or  other  thing 
of  value,  the  attorney  shall  have  no 
claim  against  the  defendant  for  any 
part  of  his  fee."  See  Hubble  v.  Dun- 
lap,  101  Ky.  419  (holding  the  settle- 
ment must  be  bona  fide) :  Rowe  v. 
Fogle,  88  Ky.  105,  2  L.  R.  A.  708  (but 
if  bona  fide  the  lien  is  destroyed) : 
Newport  Rolling  Mills  Co.  v.  Hall 
147  Ky.  598  (defendant  liable  where 
he  has  notice  of  contract  with  at- 
torney). 

In  Indiana,  it  is  held  that  while 
parties  may  ordinarily  settle  their 
claim  without  reference  to  the  attor- 
ney, the  court  will  protect  the  attor- 
ney against  a  collusive  settlement, 
by  setting  aside  the  settlement  and 
permitting  him  to  continue  in  the 
name  of  the  client.  The  court  said 
that  though  the  remedy  might  be 
"clumsy"  it  was  necessary.  Meid- 
reich  v.  Rank,  40  Ind.  App.  393,  Com- 
pare Hanna  v.  Coal  Co.,  5  Ind.  App. 
163,  51  Am.  St.  Rep.  246. 


In  Georgia,  see  Florida  Central  R. 
Co.  v.  Rogan,  104  Ga.  353,  where  the 
statute  gave  a  lien  "upon  suits  . 
and  no  person  shall  be  at  liberty  to 
satisfy  said  suit  .  .  .  until  the 
lien  or  claim  of  the  attorney  for  his 
fees  is  fully  satisfied,"  it  was  held 
that  if  the  debtor  settled  after  the 
suit  was  filed,  but  before  the  sum- 
mons was  served  or  the  debtor  had 
notice  of  it,  he  was  not  liable  to  the 
attorney.  The  court  said  suit  was 
not  begun  within  the  meaning  of 
this  statute  until  summons  served. 
Same:  Lumpkin  v.  Louisville,  etc., 
Ry.  Co.,  136  Ga.  135.  In  Little  v. 
Sexton,  89  Ga.  411,  and  Johnson  v. 
McCurry,  102  Ga.  471,  where  the  de- 
fendant had  been  served  the  lien  was 
protected. 

But  see  Winslow  v.  Murphy,  139 
Ga.  231,  where  the  court  after  re- 
viewing the  above  authorities  held 
that  the  attorney  could  not  sue  in 
the  name  of  his  client  to  recover  his 
fees,  following  the  Wisconsin  and 
New  York  cases  in  this  respect. 

In  Missouri,  the  statute  is  substan- 
tially like  that  in  New  York.  (See 
ante,  §  2276.)  In  Wait  v.  Atchison, 
etc.,  R.  R.,  204  Mo.  491,  it  was  said 
(1)  that  where  the  debtor  settles  be- 
fore judgment  the  attorney  has  an 
"independent  action,  .  .  .  not,  pos- 
sibly, strictly  to  enforce  the  lien,  but 
against  him  who  deforced  the  lien 
for  the  value  thereof;"  (2)  that  after 
a  judgment  which  has  not  yet  be- 
come final,  the  discharge  of  it,  may, 
upon  motion,  be  "set  aside  pro  tanto 
so  as  to  let  in  his  lien"  and  may  be 
enforced  by  execution.  The  amount 
of  the  lien  is  determined  by  the 
amount  of  the  settlement;  (3)  that 
after  final  judgment  the  settlement 
does  not  affect  the  amount  of  the 
lien.  See  also  Taylor  v.  St.  Louis 
Transit  Co.,  198  Mo.  715. 

In  Curtis  v.  Met.  St.  Ry.  Co.,  125 
Mo.  App.  369,  the  attorneys  were  to 


1858 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    228l 


feated  by,  the  judgment  debtor's  right  to  setoff,  against  the  client, 
debts  or  demands  which  existed  and  were  matters  of  set-off  when 


receive  50  per  cent,  in  a  personal 
injury  action.  Defendant  settled 
for  $200  agreeing  to  pay  the  attor- 
ney's fee.  Held:  the  attorney  was 
entitled  to  $200  and  not  $100.  See 
also  Young  v.  Renshaw,  102  Mo.  App. 
173;  Yonge  v.  St.  Louis  Transit  Co., 
109  Mo.  App.  235;  Wolf  v.  United 
Railways,  155  Mo.  App.  125;  Hurr  v. 
Metropolitan  St.  Ry.  Co.,  141  Mo. 
App.  217. 

In  Curtis  v.  Metropolitan  St.  Ry. 
Co.,  118  Mo.  App.  341,  it  was  held 
that  the  statute  does  not  interfere 
with  the  rights  of  the  parties  to  settle 
where  the  settlement  is  not  collusive 
and  for  the  purpose  of  defrauding 
the  attorney.  In  this  case  (referred 
to  above)  after  judgment  and  notice 
of  lien,  the  parties  settled;  a  certain 
sum  was  paid  to  the  client  and  the 
defendant  was  to  settle  with  the  at- 
torneys. The  court  granted  execu- 
tion on  the  judgment  against  de- 
fendant for  the  amount  of  the  at- 
torney's fee. 

In  Carter  v.  Chicago,  etc.,  R.  Co., 
136  Mo.  App.  719,  after  the  client  had 
agreed  with  defendant  on  a  settle- 
ment of  a  pending  suit,  but  before 
payment,  the  attorneys  for  the  first 
time  made  a  contract  with  client  for 
a  share  and  at  once  served  notice 
of  it.  Held:  that  this  protected  their 
lien. 

The  proceeding  by  execution  is  not 
the  only  remedy,  but  where  that  is 
not  appropriate,  an  action  in  equity 
to  follow  the  proceeds  may  be  re- 
sorted to.  Smoot  v.  Shy,  159  Mo.  App. 
126. 

In  Iowa,  the  lien  is  not  upon  the 
cause  of  action  nor  upon  the  judg- 
ment but  upon  "money  due  his  client 
in  the  hands  of  the  adverse  party;" 
the  defendant  is  not  precluded  from 
settlement,  but  if  he  settles  he  is 
liable  for  the  amount  due  the  attor- 
ney. A  settlement  in  good  faith  de- 


termines the  amount  upon  which  the 
attorney's  fees  are  to  be  estimated. 
Where 'the  opposite  party  has  settled 
with  the  client  it  is  not  necessary 
for  the  attorney  to  prove  that  the 
client  had  a  valid  claim.  That  he 
had  one  to  the  extent  of  the  payment 
is  conceded  by  the  payment.  Bar- 
thell  v.  Chicago,  etc.,  Ry.  Co.,  138 
Iowa,  688;  Parsons  v.  Hawley,  92 
Iowa,  175;  Larned  v.  Dubuque,  86 
Iowa,  166;  Smith  v.  Chicago,  etc.,  R. 
R.  Co.,  56  Iowa,  720;  Cheshire  v. 
Des  Moines  City  Ry.  Co.,  153  Iowa 
88;  Crosby  v.  Hatch,  —  Iowa  — ,  135 
N.  W.  1079. 

In  Tennessee,  where  the  statute 
gives  a  lien  upon  the  client's  right  of 
action,  it  is  said  that  this  does  not 
interfere  with  a  settlement  of  the 
case  by  the  client,  and  that  the 
amount  agreed  upon  by  the  client 
furnishes  the  basis  of  estimating  the 
extent  of  the  lien.  Where  a  cause 
was  so  settled  and  a  stipulation  for 
a  dismissal  entered  into  without  the 
knowledge  of  the  attorney,  the  court 
directed  a  judgment  to  be  entered 
for  the  amount  paid  the  client  in 
order  that  the  attorney  might  re- 
sort to  the  judgment  for  the  protec- 
tion of.  his  claim.  Illinois  Central 
Railroad  Co.  v.  Wells,  104  Tenn.  706. 
See  also  American  Lead  Pencil  Co. 
v.  Davis,  108  Tenn.  251. 

In  Michigan,  as  soon  as  the  client 
has  effected  a  settlement  and  agreed 
upon  the  amount,  the  attorney's 
claim  attaches  thereto  at  the  rate 
agreed  upon.  Grand  Rapids,  etc.,  Ry. 
Co.  v.  Circuit  Judge,  161  Mich.  181, 
137  Am.  St.  R.  495;  Foley  v.  Grand 
Rapids,  etc.,  Ry.  Co.,  168  Mich.  496. 

In  Oregon,  there  is  no  lien  before 
judgment,  but  the  court  may  protect 
the  attorney  against  a  collusive  set- 
tlement before  a  judgment  is  obtain- 
ed. See  Jackson  v.  Stearns,  48  Ore. 
25,  5  L.  R.  A.  (N.  S.)  390;  Stearns  v. 


1859 


§    228 I ] 


THE  LAW  OF  AGENCY 


[BOOK    V 


the  lien  attached.54     It  has,  however,  quite  uniformly  been  held  that 
this  charging  lien  of  the  attorney  is  superior  to  a  set-off  acquired 


Wollenberg,  51  Ore.  88,  14  L.  R.  A. 
(N.  S.)  1095;  Falconi  v.  Larsen,  31 
Ore.  137,  37  L.  R.  A.  254. 

In  Texas,  where  a  cause  of  action 
Is  assignable,  and  the  client  has  as- 
signed an  interest  therein  to  his  at- 
torney, as  the  opposite  party  is  in- 
formed, a  settlement  with  the  client 
will  not  affect  the  attorney's  inter- 
est. Powell  v.  Galveston,  etc.,  R.  Co. 
(Tex.  Civ.  App.),  78  S.  W.  975. 

s*  Mosely  v.  Norman,  74  Ala.  422; 
Ex  parte  Lehman,  59  Ala.  631;  Ga- 
ger  v.  Watson,  11  Conn.  168;  Hurst 
v.  Sheets,  21  Iowa,  501;  Tiffany  v. 
Stewart,  60  Iowa,  207,  (set  off  grow- 
ing out  of  same  transaction);  Field 
v.  Maxwell,  44  Neb.  900,  set  off  grow- 
ing out  of  same  transaction;  (But 
see  Ward  v.  Watsop,  27  Neb.  768; 
Griggs  v.  White,  5  Neb.  467;  Rice  v. 
Day,  33  Neb.  204);  Mohawk  Bank  v. 
Burrows,  6  Johns.  (N.  Y.)  Ch.  317; 
Porter  v.  Lane,  8  Johns.  (N.  Y.)  357; 
Nicoll  v.  Nicoll,  16  Wend.  (N.  Y.) 
446;  Garrigan  v.  Huntimer,  21  S. 
Dak.  269;  Wright  v.  Treadwell,  14 
Tex.  255;  McDonald  v.  Smith,  57  Vt. 
502;  Renick  v.  Ludington,  16  W.  Va. 
378;  Bosworth  v.  Tallman,  66  Wis.  22. 
See  also  Whitehead  v.  Jessup,  7  Colo. 
App.  460;  Benson  v.  Haywood,  86 
Iowa,  107,  23  L.  R.  A.  335.  * 

Contra,  Puett  v.  Beard,  86  Ind.  172, 
44  Am.  Rep.  280;  Johnson  v.  Ballard, 
44  Ind.  270  (SemUe);  (see  also, 
Justice  v.  Justice,  115  Ind.  201);  Cur- 
rier v.  Railroad  Co.,  37  N.  H.  223; 
(cited  with  approval  in  Stratton  v. 
Hussey,  62  Me.  286);  Roberts  v. 
Mitchell,  94  Tenn.  277,  29  L.  R.  A. 
705  (at  least  where  the  two  claims 
do  not  arise  out  of  the  same  transac- 
tion); Finney  v.  Gallop,  2  Neb.  Un-. 
off,  480  (same  as  last  case);  Phillips 
v.  MacKay,  54  N.  J.  L.  319.  See  also 
Carter  v.  Davis,  8  Fla.  183;  Carter  v. 
Bennett,  6  Fla.  214. 

The  rule  allowing  set-off  does  not 
apply  where  the  right  of  set-off  de- 
pends on  equitable  considerations, 


and  it  is  discretionary  with  the 
court.  Stanley  v.  Bouck,  107  'Wis. 
225;  Rice  v.  Garnhart,  35  Wis.  282; 
Morton  v.  Urquhart,  79  Minn.  390; 
Lundberg  v.  Davidson,  68  Minn.  328; 
Pride  v.  Smalley,  66  N.  J.  L.  578; 
Puett  v.  Beard,  86  Ind.  172,  44  Am. 
Rep.  280;  Barry  v.  Third  Ave.  R.  Co., 
87  N.  Y.  App.  Div.  543;  Smith  v.  Cay- 
uga  Lake  Gem.  Co.,  107  N.  Y.  App. 
Div.  524. 

In  Georgia  it  seems  that  the  attor- 
ney's lien  is  disregarded  in  determin- 
ing what  set  offs  will  be  allowed. 
Smith  v.  Evans,  110  Ga.  536;  Langs- 
ton  v.  Roby,  68  Ga.  406;  Watters  v. 
Wells,  7  Ga.  App.  778.  But  see 
Caudle  v.  Rice,  78  Ga.  81. 

In  South  Dakota,  Pirle  v.  Hark- 
ness,  3  S.  Dak.  178,  the  court  speak- 
ing of  the  right  to  set  off  one  judg- 
ment against  another,  and  the  attor- 
ney's lien  on  a  judgment,  said:  "Both 
these  rights  exist  under  the  statute, 
but  each  is  a  dormant  right  until  as- 
serted;" and  where  a  proceeding  to 
set-off  has  been  instituted  and  notice 
thereof  Is  given  before  the  attorney 
gives  notice  of  his  lien,  the  set-off 
prevails.  Otherwise,  where  the  no- 
tice of  lien  is  given  first.  Hroch  v. 
Aultman,  3  S.  Dak.  477.  But  judg- 
ments for  costs  oh  appeal  In  the 
same  action  may  be  set  off  without 
regard  to  the  attorney's  lien.  Llnd- 
sey  v.  Pettigrew,  8  S.  Dak.  244. 

In  Maine,  the  set-off  will  not  be  al- 
lowed to  defeat  the  attorney's  lien 
for  his  taxable  costs.  Howe  v. 
Klein,  89  Me.  376;  Harrington  v. 
Bean,  94  Me.  208;  Collins  v.  Camp- 
bell, 97  Me.  23,  94  Am.  St.  Rep.  458. 

Admissions,  Retractions  or  Releas- 
es 'by  Client. — A  client  injured  by  two 
wrong-doers  engaged  an  attorney,  for 
a  contingent  share,  to  prosecute  ac- 
tions for  damages.  An  action  was 
brought  against  one,  and  while  that 
was  pending  the  client  compromised 
with  and  released  the  other  upon  the 
payment  of  a  given  sum.  This  release 


i860 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


;§  -2281 


afterwards,55    and    to    a   subsequent    assignment,58    garnishment,37    or 
levy.58 

Where  the  judgment  is  for  costs  only,  it  has  been  said  to  be,  of  itself, 
notice  to  all  the  world  of  the  attorney's  lien  thereon,  and  the  opposite 
party  pays  the  judgment  to  the  client  at  his  peril.59  Where,  however, 
the  judgment  or  decree  is  for  damages  and  costs,  it  is  generally  held 
that  it  is  not  such  notice,  but  that  the  attorney,  who  would  preserve 
his  lien  as  against  a  settlement  by  the  opposite  party  with  the  client, 
must  give  the  opposite  party  notice  of  his  intention  to  insist  upon  the 
lien.60  The  statutes  in  some  of  the  States  expressly  require  notice  to  be 


was  then  pleaded  in  bar  of  the  pend- 
ing action  against  the  other  wrong- 
doer and  the  plea  was  sustained. 
Held:  that  the  attorney  could  not  en- 
force a  lien  against  the  latter.  This 
settlement  with  one  was  said  by  the 
court  to  be  a  solemn  and  conclusive 
confession  by  the  client  that  he  had 
no  cause  of  action  against  the  other, 
and,  if  not  made  collusively,  the  at- 
torney's right  to  a  lien  was  gone. 
Laughlin  v.  Excelsior  Powder  Co., 
153  Mo.  App.  508. 

After  judgment  but  pending  ap- 
peal, the  opposite  party  it  was  as- 
serted, got  the  client  drunk  and  he 
made  an  improvident  settlement; 
after  he  became  sober,  he  stood  by 
the  settlement.  Held,  that  the  attor- 
ney was  bound  by  it.  Stephens  v. 
Metropolitan  St.  Ry.  Co.,  157  Mo. 
App.  656. 

Where  a  client  who  is  able  to  pay 
his  attorney  desires  to  discontinue 
the  action,  he  should  be  permitted 
to  do  so.  Mitchell  v.  Mitchell,  143 
App.  Div.  172. 

ssWarfleld  v.  Campbell,  38  Ala. 
527,  82  Am.  Dec.  724;  Caudle  v. 
Rice,  78  Ga.  81;  Boyle  v.  Boyle,  106 
N.  Y.  654;  Wesley  v.  Wood,  73  Misc. 
33;  In  re  McDonogh,  138  N.  Y.  App. 
Div.  291;  Pierce  v.  Lawrence,  16 
Lea  (Tenn.),  572;  Central  Railroad  v. 
Pettns,  113  U.  S.  116,  28  L.  Ed.  915. 

BeCooke  v.  Thresher,  51  Conn.  105; 
Hawk  v.  Ament,  28  111.  App.  390: 
Bent  v.  Llpscomb,  45  W.  Va.  183,  72 
Am.  St.  Rep.  815;  Parker  v.  Parker, 
71  Vt.  387 


An  attorney  who  acquiesces  in  the 
assignment  of  the  judgment  on  the 
distinct  understanding  that  the  as- 
signee will  pay  him  first  out  of  the 
proceeds  does  not  waive  his  lien: 
Hutchinson  v.  Worthington,  7  App. 
D.  C.  548.  See  also  Jaeger  v.  Koenig, 
33  N.  Y.  Misc.  82  (assignment  to  at- 
torney of  judgment  protected  against 
later  judgment  in  favor  of  other 
party  growing  out  of  same  contro- 
versy). Pettibone  v.  Thomson,  72  N. 
Y.  Misc.  486. 

67Hargett  v.  McCadden,  107  Ga. 
773;  First  Nat.  Bank  v.  Martin,  127 
La.  734. 

58  Justice  v.  Justice,  115  Ind.  201; 
Henry    v.    Traynor,    42    Minn.    234; 
Damron  v.  Robertson,  80  Tenn.    (12 
Lea)    372;    Weed   Sew.   Mach.   Co.   v. 
Boutelle,  56  Vt.  570,  48  Am.  Rep.  821. 
Same,    of  seizure    in    supplementary 
proceedings.  Dienst  v.  McCaffrey,  32 
N.  Y.  Supp.  818.     See  also  Central  R. 
Co.   v.   Pettus,   113   U.   S.   116,   28   L. 
Ed.  915. 

59  McGregor  v.  Comstock,  28  N.  Y. 
237;  Marshall  v.  Meech,  51  N.  Y.  140, 
10  Am.  Rep.  572;  Haight  v.  Holcom)- 
16  How.   (N.  Y.)   Pr.  173;   Wesley  v. 
Wood,  73  N.  Y.  Misc.  33. 

Marshall  v.  Meech,  supra,  is  fol- 
lowed with  extended  discussion  in 
Victor,  etc.,  Min.  Co.  v.  National 
Bank,  18  Utah,  87,  72  Am.  St.  Rep. 
767. 

60  Marshall  v.  Meech,  supra;  Kauf- 
man v.  Keenan,  2  N.  Y.  Supp.  395: 
Hurst  v.  Sheets,  21  Iowa,  501;   Dodd 
v.   Brott,  1   Minn.   270,   66   Am.   Dec. 


1861 


§§  2282,2283] 


THE    LAW    OF    AGENCY 


[BOOK   V 


given,  while  in  others  it  does  not  seem  to  be  requisite  to  the  protection 
of  the  statutory  lien.61 

§  2282.  Abandonment — Discharge. — As  has  already  been 

seen,02  an  attorney  who  abandons  the  cause  without  justification  or  who 
is  discharged  for  good  cause,  will  ordinarily  forfeit  his  right  to  com- 
pensation ;  but  where  he  abandons  the  case  for  good  cause  or  is  dis- 
charged without  cause,  any  lien  or  right  to  lien  which  he  may  then  have 
will  be  protected.63 

§  2283.  How  lien  enforced. — With  reference  to  the  manner  of 
enforcing  the  attorney's  charging  lien  widely  different  views  are  ex- 
pressed. It  is  said  in  some  cases  that  in  as  much  "as  he  cannot  have  a 
manual  possession,  actual  or  constructive,  which  is  necessary  to  secure 
a  lien  on  a  chattel,  the  law  gives  him  the  necessary  means  of  making 
good  his  lien,  and  that  is  an  action  in  the  name  of  the  judgment  creditor 
which  the  debtor  cannot  defeat."  6*  But  this  has  been  denied  in  other 


541;    Welsh    v.    Hole,    1    Doug.    238; 
Read  v.  Dupper,  6  T.  R.  361. 

Notice  not  required  in  Maine  un- 
der the  statute  of  that  State.  Gam- 
mon v.  Chandler,  30  Me.  152;  Hobson 
v.  Watson,  34  Me.  20,  56  Am.  Dec. 
632;  Newbert  v.  Cunningham,  50  Me. 
231,  79  Am.  Dec.  612. 

In  Michigan,  see  Weeks  v.  Wayne 
Circuit  Judges,  73  Mich.  256. 

ei  See  ante,  §  2276,  note. 

«2  See  ante,  §  2253. 

«3  See  ante,  §  2253. 

84  Per  Shaw,  C.  J.,  in  Woods  v. 
Verry,  4  Gray  (Mass.),  357.  (But  see 
Bruce  v.  Anderson,  176  Mass.  161.) 
See  also,  that  the  attorney  has  a 
right  of  action.  Stratton  v.  Hussey, 
62  Me.  286;  Newbert  v.  Cunningham, 
50  Me.  231,  79  Am.  Dec.  612;  Martin 
v.  Hawks,  15  Johns.  (N.  Y.)  405; 
McDonald  v.  Napier,  14  Ga.  89. 

In  Georgia,  by  statute,  the  lien  is 
enforced  by  a  proceeding  similar  to 
mortgage  foreclosure.  Ray  v.  Hixon, 
107  Ga.  768. 

In  Iowa  it  is  held  that  the  lien  may 
be  enforced  by  a  proceeding  in 
eauilv.  if  necessarv  Hubbard  v. 
Eliitnorpe,  135  Iowa,  259,  124  Am. 
St.  Rep.  271;  Brown  v.  Morgan,  163 
Fed.  395;  or  at  law,  where  that  pro- 
cedure is  adequate.  Barthell  v.  Chi- 


cago, etc.,  Ry.  Co.,  138  Iowa,  688; 
Smith  v.  Chicago,  etc.,  Ry.  Co.,  56 
Iowa,  720. 

In  Montana,  in  Coombe  v.  Knox,  28 
Mont  202,  it  is  said:  "The  attorney 
seeking  to  enforce  his  lien  may  bring 
an  independent  action  against  his 
client  or  the  adverse  party,  or  both." 

In  Colorado,  by  statute,  "said  lien 
may  be  enforced  by  the  proper  civil 
action."  Where  judgment  was  secured 
and  the  opposite  party  appealed,  and 
pending  appeal  settlement  was  made 
without  attorney's  knowledge,  he  was 
allowed  to  bring  an  action  against 
the  sureties  on  the  appeal  bond  for 
the  amount  of  his  lien.  Johnson  v. 
McMillan,  13  Colo.  423;  Daviaon  v. 
La  Plata  Co.,  26  Colo.  549.  To  same 
effect:  Flint  v.  Hubbard,  16  Colo. 
App.  464. 

May  be  enforced  by  action.  Elliott 
v.  Leopard  Mining  Co.,  52  Cal.  355. 

Covington  v.  Bass,  88  Tenn.  496,  en- 
forced by  proceeding  in  equity.  See 
Alexander  v.  Munroe,  54  Ore.  500, 
135  Am.  St.  Rep.  840. 

In  Illinois  may  be  enforced  by  pe- 
tition in  the  client's  cause.  Stand- 
idge  v.  Chicago  Railways  Co.,  254  111. 
524,  Ann.  Gas.  1913,  C.  65,  40  L.  R.  A. 
(N.  S.)  529. 


1862 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2283 


cases.65  It  is  said  in  many  cases  that  he  may  have  an  execution  to  en- 
force the  judgment  to  the  extent  of  his  lien,  and  that  if  the  client  has 
attempted  to  discharge  the  judgment,  the  attorney  may  have  it  rein- 
stated in  order  to  thus  enforce  it.66  Where  there  is  by  statute  a  lien 
upon  the  cause  of  action,  and  the  client  has  undertaken  to  settle  the  de- 
mand without  protecting  the  attorney,  it  has  frequently  been  said  that 
such  settlement  may  be  set  aside  and  the  attorney  be  permitted  to  prose- 
cute the  action  for  the  purpose  of  establishing  his  claim.67  This  seems 


65  Horton  v.  Champlin,  12  R.  I. 
550,  34  Am.  Rep.  722. 

se  In  Peri  v.  New  York  Central  R. 
R.  Co.,  152  N.  Y.  521,  it  is  said:  "The 
lien  operates  as  security,  and  if  the 
settlement  entered  into  by  the  parties 
is  in  disregard  of  it  and  to  the  prej- 
udice of  plaintiff's  attorney,  by  rea- 
son of  the  insolvency  of  his  client, 
or  for  other  sufficient  cause,  the 
court  will  interfere  and  protect  its 
offices  by  vacating  the  satisfaction 
of  judgment  and  permitting  execu- 
tion to  issue  for  the  enforcement  of 
the  judgment  to  the  extent  of  the 
lien,  or  by  following  the  proceeds  in 
the  hands  of  third  parties,  who  re- 
ceived them  before  or  after  judgment 
Impressed  with  the  lien." 

In  Young  v.  Renshaw,  102  Mo.  App. 
173,  it  is  said:  "From  these  authori- 
ties we  conclude  that  the  remedy  af- 
forded by  the  common  law  to  the  at- 
torney for  the  enforcement  of  his 
lien  on  a  judgment,  which  he  has  ob- 
tained for  his  client,  is,  if  the  judg- 
ment is  paid  in  disregard  of  his 
rights,  to  move  the  court  to  set  aside 
the  satisfaction  pro  tanto  and  to 
award  execution  to  the  extent  of  his 
lien,  as  was  done  in  this  case;  that 
where  the  judgment  or  its  proceeds 
are  yet  under  the  control  of  the 
court,  it  is  the  duty  of  the  court, 
on  motion  of  the  attorney,  to  con- 
trol the  judgment  or  its  proceeds  un- 
til he  has  paid  his  fee.  The  learned 
circuit  judge  adopted  this  remedy 
and  we  approve  his  ruling."  To  same 
effect,  Curtis  v.  Metropolitan  St  Ry. 
Co.,  118  Mo.  App.  341. 

In  Weeks  v.  Wayne  Circuit  Judges, 


73  Mich.  256;  Heavenrich  v.  Alpena 
Circuit  Judge,  111  Mich.  163,  satis- 
factions of  judgments  entered  by  the 
client  were  set  aside  in  order  to  re- 
instate the  attorney's  lien.  To  same 
effect:  Bailey  v.  Murphy,  136  N.  Y. 
50;  Spors  v.  Shultheis,  55  Hun  (N. 
Y.),  603;  Commercial  Telegram  Co.  v. 
Smith,  57  Hun  (N.  Y.),  176;  Mitchell 
v.  Piqua  Club  Assn.,  15  Misc.  (N.  Y.) 
366;  Roberts  v.  Union  El.  R.  Co.,  84 
Hun  (N.  Y.),  437;  Vrooman  v.  Pick- 
ering, 25  N.  Y.  Misc.  277, 

But  the  vacation  will  not  be  set 
aside  if  the  attorneys  are  amply 
protected  by  the  fund  realized.  Lee 
v.  Vacuum  Oil  Co.,  126  N.  Y.  579. 

Where  the  amount  of  the  lien  is 
not  settled  the  attorney  must  file  an 
intervening  petition  to  judicially  de- 
termine the  amount,  before  execu- 
tion will  issue  on  the  judgment. 
Jones  v.  Duff  Grain  Co.,  69  Neb.  91. 

67  Thus  in  New  York,  where  there 
is  a  lien  upon  the  cause  of  action,  it 
has  been  said  in  several  cases  that 
"where  an  attorney  institutes  an  ac- 
tion, under  an  agreement  with  his 
client,  by  which  he  is  to  receive  a 
certain  amount  of  the  recovery,  and 
the  defendant  settles  with  the  plain- 
tiff without  the  knowledge  of  the  at- 
torney, the  attorney  has  the  right  to 
continue  the  action  and  proceed  to 
judgment  for  the  protection  and  en- 
forcement of  his  lien,  either  by  de- 
fault in  case  no  answer  has  been 
served,  or  in  the  usual  way  if  the  ac- 
tion is  at  i?sue."  Matter  of  Evans, 
58  N.  Y.  App.  Div.  502;  Rochfort  v. 
Metropolitan  St.  R.  Co.,  50  N.  Y.  App. 
Div.  261;  Pilkington  v.  Brooklyn,  etc., 


1863 


§    2283] 


THE  LAW  OF  AGENCY 


[BOOK 


a  doubtful  remedy  at  best,  and  practically  unworkable  except  in  cases 
in  which  the  amount  of  the  claim  is  liquidated  and  the  proof  is  in  the 
attorney's  hands.68  The  existence  of  such  a  remedy  has  also  been 
denied.69  Many  cases,  however,  have  permitted  a  direct  action  by  the 
attorney  against  the  opposite  party  to  recover  his  compensation  upon  the 
basis  of  the  amount  fixed  by  the  settlement  even  though  the  whole 
amount  has  been  paid  to  the  client.70 


R.  Co.,  49  App.  Div.  22;  Randall  v. 
Van  Wagenen,  115  N.  Y.  527,  12  Am. 
St.  R.  828.  See  also  Fischer-Hansen 
v.  Brooklyn  Heights  R.  Co.,  173  N.  Y. 
492. 

So  also  in  Wisconsin:  Smelker  v. 
Chicago,  etc.,  R.  Co.,  106  Wis.  135;  in 
West  Virginia:  Burkhart  v.  Scott,  69 
W.  Va.  694. 

In  Miedreich  v.  Rank,  40  Ind.  App. 
393,  the  attorney  was  to  receive  one- 
third  of  sum  recovered  on  an  insur- 
ance policy.  Pending  suit  parties 
fraudulently  settled.  Held:  The  at- 
torney may  prosecute  the  action  to 
recover  the  fee,  though  no  lien  exists 
ordinarily  on  the  cause  of  action. 
Same  procedure  in  Michigan:  Grand 
Rapids,  etc.,  Ry.  Co.  v.  Circuit  Judge, 
16  Mich,  181,  137  Am.  St.  Rep.  495. 

In  Georgia  it  seems  to  be  the  law 
that  the  attorney,  having  a  lien  on 
the  cause  of  action,  may  proceed  to 
try  the  case  to  determine  and  collect 
the  amount  of  his  fee,  after  a  settle- 
ment by  the  client.  Johnson  v.  Mc- 
Curry,  102  Ga.  471;  Penn  v.  McGhee, 
6  Ga.  App.  631;  Walker  v.  Equitable 
Mtg.  Co.,  114  Ga.  862;  Rodgers  v. 
Purse,  83  Ga.  115. 

In  Utah,  in  Potter  v.  Ajax  Mining 
Co.,  19  Utah,  421,  22  Utah,  273,  in  an 
action  for  personal  injuries  the  at- 
torneys were  allowed  to  continue  the 
action,  notwithstanding  settlement 
and  to  recover  a  judgment  for  their 
contingent  fee  upon  the  basis  of  a 
liability  upon  the  part  of  the  defend- 
ant very  much  greater  than  that  rep- 
resented by  the  sum  received  in  set- 
tlement. They  apparently  called  the 
plaintiff  as  a  witness  to  show  the 
fact  of  the  defendant's  negligence 
and  the  extent  of  his  injury  there- 


from precisely  as  though  he  had  not 
already  attempted  to  release  the  de- 
fendant from  any  liability.  The 
case  proceeded  upon  the  theory  that 
there  had  been  a  fraudulent  and  col- 
lusive settlement  made  for  the  pur- 
pose of  depriving  the  attorney  of  his 
fees. 

See  Reynolds  v.  Reynolds,  10  Neb. 
574;  Counsman  v.  Modern  Woodmen, 
69  Neb.  710.  In  Barthell  v.  Chicago, 
etc.,  R.  R.  Co.,  138  Iowa,  688,  it  was 
held  that  the  attorney  might  prose- 
cute an  independent  action. 

68  In  Fischer-Hansen  v.  Brooklyn 
Heights  R.  Co.,  173  N.  Y.  492,  the  court 
speaks  of  this  as  a  "clumsy  and  il- 
logical" remedy,  resulting  only  in  the 
trial  of  a  "dead  lawsuit"  and,  in  that 
case,  of  no  avail  because  the  plaint- 
iff whose  testimony  was  necessary  to 
establish  it  had  left  the  country.  It 
was  conceded,  however,  that  it  might 
be  resorted  to  if  necessary. 

es  Farry  v.  Davidson,  44  Kan.  377; 
De  Wandelaer  v.  Sawdey,  78  Conn. 
654;  Boogren  v.  St.  Paul  City  Ry. 
Co.,  97  Minn.  51,  114  Am.  St.  Rep. 
691,  3  L.  R.  A.  (N.  S.)  379.  (See 
also,  Weicher  v.  Cargill,  86  Minn. 
271);  Whitwell  v.  Aurora,  139  Mo. 
App.  597. 

70  See  Wallace"  v.  Chicago,  etc.,  R. 
Co.,  112  Iowa,  565;  Smith  v.  Chicago, 
etc.,  R.  Co.,  56  Iowa,  720;  Desaman  v. 
Butler,  114  Minn.  362,  118  Minn.  198 
(lien  enforced  in  the  original  action 
after  setting  aside  collusive  settle- 
ment) ;  Fischer-Hansen  v.  Brooklyn 
Heights  R.  Co.,  173  N.  Y.  492  (really 
an  action  to  foreclose  the  lien);  Her- 
man Const.  Co.  v.  Wood,  35  Okla.  103 
(under  statute). 

In    Missouri,    the     attorney     may 


1864 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


f§    2284 


§  2284.  —  If  the  judgment  has  resulted  in  a  fund  the  attor- 
ney may  undoubtedly  have  the  aid  of  equity  in  securing  payment  out  of 
the  fund.71 

If  the  fund  be  in  the  hands  of  the  sheriff  or  other  officer  of  the  court, 
the  attorney  may,  upon  proper  motion,  have  an  order  from  the  court  for 
payment  to  him  out  of  the  fund.72  And  the  same  practice  prevails  where 
one  of  several  attorneys  has  obtained  possession  of  the  fund, — -the  others 
may  have  an  order  requiring  him  to  pay  them.73 


maintain  an  independent  action  based 
upon  the  act  of  the  other  party  in 
refusing  to  respect  his  lien.  O'Con- 
nor v.  St.  Louis  Transit  Co.,  198  Mo. 
622,  115  Am.  St.  R.  495,  8  Ann.  Gas. 
703;  Yonge  v.  St.  Louis  Transit  Co., 
109  Mo.  App.  235;  Wait  v.  Atchison, 
etc.,  Ry.  Co.,  204  Mo.  491. 

Extent  of  lien  limited  by  terms  of 
valid  contract. — In  Matter  of  Wink- 
ler,  154  N.  Y.  App.  Div.  532,  where 
there  was  a  contract  for  a  contingent 
fee,  and  the  client  settled  without 
the  consent  of  the  attorney,  it  was 
held  that  the  contract  limited  the 
amount  for  which  the  attorney  might 
claim  a  lien. 

May  recover  quantum  merult 
where  suit  settled  for  something 
other  than  money. — Where  the  action 
was  settled  by  paying  practically  no 
money  but  by  giving  life  employ- 
ment, attorney  held  to  be  entitled  to 
recover  quantum  meruit.  Proctor 
Coal  Co.  v.  Tye,  123  Ky.  381.  See  also, 
Elk  Valley  Coal  Min.  Co.  v.  Willis, 
149  Ky.  449. 

Not  bound  by  amount  paid  client 
on  collusive  settlement. — In  Desaman 
v.  Butler,  118  Minn.  198,  the  court 
held  that  the  attorney  was  not  lim- 
ited by  the  amount  for  which  the 
client  settled,  where  the  settlement 
was  apparently  collusive  and  made 
with  the  intention  of  depriving  the 
attorney  of  his  fees. 

7i  See  Merchants  Nat.  Bank  v. 
Armstrong,  107  Ga.  479;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  Ed.  478; 
Central  R.  Co.  v.  Pettus,  113  U.  S. 
116,  Sup.  Ct;  Trustees  v.  Greenough, 
105  U.  S.  527;  Abend  v.  Commis- 

1865 


sioners,  174  111.  96;  Bristol  Co.  v. 
Bristol  Gas  Co.,  99  Tenn.  371; 
Ransom  v.  Cutting,  112  N.  Y.  App. 
Div.  150,  188  N.  Y.  447;  DeWinter  v. 
Thomas,  34  App.  D.  C.  80,  27  L.  R.  A. 
(N.  S.)  634;  Colley  v.  Wolcutt,  109 
C.  C.  A.  425,  187  Fed.  595;  Jefferson 
Hotel  Co.  v.  Brumbaugh,  94  C.  C.  A. 
279,  168  Fed.  867;  Buell  v.  Kanawha 
Lumber  Co.,  201  Fed.  762. 

Attorney  not  allowed  anything  out 
of  fund  in  bankruptcy  as  against  se- 
cured creditors  where  his  services 
had  not  gained  or  saved  anything  for 
them:  In  re  Gillespie,  190  Fed.  88. 
Same,  where  there  was  no  surplus 
gained  over  unquestioned  claims: 
Farmers'  Loan  &  T.  Co.  v.  Westches- 
ter  County  Water  Works  Co.,  143  N. 
Y.  App.  Div.  78. 

See  further,  post,  §  2286. 

72  Walker  v.  Floyd,  30  Ga.  237;  Gill 
V.  Truelsen,  39  Minn.  373. 

73  Smith  v.  Goode,  29  Ga.  185;  Bray 
v.  Staples,  103  C.  C.  A.  451,  180  Fed. 
321. 

But  not  where  it  might  Interfere 
with  state  policy,  e.  a.,  where  an  ap- 
propriation made  by  the  legislature 
for  the  benefit  of  the  client  Is  still 
under  the  custody  and  control  of  the 
state  treasurer.  State  v.  Moore,  40 
Neb.  854,  25  L.  R.  A.  774. 

So  in  Manning  v.  Leighton,  65  Vt. 
84,  24  L.  R.  A.  684,  It  was  held  that 
under  U.  S.  Rev.  Stats.,  §  3477,  the 
claim  of  lien  upon  a  fund  resulting 
from  the  Alabama  claims  was  incon- 
sistent with  the  policy  of  the  statute, 
where  no  transfer  had  been  made  to 
him  with  the  statutory  fbrmalities. 


§§  2285,2286] 


THE    LAW    OF    AGENCY 


[BOOK   V 


§    2285. 


Limitations,  etc. — It  has  been  held  that  the  lien 


may  be  enforced  though  the  attorney's  claim  is  barred  by  the  statute  of 
limitations,7*  but  this  has  also  been  denied.76 

If  a  statute  points  out  a  method  of  procedure,  that  must,  of  course,  in 
general  be  pursued.76 

If  the  proceeds  of  the  judgment  should  come  into  the  attorney's 
hands,  he  would  be  justified  in  retaining  the  amount  of  his  compensa- 
tion." 

§  2286.  Liens  by  contract — Equitable  protection  independent  of 
lien. — Liens  may,  of  course,  be  created  by  express  agreement,  and  it 
has  been  held  in  some  cases  that  an  agreement  with  the  attorney 
that  he  shall  be  paid  out  of  the  amount  to  be  recovered  amounts 
in  equity  to  an  assignment  pro  tanto  of  the  fund  ;78  but  this  view  seems 


7*Higgins  v.  Scott,  2  B.  and  Ad. 
413. 

75  Lamed  v.  Dubuque,  86  Iowa,  166. 

76  See  Colorado  State  Bank  v.  Dav- 
idson,  7   Colo.   App.   91;    Weicher  v. 
Cargill,  86  Minn.  271. 

77  Board  of  Commissioners  v.  Clapp, 
83  Minn.  512. 

78  in  Milmo  Nat'l  Bank  v.  Convery, 
8    Tex.    Civ.    App.    181,    it   was   held 
that,    where    the    client    already    in- 
debted to  the  attorney  and  asked  to 
pay,  handed  the  attorney  the  written 
evidence  of  a  debt  due  from  a  third 
person  and  told  the  attorney  to  col- 
lect this  and  pay  himself  out  of  the 
proceeds,  there  was  an  equitable  as- 
signment, good  as  against  a  garnish- 
ing creditor  of  the  client. 

To  substantially  the  same  effect,  is 
Fairbanks  v.  Sargent,  117  N.  Y.  320,  6 
L.  R.  A.  475,  where  the  New  York 
cases  are  collected. 

In  Schubert  v.  Herzberg,  65  Mo. 
App.  578,  attorneys,  recovered  judg- 
ment in  an  action  for  assault  and 
battery  which  they  had  undertaken 
to  prosecute  for  forty  per  cent,  of 
any  judgment  recovered.  The  court 
said:  "We  regard,  then,  the  agree- 
ment entered  into  between  these  at- 
torneys and  their  client  at  the  time 
they  undertook  the  prosecution  of 
this  suit,  as  an  equitable  assignment 
of,  or  agreement  to  assign,  a  forty 


per  cent,  portion  of  the  judgment 
subsequently  obtained." 

In  Patten  v.  Wilson,  34  Pa.  299,  it 
was  held  that  an  agreement  that  If 
the  attorney  would  try  the  case, 
which  he  did,  he  should  have  one 
hundred  dollars  "out  of  the  verdict" 
in  a  claim  for  tort,  which  was  not 
assignable,  would  after  verdict  ren- 
dered attach  to  it  and  have  the  effect 
between  the  parties  of  an  equitable 
assignment  good  as  against  an  at- 
taching creditor  of  the  client 

In  Wylie  v.  Coxe,  15  How.  (56  U. 
S.)  415,  14  L.  Ed.  753,  where  the  at- 
torney was  to  receive  five  per  cent, 
of  the  money  or  scrip  collected,  and 
the  fund  was  looked  to  rather  than  to 
the  personal  responsibility  of  the 
client,  it  was  held  that  a  lien  on  the 
fund  was  created  which  equity  would 
enforce  after  the  client's  death. 

In  Dreiband  v.  Candler,  166  Mich. 
49,  it  is  said:  "The  theory  upon 
which  a  lien  follows  a  lawful  agree- 
ment entered  into  between  attorney 
and  client  with  respect  to  compensa- 
tion is  that  the  agreement  amounts 
to  an  assignment  of  a  portion  of  the 
judgment  sought  to  be  recovered  or 
expected  as  the  fruit  of  the  litiga- 
tion." See  also  Galveston,  etc.,  Ry. 
Co.  v.  Ginther,  96  Tex.  295;  Bent  v. 
Lipscomb,  45  W.  Va.  183,  72  Am.  St. 
Rep.  815.  In  Iowa  it  was  held  that 


1866 


CHAP.    l]  ' 


OF  ATTORNEYS  AT  LAW 


[§    2286 


to  be  contrary  to  the  weight  of  authority,19  unless  there  are  further  evi- 
dences of  assignment  present.80    It  has  also  been  held  that  an  agreement 


the  statutory  Hen  supersedes  all 
liens,  common  law  or  equitable. 
Ward  v.  Sherbondy,  96  Iowa,  477. 

79  In  Story  v.  Hull,  143  111.  506,  it 
was  held  that  an  agreement  to  pay 
an  attorney  a  reasonable  compensa- 
tion out  of  the  proceeds  of  contem- 
plated litigation  did  not  amount  to 
an  equitable  assignment  of  the  claim 
or  its  proceeds  or  any  part  thereof. 
The  court  distinguished  "between  an 
actual  assignment  of  a  part  of  a 
debt  or  claim  or  fund,  and  a  mere 
promise  or  agreement  to  pay  a  part 
of  such  debt  or  claim  when  collected 
or  recovered,  or  pay  out  of  such 
fund."  This  case  was  followed  in 
Gillette  v.  Murphy,  7  Okla.  91. 

In  Tone  v.  Shankland,  110  Iowa, 
525,  it  was  held  that,  while  an  oral 
assignment  would  have  been  good,  an 
agreement  that  the  attorney  should 
have  one-half  of  the  sum  recovered 
upon  a  claim,  put  into  his  hands  for 
collection,  was  not  an  assignment  of 
the  claim. 

In  Hargett  v.  McCadden,  107  Ga. 
773,  it  was  held  that,  where  certain 
open  accounts  were  delivered  to  an 
attorney  for  collection  with  direc- 
tions to  apply  one-half  the  proceeds 
on  an  antecedent  debt  of  the  client 
to  the  attorney,  and  to  keep  the  other 
half  as  his  fees  for  collecting,  there 
being  no  written  assignment  or  other 
evidence  of  intent  to  pass  the  title 
to  the  attorney,  he  acquired  no  inter- 
est, legal  or  equitable,  in  the  ac- 
counts. 

In  Woods  v.  Dickinson,  18  D.  C. 
Rep.  301,  it  was  held  that  a  mere 
agreement  to  pay  out  of  a  particular 
fund  does  not  create  an  equitable 
lien.  "There  must  be  an  appropria- 
tion of  the  fund  pro  tanto,  either  by 
giving  an  order  or  by  transferring  it 
otherwise  in  such  a  manner  that  the 
holder  is  authorized  to  pay  the 
amount  directly  to  the  creditor  with- 
out the  further  intervention  of  the 


debtor,"  citing  Trist  v.  Child,  21 
Wall.  447;  Potter  v.  White,  127  U.  S. 
266.  See  also  Christmas  v.  Russell, 
14  Wall.  (U.  S.)  69,  20  L.  Ed.  762. 

In  De  Winter  v.  Thomas,  34  App. 
D.  C.  80,  27  L.  R.  A.  (N.  S.)  634,  it 
is  held  that  while  an  equitable  lien 
may  arise  where  there  was  a  prom- 
ise to  pay  out  of  a  fund,  it  will  not 
do  where  the  attendant  circumstances 
show  that  it  was  not  the  intention  of 
the  parties  that  the  fund  should  be 
looked  to  for  payment. 

so  in  Williams  v.  Ingersoll,  89  N. 
Y.  508,  it  was  said  that  a  mere  agree- 
ment that  the  attorney  should  be 
paid  out  of  a  fund  to  be  collected  was 
not  equivalent  to  an  assignment,  and 
did  not  of  itself  constitute  an  equita- 
ble lien,  but  there  may  be  other  facts 
sufficient  to  show  an  intent  to  give 
the  attorney  an  interest  in  the  claim; 
and  it  was  held  that  an  express 
though  unwritten  agreement  that  the 
attorney's  fee  should  be  a  lien  on  the 
fund  recovered  and  should  be  paid 
before  the  client  might  receive  any 
part,  was  sufficient  to  constitute  an 
equitable  assignment.  See  also,  Har- 
wood  v.  La  Grange,  137  N.  Y.  538. 

In  Fairbanks  v.  Sargent,  104  N.  Y. 
108,  58  Am.  Rep.  490,  it  was  held  an 
agreement  that  the  attorney  "is  to 
have"  a  certain  fixed  portion  of  any 
sum,  etc.,  recovered,  for  his  services 
in  endeavoring  to  collect,  etc.,  was 
an  equitable  assignment.  The  court 
said:  "This  contract  does  not  contain 
a  provision  to  pay  plaintiff  from  the 
fund  produced,  or  otherwise,  but  is 
an  engagement  that  plaintiff  shall 
have  one-third  of  the  proceeds  of  the 
collections  in  specie,  or  in  such  form 
as  they  shall  be  received  from  the 
debtor."  These  cases  were  followed 
in  Holmes  v.  Evans,  129  N.  Y.  140. 

[See  also,  Fairbanks  v.  Sargent,  117 
N.  Y.  320,  6  L.  R.  A.  475.] 

In  both  of  these  cases  the  courts 
expressly  recognized  that  the  ordi- 


1867 


§    2286] 


THE  LAW   OF  AGENCY 


.  [BOOK  v 


that  the  attorney  shall  have  a  lien  upon  the  amount  recovered  is  one 
which  may  be  specifically  enforced  in  equity.81 

On  familiar  grounds,  it  is  held  that  a  court  having  jurisdiction  to  dis- 
pose of  a  fund  may  provide  for  the  payment  out  of  it  of  attorneys'  fees 
like  other  expenses  of  administration.82  In  a  number  of  cases  also  it 
has  been  held  that  where  the  services  of  the  attorney  have  resulted  in 
the  creation  of  a  fund  in  the  control  of  the  court,  the  court  will  on  gen- 
eral equitable  principles  provide  for  the  payment  of  reasonable  compen- 
sation to  the  attorney  before  the  fund  is  permitted  to  be  distributed.83 


nary      rules     respecting     attorneys' 
liens  were  not  applicable. 

In  Canty  v.  Latterner,  31  Minn.  239, 
it  was  held  that  an  express  agree- 
ment that  the  attorney  "should  re- 
ceive his  money  from  the  railroad 
company,"  the  defendant,  was  suffi- 
cient to  show  that  an  assignment  of 
part  of  the  claim  was  intended.  That 
"a  distinction  exists  between  such  a 
case  and  an  agreement  that  the  prom- 
isor will  pay  out  of  a  particular 
fund." 

In  Ingersoll  v.  Coram,  211  U.  S.  335, 
53  L.  Ed.  208,  an  express  agreement 
that  the  attorney  should  have  a  speci- 
fied fee  and  of  the  fund  recovered  and 
expressly  providing  that  there  should 
be  no  personal  liability  for  the  fee, 
was  held  to  give  the  attorney  a  lien 
upon  the  fund  recovered.  To  same 
effect:  Wylie  v.  Coxe,  56  U.  S.  (15 
How.)  415,  14  L.  Ed.  753.  See  also, 
In  re  Paschal,  77  U.  S.  (10  Wall.)  483, 
19  L.  Ed.  992. 

si  Terney  v.  Wilson,  45  N.  J.  L.  282; 
Williams  v.  Ingersoll,  89  N.  Y.  508. 

Liberal  interpretation  of  contract 
for  lien. — In  Mackall  v.  Willoughby, 
167  U.  S.  681,  42  L.  Ed.  323,  it  was 
held  that  a  contract  for  a  lien  may, 
as  between  the  parties  be  liberally 
construed;  and  that  where  there  was 
an  agreement  for  a  lien  upon  land 
"recovered"  in  three  enumerated 
suits,  the  attorney  was  entitled  to  his 
lien  upon  land  involved  in  one  suit 
and  in  fact  recovered  as  the  result 
of  one  of  the  other  suits,  though  the 
particular  action  involving  that  land 
directly  did  not  succeed. 


82  See,  for  example:  Abend  v.  En- 
dowment Fund,  174  111.  96;  Strong  v. 
Taylor,  82  Ala.  213;  Ex  parte  Plitt,  2 
Wall.  Jr.  453,  19  Fed.  Cas.  p.  875; 
Cowdrey  v.  Galveston,  etc.,  R.  Co.,  93 
U.  S.  352,  23  L.  Ed.  950;  Bigelow  v. 
Sheehan,  161  Mich.  667. 

»3  In  Welgand  v.  Alliance  Supply 
Co.,  44  W.  Va.  133,  the  court  quote 
with  approval  this  rule:  "Where  a 
fund  is  brought  into  a  court  of 
equity  through  the  services  of  an  at- 
torney, who  looks  to  that  alone  for 
his  compensation,  although  his  inter- 
est cannot  technically  be  called  'a 
lien,'  he  is  regarded  as  the  equitable 
owner  of  the  fund  to  the  extent  of 
the  reasonable  value  of  his  services; 
and  the  court  administering  the 
fund  will  intervene  for  his  protection 
and  award  him  a  reasonable  compen- 
sation to  be  paid  out  of  it."  So  also 
in  Merchants  Nat.  Bank  v.  Arm- 
strong, 107  Ga.  479. 

In  McKelvy's  Appeal,  108  Pa.  615, 
it  was  held  that  where  a  fund  is 
brought  into  a  court  of  equity  by  an 
attorney,  to  which  alone  he  looks  for 
compensation,  though  he  has  not  an 
ordinary  lien,  the  court  will  see  that 
his  reasonable  compensation  is  paid 
out  of  the  fund.  (Distinguished  in 
Quakertown,  etc.,  R.  Co.  v.  Guaran- 
tors', etc.,  Co.,  206  Pa.  350.) 

To  same  effect:  Bristol,  etc.,  Co.  v. 
Bristol  Gas,  etc.,  Co.,  99  Tenn.  371; 
Spencer's  Appeal  (Pa.),  9  Atl.  253; 
Adams  v.  Milling  Co.,  38  Fed.  281; 
Harrison  v.  Perea,  168  U.  S.  311,  42 
L.  Ed.  478;  Edwards  v.  Bay  State 
Gas  Co.,  172  Fed.  971;  Koons  y. 


1868 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2287 


§  2287.  How  lien  lost  or  waived. — The  attorney's  lien  upon  the 
judgment  may  be  lost  or  waived  by  formal  surrender  or  by  conduct  in- 
consistent with  its  assertion  very  much  in  the  same  manner  as  his  lien 
upon  papers  and  money  already  considered.84  An  attorney  who  aban- 


Beach,  147  Ind.  137  (here  the  fund 
was  in  probate  court) ;  Ransom  v. 
Cutting,  188  N.  Y.  447. 

See  also,  McDougall  v.  Hazleton 
Tripod  Boiler  Co.,  31  C.  C.  A.  487,  88 
Fed.  217;  Tuttle  v.  Claflin,  31  C.  C. 
A.  419,  88  Fed.  122;  Grant  v.  Lookout 
Mt.  Co.,  93  Tenn.  691,  27  L.  R.  A.  98; 
Blair  v.  Harrison,  6  C.  C.  A.  326,  57 
Fed.  257. 

In  order  to  make  this  rule  applic- 
able the  attorney's  services  must, 
have  been  the  means  of  producing  or 
preserving  the  fund.  Fulton  v.  Har- 
rington, 7  Houston  (Del.),  182;  Com- 
monwealth v.  Mechanics  Ins.  Co.,  122 
Mass.  421. 

In  Quakertown,  etc.,  R.  R.  Co.  v. 
Guarantors,  etc.,  Co.,  206  Pa.  350,  at- 
torneys were  employed  to  recover 
possession  of  certain  bonds.  The  de- 
fendant deposited  the  bonds  in  court, 
on  which  attorneys  seek  to  impress 
their  lien.  The  court  refused  on  the 
grounds  that  the  attorneys  were  not 
to  look  solely  to  the  bonds  for  com- 
pensation, nor  were  they  a  fund  cre- 
ated. Thus  distinguishing  McKelvy's 
Appeal,  supra. 

In  Rives  v.  Patty,  74  Miss.  381,  60 
Am.  St.  Rep.  510,  part  of  the  credit- 
ors of  an  insolvent  decedent's  estate 
employed  attorneys  to  get  in  assets 
for  the  estate.  Held:  The  attorneys 
have  no  lien  on  the  fund  realized  ex- 
cept to  the  extent  of  the  interest  of 
the  creditors  employing  them. 

In  Baltimore  &  Ohio  R.  Co.  v. 
Brown,  79  Md.  442,  nearly  ninety-five 
per  cent,  of  the  members  of  an  "Em- 
ployees' Relief  Association"  connected 
with  the  Baltimore  &  Ohio  Railroad 
Company  assigned  their  interest  to 
the  company  and  agreed  that  the  re- 
lief work  should  be  taken  over  and 
carried  on  by  it.  Less  than  five  per 
cent,  did  not  so  consent  and  filed  a 
bill  asking  that  the  Relief  Associa- 


tion be  wound  up  and  its  assets  dis- 
tributed. A  large  fund  came  into  the 
control  of  the  court.  Held:  that  the 
attorneys  for  the  minority  had  no 
claim  on  the  fund  in  court  beyond 
the  share  of  those  who  had  employed 
them. 

In  Ford  v.  Gilbert,  44  Oreg.  259,  it 
was  held  that  the  attorney  of  an  in- 
solvent employed  to  resist  the  efforts 
of  creditors  to  reach  his  property,  not 
having  contributed  to  the  creation  of 
the  fund  is  not  entitled  to  compensa- 
tion out  of  a  fund  in  court  derived 
from  the  sale  of  the  property.  In  re 
Tallassee  Mfg.  Co.,  64  Ala.  567,  cited 
by  the  court,  is  to  the  same  effect. 

84  See  ante,  §§  2272,  2273.  White- 
head  v.  Jessup,  7  Colo.  App.  460, 
waived  by  taking  assignment  of 
judgment.  McClare  v.  Lockard,  121 
N.  Y.  308  (by  remaining  silent  when 
there  was  a  duty  to  disclose  the 
lien);  Stearns  v.  Wollenberg,  51  Ore. 
88,  14  L.  R.  A.  (N.  S.)  1095,  (by 
agreeing  to  take  land  in  payment  of 
fee) :  West  v.  Bacon,  164  N.  Y.  425 
(by  taking  and  holding  land  subject 
to  an  express  and  inconsistent  trust 
and  declaring  that  he  held  it  in  no 
other  way) ;  Goodrich  v.  McDonald, 
112  N.  Y.  157  (by  declining  to  be 
present  when  the  judgment  was  to  be 
paid  saying  that  he  was  satisfied  with 
the  personal  responsibility  of  the 
client). 

On  the  other  hand,  the  lien  is  not 
waived  by  continuing  to  prosecute  a 
claim  after  knowledge  of  its  assign- 
ment. Niagara  Fire  Ins.  Co.  v.  Hart, 
13  Wash.  651;  or  by  taking  client's 
note  for  the  fee,  Davis  v.  Jackson,  86 
Ga.  138;  or  by  agreeing  that  client 
should  collect  the  money  on  the  ver- 
dict and  pay  attorney  after  collection 
was  made,  In  re  Nethaway,  108  Minn. 
41;  Barnabee  v.  Holmes,  115  Iowa, 
581;  or  by  consenting  to  assignment 


1869 


§§    2288,  2289]  THE    LAW    OF    AGENCY  [BOOK    V 

dons  the  cause  loses  his  lien,  though  he  abandons  it  because  the  client 
did  not  furnish  funds  to  carry  it  on,  or  by  reason  of  any  other  diffi- 
culty.85 

So  it  is  said  that  the  attorney  loses  his  lien  where  he  sues  and  re- 
covers judgment  against  his  client  for  the  amount  of  his  fees.88 

§  2288.  By  what  law  governed. — The  lien  of  an  attorney  upon  a 
judgment  obtained  by  him  is  governed  by  the  law  of  the  State  where 
the  judgment  was  obtained  and  the  lien  attached,87  and  not  by  the  law  of 
the  State  where  the  judgment  is  sought  to  be  collected;  and  the  courts 
of  the  latter  State  will  protect  and  enforce  it  according  to  the  law  of 
the  former;88 


IX. 


DEALINGS  BETWEEN  ATTORNEY  AND  CLIENT. 

§  2289.  In  general — Good  faith  and  perfect  fairness  required.— 
The  relation  of  attorney  and  client  is  one  of  special  trust  and  confidence. 
From  the  free  and  intimate  disclosures  required  by  the  relation,  the 
attorney  acquires,  not  only  a  full  knowledge  of  his  client's  business  and 
affairs,  but  of  his  necessities  and  weaknesses  as  well.  His  position  is 
that  of  a  confidential  adviser  and  he  naturally  has  great  influence  over 
his  client.  To  an  unscrupulous  man,  the  attorney's  position,  in  many 
instances,  offers  great  temptations  to  take  advantage  of  the  knowledge 
acquired  to  make  gain  for  himself  by  preying  upon  his  client's  confi- 

of  judgment:    Hutchinson  v.  Worth-  upon   funds   under   the   control   said 

ington,  7  App.  D.  C.  548,  where  an  that  the  matter  was  to  be  disposed  of 

attorney  stated  he  had  no  desire  to  by  the   law  of  the  state   where   the 

impress  a  lien  on  a  fund  but  desired  retainer  was  made, 

that  a  check  be  sent  for  the  amount,  In  In  re  Baxter,  83  C.  C.  A.  106,  154 

it  was  held  no  waiver.     In  re  King,  Fed.  22,  the  court  held  that  the  New 

168  N.  Y.  53.  York    statute    respecting    attorneys' 

&s  Matter  of  H.,  93  N.  Y.  381;  Tuck  liens  was  not   to    be    regarded    as  a 

v.  Manning,  53  Hun  (N.  Y.),  455.    To  mere  practice  act,  but  as  creating  a 

same  effect,  Halbert  v.  Gibbs,  16  N.  substantial  right,  and  therefore  to  be 

Y.  App.  Div.  126;   McKay  v.  Morris,  enforced  by  the  federal  court  sitting 

35  N.  Y.  Misc.  571.  in  that  state. 

se  Jones  v.  Circuit  Judge,  95  Mich.  In  Matter  of  King,  34  Misc.  (N.  Y.) 

289;    Wipfler   v.    Warren,    163    Mich.  10,  a  trustee  appointed  in  New  Jersey 

189.  contracted  in  New  York  with  attor- 

87  See   Central   R.   R.,   etc.,   Co.   v.  neys  to  recover  property  there.  Held: 

Pettus,  113  U.  S.  116,  28  L.  Ed.  915.  New  York  law  governs  the  question 

In  In   re   Paschal,  10   Wall.  (U.  S.)  of  lien. 

483,  19  L.  Ed.  992,  the  Supreme  Court  **  Citizens'  Nat'l.   Bank  v.   Culver, 

in  disposing  of  the  question  of  a  lien  54  N.  H.  327,  20  Am.  Rep.  134. 

1870 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2290 


dence  or  necessities.  The  law,  therefore,  very  properly  requires  that 
all  of  the  dealings  between  the  attorney  and  his  client  shall  be  charac- 
terized by  the  utmost  fairness  and  good  faith,  and  it  scrutinizes  with 
great  closeness  all  transactions  had  between  them.89 

§  2290.  Purchases  from.,  and  sales  to  client — Adverse  purchases. 
— It  has  been  seen  in  an  earlier  portion  of  the  work,  that  an  agent  au- 
thorized to  sell  property  for  his  principal  will  not,  without  the  latter's 
full  and  intelligent  consent,  be  permitted  to  sell  to  himself;  that  an 
agent  authorized  to  buy  may  not,  without  like  consent,  buy  of  himself, 
and  that  an  agent  whose  duty  it  is  to  buy  for  his  principal  will  not  be 
permitted  to  buy  for  himself.90  These  rules  apply  with  particular  force 
to  the  case  of  the  attorney.  Thus  it  is  held  that  the  attorney  will  not  be 
permitted,  without  full  knowledge  and  consent  on  the  part  of  the  client, 
to  purchase  and  hold  property  of  his  client  sold  in  the  course  of  the  liti- 
gation in  which  he  was  retained ; 91  or  to  buy,  in  his  own  name  or  in- 


«>Cooley  v.  Miller,  156  Cal.  510; 
Holies  v.  O'Brien,  63  Fla.  342;  Jen- 
nings v.  McConnell,  17  111.  148;  Kelly 
v.  Allin,  212  Mass.  327;  Gray  v.  Em- 
mons,  7  Mich.  533;  Gooch  v.  Peebles, 

105  N.  C.  411;  Mohr  v.  Sands,  

Okla. ,  133  Pac.  238;  Cooper  v.  Bell, 

Tenn.  ,  153  S.  W.  844;  Roller 

v.  McGraw,  63  W.  Va.  462;  Baker  v. 
Humphrey,  101  U.  S.  494,  25  L.  Ed. 
1065. 

so  See  ante,  §§  1187-1243. 

»i  May  not  hold  on  purchase  made 
at  execution,  foreclosure  or  other  like 
sale  of  client's  property  occurring  in 
the  proceeding  in  which  he  was  em- 
ployed. Pearce  v.  Gamble,  72  Ala. 
341;  Roby  v.  Colehour,  135  111.  300; 
Cray  ton  v.  Spullock,  87  Ga.  326; 
Kreitzer  v.  Crovatt,  94  Ga.  694;  Phil- 
lips v.  Phillips'  Admr.,  26  Ky.  L.  R. 
145,  415,  80  S.  W.  826  and  81  S. 
W.  689;  Briggs  v.  Hodgdon,  78  Me. 
514;  Aultman  v.  Loring,  76  Mo.  App. 
66;  Beecher  v.  Hohl,  199  Mo.  320,  116 
Am.  St.  Rep.  492;  Bush  v.  Halsted, 
121  N.  Y.  App.  Div.  538;  Gooch  v. 
Peebles,  105  N.  Car.  411;  Wilson  v. 
Cantrell,  40  S.  Car.  114;  Gaffney  v. 
Jones,  18  Wash.  311. 

But  It  is  held  that  this  rule  does 
not  apply  where  the  original  employ- 


ment was  for  another  purpose  and 
did  not  involve  this  property,  in  any- 
way, though  the  attorney  had  after- 
ward been  requested  to  try  to  raise 
money  so  as  to  prevent  the  sale 
which  he  had  been  unable  to  do. 
Herr  v.  Payson,  157  111.  244.  (There 
was  also  long  delay  here.)  See  also, 
Hess  v.  Voss,  52  111.  472. 

If  the  client  consents  freely  the 
purchase  is  valid.  Fisher  v.  Mclner- 
ney,  137  Cal.  28,  92  Am.  St.  Rep.  68. 

Cannot  purchase  land  at  tax  sale 
where  the  land  is  involved  in  litiga- 
tion and  his  purchase  is  antagonistic 
to  his  client.  Cunningham  v.  Jones, 
37  Kans.  477,  1  Am.  St.  Rep.  257; 
Wright  v.  Walker,  30  Ark.  44.  See 
also,  Lynn  v.  Morse,  76  Iowa,  665; 
Brigham  v.  Newton,  49  La.  Ann. 
1539;  Prouty  v.  Bullard,  77  Iowa,  42. 

Cannot  buy  and  hold  as  against  the 
client  the  subject  matter  of  the  liti- 
gation. Stubinger  v.  Frey,  116  Ga. 
396;  Boyle  v.  Read,  138  111.  App.  153; 
Sutherland  v.  Reeve,  151  111.  384; 
Baker  v.  First  Nat.  Bank,  77  Iowa, 
615;  Levara  v.  McNeny,  73  Neb.  414; 
Yerkes  v.  Crum,  2  N.  Dak.  72; 
Stephens  v.  Dubois,  31  R.  I.  138,  140 
Am.  St.  Rep.  741;  Lewis  y.  Brown,  36 
W.  Va.  1. 


1871 


§   2290] 


VHE 


LAW  OF  AGENCY 


terest,  property  in  which  his  client  was  seeking  to  obtain  an  interest  J**2 
or  to  take  advantage  of  the  information  which  he  may  acquire  respect- 
ing the  state  of  his  client's  title,  or  concerning  his  client's  needs  or  pur- 
poses, to  acquire  property  which  the  client  was  interested  in  acquiring 
and  hold  the  same  adversely  to  his  client's  interests ; "  or  to  buy  claims 


»2  Harper  v.  Perry,  28  Iowa,  57. 

ss  in  Baker  v.  Humphrey,  101  U.  S. 
494,  25  L.  Ed.  1065,  it  appeared  that 
an  attorney  employed  by  both  parties 
to  draw  an  agreement  for  the  pur- 
chase of  land  for  the  sum  of  $8,000 
upon  discovering  a  defect  in  the  title, 
concealed  the  fact  from  one  of  the 
parties,  and  in  accordance  with  a 
secret  agreement  with  the  other  pro- 
cured a  conveyance  by  quit  claim  for 
the  sum  of  $25,  to  E,  his  own  brother. 
Held,  that  his  conduct  was  a  gross 
breach  of  professional  duty  and  that 
E  should  be  decreed  on  receiving  the 
purchase  money,  $25,  to  convey  to  the 
injured  party  the  premises,  with  cov- 
enant against  the  title  of  E,  and  all 
others  claiming  under  him. 

Mr.  Justice  Swayne  said:  "The  em- 
"ployment  to  draw  the  contract  was 
sufficient  alone  to  put  the  parties  in 
this  relaton  to  each  other.  Galbraith 
v.  Elder,  8  Watts  (Pa.),  81;  Smith  v. 
Brotherline,  62  Pa.  461.  But  whether 
the  relation  subsisted  previously  or 
was  created  only  for  the  purpose  of 
the  particular  transaction  in  ques- 
tion, it  carried  with  it  the  same  con- 
sequences. Williamson  v.  Moriarity, 
19  Weekly  Reporter,  818. 

"It  is  the  duty  of  an  attorney  to 
advise  the  client  promptly  whenever 
he  has  any  information  to  give  which 
it  is  important  the  client  should  re- 
ceive. Hoopes  v.  Burnett,  26  Miss. 
428;  Jett  v.  Hempstead,  25  Ark.  462; 
Foy  v.  Cooper,  2  Q.  B.  (Ad.  &  El.  N. 
S.)  937. 

1  "In  Taylor  v.  Blacklow,  3  Bing.  (N. 
C.)  235  an  attorney  employed  to 
raise  money  on  a  mortgage,  learned 
the  existence  of  certain  defects  in  his 
"client's  title  and  disclosed  them  to 
another  person.  As  a  consequence 
hia  client  was  subjected  to  litigation 


and  otherwise  injured.  It  was  held 
that  an  action  would  lie  against  the 
attorney,  and  that  the  client  was  en- 
titled to  recover. 

"In  Com.  Dig.  tit.  'Action  upon  the 
case  for  a  Deceit,  A  5,'  it  is  said  that 
such  an  action  lies  'if  a  man,  being 
entrusted  in  his  profession,  deceive 
him  who  entrusted  him;  as  if  a  man 
retained  of  counsel  became  after- 
wards of  counsel  with  the  other 
party  in  the  same  cause,  or  discover 
the  evidence  or  secrets  of  the  cause. 

"So  if  an  attorney  act  deceptive  to 
the  prejudice  of  his  client,  as  if  by 
collusion  with  the  demandant  he 
make  default  in  a  real  action,  where- 
by the  land  is  lost.'  It  has  been  held 
that  if  counsel  be  retained  to  de- 
fend a  particular  title  to  real  estate 
he  can  never  thereafter,  unless  his 
client  consent,  buy  the  opposing  title 
without  holding  it  in  trust  for  those 
then  having  the  title  he  was  employ- 
ed to  sustain.  Henry  v.  Raiman,  25 
Pa.  St.  354,  64  Am.  Dec.  703.  Without 
expressing  any  opinion  as  to  the 
soundness  of  this  case  with  respect 
to  the  extent  to  which  the  principle 
of  trusteeship  is  asserted,  it  may  be 
laid  down  as  a  general  rule  that  an 
attorney  can  in  no  case,  without  the 
client's  consent,  buy  and  hold,  other- 
wise than  in  trust,  any  adverse  title 
or  interest  touching  the  thing  to 
which  his  employment  relates.  He 
cannot  in  such  a  way  put  himself  in 
an  adversary  position  without  this  re- 
sult. The  cases  to  this  effect  are  very 
numerous  and  they  are  all  in  har- 
mony. We  refer  to  a  few  of  them. 
Smith  v.  Brotherline,  62  Pa.  St.  461; 
Davis  v.  Smith,  43  Vt.  269;  Wheeler 
v.  Willard,  44  Id.  640;  Giddings  v. 
Eastman,  5  Paige  (N.  Y.),  561;:  Moore, 
et  al.  v.  Bracken,  27  111.  23;  Harper 
872 


'CHAP. 


OF  ATTORNEYS  AT  LAW 


f  t  (~)C  c  r  f 

[§  2291 


involved  in  the  litigation  at  a  discount  and  enforce  them  against  the 
client  at  their  face  value,9*  or  otherwise  to  make  profit  for  himself  out 
of  his  relation  and  to  the  detriment  of  his  client.95  In  all  such  cases  the 
transaction  may,  at  the  option  of  the  client,  be  held  void,  or  the  attorney 
may  be  charged  as  a  trustee  of  his  client  and  be  required  to  account  as 
such.90 

§  2291.  — — Private  purchases  by  the  attorney  of  the  client's 

property  are  regarded  with  still  greater  strictness.  In  many  cases 
it  has  been  held  that  all  such  transactions  are  voidable  at  the  election  of 


v.  Perry,  28  Iowa,  57;  Hockenbury  v. 
Carlisle,  5  Watts  &  S.  (Pa.)  348;  Ho- 
bedy  v.  Peters,  6  Jurist,  pt.  1,  1,794; 
Jett  v.  Hempstead,  25  Ark.  462;  Case 
v.  Carroll,, 35  N.  Y.  385;  Lewis  v.  Hill- 
man,  3  H.  L.  Gas.  607."  Followed  in 
Downard  v.  Hadley,  116  Ind.  131;  Eoff 
v.  Irvine,  108  Mo.  378,  32  Am.  St.  Rep. 
609.  In  Eoff  v.  Irvine,  supra,  it  was 
held  that  the  rule  applied  though  the 
purchase  was  not  made  until  several 
months  after  he  had  ceased  to  act  as 
attorney,  the  knowledge  having  been 
acquired  while  the  relation  existed. 

But  in  Rogers  v.  Gaston,  43  Minn. 
189,  the  purchase  was  sustained 
where  the  attorney  had  fully  notified 
the  client  and  the  purchase  was  not 
made  until  more  than  two  years  after 
the  termination  of  the  relation,  during 
which  time  the  client  had  made  no 
move  toward  purchasing  on  his  own 
account.  The  interest  here,  how- 
ever, was  not  strictly  an  adverse  one, 
but  an  additional  one  which  the 
client  might  desire  to  acquire. 

Where  an  attorney  not  employed 
with  reference  to  this  particular  land, 
but  in  another  matter,  frankly  ad- 
vised his  client  of  the  necessity  of 
purchasing  a  certain  title,  but  the 
client  with  full  knowledge  of  the  sit- 
uation refused  to  buy  it,  because  he 
was  not  willing  to  pay  the  price 
asked,  the  attorney  purchasing  did 
not  hold  as  a  trustee.  Webber  v.  Wan- 
nemaker,  39  Colo.  425. 

A  purchase  by  the  attorney  of  an 
interest  in  his  client's  land  after 
the  attorney  has  ceased  to  act  as  such 
and  the  interest  purchased  has,  with- 


out any  default  or  collusion  on  the 
part  of  the  attorney,  passed  into  the 
hands  of  third  persons,  can  be  upheld. 
Butcher  v.  Chidester,  68  W.  Va.  488. 

a*  Olson  v.  Lamb,  56  Neb.  104,  71 
Am.  St.  Rep.  670;  Sutliff  v.  Clunie 
(Cal),  37  Pac.  224. 

But  when  the  relation  had  ceased 
and  the  attorney  made  no  use  of  in- 
formation gained  while  acting  as  at- 
torney, he  may  enforce  claims  pur- 
chased at  the  face  value.  Smith  v. 
Craft,  22  Ky.  L.  R.  643,  58  S.  W.  500. 

Where  an  attorney,  employed  by  the 
administrator  of  an  estate  to  enforce 
and  collect  a  judgment  against  spe- 
cific property  had  brought  about  a 
sale  of  it  and  a  purchase  by  his 
client,  and  then  bought  in  an  out- 
standing tax  title  under  an  express 
agreement  to  hold  it  in  trust  for  the 
estate  represented  by  his  client,  the 
trust  will  be  enforced.  Hughes  v. 
Willson,  128  Ind.  491.  See  also,  Thom- 
as v.  Morrison,  92  Tex.  329. 

SB  See  Kelly  v.  Allin,  212  Mass.  327 
(where  an  attorney  who,  by  consent- 
ing to  a  judgment  against  his  client 
was  enabled  to  get  an  interest  in  val- 
uable property,  was  required  to  ac- 
count for  the  profit).  Mohr  v.  Sands, 
-  Okla.  — ,  133  Pac.  238  (where  at- 
torney for  non-resident  client  led 
client  to  believe  that  a  good  claim 
in  his  hands  for  collection  was 
'doubtful  and  therefore  to  assign  it 
to  a  confederate  for  less  than  its  real 
value). 

se  Singo  v.  Brainard,  173  Ala.  64; 
Zeigler  v.  Hughes,  55  111.  288;  Har- 
per v.  Perry,  28  Iowa,  57;  Kelly  v. 


1873 


§§    22Q2,  2293]  THE    LAW    OF    AGENCY  [BOOK   V 

the  client,97  but  it  is  believed  that  the  better  rule  does  not  go  so  far. 
There  is  no  necessary  incapacity  for  dealing  between  the  client  and  at- 
torney, and,  though  transactions  between  them  will  be  very  closely  scru- 
tinized, yet  those  which  are  obviously  fair  and  just  will  be  upheld. 
But  the  burden  of  proof  is  upon  the  attorney  to  show  full  information, 
intelligent  comprehension  and  freedom  from  restraint  on  the  part  of 
the  client  and  also  adequate  consideration,  and  if  he  cannot  produce 
evidence  which  puts  the  transaction  beyond  reasonable  controversy,  it. 
will  be  set  aside,  or  he  will  be  regarded  as  a  trustee  for  his  client.98 

§  2292.  Gifts  from  client  to  attorney. — So  to  sustain  a 

gift  from  a  client  to  his  attorney,  the  burden  is  upon  the  latter  to  show 
not  only  that  it  was  voluntary,  but  that  it  was  made  with  full  knowl- 
edge of  all  material  facts  and  without  undue  influence.99 

§  2293.  Other  dealings. — The  same  considerations  apply 

to  other  contracts,  bargains,  settlements  and  similar  dealings  between 
the  attorney  and  client.  "The  transaction  is  scrutinized  with  the  ex- 
tremest  vigilance  and  regarded  with  the  utmost  jealousy.  The  clearest 
evidence  is  required  that  there  was  no  fraud,  influence  or  mistake ;  that 
the  transaction  was  perfectly  understood  by  the  weaker  party ;  and, 
usually,  evidence  is  required  that  a  third  and  disinterested  person  ad- 
vised such  party  of  all  his  rights.1  The  presumption  is  against  the  pro- 

Allin,  212  Mass.  327;  Case  v.  Carroll,  11  N.  Y.   App.  Div.  156;  Starr  v.  Van- 

35  N.  Y.  385;    Henry  v.  Raiman,  25  derheyden/  9   Johns.    (N.  Y.)    253,   6 

Pa.  354,  64  Am.  Dec.  703;  Wheeler  v.  Am.  Dec.  275;    Crocheron  v.  Savage, 

Willard,  44  Vt.  640;   Johnson  v.  Out-  75  N.  J.  E.  589,  23  L.  R.  A.    (N.  S.) 

law,  56  Miss.  541.  679,  reversing  74  N.  J.  E.  629;   Wag- 

»7  See  Lane  v.  Black,  21  W.  Va.  617.  ner  v.  Phillips,  78  N.  J.  Eq.  33;  Ham- 

98  Lecatt  v.  Sallee,  3  Port.    (Ala.)  ilton  v.  Allen,  86  Neb.  401,  28  L,  R.  A. 

115,    29    Am.    Dec.    249;     Dawson    v.       (N.  S.)  723;  Mohr  v.  Sands, Okla. 

Copeland,  173    Ala.  267;    Kisling    v.      ,  133  Pac.  238;   Miles  v.  Ervin,  1 

Shaw,  33  Cal.  425,  91  Am.  Dec.  644;  McCord's    (S.    C.),   Ch.    524,    16    Am. 

Cooley  v.  Miller,  156  Cal.  510;  Whar-  Dec.  623;  Cooper  v.  Lee,  75  Tex.  114; 

ton  v.  Hammond,  20  Fla.  934;    Ross      Barnes   v.    McCarthy,   Tex.   Civ. 

v.    Payson,   160    111.    349;     Willin  v.       App.  ,  132   S.  W.   85;    Kenyan  v. 

Burdette,  172  111.  117;  Day  v.  Wright,       Tervino,  Tex.  Civ.  App.  ,  137 

233  111.  218;  Fox  v.  Fox,  250  111.  384;  S.  W.  458;  Cullop  v.  Leonard,  97  Va. 
Morrison  v.  Smith,  130  111.  304;  La-  256;  Young  v.  Murphy,  120  Wis.  49; 
clede  Bank  v.  Keeler,  109  111.  385;  Vanasse  v.  Reid,  111  Wis.  303; 
Gruby  v.  Smith,  13  111.  App.  43;  Hetrick  v.  Smith,  67  Wash.  664. 
Mitchell  v.  Colby,  95  Iowa,  202;  Yea-  »9  Bolles  v.  O'Brien,  63  Fla.  342; 
mans  v.  James,  27  Kan.  195;  Carter  Whipple  v.  Barton,  63  N.  H.  613; 
v.  West,  93  Ky.  211;  Merryman  v-.  Walmesley  v.  Booth,  2  Atk.  25,  27; 
Euler,  59  Md.  588,  43  Am.  Rep.  564;  Cray  v.  Mansfield,  1  Ves.  Sr.  379; 
Hill  v.  Hall,  191  Mass.  253;  Taylor  Harris  v.  Tremenheere,  15  Ves.  Jr.  34. 
v.  Young,  56  Mich.  285;  Gray  v.  Em-  i  "Independent  advice  is  simply  a 
mons,  7  Mich.  533;  Klein  v.  Bor-  means  of  proof  to  establish  the  fair- 
chert,  89  Minn.  377;  In  re  Demarest,  ness  of  the  settlement,  and  that  it 

1874 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2294 


priety  of  the  transaction,  and  the  onus  of  establishing  the  gift  or  bar- 
gain to  have  been  fair,  voluntary  and  well  understood,  rests  upon  the 
party  claiming,  and  this,  in  addition  to  the  evidence  to  be  derived  from 
the  execution  of  the  instrument  conveying  or  assigning  the  property."  2 

§  2294.  Contracts  for  compensation  made  after  relation 

exists. — A  distinction  has  been  made  in  several  cases  with  reference 
to  contracts  for  compensation,  between  those  made  before  the  relation 
of  attorney  and  client  is  entered  into  and  those  made  afterwards.3  It 
has  been  said  that  "an  attorney  may,  before  entering  on  the  business  of 
his  client,  lawfully  contract  for  the  measure  of  his  compensation;  and 
any  contract  then  made  is  as  valid  and  unobjectionable  as  if  made  be- 
tween other  persons  competent  to  contract  with  each  other;  but  after 


was  voluntarily  entered  into,  free 
from  undue  influence."  Kidd  v. 
Williams,  132  Ala.  140.  See  Wright 
v.  Carter,  86  L.  T.  (Eng.)  110. 

2  Nesbit  v.  Lockman,  34  N.  Y.  167. 
To  same  effect:  Kidd  v.  Williams, 
132  Ala.  140,  56  L.  R.  A.  879;  Felton 
v.  Le  Breton,  92  Cal.  457;  United 
States  Oil,  etc.,  Co.  v.  Bell,  153  Cal. 
781;  Bolles  v.  O'Brien,  63  Fla.  342; 
Carter  v.  West,  93  Ky.  211,  14  Ky. 
L.  R.  191;  Whiting  v.  Davidge,  23 
App.  D.  C.  156;  Matthews  v.  Robin- 
son, 7  Kan.  App.  118;  Kissam  v. 
Squires,  102  N.  Y.  App.  Div.  536; 
Phipps  v.  Willis,  53  Ore.  190,  18  Ann. 
Cas.  119;  Ah  Foe  v.  Bennett,  35  Ore. 
231;  Thomas  v.  Turner,  87  Va.  1. 

In  Ward  v.  Yancey,  78  111.  App.  368, 
it  was  held  that  this  rule  does  not 
operate  to  require  the  plaintiff  to 
make  an  express  showing  of  fairness 
and  adequacy  as  part  of  his  prima 
facie  case  in  an  ordinary  action  upon 
a  promissory  note  given  by  the  client 
to  the  attorney  for  legal  fees. 

Where  the  attorney  has  financial 
dealings  with  the  client,  [especially, 
where  as  here  the  clients  are  a 
"comparatively  helpless  woman  and 
her  children"]  he  must  keep  fair  and 
intelligible  accounts  of  his  transac- 
tions "and  he  can  be  permitted  to 
derive  no  advantage  from  his  failure 
so  to  do."  Brigham  v.  Newton,  106 
La.  280. 


The  attorney  must  see  that  the 
client  is  fully  informed  of  all  the 
material  facts  as  far  as  he  knows 
them.  Robinson  v.  Sharp,  201  111. 
86;  Stanwood  v.  Wishard,  128  Fed. 
499;  Place  v.  Hayward,  117  N.  Y. 
487. 

In  Ross  v.  Payson,  160  111.  349,  the 
court  said:  "Being  the  attorney  of 
his  grantor,  it  was  Payson's  duty  to 
counsel  and  advise  him  against  the 
reckless  disposition  of  his  estate, 
and  he  could  not  legally  avail  him- 
self of  that  inclination  by  receiving 
deeds  of  his  property." 

aLecatt  v.  Bailee,  3  Port.  (Ala.) 
115,  29  Am.  Dec.  249;  Dickinson  v. 
Bradford,  59  Ala.  581,  31  Am.  Rep. 
23;  Planters  Bank  v.  Hornberger,  4 
Coldw.  (Tenn.)  at  578;  Elmore  v. 
Johnson,  143  111.  513,  36  Am.  St.  Rep. 
401,  21  L.  R.  A.  366. 

Where  the  relation  of  attorney  and 
client  already  exists  a  contract  to 
pay  additional  compensation  for  do- 
ing that  which  would  ordinarily  fall 
within  the  existing  contract  can  only 
be  sustained  upon  very  clear  proof. 
Dorr  v.  Camden,  55  W.  Va.  226,  65  L. 
R.  A.  3.48;  where  the  attorneys 
sought  to  sustain  a  contract  by  their 
client  to  pay  them  additional  fees  for 
the  benefit  of  information  which  they 
had  acquired  while  in  his  service  and 
which  therefore  belonged  to  him  in 
consideration  of  the  prior  employ- 
ment. 

1875 


§§    2295,2296]  THE  LAW   OF  AGENCY  [BOOK   V 

the  fiduciary  relation  has  commenced,  no  subsequent  agreement  with  his 
client  for  compensation  can  be  supported,  unless  it  is  a  fair  and  just 
remuneration  for  his  services."  4 

§  2295.  Relation  of  attorney  and  client  must  exist. — But  in  or- 
der to  give  these  rules  effect,  it  is  necessary  that  the  relation  of  attor- 
ney and  client  should  exist  between  the  parties.  The  mere  fact  that  the 
opposite  party  in  a  transaction  was  an  attorney  at  law,  or  that  he  offered 
to  and  did  draw  the  necessary  writings,  which  passed  between  the  par- 
ties, gratuitously,  is  not  enough.  He  must  then  have  been  the  attorney 
of  the  complaining  party.  If  he  was  merely  the  adverse  party,  the  fact 
that  he  was  at  the  same  time  an  attorney  at  law  will  not  invalidate  the 
transaction,  nor  does  it  raise  the  presumption  of  fraud  or  undue  influ- 
ence.5 

As  has  been  already  pointed  out,  it  is  not  essential  to  the  creation  of 
the  relation  of  attorney  and  client  that  a  formal  retainer  shall  be 
shown ; 6  neither  is  it  necessary  that  actual  litigation  or  legal  proceed- 
ings shall  be  contemplated.7  The  employment  of  the  attorney  in  his 
professional  capacity  to  give  advice,  conduct  negotiations,  draft  con- 
tracts and  the  like  is  sufficient. 

§  2296.  Former  relation  terminated. — Where  once  the  re- 
lation is  shown  to  have  existed  its  disqualifying  limitations  will  not 
necessarily  cease  abruptly  upon  the  mere  termination  of  the  relation.8 
As  has  been  said,  in  such  a  case  "where  a  relation  which  presupposes 
an  ascendant  or  controlling  influence  by  one  party  on  the  mind  of  the 
other  has  existed,  the  influence  acquired  by  such  relation  may  extend 
more  or  less  after  the  period  of  its  termination,  and  when  such  is  the 
case,  the  transaction  will  be  scrutinized  with  the  same  jealousy  as  if  the 
relation  had  continued."  9 

On  the  other  hand,  the  disability  does  not  continue  forever,  and  where 
the  relation  has  been  terminated  long  enough  to  rebut  all  presumption 

*  Dickinson    v.    Bradford,    59    Ala.  In    Dorr    v.    Camden,    supra,    the 

581,  31  Am.  Rep.  23.  court  said:  "Agency  never  ceases,  in- 

s  Stout   v.  Smith,  98    N.    Y.  25,  50  sofar  as  the  knowledge  and  informa- 

Am.  Rep.  632.  tion  acquired  by  the  agent  in  carry- 

e  See  Eoff  v.  Irvine,   108  Mo.  378,  ing  out  the  same  is  concerned,  until 

32  Am.  St.  Rep.  609;  Keenan  v.  Scott,  the    contract    which     rendered     the 

64  W.  Va.  137.  agency    necessary    is    fully    consum- 

7  See   Sheehan  v.  Erbe,  103  N.  Y.  mated,  or  the  purpose  which  gave  rise 

App.  Div.  7.  to  the    agency    has    been    attained," 

s  Barrett  v.  Ball,  101  Mo.  App.  288;  though  this  is  probably  an  extreme 

Willin    v.    Burdette,    172    111.    117;  statement. 

Mason  v.  Ring,  2  Abb.  N.  Y.  Pr.  Rep.  9  Barrett  v.  Ball,  supra. 
(N.    S.)    322;    Holman   v.   Loynes,   4 
De  G.  M.  &  G.  270. 

1876 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2297 

of  former  influence,  or  of  taking  advantage  of  confidential  information, 
and  the  like,  and  no  other  disability  is  shown,  transactions  have  fre- 
quently been  upheld.10 

X. 

PRIVILEGED  COMMUNICATIONS. 

§  2297.  Confidential  communications  privileged. — The  purposes 
and  necessities  of  the  relation  between  a  client  and  his  attorney  require, 
in  many  cases,  on  the  part  of  the  client,  the  fullest  and  freest  disclos- 
ures to  the  attorney  of  the  client's  objects,  motives  and  acts.  This  dis- 
closure is  made  in  the  strictest  confidence,  relying  upon  the  attorney's 
honor  and  fidelity.  To  permit  the  attorney  to  reveal  to  others  what  is 
so  disclosed,  would  be  not  only  a  gross  violation  of  a  sacred  trust  upon 
his  part,  but  it  would  utterly  destroy  and  prevent  the  usefulness  and 
benefits  to  be  derived  from  professional  assistance.  Based  upon  con- 
siderations of  public  policy,-  therefore,  the  law  wisely  declares  that  all 
confidential  communications  and.  disclosures,  made  by  a  client  to  his 
legal  adviser  for  the  purpose  of  obtaining  "his  professional  aid  or  advice, 
shall  be  strictly  privileged ; — that  the  attorney  shall  not  be  permitted, 
without  the  consent  of  his  client, — and  much  less  will  he  be  compelled — 
to  reveal  or  disclose  communications  made  to  him  under  such  circum- 
stances.11 

10  See  Rogers  v.  Gaston,  43  Minn.  Sweet  v.  Owens,  109  Mo.  1;  Nelson  v. 
189 ;  Webber  v.  Wannemaker,  39  Colo.  Becker,    31    Neb.    99;     Spaulding    v. 
425;  Butcher  v.  Chidester,  68  W.  Va.  State,  61  Neb.  289;   Jahnke  v.  State, 
488,    cited    in    a    preceding    section  68  Neb.   154;    Patten  v.  Moor,  29  N. 
§  2290,    where    purchases    were    sus-  H.  163;   Coveney  v.  Tannahill,  1  Hill 
tained.  (N.  Y.),  33,  37  Am.  Dec.  287;   Crosby 
.See  also,  Newkirk  v.  Stevens,  152  v.  Berger,  11  Paige   (N.  Y.),  377,  42 
N.  Car.  498,  where  a  purchase  made  Am.  Dec.  117;   Bank  of  Utica  v.  Mer- 
three  years  after  the  termination  of  sereau,  3  Barb.  Ch.    (N.  Y.)    528,  49 
the  relation  was  sustained.  Am.  Dec.  189;   Williams  v.  Fitch,  18 

11  White     v.     State,     86     Ala.     69;  N.  Y.  546;  Britton  v.  Lorenz,  45  N.  Y. 
Hunter    v.  Watson,   12    Cal.   363,  73  51;     Beltzhoover     v.     Blackstock,     3 
Am.  Dec.  543;  Verdelli  v.  Commercial  Watts    (Pa.),   20,    27   Am.    Dec.   330; 
Co.,  115  Cal.  517;   Supplee  v.  Hall,  75  Watson   v.    Young,    30    S.    Car.    144; 
Conn.  17,  96  Am.  St.  Rep.  188;  Swain  Austin,  etc.,  Co.  v.  Heiser,  6  S.  Dak. 
v.  Humphreys,  42  111.  App.  370;   Gur-  429;    Thompson   v.   Kilborne,   28   Vt. 
ley  v.  Park,  135  Ind.  440;  Gabriel  v.  750,    67    Am.    Dec.    742;     Hicks    v. 
McMullin,  127   Iowa,  426;    Hatton  v.  Blanchard,   60   Vt.    673;    Arbuckle   v. 
Robinson,   14   Pick.    (Mass.)    416,    25  Templeton,    65    Vt.    205;     Selden    v. 
Am.   Dec.   415;    Erickson   v.    Milwau-  State,  74  Wis.  271,  17  Am.  St.  Rep. 
kee,  etc.,  R.  Co.,  93  Mich.  414;   Lori-  144,  and  many  other  cases  cited  in 
mer    v.    Lorimer,     124    Mich.     631;  following  sections. 

Struckmeyer  v.  Lamb,  75  Minn.  366; 

I877 


§  2297] 


THE  LAW  OF  AGENCY 


[BOOK  v 


In  many  of  the  states  the  rule  is  now  declared  by  statute,  but  the 
statutes  generally,  either  by  their  terms  or  by  the  constructions  which 
have  been  put  upon  them  by  the  courts,  are  found  to  be  practically  de- 
claratory of  the  common  law  rule,  although  in  some  cases  rather  radical 
changes  are  made.12 

12  Alabama:  Code  (1907),  §  4012, 
"No  attorney  shall  be  competent  or 
compellable  to  testify  In  any  court 
in  this  state,  for  or  against  his  client, 
to  any  matter  or  thing,  knowledge  of 
which  he  may  have  acquired  from 
his  client,  by  virtue  of  his  relations 
as  attorney,  or  by  reason  of  the  an- 
ticipated employment  of  him  as  at- 
torney, but  shall  be  both  competent 
and  compellable  to  testify,  for  or 
against  his  client,  as  to  any  matter 
or  thing,  knowledge  of  which  he  may 
have  acquired  in  any  other  manner." 

Alaska:  Carter's  Ann.  Code  (1900), 
§  1036,  "An  attorney  shall  not,  with- 
out the  consent  of  his  client,  be  ex- 
amined as  to  any  communication 
made  by  his  client  to  him,  or  his  ad- 
vice given  thereon,  in  the  course  of 
his  professional  employment." 

Arizona:  Revised  Statutes  (1901), 
§  2538. 

Arkansas:  Kirby's  Digest  (1904), 
§  3095,  "The  following  persons  shall 
be  incompetent  to  testify,  (5)  An  at- 
torney concerning  any  communica- 
tion made  to  him  by  his  client  in 
that  relation,  or  his  advice  thereon, 
without  the  client's  consent." 

California:  Code  of  Civil  Procedure 
(1906),  §  1881. 

"An  attorney  cannot,  without  the 
consent  of  his  client,  be  examined  as 
to  any  communication  made  by  the 
client  to  him,  or  his  advice  given 
thereon  in  the  course  of  professional 
employment;  nor  can  an  attorney's 
secretary,  stenographer,  or  clerk  be 
examined,  without  the  consent  of  his 
employer,  concerning  any  fact  the 
knowledge  of  which  has  been  ac- 
quired in  such  capacity." 

Colorado:  Mill's  Annotated  Stat- 
utes (1891),  §  4824;  like  Alaska, 
supra. 

Georgia:  Code  (1895),  §  5199,  "Com- 


munications to  an  attorney,  or  his 
clerk,  to  be  transmitted  to  the  attor- 
ney pending  his  employment,  or  in 
anticipation  thereof,  shall  never  be 
heard  by  the  court.  So  the  attorney 
cannot  disclose  the  advice  or  counsel 
he  may  give  to  his  client,  nor  pro- 
duce or  deliver  up  title-deeds  or 
other  papers,  except  evidences  of  debt 
left  in  his  possession  by  his  client. 
This  rule  does  not  exclude  the  attor- 
ney as  a  witness  to  any  facts  which 
may  transpire  in  connection  with  his 
employment." 

Idem,  §  5271:  "No  attorney  shall 
be  competent  or  compellable  to  tes- 
ti-fy  in  any  court  in  this  state,  for  or 
against  his  client,  to  any  matter  or 
thing,  knowledge  of  which  he  may 
have  acquired  from  his  client,  by 
virtue  of  his  relations  as  attorney,  or 
by  reason  of  the  anticipated  employ- 
ment of  him  as  attorney  but  shall  be 
both  competent  and  compellable  to 
testify,  for  or  against  his  client,  as 
to  any  matter  or  thing,  knowledge  of 
which  he  may  have  acquired  in  any 
other  manner." 

Idaho:  Code  (1908),  §  5958;  like 
Alaska,  supra. 

Indiana:  Burns'  Annotated  Stat- 
utes of  1901,  §  505.  "Attorneys,  as  to 
confidential  communications  made  to 
them  in  the  course  of  their  profes- 
sional business  and  as  to  advice 
given  in  such  cases"  are  incompe- 
tent 

Iowa:  Code  of  1897,  §  4608:  "No 
practicing  attorney,  counsellor,  physi- 
cian, surgeon,  or  the  stenographer  or 
confidential  clerk  of  any  person,  who 
obtains  such  information  by  reason 
of  his  employment,  minister  of  the 
gospel  or  priest  of  any  denomination 
shall  be  allowed  in  giving  testimony, 
to  disclose  any  confidential  communi- 
cation properly  entrusted  to  him  in 


1878 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2298 


§  2298.  With  reference  to  the  construction  of  the  rule, 

the  courts  often  express  widely  differing  views.  It  is  often  said  that  as 
the  rule  is  designed  for  the  protection  of  the  client  and  to  afford  him 
the  greatest  freedom  of  utterance  for  the  purpose  of  procuring  profes- 
sional assistance,  the  rule  should  be  liberally  construed  in  his  favor. 
On  the  other  hand  it  is  often  declared  that  as  the  enforcement  of  the 
rule  tends  to  the  suppression  of  the  truth  it  should  be  strictly  interpreted 
and  applied  only  when  a  case  falls  clearly  within  its  terms. 


his  professional  capacity,  and  neces- 
sary and  proper  to  enable  him  to  dis- 
charge the  functions  of  his  office  ac- 
cording to  the  usual  course  of  prac- 
tice or  discipline.  Such  prohibition 
shall  not  apply  to  cases  where  the 
party  in  whose  favor  the  same  is 
made  waives  the  rights  conferred." 

Kentucky:  Code  (1900),  §  606,  par. 
4,  substantially  like  Alaska,  supra. 

Louisiana:  Merrick's  Code  (1900), 
§  2283:  "No  attorney  or  counsellor 
at  law  shall  give  evidence  of  any- 
thing that  has  been  confided  to  him 
by  his  client,  without  the  consent  of 
such  client." 

Minnesota:  Revised  Laws  (1905), 
§  4660,  like  Alaska,  adding,  "nor  can 
any  employee  of  such  attorney  be  ex- 
amined as  to  such  communication  or 
advice,  without  the  client's  consent." 

Missouri:  Statutes  (1899),  §  4659, 
like  Arkansas,  supra. 

Montana:  Code  (1907),  §  7892,  like 
Alaska,  supra. 

Nebraska:  Statutes  (1909),  §  6881, 
like  Arkansas,  supra,  adding,  "in 
open  court  or  in  writing  produced  in 
court." 

Nevada:  (Compiled  Laws,  Cutting, 
1861-1900),  substantially  like  Alaska, 
supra. 

New  York:  Stover's  Ann.  Code 
(1902),  §  835:  "An  attorney  or  coun- 
sellor at  law  shall  not  be  allowed  to 
disclose  a  communication  made  by 
his  client  to  him,  or  his  advice  given 
thereon,  in  the  course  of  his  profes- 
sional employment;  nor  shall  any 
clerk,  stenographer  or  other  person 
employed  by  such  attorney  or  coun- 
sellor be  allowed  to  disclose  any  such 

'  I 


communication  or  advice  given 
thereon." 

North  Carolina:  Revisal  of  1905, 
§  1620,  no  privilege  "where  fraud 
upon  the  state  is  charged." 

North  Dakota:  Code  (1899),  §  5703, 
like  Alaska,  supra. 

Ohio:  Bates'  Ann.  St.  (1908),  "An 
attorney,  concerning  a  communica- 
tion made  to  him  by  his  client  in 
that  relation,  or  his  advice  t'o  his 
client,"  but  the  attorney  may  testify 
with  the  "express  consent  of  the 
client,"  or  if  the  client  voluntarily 
testify  the  attorney  may  be  com- 
pelled to  testify  on  the  same  subject 

Oklahoma:  Compiled  Laws  (1909), 
§  5842:  "The  following  persons  shall 
be  incompetent  to  testify:  (4)  An 
attorney,  concerning  any  communica- 
tions made  to  him  by  his  client,  in 
that  relation,  or  his  advice  thereon, 
without  the  client's  consent" 

Oregon:  Lord's  Oregon  Laws,  §  733. 
•  "An  attorney  shall  not,  without  the 
consent  of  his  client,  be  examined  as 
to  any  communication  made  by  the 
client  to  him,  or  his  advice  given 
thereon,  in  the  course  of  professional 
employment."  See  Minard  v.  Still- 
man,  31  Ore.  164,  65  Am.  St.  Rep.  815. 

Pennsylvania:  Purdon's  Digest 
(13th  Ed.)  Witnesses,  §  5.  "Nor  shall 
counsel  be  competent  or  permitted  to 
testify  to  confidential  communica- 
tions made  to  him  by  his  client,  or 
the  client  be  compelled  to  disclose 
the  same,  unless  in  either  case  this 
privilege  be  waived  upon  the  trial  by 
the  client" 

South  Dakota:  Code  (1903),  §  538, 
like  Alaska,  supra. 

879 


§§  2299,2300] 


THE    LAW    OF    AGENCY 


§  2299.  What  communications  included — By  client  to  at- 
torney.— The  privilege  extends  to  information  derived  from  the 
client,  as  such,  either  by  oral  or  written  communications,  or  from  books 
or  papers  shown  to  him  by  his  client  or  placed  in  his  hands  in  his  char- 
acter of  attorney  or  counsel.13 

§  2300.  — : Where  a  document  confided  to  the  attorney 

would  be  privileged  if  it  had  remained  in  the  client's  hands,  as,  for  ex- 
ample, his  title  deeds  in  England,1*  self-incriminating  documents,  and 
the  like,  it  is  privileged  also  in  the  hands  of  his  attorney.  Where  the 
document  is  one  which  the  client  himself  could  be  required  to  produce 
a  different  question  arises.  That  the  client  himself  could  be  required 
to  produce  it,  is  conceded.  A  person  moreover  cannot  be  excused  from 
the  production  of  a  paper  merely  by  the  flimsy  device  of  putting  it  into 
the  hands  of  his  attorney.15  Documents  in  the  hands  of  the  attorney  are 
presumptively  under  the  control  and  within  the  reach  of  the  client. 
Whether,  however,  the  attorney  can  be  required  to  produce  a  document 
entrusted  to  him  by  his  client  which  the  client  might  be  required  to 


Tennessee:  Code  (1896),  §  5785, 
"No  attorney  or  counsel  shall  be  per- 
mitted, in  giving  testimony  against  a 
client,  or  person  who  consulted  him 
professionally,  to  disclose  any  com- 
munication made  to  him  as  attorney 
by  such  person  during  the  pendency 
of  the  suit,  before  or  afterwards,  to 
his  injury." 

Utah:  Revised  .Statutes  (1898), 
§  3414,  like  California,  supra: 

Texas:  Cr.  Code,  Art  773,  "An  at- 
torney at  law  shall  not  disclose  a 
communication  made  to  him  by  his' 
client  during  the  existence  of  that 
relationship,  nor  disclose  any  other 
fact  which  came  to  the  knowledge  of 
such  attorney  by  reason  of  such  rela- 
tionship." 

Washington:  Ballinger's  Code 
(1897),  §  5994,  like  Alaska,  supra. 

Wisconsin:  Statutes  (1898),  §  4076, 
like  New  York,  ending  with  "profes- 
sional employment." 

Wyoming:  Statutes  (1899),  §  3682, 
like  Ohio,  supra. 

is  Crosby  v.  Berger,  11  Paige  (N. 
Y.),  377,  42  Am.  Dec.  117. 

Same  rule  in  Federal  courts.  Con- 
necticut Mut.  L.  Ins.  Co.  v.  Schaefer, 
94  U.  S.  457,  24  L.  Ed.  251;  Chirac  v. 


Reinicker,  11  Wheat.  (U.  S.)  280,  6 
L.  Ed.  474. 

Statements  made  to  an  attorney  by 
a  person  applying  for  a  pension  are 
privileged  in  an  action  upon  an  in- 
surance policy.  Mutual  L.  Ins.  Co.  v. 
Selby,  19  C.  C.  A.  331,  72  Fed.  980. 

Statements  made  in  letters  writ- 
ten by  client  to  attorney  are  privi- 
leged just  as  when  orally  made. 
Southern  Ry.  v.  White,  108  Ga.  201; 
Ainsworth  v.  Wilding, [1900] 2  Ch.  315. 

A  statement  prepared  by  the  client 
for  his  attorney,  but  which  was  not 
in  fact  given  him,  was  held  not  privi- 
leged. Renfro  v.  State,  42  Tex.  Cr. 
App.  393.  But  see  contra:  South- 
wark  Water  Co.  v.  Quick  (per  Cotton, 
L.  J.),  3  Q.  B.  Div.  315.  See  also, 

State  v.  Loponio,  N.  J.  L. ,  88 

Atl.  1045. 

The  attorney  cannot  testify  to  the 
appearance  of  a  deed  of  trust  or 
notes  put  in  his  hands  to  foreclose. 
Gray  v.  Fox,  43  Mo.  570,  97  Am.  Dec. 
416. 

i*  Volant  v.  Soyer,  13  C.  B.  231. 

"  Edison  Light  Co.  v.  U.  S.  Elec- 
.  trie  Lighting  Co.,  44  Fed.  294;  An- 
drews v.  The  Ohio  &  Mississippi  R.  R. 
Co.,  14  Ind.  169;  Leschen  v.  Brazelle, 
164  Mo.  App.  415. 


1880 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2300 


produce  is  a  point  upon  which  there  seems  to  be  difference  of  opinion. 
It  is  held  in  some  cases  that  although  the  attorney  may  be  required  to 
disclose  that  he  has  the  document  he  himself  cannot  be  required  to  pro- 
duce it,  if  it  were  entrusted  to  him  in  his  professional  capacity.16  The 
proper  proceeding  in  such  a  case  would  be  to  reach  the  document 
through  the  client  and  not  through  the  attorney.17 

It  is  held  in  other  cases  that  wherever  the  client  could  be  required  to 
produce  the  paper,  if  it  had  remained  in  his  custody,  the  attorney  can 
be  required  to  produce  it  when  it  is  found  in  his  hands.18 


is  In  Wright  v.  Mayer,  6  Vesey,  280, 
Lord  Eldon  says  that  even  if  the 
party  himself  could  be  required  to 
produce  the  document,  it  does  not 
follow  that  the  attorney  can  be  re- 
quired to  produce  it. 

In  Stokoe  v.  St.  Paul,  etc.,  Ry.  Co., 
40  Minn.  545,  and  in  Davis  v.  New 
York,  etc.,  Ry.  Co.,  70  Minn.  37,  it  is 
held  that  the  attorney  cannot  be  re- 
quired to  produce  papers. 

In  Freeman  v.  Brewster,  93  Ga.  648, 
it  was  held  that  the  attorney  could 
not  be  required  to  state  the  contents 
of  an  insurance  policy,  the  identity 
of  the  beneficiaries  therein,  and  the 
collection  and  payment  over  of  the 
money  thereon.  The  statute,  how- 
ever, here  states  the  rule  somewhat 
more  broadly  than  it  is  ordinarily 
stated. 

See  also,  Bateson  v.  Hortsink,  4 
Esp.  43. 

The  attorney  may  be  compelled  to 
produce  papers  of  the  opposite  party 
in  his  possession.  Travis  v.  Janu- 
ary, 3  Rob.  (La.)  227. 

In  Liggett  v.  Glenn,  2  C.  C.  A.  286, 
51  Fed.  381,  it  is  said:  "It  not  unfre- 
quently  happens  that  deeds,  con- 
tracts, or  other  written  instruments 
may  be  delivered  by  a  client  to  an 
attorney  under  such  circumstances 
that  the  attorney  cannot  be  compelled 
or  permitted  to  produce  the  same  in 
evidence  against  his  client  at  the  de- 
mand of  an  adverse  party.  In  this 
class  of  cases  the  deed  or  other  in- 
strument is  not  itself  privileged.  It 
is  merely  the  possession  of  the  attor- 
ney that  is  protected.  As  he  received 
the  instrument  by  reason  of  the  con- 


fidential relation  of  client  and  attor- 
ney, he  cannot  be  compelled  to  yield 
up  such  possession  at  the  demand  of 
another,  nor  to  reveal  the  contents 
of  the  paper  because  the  same  are 
not,  in  and  of  themselves,  privileged. 
The  decisions  in  this  class  of  cases 
do  not  touch  the  principle  that  is  in- 
volved in  the  matter  of  confidential 
communications,  whether  oral  or 
written,  passing  between  client  and 
counsel.  In  the  latter  instance  the 
privilege  attaches  to  the  communica- 
tion itself.  In  order  that  there  may 
be  perfect  confidence  established  be- 
tween client  and  counsel,  and  upon 
considerations  of  enlightened  public 
policy,  the  rule  has  been  established 
that  the  client  may  freely  communi- 
cate to  his  counsel  all  facts  connected 
with  the  subject  out  of  which  grows 
the  relation  in  question,  and  that  the 
communication  thus  confidentially 
made,  cannot  be  used  in  evidence 
against  him,  unless  he  himself,  by 
some  unequivocal  action  on  his 
part,  deprives  the  communication  of 
its  privileged  character,  and  there- 
by renders  it  competent  evidence 
against  himself.  To  fairly  carry  out 
the  real  purposes  of  the  rule,  it  must 
be  held  that  privileged  communica- 
tions are,  in  and  of  themselves,  in- 
competent, regardless  of  the  mere 
manner  in  which  it  is  sought  to  put 
them  in  evidence." 

IT  See  Leschen  v.  Brazelle,  164  Mo. 
App.  415;  Fenwick  v.  Reed,  1  Meriv. 
114. 

is  Jones  v.  Reilly,  174  N.  Y.  97; 
Mitchell's  Case,  12  Abb.  Pr.  Rep.  (N. 
Y.)  249.  See  also,  Andrews  v.  The 


1881 


§§    23OI,   2302]  THE   LAW  OF   AGENCY  [BOOK  V 

§  2301.  By  attorney  to  client. — Communications  made  by 

the  attorney  to  the  client  as  part  of  a  confidential  professional  confer- 
ence or  transaction  are  also  privileged.19  As  was  said  in  one  case,  "It 
is  not  material  whether  the  evidence  relate  to  what  was  said  by  the  at- 
torney or  what  was  said  by  the  client,  in  their  private  conversation  on 
the  business  in  which  the  attorney  was  professionally  employed.  The 
statements  of  each  to  the  other,  in  such  cases,  must  be  considered  as 
privileged  communications ;  and  the  attorney  should  neither  be  required 
nor  permitted,  by  any  judicial  tribunal,  to  divulge  them  against  his 
client,  if  the  latter  object  to  the  evidence."  20 

§  2302.  Under  what  circumstances  privileged — No  suit  need  be 
pending — Must  be  confidential. — It  is  not  necessary  that  the  com- 
munication should  be  made  in  reference  to  a  suit  in  court  then  pending 
or  thereafter  to  be  commenced,21  or  that  it  should  be  made  under  any 
special  injunction  of  secrecy,22  or  that  the  client  should  understand  the 
extent  of  the  privilege,23  or  that  the  disclosure  should  be  one  strictly 
necessary  to  be  made.24  If  it  be  made  with  a  view  to  professional  em- 
ployment, and  in  reference  to  such  employment  in  legal  proceedings, 
pending  or  contemplated,  or  in  reference  to  any  other  legitimate  pro- 
fessional services,  wherein  professional  advice  or  aid  is  sought  respect- 
ing the  rights,  duties  or  liabilities  of  the  client,  it  will  fall  within  the 
privilege.25 

Ohio  &  Mississippi  Ry.  Co.,  14  Ind.  adopt  such  precautions  as  might 
169.  eventually  render  any  proceedings 
The  fact  that  the  attorney  has  a  successful,  or  all  proceedings  super- 
lien  upon  papers  will  not  prevent  his  fluous."  Lord  Chancellor  Brougham, 
being  required  to  produce  them  when  in  Greenough  v.  Gaskell,  1  M.  &  K. 
needed  as  evidence  by  another  per-  98,  103.  Same  point:  Beltzhoover  v. 
son,  if  properly  called  for.  In  re  Blackstock,  3  Watts  (Penn.),  20,  27 
Hawkes,  [1898]  2  Ch.  Div.  1.  Am.  Dec.  330;  McLellan  v.  Longfel- 

19  Advice     given     by     attorney     to  low,   32   Me.   494,   54  Am.   Dec.   599; 
client.   Jenkinson  v.  State,  5  Blackf.  Bolton  v.  Corporation  of  Liverpool,  1 
(Ind.)    465.     Letters  written   by  at-  My.  &  K.  88;    Bank  of  Utica  v.  Mer- 
torney  to  client  of  which  attorney  is  sereau,  3  Barb.  Ch.    (N.  Y.)   528,  49 
asked  to  produce  a  copy.    Ganus  v.  Am.  Dec.  189;   Moore  v.  Bray,  10  Pa. 
Tew,  163  Ala.  358;   Rylee  v.  Bank  of  519.     Contra:  Whiting  v.  Barney,  30 
Statham,  7  Ga.  App.  489  (but  not  the  N.  Y.  330,  86  Am.  Dec.  385. 

fact  that  he  did  write  or  the  date  of  22  McLellan    v.    Longfellow,    supra, 

the  letter).     Letters  written  by  the  Parker  v.  Carter,  4  Munf.  (Va.)  273, 

attorney   to   the   opposite   party   are  6  Am.  Dec.  513. 

not  thus  privileged.    Bell  v.  Staacke,  23  McLellan    v.    Longfellow,   supra. 

159  Cal.  193.  2*  Cleave  v.  Jones,  7  Exch.  421. 

20  Jenkinson  v.  State,  supra.          L  2B  McLellan    v.    Longfellow,   supra, 
*i  "If  the   privilege   were   confined  Lengsfield    v.    Richardson,    52    Miss. 

to  communications  connected  with  443;  Champion  v.  McCarthy,  228  111. 
suits  begun,  or  intended,  or  expected,  87,  10  Ann.  Cas.  517,  11  L.  R.  A.  (N. 
or  apprehended,  no  one  could  safely  S.)  1052;  National  Bank  of  the  Re- 

1882 


CHAP,    j] 


OF  ATTORNEYS  AT  LAW 


[§    2302 


But  it  is  necessary  that  the  communication  should  have  been  a  con- 
fidential one,  and  should  be  made  in  reference  to,  or  in  pursuance  of, 
the  matter  in  which  the  attorney  is  consulted  or  engaged.  For  if  it  be 
made  for  the  express  purpose  of  being  communicated  to  the  adverse 
party  or  others,26  or  if  it  be  made,  freely  and  openly,  in  the  presence  of 
third  persons,27  or  if  it  be  made  in  reference  to  some  matter  having  no 
connection  with  the  attorney's  employment,  it  will  not  be  privileged.28 


public  v.   Delano,  177   Mass.   362,  83 
Am.  St.  Rep.  281. 

The  communication  need  not  take 
place  at  the  attorney's  office,  nor 
need  a  fee  be  paid,  if  it  was  a  pro- 
fessional communication.  Bruley  v. 
Garvin,  105  Wis.  625,  48  L.  R.  A. 
839  (here  it  occurred  upon  a  railway 
train) ;  Bacon  v.  Frisbie,  80  N.  Y. 
394,  36  Am.  Rep.  627  (here  it  took 
place  in  a  store  which  the  attorney 
also  carried  on). 

26  Henderson  v.  Terry,  62  Tex.  281; 
Trenton  St.  Ry.  Co.  v.  Lawlor,  74  N. 
J.  Eq.  828;  List's  Ex'x.  v.  List,  26  Ky. 
L.  R.  691,  82  S.  W.  446;   Ferguson  v. 
McBean,  91  Cal.  63,  14  L.  R.  A.  65; 
Martin  v.  Platt, '51  Hun  (N.  Y.),  429; 
Bartlett    v.  Bunn,  56    Hun    (N.  Y.), 
507;  Herman  v.  Schlesinger,  114  Wis. 
382,  91  Am.   St.   Rep.   922;    San  An- 
tonio, etc.,  Ry.  Co.  v.  Brooking  (Tex. 
Civ.  App.),  51  S.  W.  537;  In  re  Elli- 
ott, 73  Kans.  151;   Snow  v.  Gould,  74 
Me.  540. 

27  Mobile,   etc.,   Ry.   Co.  v.   Yeates, 
67  Ala.  164;  House  v.  House,  61  Mich. 
69,  1  Am.  St.  Rep.  570;  Hartford  Fire 
Ins.   Co.  v.  Reynolds,  36  Mich.   502; 
Elliott  v.  Elliott,  3  Neb.  Unof.  832; 
Foreman   v.    Archer,    130    Iowa,    49; 
Champion  v.    McCarthy,    228    111.    87, 
10  Ann.  Gas.  517,  11  L.  R.  A.  (N.  S.) 
1052;  Greer  v.  Greer,  58  Hun  (N.  Y.), 
251;    Lecour  v.  Bank,  61  N.  Y.  App. 
Div.  163;  Doheny  v.  Lacy,  168  N.  Y. 
213;  Matter  of  Simmons,  48  Misc.  (N. 
Y.)   484;    Cooperson  v.  Pollon,  30  N. 
Y.  Misc.  619;    Hughes  v.  Boone,  102 
N.    C.    137;    Denunzio's    Receiver    v. 
Scholtz,  25  Ky.  L.  Rep.  1294,  77  S.  W. 
715;  Fuller  v.  Wood,  137  Ga.  66. 

The  mere  fact  that  a  third  person 
may  happen  to  overhear  a  communi- 


cation and  may  be  competent  to  testi- 
fy with  reference  to  it  ought  not  of 
itself  to  make  the  attorney  a  compe- 
tent witness  if  the  communication 
was  actually  made  and  received  as 
confidential.  See  Blount  v.  Kimp- 
ton,  155  Mass.  378,  31  Am.  St.  R.  554; 
Hoy  v.  Morris,  79  Mass.  519,  74  Am. 
Dec.  650;  Goddard  v.  Gardner,  28 
Conn.  172;  Hartness  v.  Brown,  21 
Wash.  655. 

It  would  seem  that  a  distinction 
should  be  made  between  communica- 
tions freely  and  openly  made  in  the 
presence  of  third  persons  and  there- 
fore clearly  not  intended  to  be  con- 
fidential and  those  clearly  intended 
to  be  confidential  which  happen  to  be 
overheard  by  a  third  person,  perhaps 
an  eavesdropper,  but  whom  no  rule  of 
law  excludes  as  a  witness.  This 
opinion  is  expressed  with  much  diffi- 
dence in  view  of  the  fact  that  Prof. 
Wigmore  [4  Ev.  §  2311  note,  §  2326 
note]  apparently  entertains  the  con- 
trary opinion. 

28  State  v.  Mewherter,  46  Iowa,  88. 
See  also,  Graham  v.  Chapman  Sepa- 
rator Works,  145  N.  Y.  App.  Div.  62. 

A  discussion  between  attorney  and 
client  concerning  how  much  client 
owed  attorney  is  not  privileged.  Her- 
rin  v.  Abbe,  55  Fla.  769,  18  L/R.  A. 
(N.  S.)  907. 

Where  the  client  and  a  friend  were 
consulting  with  -the  attorney  con- 
cerning the  client's  litigation  with  a 
third  person,  and  the  friend  at  that 
time  offered  to  advance  money  to  the 
client  to  aid  him  in  defraying  the 
expenses  of  this  litigation,  it  was 
held  that  in  a  subsequent  contro- 
versy between  the  client  and  the 
friend  with  reference  to  this  money, 


1883 


§  2303] 


'THE  LAW  OF  AGENCY 


[BOOK  v 


Communications  made  by  the  client  to  his  attorney  during  a  Confer- 
ence with  the  adverse  party  are  not  privileged,  for  the  circumstances 
rebut  all  inferences  of  confidence.29  So  where  two  persons  have  the 
same  attorney,  communications  made  to  the  common  attorney  by  one  of 
the  parties  in  the  presence  of  the  other  are  not  privileged  in  a  contro- 
versy subsequently  arising  between  the  two  parties  themselves,30  al- 
though they  would  be  privileged  in  a  controversy  arising  with  a  third 
person.81 

§  2303.  Criminal  acts. — So  the  interests  or  protection  of 

the  ciient  will  not  be  permitted  to  contravene  the  public  necessities  and 
good.  Hence  communications,  made  in  consultations,  while  seeking 

advice  in  regard  to  a  proposed  violation  of  law  will  not  be  privileged.32 
&  t-    t-  t-         &     :K^ 


the  attorney  might  be  permitted  to 
testify.  Myers  v.  Brick,  146  N.  Y. 
App.  Div.  197. 

so  Colt  v.  McConnell,  116  Ind.  249; 
Hurlburt  v.  Hurlburt,  128  N.  Y.  420, 
26  Am.  St.  Rep.  482;  Stone  v.  Minter, 
111  Ga.  45,  50  L.  R.  A.  356;  Whiting 
v.  Barney,  30  N.  Y.  330,  86  Am.  Dec. 
385;  Smith  v.  Crego,  54  Hun  (N.  Y.), 
22;  Murphy  v.  Waterhouse,  113  Cal. 
467,  54  Am.  St.  Rep.  365;  Adler  v. 
Hellman,  55  Neb.  266;  People  v.  An- 
dre, 153  Mich.  531;  Kissack  v. 
Bourke,  132  111.  App.  360;  Rester  v. 
Powell,  120  La.  406;  Wyland  v. 
Griffith,  96  Iowa,  24. 

The  same  rule  applies  where  the 
communications  were  made  in  the 
presence  of  the  attorney  of  the  ad- 
verse party.  Scott  v.  Aultman  Co., 
211  111.  612,  103  Am.  St.  Rep.  215. 

so  Mitchell  v.  Mitchell,'  212  Pa. 
62;  Brown  v.  Coal  Co.,  211  Pa.  579; 
In  re  Seip's  Estate,  163  Pa.  423,  43 
Am.  St.  R.  803;  Appeal  of  Goodwin 
Co.,  117  Pa.  514,  2  Am.  St.  R.  696; 
Sandiford  v.  Frost,  9  N.  Y.  App.  Div. 
55;  Griffin  v.  Griffin,  125  111.  430; 
Lynn  v.  Lyerle,  113  111.  128;  Wyland 
v.  Griffith,  96  Iowa,  24;  Rice  v.  Rice, 
14  B.  Mon.  (Ky.)  417;  Brogan  v. 
Porter,  145  Ky.  587;  Sparks  v. 
Sparks,  51  Kan.  195;  Taylor  v.  Roul- 
stone,  22  Ky.  L.  R.  1515,  61  S.  W.  354; 
Haley  v.  Bank,  21  Nev.  127,  12  L.  R.. 
A.  815;  Livingston  v.  Wagner,  23 
Nev.  53;  Thompson  v.  Cashman,  181 


Mass.  36;  Carey  v.  Carey,  108  N.  Car. 
267;  Harris  v.  Harris,  136  Cal.  379; 
Gerety  v.  O'Sheehan,  9  Cal.  App. 
447;  Kirchner  v.  Smith,  61  W.  Va. 
434,  11  Ann.  Gas.  870. 
.  See  also,  Lenahan  v.  Casey,  46 
Mont.  367. 

Not  privileged  in  an  action  by  one 
of  the  clients  against  the  attorney. 
Post,  §  2311,  note  90. 

31  In     re     Seip's     Estate,     supra; 
Sparks  v.  Sparks,  51  Kan.  195;   Gru- 
ber  v.  Baker,  20  Nev.  453,  9  L.  R.  A. 
302. 

32  "Professional  communications  are 
not  privileged  when  such  communica- 
tions  are   for   an   unlawful  purpose, 
having  for  their  object  the  commis- 
sion of  a  crime.     They  then  partake 
of  the  nature  of  a  conspiracy,  or  at- 
tempted   conspiracy,    and    it    is    not 
only  lawful  to  divulge  such  communi- 
cations,   but    under    certain    circum- 
stances it  might  become  the  duty  of 
the  attorney  to  do  so.    The  interests 
of  public  justice  require  that  no  such 
shield  from  merited  exposure  shall  be 
interposed  to  protect  a  person  who 
takes  counsel  how  he  can  safely  com- 
mit a  crime.     The  relation  of  attor- 
ney and  client  cannot  exist  for  the 
purpose    of    counsel    in    concocting 
crimes.    The  privilege  does  not  exist 
in    such    cases."      Champlin,    J.,    in 
People  v.  Van  Alstine,  57  Mich.  69. 
To  same  effect:    Orman  v.  State,  22 
Tex.  Civ.  App.  604,  58  Am.  Rep.  662; 


1884 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2304 


But  communications  respecting  a  past  or  completed  offense  will  be 
privileged.33  So  long  as  both  law  and  legal  ethics  permit  an  attorney  to 
make  a  legal  defence  for  his  client  even  though  he  believes  him  to  be 
guilty,  it  would  seem  that  the  client  is  entitled  to  the  full  benefit  of 
the  relation,  including  even  the  communications  which  he  may  make 
respecting  his  guilt. 

§  2304.  Fraudulent  or  illegal  acts. — With  reference  to 

acts  not  criminal  or  penal  in  their  character,  but  nevertheless  illegal  or 
fraudulent  in  nature,  the  cases  are  in  some  conflict,  but  the  weight  of 
modern  authority  seems  to  put  these  cases  upon  the  same  footing  as  the 
others.  A  man  is  not  entitled  to  the  benefit  of  legal  services  in  contriv- 
ing how  he  may  defraud  his  creditors,  for  example.  Participating  in 
the  execution  of  such  schemes  is  no  proper  part  of  an  attorney's  pro- 
fession, and  communications  made  to  the  attorney  in  furtherance  of 
such  designs  may  well  be  held  not  privileged,  though  the  authorities 
are  not  unanimous.34  With  reference  to  communications  made  during 


Queen  v.  Cox,  L.  R.  14  Q.  B.  Div.  153; 
People  v.  Farmer,  194  N.  Y.  251;  State 
v.  Faulkner,  175  Mo.  546;  People  v. 
Petersen,  60  N.  Y.  App.  Div.  118 ;  Mor- 
ris v.  State,  6  Okla.  Cr.  App.  29;  State 
v.  McChesney,  16  Mo.  App.  259;  Peo- 
ple v.  Mahon,  1  Utah,  205;  State  v. 
Mewherter,  46  Iowa,  88;  Bank  v. 
Mersereau,  3  Barb.  Ch.  (N.  Y.)  528, 
49  Am.  Dec.  189;  Coveney  v.  Tanna- 
hill,  1  Hill  (N.  Y.),  33,  37  Am.  Dec. 
287;  People  Y.  Blakeley,  4  Park.  Cr. 
176;  Everett  v.  State,  30  Tex.  Cr. 
App.  682;  Downing  v.  State  (Tex.  Cr. 
App.),  136  S.  W.  471. 

33  Greenleaf's  Ev.  §  240;  Queen  v. 
Cox,  supra;  Alexander  v.  United 
States,  138  U.  S.  353. 

s*  In  Hamil  v.  England,  50  Mo. 
App.  338,  it  is  held  that  communica- 
tions will  not  be  protected  which  are 
made  while  seeking  or  obtaining 
professional  advice  in  an  attempt  to 
cheat  or  defraud  creditors.  The 
question  is  quite  fully  discussed  and 
the  earlier  cases  to  the  contrary  are 
regarded  either  as  unsound  or  as 
overruled  by  later  decisions.  Follett  v. 
Jefferyes,  1  Sim.  (N.  S.)  2;  Russell 
v.  Jackson,  9  Hare,  387;  Queen  v. 
Cox,  supra  (which  was  an  indictment 


for  a  fraudulent  conveyance),  were 
much  relied  upon. 

In  Matthews  v.  Hoagland,  48  N.  J. 
Eq.  455,  there  is  a  full  discussion  of 
the  question  by  Vice  Chancellor 
Green  who  reaches  the  same  conclu- 
sion as  that  reached  in  Hamil  v.  Eng- 
land, supra,  and  who  also  treats  the 
earlier  cases  to  the  contrary  as 
either  unsound  or  overruled.  To 
same  effect:  Lanum  v.  Patterson,  151 
111.  App.  36;  Hyman  v.  Grant,  102 
Tex.  50.  See  also,  Taylor  v.  Evans 
(Tex.  Civ.  App.),  29  S.  W.  172. 

In  Queen  v.  Bullivant  (1900),  2  Q. 
B.  163,  communications  made  while 
seeking  advice  as  to  how  the  client 
might  evade  the  provisions  of  a  stat- 
ute imposing  an  inheritance  duty  or 
tax  were  held  not  privileged.  In 
Williams  v.  Quebrada,  etc.,  Co. 
(1895),  2  Ch.  Div.  751,  it  was  held 
that  the  privilege  did  not  extend  to 
communications  respecting  a  pro- 
posed fraud  upon  security  holders  in 
a  corporation.  See  as  to  a  threat  to 
commit  forgery:  In  re  Young's  Es- 
tate, 59  Ore.  348. 

The  leading  case  on  the  other  side 
In  this  country  is  Bank  of  Utica  v. 
Mercereau,  3  Barb.  Ch.  (N.  Y.)  628, 
885 


§  2305] 


THE  LAW  OF  AGENCY 


[BOOK   V 


a  professional  engagement  to  uphold  a  past  transaction  alleged  to  have 
been  fraudulently  made,  these  would  seem  to  fall  within  the  rule  of 
privilege  unless  it  is  to  be  said  that  there  is  a  distinction  to  be  made  in 
point  of  legal  propriety  between  endeavoring  to  uphold  a  transaction 
rescindable  for  fraud  and  making  a  defense  against  accusations  of 
ctime.35 

§  2305,  Non-confidential  communications. — The  privilege  do>es 
not  apply  to  cases  where  the  attorney  acquired  the  information,  not  as 
an  attorney  but  by  observation,  in  the  same  manner  that  any  other  per- 
son might  have  acquired  it ; 36  nor  where  the  information  was  obtained 


49  Am.  Dec.  189,  where  Walworth, 
Chancellor,  although  of  opinion  that 
cases  involving  contemplated  fraud 
should  stand  upon  the  same  footing 
as  cases  involving  contemplated 
crime  felt  that  he  was  compelled  by 
the  authorities  to  make  a  distinc- 
tion. 

Maxham  v.  Place,  46  Vt.  434,  held 
that  a  communication,  made  by  a 
client  to  his  attorney  at  the  time  of 
confessing  judgment  that  he  did  so 
in  order  to  enable  the  judgment 
creditor  to  seize  certain  property  up- 
on execution  and  thus  keep  it  from 
other  creditors,  was  privileged. 

In  Hollenback  v.  Todd,  119  111.  543, 
it  was  held  that  a  communication 
made  by  a  debtor  to  an  attorney,  em- 
ployed to  draw  an  assignment  of  cer- 
tain property  afterward  attacked  as 
fraudulent,  as  to  what  his  intent  or 
purpose  was  in  making  the  assign- 
ment was  privileged.  There  was  no 
discussion  of  the  question. 

s5  In  Hartness  v.  Brown,  21  Wash. 
655,  communications  with  reference 
to  an  alleged  fraudulent  transfer, 
previously  made,  which  the  client 
was  now  seeking  to  uphold,  were 
held  to  be  privileged. 

seDavies  v.  Waters,  9  M.  &  W.  608; 
Crosby  v.  Berger,  11  Paige  (N.  Y.), 
377,  42  Am.  Dec.  117;  Brandt  v. 
Klein,  17  Johns.  (N.  Y.)  335;  Chilli- 
cothe  Ferry,  etc.,  Co.  v.  Jameson,  48 
111.  281;  Stoney  v.  McNeil,  Harper's 
(S.  C.),  L.  557,  18  Am.  Dec.  666;  Mat- 
ter of  King  v.  Ashley,  179  N.  Y.  281; 


In  re  Ruos,  159  Fed.  252;  Lang  v.  In- 
galls  Zinc  Co.  (Tenn.  Ch.)(  49  S.  W. 
288;  State  v.  Fitzgerald,  68  Vt.  125; 
Temple  v.  Phelps,  193  Mass.  297; 
Aaron  v.  United  States,  155  Fed.  833; 
People  v.  Petersen,  60  N.  Y.  App.  Div. 
118;  Wicks  v.  Dean,  103  Ky.  69; 
Funk  v.  Mohr,  185  111.  395;  Sheehan 
v.  Allen,  67  Kan.  712. 

The  privilege  does  "not  embrace 
those  facts  which  the  counsel  may 
become  acquainted  with  collaterally, 
or  those  which  were  from  necessity, 
and  to  subserve  the  interests  of  the 
client,  publicly  disclosed  by  direction 
of  the  client  himself,  on  the  trial  of 
his  cause."  Kramer  v.  Kister,  187 
Pa.  227,  44  L.  R.  A.  432. 

The  attorney  may  testify  to  testi- 
mony given  by  the  client  on  a 
former  trial.  Kling  v.  Tunstall,  124 
Ala.  268;  Yardley  v.  State,  50  Tex. 
Cr.  644,  123  Am.  St.  Rep.  869. 

Impressions  gained  by  the  attor- 
ney from  his  mere  observation  of 
his  client,  as  to  the  latter's  mental 
condition,  were  held  not  privileged 
in  Oliver  v.  Warren,  16  CaL  App.  164. 

In  a  will  contest  the  testimony  of 
the  attorney  who  drew  the  will  as  to 
who  brought  him  the  data  from 
which  he  drew  it  was  held  not  privi- 
leged. Kerr  v.  Kerr,  85  Kan.  460. 

In  a  prosecution  for  forgery,  de- 
fendant's attorney  may  testify  that  he 
had  had  the  forged  notes  in  his  pos- 
session where  it  appeared  that  he 
did  not  get  them  from  or  through 
the  defendant,  and  that  defendant 


1886 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2305 


from  a  person  other  than  the  client ; 37  nor  to  a  fact  within  his  own 
knowledge.38  So  the  privilege  does  not  apply  to  statements  made,  in 
the  presence  of  the  attorney,  by  the  client  to  other  persons,  or  by  such 
other  persons  to  the  client,  or  by  such  other  persons  to  each  other.39 

The  privilege  does  not  apply  to  third  persons  who  were  present  at 
the  time  the  communications  were  made,40  nor  to  the  adverse  party,41 
nor  to  communications  made  in  the  presence  of  both  parties.42 

Coveney  v.  Tannahill,  supra;  Roch- 
ester City  Bank  v.  Suydam,  5  How. 
Pr.  (N.  Y.)  254;  Hatton  v.  Robinson, 
14  Pick.  (Mass.)  416,  25  Am.  Dec. 
415;  House  v.  House,  61  Mich.  69,  1 
Am.  St.  Rep.  570;  Hartford  Fire  Ins. 
Co.  v.  Reynolds,  36  Mich.  502;  Han- 
son v.  Bean,  51  Minn.  546,  38  Am.  St. 
Rep.  516;  Mueller  v.  Batcheler,  131 
Iowa,  650;  State  v.  Stafford,  145 
Iowa,  285;  Roper  v.  State,  58  N.  J.  L. 
420.  See  People  v.  Patrick,  182  N.  Y. 
131. 

40  Jackson  v.  French,  3  Wend.   (N. 
Y.)    337,   20  Am.   Dec.   699;    Goddard 
v.  Gardner,  28  Conn.   172;    Basye  v. 
State,  45  Neb.  261;   State  v.  Falsetta, 
43  Wash.  159,  10  Ann.  Gas.  177;   Ty- 
ler v.  Hall,  106  Mo.  313,  27  Am.  St. 
R.  337.     This  is  so  though  the  com- 
munication .was   accidentally   or   in- 
tentionally overheard.     State  v.  Per- 
ry.  4  Idaho,  224;    Hoy  v.   Morris,  13 
Gray,  519,  74  Am.  Dec.  650;  People  v. 
Buchanan,  145  N.  Y.  1.  See  also,  State 

v.  Loponio,  N.  J.  L.  ,  88  Atl. 

1045. 

41  Goddard    v.    Gardner,    28    Conn. 
172;  Hoy  v.  Morris,  13  Gray  (Mass.), 
519,  74  Am.  Dec.  650. 

« Britton  v.  Lorenz,  45  N.  Y.  51, 
Whiting  v.  Barney,  30  N.  Y.  330,  86 
Am.  Dec.  385;  Root  v.  Wright,  21 
Hun,  344,  s.  c.  84  N.  Y.  72,  38  Am.  Rep. 
495;  Sherman  v.  Scott,  27  Hun  (N. 
Y.),  334;  Rosenburg  v.  Rosenburg,  40 
Hun  (N.  Y.),  91;  Frank  v.  Morley's 
Estate,  106  Mich.  635;  Hummel  v. 
Kistner,  182  Pa.  216. 

Conversation  between  two  parties 
while  an  attorney  was  drafting  a 
paper  for  them,  not  relating  to  that 
matter,  but  heard  by  the  attorney,  is 
not  privileged.  Hanson  v.  Bean,  51 
Minn.  546,  38  Am.  St.  Rep.  516. 
1887 


knew   nothing   about   it.     Jordan   v. 

State, Tex.  Crim.  App. ,  143  S. 

W.  623. 

Where  a  client  had  testified  that 
he  did  riot  understand  a  deposition 
which  he  had  signed,  and  that  he 
signed  it  because  his  attorney  told 
him  to  sign,  it  was  held  competent 
for  the  attorney  to  testify  that  the 
client  did  understand  it,  there  being 
no  confidential  communication  in- 
volved. Sarro  v.  Bell,  Tex.  Civ. 

App.  ,  126  S.  W.  24. 

37  Crosby  v.  Berger,  supra;  Hunter 
v.  Watson,  12  Cal.  363,  73  Am.  Dec. 
543;  Gallagher  v.  Williamson,  23  Cal. 
331,  83  Am.  Dec.  114;  King  v.  Ash- 
ley, supra;  General  Electric  Co.  v. 
Clark,  108  Fed.  170;  Davis  v.  New 
York,  Ontario  &  Western  Ry.  Co.,  70 
Minn.  37;  Hall  v.  Rixey,  84  Va.  790; 
Simmons  Hdwe  Co.  v.  Kaufman,  77 
Tex.  131;  Tyler  v.  Tyler,  126  111.  525, 
9  Am.  St.  R.  642. 

Communications  to  an  attorney,  by 
one  not  interested  In  the  suit,  though 
a  nominal  party,  are  not  privileged. 
Allen  v.  Harrison,  30  Vt.  219,  73  Am. 
Dec.  302. 

Information  acquired  by  the  attor- 
ney through  his  own  outside  investi- 
gation is  not  privileged.  Warren  v. 
Warren,  33  R.  I.  71.  An  attorney 
may  testify  that  he  had  no  informa- 
tion concerning  a  certain  matter  at 
the  time  he  acted  for  his  client:  this 
is  not  the  result  of  any  confidential 
communication.  Bronston  v.  Brons- 
ton,  141  Ky.  639. 

ss  Gallagher  v.  Williamson,  supra, 
Coveney  v.  Tannahill,  1  Hill  (N.  Y.), 
33,  37  Am.  Dec.  287;  King  v.  Ashley, 
supra;  Sheehan  v.  Allen,  67  Kan.  712. 

ss  Gallagher  v.  Williamson,  supra; 


§§  2306,2307] 


THE    LAW    OF    AGENCY 


[BOOK    V 


§    2306. 


Non-professional    employments. — So    where    the 


employment  of  the  attorney  is  not  in  his  professional  capacity,  but  in 
the  capacity  of  an  ordinary  agent,  broker,  bailee,  steward  and  the  like, 
it  is  held  that  no  professional  privilege  exists.48 

§  2307.  Collateral  facts. — The  privilege  does  not  apply  to 

mere  collateral  facts,  involving  no  matter  of  confidence.  Thus  the  at- 
torney may  be  required  to  disclose  the  fact  of  his  retainer,44  in  many 
cases  the  name  45  of  his  client,  and  in  what  capacity,46  and  at  what 
time,47  he  employed  him ;  to ,  prove  the  identity  of  his  client ; 48  to  tes- 
tify to  the  execution  by  the  client  of  a  will 49  which  the  attorney  attested 


«  Howe  v.  Stuart,  68  N.  Y.  Misc. 
352  (attorney  summoned  in  supple- 
mentary proceedings  in  aid  of  execu- 
tion); Phoebus  v.  Webster,  40  N.  Y. 
Misc.  528  (same) ;  Mulford  v.  Muller, 
*40  N.  Y.  (1  Keyes)  31  (directions 
to  attorney  as  to  disposition  of 
money);  Lifschitz  v.  O'Brien,  143  N. 
Y.  App.  Div.  180  (attorney  employed 
merely  to  procure  a  loan. 

•*•»  Chirac  v.  Reincker,  11  Wheat. 
(U.  S.)  280,  6  L.  Ed.  474;  Forshaw  v. 
Lewis,  1  Jur.  (N.  S..)  263;  Security 
Co.  v.  Estudillo,  134  Cal.  166;  Wil- 
liams v.  Blumenthal,  27  Wash.  24; 
Eickman  v.  Troll,  29  Minn.  124; 
Martin  v.  Platt,  51  Hun  (N.  Y.),  429. 

Must  disclose  amount  of  fee. 
Strickland  v.  Capital  City  Mills,  74  S. 
Car.  16,  7  L.  R.  A.  (N.  S.)  188. 

May  testify  that  he  was  not  em- 
ployed by  a  certain  person.  Alger  v. 
Turner,  105  Ga.  178. 

45  Levy  v.  Pope,  1  Mood.  &  Mai. 
410;  Brown  v.  Payson,  6  N.  H.  443; 
Fulton  v.  Maccracken,  18  Md.  528,  81 
Am.  Dec.  620.  These  were  cases 
holding  that  the  opposite  party  in  a 
proceeding  were  entitled  to  know 
client's  name. 

Attorney  may  be  required  to  dis- 
close by  whom  he  was  employed  and 
the  terms  of  his  employment.  Col- 
lins v.  Hoffman,  62  Wash.  278;  or 
who  his  client  was  in  a  previous  pro- 
ceeding. Mobile,  etc.,  Ry.  Co.  v. 
Yeates,  67  Ala.  164;  Gower  v.  Emery, 
18  Me.  79;  Satterlee  v.  Bliss,  36  Cal. 
489. 


There  may  easily  be  cases,  how- 
ever, in  which  the  name  of  the  client 
should  be  regarded  as  confidential. 
Thus  in  Matter  of  Shawmut  Min.  Co., 
94  N.  Y.  App.  Div.  156,  it  was  held 
that  the  attorney  could  not  be  re- 
quired to  disclose  the  names  of  the 
persons  for  whom  he  acted  in  the 
purchase  of  property.  See  also, 
Carnes  v.  Platt,  36  N.  Y.  Super.  361. 

4eBeckwith  v.  Benner,  6  C.  &  P. 
681. 

47  Wheatley  v.  Williams,  1  M.  &  W. 
533;  Brown  v.  Payson,  6  N.  H.  443. 

48  This    question    rests    upon    sub- 
stantially the  same  considerations  as 
those  involved  in  the  matter  of  the 
name,    supra.     There   are   doubtless 
many  cases  in  which  the  identity  of 
the  client  would  be  privileged. 

49  The  position  and  duties  of  a  wit- 
ness to  a  will  are  entirely  inconsist- 
ent with  the  idea  of  a  privileged  com- 
munication, and  it  seems  to  be  prac- 
tically  everywhere   held   that  where 
the  client  has  requested  the  attorney 
to  sign  the  will  as  a  witness  the  at- 
torney is  a  competent  witness  there- 
after upon  all  questions   concerning 
the  proper  execution  of  the  will,  in- 
cluding the   matters   of  the   client's 
soundness     of     mind     and     freedom 
from   restraint   or   influence.     In  re 
Coleman's  Will,  111  N.  Y.  220;    Den- 
ning v.  Butcher,  91  Iowa,  425;  Pence 
v.    Waugh,     135     Ind.     143;     In    re 
Mullin's  Estate,  110  Cal.  252;   Coates 
v.  Semper,  82  Minn.  460;   Herman  v. 
Schlesinger,  114  Wis.  382,  91  Am.  St. 


1888 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2307 


as  a  witness,  or  a  deed  ;50  to  disclose  whether  or  not  he  has  in  his 
possession  a  paper  of  his  client's,61  in  order  to  let  in  secondary  evidence 
of  its  contents,  and  to  state  the  manner  B2  and  time  68  of  his  obtaining 
it,  whether  or  not  he  can  be  compelled  to  produce  it  or  to  state  its  con- 
tents or  purport ; 54  to  state  whether  he  has  received  money  for  his 
client  and  where  he  has  deposited  it ; 55  to  prove  the  fact  that  he  drew 
a  deed  for  his  client,56  and  the  time  57  when  he  did  so ;  to  prove  his 


Rep.  368;  McMaster  v.  Scriven,  85 
Wis.  162,  39  Am.  St.  Rep.  828. 

To  same  effect  see  In  re  Wax's  Es- 
tate, 106  Cal.  343;  O'Brien  v.  Spald- 
ing,  102  Ga.  490,  66  Am.  St.  Rep.  202. 

The  rule  in  these  cases  rests  upon 
the  fact  that  the  attorney  is,  with 
the  knowledge  and  approval  of  the 
client,  one  of  the  statutory  witnesses 
to  the  execution  of  the  will,  and  its 
operation  is  confined  to  the  matters 
which  involve  due  execution  includ- 
ing so  much  of  testamentary  capacity 
as  a  subscribing  witness  is  expected 
to  observe.  This  rule  does  not 
cover  questions  not  involving  execu- 
tion, such  as  instructions  and  com- 
munications respecting  the  form  and 
contents  of  the  will  where  these  mat- 
ters do  not  involve  testamentary  ca- 
pacity. See  Herman  v.  Schlesinger, 
supra. 

The  general  question  of  the  compe- 
tency to  testify  of  the  attorney  who 
drafted  the  will  with  reference  to 
communications  made  to  him  at  the 
time  will  be  discussed  in  a  following 
section. 

so  Doe  v.  Andrews,  Cowp.  845; 
Robson  v.  Kemp,  4  Esp.  233;  Coveney 
v.  Tannahill,  post;  Herman  v. 
Schlesinger,  114  Wis.  382,  91  Am.  St. 
Rep.  368;  Boyle  v.  Robinson,  129  Wis. 
567;  Strickland  v.  Capitol  City  Mills, 
74  S.  Car.  16,  7  L.  R.  A.  (N.  S.)  426; 
Brazil  v.  Fair,  26  S.  Car.  370;  Mona- 
ghan  Bay  Co.  v.  Dickson,  39  S.  Car. 
146,  39  Am.  St.  Rep.  704;  Moffatt  v. 
Hardin,  22  S.  Car.  9. 

But  the  rule  extends  only  to  the 
mere  fact  of  execution  and  its  at- 

119  1889 


tending  circumstances,  and  the  mere 
fact  that  the  attorney  witnesses  a 
deed  will  not  enable  him  to  disclose 
prior  confidential  communications  in 
regard  to  the  transaction.  Hardy  v. 
Martin,  150  Cal.  341;  Herman  v. 
Schlesinger,  supra;  Rousseau  V- 
Bleau,  60  Hun  (N.  Y.),  259. 

But  upon  appeal  In  the  last  case,  It 
was  held  that  the  attorney  was  a 
competent  witness  to  prove  the  deliv- 
ery of  a  deed  to  him  to  be  delivered 
to  another  person.  Rosseau  v.  Bleau, 
131  N.  Y.  177,  27  Am.  St.  Rep.  578. 

»i  Coveney  v.  Tannahill,  1  Hill  (N.. 
Y.),  33,  37  Am.  Dec.  287;   Jackson  v. 
McVey,     18     Johns.     (N.     Y.)     330; 
Brandt  v.  Klein,  17  Johns.    (N.  Y.)< 
335;  Bevan  v.  Waters,  1  M.  &  M.  235; 
Lessee  of  Rhoades  v.  Selin,  4  Wash. 
Cir.  Ct.  Rep.  715;  Stokoe  v.  St.  Paul,.. 
Minneapolis  &  Manitoba  Ry.  Co.,  40' 
Minn.   545;    Warren   Co.   v.   Houston 
(Tex.  Civ.  App.),  28  S.  W.  405. 

But  see  in  Georgia,  Dover  v.  Har- 
rell,  58  Ga.  572. 

62  Allen  v.  Root,  39  Tex.  589. 

53  Rundle  v.  Foster,  3  Tenn.  Ch. 
658.  While  the  contents  of  a  letter 
from  the  attorney  to  his  client  may 
be  privileged,  the  fact  that  he  wrote 
a  letter,  and  the  date  of  the  letter  are 
not  privileged.  Rylee  v.  Bank  of 
Statham,  7  Ga.  App.  489. 

c*  See  ante,  §§  2299  et  seg. 

»»  Jeanes  v.  Fridenberg,  3  Pa.  L.  J. 
R.  199;  Williams  v.  Young,  46  Iowa, 
140. 

Bfl  Rundle  v.  Foster,  3  Tenn.  Ch. 
658. 

ST  Rundle  v.  Foster,  supra. 

..:   ..• 


§  2308] 


THE  LAW  OF  AGENCY 


[BOOK  v 


client's  handwriting,  from  his  general  knowledge  of  it ; 58  or  to  testify 
to  some  act  of  his  client  as,  for  example,  that  the  client  swore  to  a  bill 
in  chancery,59  or  to  prove  that  he  was  authorized  by  his  client  to  make 
a  compromise  or  other  similar  arrangement  which  he  did  make.80 

§  2308.  Relation  of  attorney  and  client  must  exist. — In  order  that 
the  communications  be  privileged,  it  is  necessary  that  the  relation  of  at- 
torney and  client  should  exist  at  the  time  they  were  made,61  although 


os  Johnson  v.  Daverne,  19  Johns. 
(N.  Y.)  134,  10  Am.  Dec.  198;  and 
see  Kurd  v.  Moring,  1  C.  &  P.  372, 
where  the  attorney  was  required  to 
prove  the  handwriting,  though  his 
knowledge  was  acquired  solely  from 
seeing  his  client  sign  the  bail  bond. 
Dukes  v.  Davis,  etc.,  30  Ky.  L.  Rep. 
1348. 

BO  Buller's  N.  P.  284. 

00  Williams      v.      Blumenthal,      27 
Wash.  24. 

01  Equitable  Co.  v.  Green,  113  Ga. 
1013;     McDonald    v.    McDonald,    142 
Ind.   55;    Randolph  v.   Quidnick  Co., 
23  Fed.  278;   Rochester  City  Bank  v. 
Suydam,    5    How.    Pr.   (N.    Y.)    254; 
Mowell  v.  Van  Buren,  77  Hun  (N.  Y.), 
569;    State  v.  Smith,  138  N.  C.  700; 
Hoar  v.  Tilden,  178  Mass.  157;  Henry 
v.  Nubert  (Tenn.  Ch.),  35  S.  W.  444; 
Farley  v.  Peebles,  50  Neb.  723;  Basye 
v.    State,  45    Neb.    261;    Romberg   v. 
Hughes,  18  'Neb.  579;  Earle  v.  Grout, 
46  Vt.  113. 

City  attorney  and  city  official. — In 
City  of  Rockford  v.  Falver,  27  111. 
App.  604,  it  was  held  that  a  former 
city  attorney  might  disclose  commu- 
nications made  to  him  on  a  previous 
trial  of  the  case  by  the  city  street 
commissioner.  The  relation  of  at- 
torney and  client  did  not  exist  be- 
tween the  street  commissioner  and 
the  city  attorney. 

State's  attorney  and  defendant. — 
No  relation  of  attorney  and  client  ex- 
ists between  the  state's  attorney  and 
a  defendant  who,  during  the  pen- 
dency of  the  prosecution,  goes  to  the 
former  with  a  view  to  persuade  him 
to  discontinue  the  prosecution.  State 


v.  Schumacher,  N.  Dak.  ,  132 

N.  W.  143. 

Complaining  icitness  and  state's  at- 
torney.— No  relation  of  attorney  and 
client  exists  between  the  state's  at- 
torney and  a  complaining  witness 
who  goes  to  him  to  induce  him  to  act 
officially.  Granger  v.  Warrington,  8 
111.  299;  People  v.  White,  251  111.  67; 
Cole  v.  Andrews,  74  Minn.  9.3. 

Contra:  (Under  Iowa  Code)  State 
v.  Houseworth,  91  Iowa,  740;  Oliver 
v.  Pate,  43  Ind.  132. 

See  also,  State  v.  Brown,  2  Marv. 
(Del.)  380. 

Circuit  judge  and  defendant. — In 
People  v.  Pratt,  133  Mich.  125,  67  L. 
R.  A.  923,  communications  made  by 
an  accused  person  who  went  to  the 
circuit  judge  and  told  his  story  were 
held  to  come  within  the  privilege. 

In  State  v.  Hedgepeth,  125  Mo.  14, 
it  appeared  that  an  attorney  at  law, 
who  visited  the  county  jail  to  see  cer- 
tain clients  there,  was  accosted  by 
another  prisoner  there  who  requested 
him  to  interview  the  chief  of  police 
with  a  view  to  a  light  sentence  in 
case  the  prisoner  should  plead  guilty. 
The  attorney  did  so  without  favor- 
able results.  The  prisoner  subse- 
quently spoke  to  the  attorney  several 
times  about  the  matter,  saying,  how- 
ever, that  he  had  no  money  with 
which  to  employ  an  attorney.  The 
attorney  testified  that  he  did  not  con- 
sider himself  retained  by  the  pris- 
oner. Held,  that  he  might  testify  to 
what  was  said  to  him  by  the  pris- 
oner. 

Witness  and  attorney. — There  is 
usually  no  confidential  relationship 


1890 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2308 


it  is  not  necessary  that  there  should  be  a  formal  retainer,62  or  the  pay- 
ment of  a  fee.63  If  they  were  made  before  the  relation  began,64  or  after 
it  had  wholly  ceased,65  although  made  in  reference  to  a  subject  which 
had  formerly  been  protected  by  the  relation,66  they  are  not  privileged. 
So  if  they  were  made  casually  merely,  or  to  the  attorney  as  a  friend 
and  not  as  an  attorney,  they  would  not  be  protected.67 

Communications  confidentially  made  in  anticipation  of  the  employ- 
ment of  the  attorney  are  within  the  privilege  (as  has  been  expressly  de- 
clared by  statute  in  some  states68),  even  though  after  hearing  the 
statement  the  attorney  should  decline  to  go  on  with  the  case,  or  though 
the  client  after  conferring  with  the  attorney  should  conclude  not  to  em- 


between  the  attorney  and  a  proposed 
witness  for  the  client,  at  least  so  far 
as  it  may  affect  the  credibility  of  the 
witness.  Bergman  v.  Manes,  141  N. 
Y.  App.  Div.  102. 

«2Earle  v.  Grout,  46  Vt.  113;  Bru- 
ley  v.  Garvin,  105  Wis.  625,  48  L.  R. 
A.  839;  State  v.  Snowden,  23  Utah, 
318;  Bacon  v.  Frisbie,  80  N.  Y.  394, 
36  Am.  Rep.  627. 

es  Cross  v.  Riggins,  50  Mo.  335 ; 
Bruley  v.  Garvin,  supra;  State  v. 
Snowden,  supra;  Davis  v.  Morgan,  19 
Mont.  141;  Mack  v.  Sharp,  138  Mich. 
448,  5  Ann.  Gas.  109;  Sheehan  v. 
Allen,  67  Kan.  712. 

•34  Jennings  v.  Sturdevant,  140  Ind. 
641;  Stoney  v.  McNeil,  Harper's  (S. 
C.),  L.  557,  18  Am.  Dec.  666;  State  v.. 
Smith,  138  N.  Car.  700. 

as  Philman  v.  Marshall,  103  Ga.  82; 
Brady  v.  State,  39  Neb.  529;  In  re 
Turner's  Estate,  167  Pa.  609;  Doan 
v.  Dow,  8  Ind.  App.  324;  In  re 
Young's  Estate,  59  Ore.  348. 

The  fact  that  the  relation  of  attor- 
ney and  client  had  at  one  time  ex- 
isted between  the  parties  does  not 
disqualify  him  as  a  witness  as  to 
statements  or  declarations  made  at 
a  later  time  when  no  professional  re- 
lation existed.  Harless  v.  Harless, 
144  Ind.  196; 

Such  a  fact,  however,  might  very 
easily  be  material  in  determining 
whether  there  had  not  been  a  new 
though  informal  employment. 

189 


66  Brady  v.  State,  supra;  Yordan  v.. 
Hess,  13  Johns.   (N.  Y.)   492;   Mande- 
ville  v.   Guernsey,  38  Barb.    (N.  Y.) 
225;   Hanson  v.  Kline,  136  Iowa,  101,. 

67  McDonald  v.  McDonald,  142  Ind.. 
55;  In  re  Estate  of  Huffman,  132  Mo. 
App.  44;  Stallings  v.  Hullum,  79  Tex. 
421;  O'Brien  v.  Spalding,  102  Ga.  490, 
66  Am.  St.  Rep.  202;  State  v.  Herbert,, 
63   Kan.    516;    Sheehan  v.   Allen,   67 
Kan.  712. 

Where  a  lawyer,  not  in  practice, 
who  was  a  justice  of  the  peace,  also 
poormaster,  had  a  conversation  at 
the  poorhouse  with  an  injured  in- 
mate, who  did  not  know  he  was  a 
lawyer,  concerning  the  cause  of  his 
injury,  the  statements  of  the  injured 
man  were  held  not  privileged.  The 
poormaster  made  the  inquiries  in  the 
hope  of  finding  some  one  whom  the 
county  might  hold  responsible,  and 
the  injured  man  replied  with  a  view 
to  getting  some  one  interested  in  his 
case.  No  relation  of  attorney  and 
client  existed.  Union  Pac.  Ry.  Co. 
v.  Day,  68  Kan.  726. 

es  See  Georgia  Code,  §  3854,  as 
amended  in  1887;  Iowa  Code  (1897), 
§  4608;  Hanson  v.  Kline,  136  Iowa, 
101;  Alabama  Civil  Code  (1907), 
§  4012;  Nelson  v.  Becker,  32  Neb.  99. 

Communications  made  to  the  attor- 
ney with  a  view  to  employing  him 
are  privileged.  Surface  v.  Bentz,  228 
Pa.  610;  Evans  v.  State,  5  Okla.  Cr. 
643,  34  L.  R.  A.  (N.  S.)  577. 
IJ 


§  2309] 


THE  LAW  OF  AGENCY 


[BOOK   V 


ploy  him.6*  Casual  and  non-confidential  talks  with  an  attorney  con- 
cerning a  possible  employment  are  not  within  this  rule.70 

It  is  not  necessary  that  the  client  shall  have  acted  in  person  in  re- 
taining and  communicating  with  the  attorney.  Communications  made 
by  his  authorized  agent  would  be  within  the  privilege,71  though  this  rule 
would  not  apply  to  the  case  of  a  mere  volunteer,  not  acting  on  the 
client's  account  or  by  his  authority.72 

The  question  whether  the  relation  of  attorney  and  client  existed  is 
usually  one  of  fact  and  is  not  to  be  conclusively  determined  by  the  opin- 
ion of  either  the  attorney  or  the  client  as  to  its  existence.!?  ->r 

Communications  made  to  an  attorney  by  the  party  under  the  impres- 
sion that  the  attorney  had  consented  to  act,  are  privileged,  although  the 
attorney  himself  may  not  have  so  understood  the  arrangement.74 

§  2309.  Attorney  as  scrivener. — In  order  that  the  com- 
munication shall  be  privileged  it  is  necessary  that  the  attorney  shall 
have  been  employed  in  his  professional  capacity.  The  mere  fact  that 


e»  Denver  Tramway  Co.  v.  Owens, 
20  Colo.  107;  State  v.  Tally,  102  Ala. 
25;  Peek  v.  Boone,  90  Ga.  767;  Bruley 
v.  Garvin,  105  Wis.  625,  48  L.  R.  A. 
839;  Hanson  v.  Kline,  136  Iowa, 
101;  International  &  G.  N.  R.  Co.  v. 
Duncan,  55  Tex.  Civ.  App.  440;  Nel- 
son v.  Becker,  supra.  See  also,  Bacon 
v.  Frlsbie,  80  N.  Y.  394,  36  Am.  Rep. 
627;  Sheehan  v.  Allen,  67  Kan.  712; 
Crisler  v.  Garland,  11  Sm.  &  M.  136, 
49  Am.  Dec.  49. 

TO  Sharon  v.  Sharon,  79  Cal.  633 
(where  there  was  a  casual  conversa- 
tion upon  the  street  but  the  parties 
did  not  go  to  the  attorney's  office  and 
the  attorney  testified  that  he  "thought 
no  more  about  it.");  In  re  Turner's 
Estate,  167  Pa.  609  (where  the  con- 
versation took  place  at  the  house  of 
a  third  person  and  was  chiefly  with 
reference  to  inducing  the  attorney  to 
exert  himself  in  a  non-professional 
matter);  Ellis  v.  State,  92  Tenn.  85 
(where  a  possible  employment  was 
suggested  but  nothing  further  was 
ever  done  respecting  the  matter); 
Theisen  v.  Dayton,  82  Iowa,  74 
(where  the  matter  went  no  further 
than  a  proposal  to  retain  the  attor- 
ney for  a  certain  purpose,  which  he 


declined) ;  Farley  v.  Peebles,  50  Neb. 
723;  Setzar  v.  Wilson,  26  N.  Car.  501 
(where  the  communication  was  made 
after  the  attorney  of  the  other  party 
had  advised  that  he  could  not  accept 
employment). 

71  Bingham  v.  Walk,  128  Ind.  164; 
Maas  v.  Bloch,  7  Ind.  202;   Lynde  v. 
McGregor,  13  Allen   (Mass.),  172,  90 
Am.  Dec.  188;   Missouri,  etc.,  Ry.  Co. 
v.  Williams,  43  Tex.  Civ.  App.   549; 
Leyner    v.    Leyner,    123    Iowa,    185 
(semble). 

72  People  v.  Heart,  1  Cal.  App.  166. 
Where  A  goes  with  B  to  employ  X 

as  the  attorney  of  B,  statements  then 
made  by  A  to  X  are  not  privileged  in 
later  litigation  in  which  A  is  the 
party  and  X  is  offered  as  a  witness. 
Mackel  v.  Bartlett,  33  Mont.  123. 

73  Bacon  v.  Frisbie,  80  N.  Y.  394,  36 
Am.  Rep.  627. 

In  Gulf,  etc.,  Ry.  Co.  v.  Gibson,  42 
Tex.  Civ.  App.  306,  the  communica- 
tions were  held  to  be  privileged,  even 
though  the  alleged  client  denied  that 
any  relation  of  attorney  and  client 
existed. 

7-*  Alderman  v.  People,  4  Mich.  414, 
69  Am.  Dec.  321.  To  same  effect,  see 
Sheehan  v.  Allen,  67  Kan.  712. 


1892 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2309 

an  attorney  is  employed  to  do  that  which  could  as  well  be  done  by  any 
other  person,  as,  for  example, — to  take  an  illustration  from  the  books, — 
to  act  as  steward,  would  not  bring  communications  to  him  in  that  ca- 
pacity within  the  privileged  class.  The  case  in  which  the  attorney  is 
employed  as  scrivener  or  conveyancer  seems  to  be  involved  in  some  un- 
certainty, but  the  principles  which  govern  it  are  not  difficult  to  discover. 

Where  both  parties  to  a  proposed  transaction  resort  to  an  attorney  to 
have  the  necessary  documents  drawn,  he  could  not  within  the  rules  al- 
ready considered  ordinarily  be  deemed  to  be  the  confidential  adviser 
of  one  any  more  than  of  the  other;  and,  in  a  controversy  subsequently 
arising  between  the  parties,  communications,  made  to  him  at  the  time 
of  the  preparation  of  the  documents  could  not  ordinarily  be  deemed 
privileged.75  In  a  controversy,  however,  between  either  of  the  parties 
and  an  outsider,  this  rule  would  not  apply.76 

In  the  next  place  it  is  entirely  possible  that  one  party  only  or  both 
parties  may  resort  to  an  attorney  in  the  capacity  of  a  mere  scribe  or 
scrivener,  as  they  might  go  to  a  justice  of  the  peace,  a  notary  public, 
or  any  person  skillful  with  the  pen,  not  to  get  legal  assistance  or  to 
obtain  professional  or  any  advice  other  than  that  which  the  ordinary 
man  experienced  in  affairs  might  give,  but  simply  to  have  reduced  to 
writing  some  definite,  familiar  and  well  understood  form  of  contract 
or  conveyance.  In  such  a  case,  whether  one  party  goes,  or  both,  it  is 
not  to  consult  a  lawyer  but  to  employ  a  scribe,  and  communications 
made  do  not  fall  within  this  privilege.77 

J  >O     Jfcll 

KM  !fi?T    Bn-iSI.tiO    .7    33IIS 

™  Ante,  §  2305.  Many  of  the  cases  Mackel  v.  Bartlett,  33  Mont.  123; 
ordinarily  cited  under  the  rule  re-  O'Neill  v.  Murry,  6  Dak.  107;  Hark- 
specting  the  employment  of  a  mere  less  v.  Smith,  115  Ga.  350;  Borum 
scrivener  would  properly  fall  under  v.  Fouts,  15  Ind.  50;  In  re  Down- 
this  head.  See,  for  example,  Hark-  ing's  Will,  118  Wis.  581;  Conk- 
less  v.  Smith,  115  Ga.  350;  Lukin  v.  lin  v.  Daugherty,  44  Ind.  App.  570; 
Halderson,  24  Ind.  App.  645;  Wyland  Hatton  v.  Robinson,  14  Pick.  (Mass.) 
v.  Griffith,  96  Iowa,  24;  Sullivan  v.  416,  25  Am.  Dec.  415;  DeWolf  v. 
Franzreb,  148  N.  Y.  App.  Div.  728;  Strader,  26  111.  225,  79  Am.  Dec.  371; 
Doheny  v.  Lacy,  168  N.  Y.  213;  Smith  v.  Long,  106  111.  485;  Spencer 
Brogan  v.  Porter,  145  Ky.  587.  v.  Razor,  251  111.  278;  Todd  v.  Mun- 

™  Ante,  §  2302.    See  also,  Harris  v.  son,     53     Conn.     579;      Hebbard     v. 

Daugherty,  cited  in  following  note.  Haughian,  70   N.  Y.   54;  Machette  v. 

77  Mueller  v.  Batcheler,   131   Iowa,  Wanless,    2    Colo.    169;    Caldwell    v. 

650;  Conway  v.  Rock,  139  Iowa,  162;  Davis,  10  Colo.  481,  3  Am.  St  Rep. 

Wasson    v.    Millsap,    77    Iowa,    762;  599;    Randel  v.  Yates,  48  Miss.   685; 

O'Connor  v.  Padget,  82  Neb.  95;  Stall-  House  v.  House,  61  Mich.  69,  1  Am. 

ings  v.  Hullum,  79  Tex.  421;   Harris  St.  Rep.  570;   Goodwin's  Appeal,  117 

v.  Daugherty,  74  Tex.  1,  15  Am.  St  Pa.  514,  2  Am.  St.  Rep.  696;  Chllds  v. 

Rep.  812;  Grimshaw  v.  Kent,  67  Kan.  Merrill,  66  Vt.  302. 
463;  Smith  v.  Caldwell,  22  Mont.  331; 

1893 


§  2310] 


THE  LAW   OF  AGENCY 


[BOOK  v 


It  is  entirely  possible,  however,  and  is  a  well  recognized  branch  of 
professional  business,  that  a  client  shall  consult  an  attorney  in  a  strictly 
professional  capacity  and  obtain  his  professional  advice  and  assistance 
with  reference  to  a  proposed  contract  or  conveyance,  the  legal  conse- 
quences which  may  result  from  making  it,  the  proper  form  in  which 
to  frame  it,  the  legal  interpretation  or  construction  which  may  be  put 
upon  it,  and  the  like ;  and  in  such  a  case,  whether  the  attorney  proceeds 
to  draft  the  document  or  not,  the  engagement  is  a  strictly  professional 
one,  and  communications  with  reference  to  any  of  the  subjects  thus 
involved  fall  within  the  protection  of  the  privilege.78 

§  2310.  Communications  must  have  been  made  to  an  attorney. — 
So  the  communications  must  have  been  made  to  one  who  was  an  at- 
torney at  law  79  or  to  his  clerk,  agent,  interpreter,  or  other  person  rep- 

-"'"»•  *rrfj  .T^bi^rro  nh  Hnt 

See  also,  Brown  v.  Grove,  25  C.  C.      called  upon  by  her  in  his  professional 


A.  644,  80  Fed.  564. 

In  Later  v.  Haywood,  12  Idaho,  78; 
Lukin  v.  Halderson,  24  Ind.  App.  645, 
where  the  rule  in  question  was  ap- 
plied, the  person  employed  as  scriv- 
ener was  not  a  lawyer. 

If,  though  both  parties  resorted  to 
the  same  attorney,  he  was,  on  the  oc- 
casion in  question,  really  consulted 
by  and  was  acting  as  attorney  for 
one  of  them  only,  the  privilege  as  to 
that  occasion  would  exist.  Domin- 
gues  v.  Citizens  Bank,  62  Fla.  148. 

See  also,  Getzlaff  v.  Seliger,  43  Wis. 
297,  where  the  court  applied  the  rule 
very  decidedly  in  the  case  of  an  at- 
torney acting  as  notary  and  scriv- 
ener. 

So  where,  though  both  parties  to  a 
transaction  are  present,  the  attorney 
really  acts  as  the  attorney  of  one  of 
them  only,  it  is  held  that  the  other 
can  not  claim  the  benefit  of  the  privi- 
lege. Harris  v.  Daugherty,  74  Tex.  1, 
15  Am.  St.  Rep.  812. 

78  Blunt  v.  Strong,  60  Ala.  572; 
Brown  v.  Butler,  71  Conn.  576;  Car- 
ter v.  West,  93  Ky.  211  (here  the 
court  said:  "In  this  instance  the  at- 
torney was  acting  in  his  professional 
character.  He  was  the  legal  adviser 
of  the  party,  and  not  a  mere  scriv- 
ener. She  was  relying  upon  him  to 
see  that  she  got  a  good  title.  He  was 


character;  what  she  said  to  him  was 
in  that  character,  and  was,  therefore, 
in  its  nature  private.  It  was  said 
under  the  seal  of  professional  confi- 
dence, and  in  the  absence  of  her  con- 
sent was  incompetent  evidence"); 
Parker  v.  Carter,  4  Munf.  (Va.)  273, 
6  Am.  Dec.  513. 

See  also,  Helbig  v.  Citizens  Ins. 
Co.,  108  111.  App.  624  (attorney  pre- 
paring proofs  of  loss  to  recover  in- 
surance is  employed  in  a  professional 
capacity). 

™  "It  is  confined  strictly,"  says 
Chief  Justice  Shaw,  "to  communica- 
tions to  members  of  the  legal  profes- 
sion, as  barristers  and  counsellors, 
attorneys  and  solicitors,  and  those 
whose  intervention  is  necessary  to 
secure  and  facilitate  the  communica- 
tion between  attorney  and  client,  as 
interpreters,  agents  and  attorneys' 
clerks."  Foster  v.  Hall,  12  Pick. 
(Mass.)  89,  22  Am.  Dec.  400;  Barnes 
v.  Harris,  7  Gush.  (Mass.)  576,  54 
Am.  Dec.  734.  "Privilege  only  ex- 
tends to  communications  with  legal 
advisers,  or  in  some  way  connected 
with  legal  advisers;  communications 
with  a  most  confidential  agent  are 
not  protected  If  that  confidential 
agent  happens  not  to  be  a  solicitor." 
Per  Cotton,  L.  J.,  in  Southwark  Water 
Co.  v.  Quick,  3  Q.  B.  Div.  315,  321. 


1894 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2311 


resenting  him  in  that  behalf.80  If  made  to  a  mere  student  in  his  office,81 
or  if  made  to  a  person  not  an  attorney,  though  the  client  supposed  him 
to  be  one,82  they  are  held  not  to  be  privileged,  though  there  are  some 
obvious  limitations  upon  this  doctrine.83 

Where  a  license  is  required,  and  only  those  holding  a  license  are  rec- 
ognized as  attorneys,  it  is  held  that  the  privilege  protects  communica- 
tions made  to  a  licensed  attornev  only.8* 

J  Sir,  .;>e(I  .raA  8  ,!•>>'. 

§  2311.  Privilege  is  the  client's — Waiver. — The  privilege  is  the 
privilege  of  the  client  and  not  of  the  attorney.  The  seal  placed  by  the 
law  upon  the  lips  of  the  attorney  can  be  removed  only  by  the  client  or 
those  who  represent  him,  and  it  is  not  within  the  power  of  the  attorney 
alone  to  waive  or  remove  it.85 


In  most  states  this  rule  has  been 
adopted  by  statute.  Hilary  v.  Min- 
neapolis, etc.,  Ry.  Co.,  104  Minn.  432. 

The  rule  applies  only  to  attorneys 
at  law  and  not  to  attorneys  in  fact. 
McLaughlin  v.  Gilmore,  1  111.  App. 
563;  Holman  v.  Kimball,  22  Vt.  555; 
State  v.  Smith,  138  N.  C.  700;  Brung- 
ger  v.  Smith,  49  Fed.  124  (solicitor 
of  patents,  who  is  not  an  attorney  at 
law,  not  within  privilege). 

But  a  confidential  communication 
made  to  an  attorney  who  is,  as  yet, 
licensed  to  practice  only  in  justices 
courts,  is  privileged,  even  though  the 
case  concerning  which  he  was  con- 
sulted would  not  have  been  within 
the  jurisdiction  of  such  a  court.  Eng- 
lish v.  Ricks,  117  Tenn.  73. 

In  Ohio  communications  made  to 
one  who,  though  not  admitted  to  the 
bar,  had  been  for  many  years  a  regu- 
lar practitioner  in  justices'  courts 
and  who  was  consulted  as  such,  were 
held  privileged.  Benedict  v.  State, 
44  Ohio,  679. 

so  Statutes  often  expressly  provide 
for  protecting  communications  made 
to  the  attorney's  assistants  on  his  ac- 
count (see  Hilary  v.  Minneapolis, 
etc.,  Ry.  Co.,  104  Minn.  432),  though 
these  cases,  as  well  as  those  in  which 
the  communication  is  made  in  the 
presence  of  the  attorney's  clerk, 
stenographer,  and  the  like,  would 
doubtless  everywhere  be  deemed  to 
be  within  the  rule  without  a  statute. 


See  State  v.  Brown,  2  Marv.    (Del.) 
380. 
See  also,  Hawes  v.  State,  88  Ala.  37. 

81  Barnes  v.  Harris,  supra;  Schub- 
kagel  v.  Dierstein,  131  Pa.  46,  6  L.  R. 
A.  481. 

82  Sample   v.    Frost,    10    Iowa,    266 
(where  witness  was  transacting  busi- 
ness as  an  attorney,  expecting  to  be 
and    in    fact    soon    admitted    to    the 
bar);   Holman  v.  Kimball,  22  Vt.  555 
(where  witness  had  an  office,  expect- 
ing to  be  and  soon  admitted  to  prac- 
tice);    Barnes    v.    Harris,    7    Gush. 
(Mass.)  576,  54  Am.  Dec.  734  (where 
client  supposed   witness,   a   law  stu- 
dent, to  be  the  attorney). 

ss  In  People  v.  Barker,  60  Mich. 
277,  1  Am.  St.  Rep.  501,  where  the 
prosecution  had  a  detective  represent 
himself  as  an  attorney  and  thus  ob- 
tain a  confession  from  a  prisoner 
confined  in  jail,  it  was  said:  "Con- 
fidential communications  made  in  re- 
liance upon  the  supposed  relation  of 
attorney  and  client,  whether  the 
party  assuming  to  act  as  such  is  an 
attorney  or  not,  are  excluded  upon 
the  plainest  principles  of  justice." 

See  also,  State  v.  Loponio,  N.  J. 

L. ,  88  Atl.  1045. 

s*  McLaughlin  v.  Gilmore,  1  111. 
App.  563. 

ss  Hatton  v.  Robinson,  14  Pick. 
(Mass.)  416,  25  Am.  Dec.  415;  Brooks 
v.  Holden,  175  Mass.  137;  Phillips  v. 
Chase,  201  Mass.  444,  131  Am.  St. 
Rep.  406. 

1895 


THE  LAW   OF  AGENCY 


[BOOK  v 


The  client  may,  however,  waive  it  if  he  sees  fit  during  his  life-time,86 
or,  so  far  as  it  affects  the  estate,  it  may  be  waived  by  those  who  repre- 
sent him  after  his  death.87 

se  Tate  v.  Tate,  75  Va.  522;  Sleeper      or  administrator  acts  with  reference 


v.  Abbott,  60  N.  H.  162;  Chase's  Case, 
1  Bland  (Md.),  Ch.  206,  17  Am.  Dec. 
277;  Parker  v.  Carter,  4  Munf.  (Va.) 
273,  6  Am.  Dec.  513;  Foster  v.  Hall, 
12  Pick.  (Mass.)  89,  22  Am.  Dec. 
400;  Benjamin  v.  Coventry,  19  Wend. 
(N.  Y.)  353;  Whiting  v.  Barney,  30 
N.  Y.  330,  86  Am.  Dec.  385;  Riddles 
v.  Aikin,  29  Mo.  453;  Ehrhardt  v. 
Stevenson,  128  Mo.  App.  476;  Fossler 
v.  Schriber,  38  111.  172;  Scott  v.  Har- 
ris, 113  111.  447;  Lanum  v.  Patterson, 
151  111.  App.  36;  Stanton  v.  Hart,  27 
Mich.  539;  Passmore  v.  Passmore,  50 
Mich.  626,  45..  Am.  Rep.  62;  In  re 
Young,  33  Utah,  382,  126  Am.  St.  Rep. 
843,  14  Ann.  Cas.  596,  17  L.  R.  A.  (N. 
S.)  108;  Wood  v.  Water  Co.,  147  Cal. 
228. 

With  reference  to  the  manner  of 
waiver,  statutes  in  several  states, 
particularly  those  putting  the  privi- 
lege of  the  client  and  the  natient 
upon  the  same  ground,  have  required 
that  it  should  be  expressly  waived. 

Where  the  client  and  attorney  en- 
tered into  a  contract  in  which  client 
agreed  to  release  the  attorney  "from 
all  rights,  burdens,  obligations  and 
privileges,"  this  was  held  to  be  op- 
posed to  public  policy,  and  void,  and 
therefore  not  a  waiver.  In  re  Boone, 
83  Fed.  944. 

In  Tate  v.  Tate,  75  Va.  522,  supra, 
it  is  said  that  the  waiver  must  be 
"distinct  and  unequivocal,"  but  like 
other  privileges  it  would  seem  that 
it  may  be  waived  either  expressly  or 
by  conduct  inconsistent  with  its 
maintenance. 

Client  waives  It  when  he  turns 
state's  evidence  and  swears  to  an 
offense  in  which  he  was  a  party. 
Hamilton  v.  People,  29  Mich.  173; 
People  v.  Gallagher,  75  Mich.  512; 
Jones  v.  State,  65  Miss.  179. 

ST  Waiver  by  executor  or  adminis- 
trator.— Tn  Brooks  v.  Holden,  175 
Mass.  137,  it  is  said:  "The  executor 


to  the  question  of  waiver  as  the  per- 
sonal representative  of  the  deceased 
client,  and  solely  in  the  interest  of 
his  estate.  While  it  has  been  said 
that  on  such  facts  the  mouth  of  the 
attorney  shall  be  forever  sealed,  and 
that  the  seal  of  the  law  once  fixed 
upon  such  communications  remains 
forever,  unless  removed  by  the  party 
himself,  in  whose  favor  it  was  there 
placed,  we  know  of  no  decided  case 
in  which  it  has  been  held  that  upon 
the  death  of  the  client  his  personal 
representative  cannot  waive  the 
privilege  and  call  upon  the  attorney 
to  testify  in  behalf  of  the  client's  es- 
tate. In  our  opinion  an  executor  or 
administrator  of  a  deceased  client 
may  exercise  in  favor  of  the  client's 
estate  the  right  to  waive  the  privi- 
lege, and  may  call  upon  the  attorney 
to  disclose  as  a  witness  communica- 
tions made  to  him  by  the  client." 
Phillips  v.  Chase,  201  Mass.  444,  131 
Am.  St.  Rep.  406,  is  to  same  effect. 

In  Westover  v.  Aetna  Ins.  Co.,  99 
N.  Y.  56,  52  Am.  Rep.  1,  where  the 
statute  provided  that  the  privilege 
must  be  "expressly  waived"  by  the 
client,  it  was  held  that  the  executor 
or  administrator  could  not  waive  it. 

Also  (sem&te),  Loder  v.  Whelpley, 
111  N.  Y.  239. 

Waiver  by  heir. — In  Fossler  v. 
Schriber,  38  111.  172,  in  a  controversy 
between  an  heir  and  an  administra- 
tor, where  the  heir  was  seeking  to 
compel  the  administrator  to  inven- 
tory certain  property  as  belonging  to 
the  estate,  the  testimony  of  the  at- 
torney of  the  deceased  was  held  ad- 
missible upon  the  consent  of  the 
heir  as  against  the  objection  of  the 
administrator  that  it  was  privileged. 
Said  the  court:  "It  is  sufficient  to 
say  that  this  rule  of  professional 
sanctity  is  enforced  for  the  benefit 
of  the  client;  that  the  only  heir  of 
the  client  who  is  before  the  court  is 


1896 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


'[§    2311 


The  client  does  not  waive  the  privilege  by  making  the  attorney  a  wit- 
ness upon  other  matters  than  that  privileged,  but  if  he  examines  him 
upon  privileged  subjects  he  waives  the  privilege,  and  the  other  party 
may  cross-examine  him  on  the  same  subjects.88 

The  client  is  also  held  to  waive  it  where  he  voluntarily  testifies  with 
reference  to  the  subject-matter  of  the  privilege.89  Where  there  were 


the  party  that  calls  for  the  testi- 
mony, and  even  if  there  were  other 
heirs,  and  if  they  had  a  right  to  in- 
terpose an  objection,  not  being 
parties  to  the  suit,  yet  in  the  ab- 
sence of  such  objection,  the  court 
would  presume  their  concurrence 
with  their  co-heir  in  removing  the 
seal  of  professional  secrecy,  since  to 
do  so  was  obviously  for  their  benefit 
as  well  as  his."  Followed  in  Le  Pro- 
hon's  Appeal,  102  Me.  455,  10  Ann. 
Cas.  1115. 

The  question  of  waiver,  by  the  ex- 
ecutor, administrator  or  heir  arises 
more  frequently  in  the  case  of  the 
preferred  testimony  of  an  attending 
physician.  In  many  of  the  states 
the  privilege  with  respect  of  the  tes- 
timony of  attorneys  and  physicians 
is  declared  in  the  same  section  or  in 
the  same  language.  In  New  York  the 
statute  was  amended  so  as  to  permit 
a  waiver  after  the  death  of  the  pa- 
tient in  the  case  of  a  physician  but 
the  amendment  did  not  include  the 
case  of  the  attorney. 

For  a  general  discussion  of  the 
matter  in  the  case  of  the  physician, 
see  Winters  v.  Winters,  102  Iowa,  53, 
63  Am.  St.  Rep.  428;  Heuston  v. 
Simpson,  115  Ind.  62,  7  Am.  St.  Rep. 
409;  Morris  v.  Morris,  119  Ind.  341. 

No  privilege  in  controversies  "be- 
tween heirs,  devisees,  etc.,  them- 
selves.— For  reasons  substantially 
similar  to  those  which  have  been 
noticed  in  an  earlier  section  the  rule 
of  privilege  does  not  apply  to  a  case 
which  is  not  between  the  estate  and 
an  outsider,  but  is  one  between  the 
various  persons  interested  in  the  es- 
tate themselves.  Here  it  is  said  that 
no  one  is  any  more  interested  in  the 

I 


privilege  than  another  or  any  more 
entitled  to  insist  upon  it  than  an- 
other, and  consequently  that  it  can- 
not be  insisted  upon.  See  Doherty  v. 
O'Callaghan,  157  Mass.  90,  34  Am.  St. 
Rep,  258,  17  L.  R.  A.  188;  Russell  v. 
Jackson,  9. Hare,  387;  Blackburn  v. 
Crawford,  3  Wall.  (U.  S.)  175,  184, 
192,  194,  18  L.  Ed.  186;  Glover  v. 
Patten,  165  U.  S.  394-406,  41  L.  Ed. 
760;  In  re  Shapter,  35  Colo.  578: 
Layman's  Will,  40  Minn.  371; 
Coates  v.  Semper,  82  Minn.  460;  Kern 
v.  Kern,  154  Ind.  29;  O'Brien  v. 
Spalding,  102  Ga.  490,  66  Am.  St.  Rep. 
202;  Scott  v.  Harris,  113  111.  447-454; 
Thompson  v.  Ish,  99  Mo.  160,  17  Am. 

St.  Rep.  552;  Pierce  v.  Farrar,  

Tex.  Civ.  App.  - — ,  126  S.  W.  932. 

To  same  effect,  Bannon  v.  Bannon 
Sewer  Pipe  Co.,  136  Ky.  556;  In  re 
Downing's  Will,  118  Wis.  581. 

ss  Jones  v.  Marble  Co.,  137  N.  C. 
237;  Vaillant  v.  Dodemead,  2  Atk. 
524;  Waldron  v.  Ward,  Style  449. 

Where  the  client  himself  puts  in 
evidence  the  attorney's  letters  con- 
cerning the  transaction,  the  attor- 
ney is  then  a  competent  witness  to 
testify  as  to  the  same  matter.  White 
v.  Thacker,  24  C.  C.  A.  374,  78  Fed. 
862. 

8»  Hunt  v.  Blackburn,  128  U.  S. 
464,  32  L.  Ed.  488;  Oliver  v.  Pate,  43 
Ind.  132;  Eldridge  v.  State,  126  Ala. 
63;  Young  v.  State,  65  Ga.  525;  State 
v.  Hoben,  36  Utah,  186;  Kelly  v.  Cum- 
mens,  143  Iowa,  148,  20  Ann.  Cas. 
1283;  Inhabitants  v.  Henshaw,  101 
Mass.  193,  3  Am.  Rep.  333. 

Same  held  in  case  of  a  corpora- 
tion: Louisville  &  N.  R.  Co.  v.  Hill, 
115  Ala.  334. 

This  rule  does  not  apply  where  the 
897 


2312] 


THE  LAW  OF  AGENCY 


[BOOK   V 


several  clients,  the  consent  or  waiver  of  all  of  them  is  necessary  to  make 
the  attorney  a  competent  witness,  though,  as  has  been  seen,  this  is  not 
true  in  actions  between  the  clients  themselves,  or,  it  is  held,  in  an  ac- 
tion by  one  of  the  clients  against  the  attorney  upon  obligations  grow- 
ing out  of  the  common  employment.90 

§  2312.  How  long  it  continues. — The  operation  of  the  privilege 
is  ordinarily  deemed  perpetual  and,  unless  duly  waived,  survives  not 
only  the  termination  of  the  relation  of  attorney  and  client,  but  the  lives 
of  the  attorney  and  client  as  well.91  The  death  of  the  client  does  not 
remove  it,92  nor  will  the  executor  or  administrator  of  the  attorney  be 
permitted  to  reveal  papers  or  information  confided  to  the  attorney,  and 
which  he  himself  would  not  have  been  permitted  to  reveal.03  The  fact 
that  the  information  is  "asked  for  in  a  suit  to  which  the  client  is  not  a 
party  makes  no  difference.94 

With  reference  to  the  execution  of  wills  and  to  what  the  attorney 
may  see  or  hear  at  that  time,  an  exception  is  made,  which,  while  it 
supports  the  privilege  during  the  lifetime  of  the  testator,  denies  it  in 
controversies  over  the  validity  of  the  will  after  his  death.95  For  this 


matter  is  not  voluntarily  testified  to, 
but  is  only  brought  out  on  cross-ex- 
amination: Tate  v.  Tate,  75  Va.  522; 
Lauer  v.  Banning,  140  Iowa,  319.  But 
see  Pinson  v.  Campbell,  124  Mo.  App. 
260. 

9<>  As  has  been  seen,  ante,  §  2302, 
where  several  clients  employ  the 
same  attorney  in  reference  to  a  com- 
mon enterprise,  he  may  not  testify, 
in  an  action  with  the  other  party, 
without  the  consent  of  all.  Sparks 
v.  Sparks,  51  Kan.  195;  Michael  v. 
Foil,  100  N.  Car.  178,  6  Am.  St.  Rep. 
577;  Gruber  v.  Baker,  20  Nev.  453, 
9  L.  R.  A.  302;  Hurlburt  v.  Hurlburt, 
128  N.  Y.  420,  26  Am.  St.  Rep.  482; 
Root  v.  Wright,  84  N.  Y.  72,  38  Am. 
Rep.  495;  In  re  Seipp's  Estate,  163 
Pa.  423,  43  Am.  St.  Rep.  803;  Herman 
v.  Schlesinger,  114  Wis.  382.  Yet  in 
in  suit  between  themselves,  this  rule 
does  not  apply;  cases  cited  in  note 
30,  §  2302;  and  it  is  held  that,  in  an 
action  by  one  of  them  against  the 
attorney,  on  a  matter  growing  out  of 
the  employment,  he  cannot  defend 
himself  from  admitting  things  show- 
ing his  liability  by  setting  up  the 


privilege  of  the  others,  e.  g.,  that  he 
had  received  money  for  the  plaintiff. 
Minard  v.  Stillman,  31  Ore.  164,  65 
Am.  St.  Rep.  815. 

»i  Hatton  v.  Robinson,  14  Pick. 
(Mass.)  416,  25  Am.  Dec.  415;  Wil- 
son v.  Rastall,  4  T.  R.  753. 

In  Snow  v.  Gould,  74  Me.  540,  43 
Am.  Rep.  604,  it  is  said  "Privileged 
communications  may  lose  their  priv- 
ileged character  by  the  lapse  of 
time.  That  which  may  be  private  at 
a  time  may  not  be  private  at  an 
after-time.  Directions  to  an  attorney 
to  make  a  certain  contract  are  a  con- 
fidential communication  before,  but 
not  after,  the  contract  is  made.  A 
solicitor  cannot  be  compelled  to  dis- 
close the  contents  of  an  answer  in 
equity,  before  it  is  filed,  but  may  be 
afterwards." 

92  Brown  v.  Butler,  71  Conn.  576. 

»3  1  Greenleaf  on  Ev.  §  239. 

94  Rex   v.    Withers,   2   Camp.   578; 
Foster  v.  Hall,  12  Pick.    (Mass.)    89, 
22  Am.  Dec.  400. 

95  Matter    of    Cunnion,   201    N.    Y. 
123;     Doherty    v.    O'Callaghan,     157 
Mass.  90,  34  Am.  St  Rep.  258,  17  L. 


1898 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


[§    2312 


exception  no  entirely  consistent  and  satisfactory  reason  is  assigned.96 
It  does  not  rest  upon  the  presumed  waiver  already  referred  to  arising 
where  the  testator  requests  the  attorney  to  be  an  attesting  witness,  be- 
cause the  attorney  need  not  have  been  a  witness  in  these  cases.  It  is 


R.  A.  188;  Russell  v.  Jackson,  9 
Hare,  387;  Blackburn  v.  Crawford,  3 
Wall.  (U.  S.)  175,  184,  192,  194,  18  L. 
Ed.  186;  Glover  v.  Patten,  165  U.  S. 
394-406,  41  L.  Ed.  760;  In  re  Estate 
of  Nelson,  132  Cal.  182;  Coates  v. 
Semper,  82  Minn.  460;  Layman's 
Will,  40  Minn.  371;  Kern  v.  Kern,  154 
Ind.  29;  O'Brien  v.  Spalding,  102  Ga. 
490,  66  Am.  St.  Rep.  202;  Scott  v. 
Harris,  113  111.  447-454;  Thompson  v. 
Ish,  99  Mo.  160,  17  Am.  St.  Rep.  552; 
Bannon  v.  Bannon  Sewer  Pipe  Co., 
136  Ky.  556;  In  re  Veazey's  Will,  - 

N.  J.  L. ,  85  Atl.  176;  In  re  Young, 

33  Utah,  382,  126  Am.  St.  Rep.  843,  14 
Ann.  Gas.  596,  17  L.  R.  A.  (N.  S.) 
108;  In  re  Downing's  Will,  118  Wis. 
581;  McMaster  y.  Scriven,  85  Wis. 
162,  39  Am.  St.  Rep.  828.  But  compare 
Butler  v.  Fayerweather,  33  C.  C.  A. 
625,  91  Fed.  458. 

9«  In  Russell  v.  Jackson,  supra,  It 
was  said  by  Turner,  V.  C.:  "The argu- 
ment was,  that  the  privilege  did  not 
terminate  with  the  death  of  the 
client;  that  it  belongs  to  a  purchaser 
from  the  client,  and  must  equally  be- 
long to  a  volunteer  under  him;  that 
it  follows  the  legal  interest,  and 
must  rest  in  the  executor  claiming 
under  the  will,  and  not  in  the  next 
of  kin  claiming  adversely  to  it.  That 
the  privilege  does  not  in  all  cases 
terminate  with  the  death  of  the 
party,  I  entertain  no  doubt.  That  it 
belongs  equally  to  parties  claiming 
under  the  client  as  against  parties 
claiming  adversely  to  him,  I  enter- 
tain as  little  doubt;  but  it  does  not, 
I  think,  therefore  follow  that  it  be- 
longs to  the  executor  as  against  the 
next  of  kin  in  such  a  case  as  the 
present.  In  the  one  case  the  ques- 
tion is,  whether  the  property  belongs 
to  the  client  or  his  estate,  and  the 
rule  may  well  apply  for  the  protec- 
tion of  the  client's  interest.  In  the 


other  case  the  question  is,  to  which 
of  two  parties  claiming  under  the 
client  the  property  in  equity  belongs; 
and  it  would  seem  to  be  a  mere  arbi- 
trary rule,  to  hold  that  it  belongs  to 
one  of  them  rather  than  the  other. 
Besides,  if  the  privilege  be  one 
which  follows  the  legal  interest,  it 
must,  I  think,  be  subject  to  the  inci- 
dents to  which  the  legal  interest  is 
subject;  and  if  the  legal  interest  be 
subject  to  a  trust,  the  privilege 
must  be  subject  to  it  also." 

In  Doherty  v.  O'Callaghan,  supra, 
It  was  said:  "Undoubtedly,  while  the 
testator  lives,  the  attorney  drawing 
his  will  would  not  be  allowed,  with- 
out the  consent  of  the  testator,  to 
testify  to  communications  made  to 
him  concerning  it,  or  to  the  contents 
of  the  will  itself;  but  after  his 
death,  and  where  the  will  is  present- 
ed for  probate,  we  see  no  reason  why, 
as  a  matter  of  public  policy,  the  at- 
torney should  not  be  allowed  to  testi- 
fy as  to  directions  given  to  him  by 
the  testator,  so  that  it  may  appear 
whether  the  instrument  presented 
for  probate  is  or  is  not  the  will  of  the 
alleged  testator." 

In  In  re  Nelson's  Estate,  132  Cal. 
182,  it  was  said:  "Goad  (the  attor- 
ney) had  prepared  the  codicil  under 
the  directions  of  the  testator,  and  by 
employing  him  as  his  attorney  for 
this  purpose,  the  testator  had  waived 
the  protection  of  the  statute,  and  re- 
leased the  attorney  from  the  obliga- 
tion of  secrecy  as  fully  as  if  the  at 
torney  had  become  a  subscribing  wit- 
ness to  the  will.  The  client  thereby 
makes  the  attorney  the  medium 
through  whom  the  right  which  he- 
seeks  to  create  may  be  established.' 

In  In  re  Young's  Estate,  33  Utah, 
382,  126  Am.  St.  Rep.  843,  14  Ann 
Gas.  596,  17  L.  R.  A.  (N.  S.)  108,  it 
was  said:  "But  do  these  reasons  ap- 


1899 


§  2313] 


THE  LAW  OF  AGENCY 


[BOOK  v 


commonly  put  upon  the  ground  of  public  policy  and  the  absence  of 
those  considerations  which  originally  led  to  the  establishment  of  the 
privilege.  It  is  sometimes  put  upon  the  presumed  intention  of  the 
testator  who  would  desire  the  attorney  to  maintain  secrecy  during  the 
testator's  lifetime,  but  would  equally  desire  him  to  publish  the  fact  of 
the  execution  of  the  will  and  aid  in  its  establishment,  after  the  testa- 
tor's death.  While  there  are  doubtless  cases  whose  facts  would  make 
such  a  presumption  legitimate,  there  are  many  other  cases  in  which 
the  application  of  such  a  principle  is  simply  forced. 

§  2313.  Attorney  may  disclose  for  his  own  protection. — But  the 
attorney  may  disclose  information  received  from  the  client  when  it 
becomes  necessary  for  his  own  protection,  as  if  the  client  should  bring 
an  action  against  the  attorney  for  negligence  or  misconduct,  and  it  be- 
came necessary  for  the  attorney  to  show  what  his  instructions  were,  or 
what  was  the  nature  of  the  duty  which  the  client  expected  him  to  per- 
form.97 So  if  it  became  necessary  for  the  attorney  to  bring  an  action 
against  the  client,  the  client's  privilege  could  not  prevent  the  attorney 
from  disclosing  what  was  essential  as  a  means  of  obtaining  or  defend- 
ing his  own  rights.88 

tainly  not  strangers  to  the  estate, 
but  only  those  who  are  either  heirs 
at  law  of  the  deceased  or  those  who 
are  beneficiaries  of  his  bounty  and 
made  so  by'  the  will.  If  a  particular 
beneficiary  obtained  the  bequest 
through  duress,  deceit,  or  undue  in- 
fluence over  the  mind  of  the  testator, 
should  such  beneficiary  be  permitted 
to  invoke  this  most  salutary  privi- 
lege against  the  real  heir,  and  thus 
perhaps  be  enabled  to  conceal  the 
very  thing  the  law  abhors,  and  for 


ply  to  will  contests  where  capacity 
or  undue  influence  are  in  issue? 
What  is  the  purpose  of  such  a  con- 
test? It  can  have  but  one  purpose, 
namely  to  determine  whether  or  not 
the  document  presented  as  the  last 
will  and  testament  of  such  a  de- 
ceased person  is  really  such.  Can  it 
be  contended  upon  any  reasonable 
ground  that  the  testator  had  any  in- 
terest in  or  desire  to  conceal  his  real 
intentions  in  such  a  matter  when 
such  intentions  are  called  in  ques- 
tion after  his  death?  Did  he  not 
know  when  he  had  the  will  prepared 
that  it  would  have  to  be  made  pub- 
lic and  established  as  his  will  in  a 
proper  court  before  it  could  become 
effective?  If,  therefore,  the  docu- 
ment produced  is  not  actually  his 
will,  but  rather  that  of  another  who 
induced  him  by  undue  influence  over 
him  to  make  it,  can  it  be  said  that 
the  deceased  wants  such  a  will  es- 
tablished as  his  own?  Would  not 
the  law  in  holding  to  such  a  policy 
foster  that  which  it  abhors,  namely, 
deceit  and  fraud?  In  this  regard, 
who  may  raise  the  question?  Cer- 

1900 


which  it  wisely  requires  the  probate 
of  all  wills?  Moreover,  is  the  right 
to  invoke  the  privilege  to  be  given 
to  one  heir  who  proposes  the  will, 
and  denied  to  the  other  who  opposes 
it?" 

97  Rochester  City  Bank  v.  Suydam, 
6  How.  Pr.  (N.  Y.)  254;  Mitchell  v. 
Bromberger,  2  Nev.  345,  90  Am.  Dec. 
550;  Nave  v.  Baird,  12  Ind.  318;  Olm- 
stead  v.  Webb,  5  A.  C.  Dist.  of  C. 
38. 

»8  Mitchell  v.  Bromberger,  supra; 
Nave  v.  Baird,  supra;  Stern  v.  Dan- 
iel, 47  Wash.  96. 


CHAP.    l] 


OF  ATTORNEYS  AT  LAW 


•[§    2314 


. 


rt6ilfifri 
;  vtf  xi. 

/thf.rtilv:  •'').  'iiKtoqio^  "I5'if'>!  ^-ff'JTi: 

TERMINATION    OF  THE  RELATION. 

qtrir-  <>l  iK&Sfeb  <$mf  *;*r»m.lnfbih  aid  V/tiniBanH 

§  2314.  By  operation  of  law.  —  The  relation  of  attorney  and  client 
will,  in  general,  be  terminated  by  the  same  causes  which,  by  what  is 
sometimes  called  the  operation  of  law,  serve  to  terminate  the  relation 
of  any  other  principal  to  his  agent,"  and  it  is  not  necessary  to  ex- 
haustively consider  the  subject  here.  Thus  the  death  of  the  client,1 


d  vhB-y.fii: 

»°  See  that  subject  discussed,  ante, 
§  650,  et  seq. 

i  Pedlar  v.  Stroud,  116  Gal.  461;  In 
re  Turner's  Estate,  139  Cal.  85;  Mc- 
Cormick  v.  Shaughnessy,  19  Idaho, 
465,  34  L.  R.  A.  (N.  S.)  1188;  Harnen 
v.  State,  57  Ind.  1;  Clegg  v.  Baum- 
berger,  110  Ind.  536;  Gleason  v.  Dodd, 
4  Mete.  (Mass.)  333;  Prior  v.  Kiso, 
96  Mo.  303;  Chicago,  etc.,  Ry.  Co.  v. 
Woodson,  110  Mo.  App.  208;  State  v. 
Riley,  219  Mo.  667;  State  v.  District 
Court,  42  Mont.  496;  Villhauer  v.  To- 
ledo, 32  Wk.  L.  Bui.  (Ohio)  154; 
Adams  v.  Nellis,  59  How.  Pr.  (N.  Y.) 
385;  Lapaugh  v.  Wilson,  43  Hun  (N. 
Y.),  619;  In  re  Robbins,  61  N.  Y.  Misc. 
114;  Van  Campen  v.  Bruns,  54  N..  Y. 
App.  Div.  86;  Avery  v.  Jacob,  59  N. 
Y.  Super.  585;  Stark  v.  Hart,  22  Tex. 
Civ.  App.  543;  Gray  v.  Cooper,  23 
Tex.  Civ.  App.  3;  Wells  v.  Poss,  81 
Vt.  15;  Teter  v.  Irwin,  69  W.  Va.  200; 
Butler  v.  Goreley,  146  U.  S.  303,  36 
L.  Ed.  981;  Farrand  v.  Land,  etc., 
Co.,  86  Fed.  393;  Foreman  v.  Seeley, 
2  New  Br.  Eq.  341. 

Where  one  person  employs  an  attor- 
ney to  act  for  another,  the  relation 
is  between  the  latter  and  the  attor- 
ney, and  is  not  terminated  by  the 
death  of  the  employer.  Barrett  v. 
Towne,  196  Mass.  487,  13  L.  R.  A.  (N. 
S.)  643. 

But  although  the  death  of  the  cli- 
ent may  operate  to  terminate  the  au- 
thority of  the  attorney  to  continue  to 
bind  the  client  or  his  estate  as  an 


agent,  the  death  of  the  client  does 
not  necessarily  operate  to  terminate 
contracts  of  employment  to  whose 
continuance  the  life  of  the  client  is 
not  a  necessary  condition.  Hence, 
where  the  client  has  agreed  to  pay 
an  attorney  a  certain  sum  or  a  cer- 
tain proportion  if  he  will  establish 
a  claim  or  recover  a  judgment,  and 
the  like,  and  the  attorney  with  the 
express  or  the  implied  consent  of  the 
administrator  or  executor,  or  his  ac- 
tive co-operation  or  participation, 
where  that  is  necessary  has  perform- 
ed his  undertaking,  he  is  held  to  be 
entitled  to  his  agreed  compensation, 
notwithstanding  the  death  of  the 
client.  See  Wylie  v.  Coxe,  15  How. 
(56  U.  S.)  415,  14  L.  Ed.  753;  Morgan 
v.  Gibson,  42  Mo.  App.  234;  Price  v. 
Haeberle,  25  Mo.  App.  201;  Shepard 
v.  McNail,  122  Mo.  App.  418. 

In  Succession  of  Labauve,  34  La. 
Ann.  1187,  it  is  said  that  where  an 
attorney  at  law  is  employed  to  collect 
certain  judgments  the  death  of  the 
client  does  not  dissolve  the  contract 
and  the  attorney  can  and  should  con- 
tinue his  performance  unless  forbid- 
den by  the  legal  representatives  of 
the  deceased. 

But  the  attorney  has  no  authority, 
after  the  death  of  his  client,  to  revive 
the  suit  in  the  name  of  the  executor 
or  administrator  without  the  latter's 
consent.  Clark  v.  Parish,  1  Bibb 
(Ky.),  547;  Campbell  v.  Kincaid,  3 
T.  B.  Mon.  (Ky.)  68. 


1901 


§  2314] 


THE  LAW  OF  AGENCY 


[BOOK  v 


his  insanity,2  his  bankruptcy  3  or  the  termination  of  his  interest  in  the 
subject-matter,*  would  undoubtedly  dissolve  the  relation.        f-rii 

The  termination  of  the  life  of  a  corporate  client  would  ordinarily 
have  the  same  effect  as  the  death  of  a  natural  one.5  So  the  death  of 
the  attorney,8  his  insanity,7  his  disbarment,8  his  election  to  a  judgeship 


5  See  ante,  §  677.  Meaning  by  this 
either  an  actual  insanity  in  fact  or 
an  adjudication  of  insanity.  The 
mere  fact  that  a  client  is  committed 
to  a  hospital  for  those  of  unsound 
mind,  there  being  no  adjudication  of 
insanity  and  no  guardian  appointed 
is  not  of  itself  sufficient  to  terminate 
the  relation  of  attorney  and  client. 
McKenna  v.  McArdle,  191  Mass.  96. 

Where  after  the  employment  of  an 
attorney  to  begin  suit  the  client  be- 
comes insane,  but  the  attorney  in  ig- 
norance of  it,  begins  the  action, 
which  is  dismissed  with  costs,  be- 
cause the  insanity  terminated  the 
authority,  the  attorney  is  liable  for 
the  costs  to  the  defendant  as  for  a 
breach  of  an  implied  warranty  of  au- 
thority. Yonge  v.  Toynbee,  [1910]  1 
K.  B.  215,  79  L.  J.  Rep.  K.  B.  208. 

See  also,  Chase  v.  Chase,  163  Ind. 
178. 

s  This  will  of  course  be  true  only 
in  cases  involving  business  transac- 
tion affected  by  the  bankruptcy.  So 
also  where  the  attorney  is  employed 
not  as  a  lawyer  for  the  purposes  of 
litigation  but  to  conduct  business  ne- 
gotiations, the  bankruptcy  of  the 
client  would  have  the  same  effect  as 
in  any  other  case  of  agency. 

*  In  Foster  v.  Bookwalter,  152  N. 
Y.  166,  following  the  rule  that  trans- 
fer of  the  subject  matter  ordinarily 
terminates  agency,  it  was  held  that 
the  relation  of  attorney  and  client  in 
the  procuring  and  defending  of  cer- 
tain patents  was  terminated  by  a 
transfer  of  the  patents  of  which  the 
attorney  had  notice,  so  that  the 
former  client  was  not  thereafter  li- 
able for  services  relating  thereto. 

Where  the  client  assigns  the  judg- 
ment rendered  in  his  favor  in  the 
proceeding  in  which  the  attorney  was 
employed,  the  authority  of  his  attor- 
ney in  the  matter  ends  unless  re- 


tained by  the  assignee.  Caldwell  v. 
Bigger,  76  Kan.  49. 

*  See  Salton  v.  Cycle  Co.,  [1900]  1 
Ch.  43,  69  L.  J.  Ch.  20;  Grantz  v. 
Mining  Co.,  17  S.  Dak.  61. 

«  See  ante,  §  671 ;  Love  v.  Peel,  79 
Ark.  366.  As  has  already  been  seen, 
the  relation  of  attorney  and  client 
is  a  personal  one  and  the  representa- 
tives of  the  deceased  attorney  cannot 
insist  upon  substituting  someone 
else  in  his  place.  Same:  Corson  v. 
Lewis,  77  Neb.  446,  where  attor- 
ney was  incapacitated  by  permanent 
illness. 

Of  course  where  this  is  done  with 
the  express  or  implied  consent  of  the 
client,  the  latter  cannot  afterwards 
object.  Reese  v.  Resburgh,  54  N.  Y. 
App.  Div.  378;  Dodge  v.  Schell,  12 
FeM.  515;  Dale  v,  Redfield,  22  Fed. 
506. 

So,  as  has  been  seen,  upon  the 
death  of  one  of  a  firm  of  attorneys, 
the  client  is  not  in  general  obliged 
to  accept  the  services  of  the  survivor, 
or  of  any  new  firm  of  which  the  sur- 
vivor may  have  become  a  member, 
though  he  may  do  so,  either  express- 
ly or  by  implication.  Wright  v.  Camp- 
bell, 75  Tex.  644;  Troy  v.  Hall,  157 
Ala.  592. 

The  option  in  such  a  case  is  with 
the  client.  Little  v.  Caldwell,  101 
Cal.  553,  40  Am.  St.  Rep.  89. 

Where  one  of  a  firm  of  lawyers 
died  after  claims  entrusted  to  them 
for  collection  had  been  reduced  to 
judgment,  and  after  his  decease  the 
other  partner  collected  the  judgment 
but  failed  to  pay  over  the  proceeds, 
It  was  held  that  the  estate  of  the 
deceased  partner  was  liable.  Mc- 
Gill's  Creditors  v.  McGill's  Adm'r,  59 
Ky.  258. 

7  See  ante,  §  681. 

s  This  would  seem  to  be  a  neces- 
sary consequence.  This  would  seem 


1902 


CHAP.    l]  OF  ATTORNEYS  AT  LAW  [§    2315 

in  which  he  is  forbidden  to  practice,9  or  his  removal  from  the  State,10 
would  effect  the  same  result.  War  between  the  country  of  the  client 
and  that  of  the  attorney  would  suspend  the  relation.11 

All  of  these  cases  are,  of  course,  subject  to  the  exception  made  in 
other  cases  of  agency  of  irrevocable  powers  and  powers  coupled  with 
an  interest.12 

§  2315.  By  act  of  the  parties. — The  relation  may  also  be  dissolved 
by  the  act  of  the  parties.  Under  what  circumstances  this  may  be  done 
and  with  what  effect  has  already  been  considered.13 

Thus  the  relation  may  always  be  terminated  by  mutual  consent  and 
the  client  has,  as  has  been  seen,14  a  quite  general  power  to  terminate 
the  relation  at  any  time,  though  the  right  of  the  attorney  to  terminate 
it  without  the  client's  consent  is  much  more  restricted.15 

An  authority  created  to  endure  during  a  limited  period  would,  in 
the  absence  of  some  new  arrangement,  come  to  an  end  upon  the  expira- 
tion of  that  period.16  Where  the  authority  is  created  to  accomplish 
a  particular  purpose  it  will  ordinarily  come  to  an  end  when  that  pur- 
pose is  accomplished.17  Thus,  the  authority  of  the  defendant's  at- 
torney will  ordinarily  end  with  the  termination  of  the  action,18  while 
the  authority  of  the  plaintiff's  attorney  will  ordinarily  end  when  judg- 
ot :980.rf*Jartir,$$  84k<$if&f93<Ift*3<iJ0n  rn;p ,.Jn  o  vthorfo 

to  be  true  also  where,  because  of  his  Rice  v.  O'Keefe,  53  Tenn.  (6  Heisk.) 

misconduct  in  the  particular  case,  he  638.      But    see    Williams     v.    Payne, 

is  forbidden  by  the  court  to  proceed  169  U.  S.  55,  42  L.  Ed.  658. 
as  attorney  in  that  case.     See  Kelley          12  A  power  of  attorney  to  confess 

v.  Boettcher,  27  C.  C.  A.  177,  82  Fed.  judgment     given     in     a     "judgment 

794.  note"  as  part  of  the  security  is  not 

»  Baird  v.  Ratcliff,  10  Tex.  81.  revoked    by    the    maker's    insanity. 

Where  one  of  a  firm  of  attorneys  Spencer  v.   Reynolds,   9   Pa.   Co.   Ct. 

accepts  the  office  of  judge,  in  which  Rep.  249. 
position  he  is  forbidden  by  statute  to          "  See  ante,  §§  558  et  seq. 
practice,  this  operates  to  dissolve  the  «  See  ante,  §  2255. 

firm,  and   terminate  his  relation   as          ^  See  ante,  §  2253. 
attorney  to  clients.    Justice  v.  Lairy,          ie  See  ante,  §  550.      The  dismissal 

19  Ind.  App.  272,  65  Am.  St.  Rep.  405.  of  an  action  without  costs  to  either 

10  This    would    seem    to    follow    in  party  terminates  the  action  and  with 
many  cases  from  Matter  of  Mosness,  it.  the  authority  of  the  attorney.  Wa- 
39  Wis.  509,  20  Am.  Rep.  55,  though  wrzyniakowski  v.  Hoffman  Mfg.  Co., 
it  would  not  be  necessarily  true  in  a  137  Wis.  629. 

particular  case  where  the  local  rules  "See  ante,  §  552;    Owen  v.  Smith 

of  practice  permit  a  non-resident  at-  (Iowa),  136  N.  W.  119. 

torney  to  appear.     Faughnan  v.  City  is  See    ante,    §    2182;    Berthold    v. 

of  Elizabeth,  58  N.  J.  L.  309.  Fox.  21  Minn.  51;   Hillegass  v.  Bend- 

11  See  ante,  §  694;  Blackwell  v.  Wil-  er,  78  Ind.  225. 
lard,  65  N.  C.  555,  6  Am.  Rep.  749; 

1903 


§2316]  THE  LAW  OF  AGENCY  [fiOOKV 

ment  is  recovered  and,  by  the  weight  of  modern  authority,  the  neces- 
sary steps  have  been  taken  for  its  collection.19 

§  2316.  Notice  of  termination. — Notice  of  the  termination  of  an 
attorney's  authority  in  legal  proceedings  is  often  provided  for  by  rules 
of  court  or  practice  acts.20  In  other  cases,  the  matter  is  governed  by 
the  same  rules  as  those  which  apply  to  the  termination  of  the  authority 
of  the  ordinary  agent. 

Except  where  they  are  charged  with  notice  by  reason  of  the  happen- 
ing of  events,  both  attorney  and  those  who  deal  with  him  will  be  en- 
titled to  notice — the  attorney,  that  his  authority  is  withdrawn,  and 
third  persons  to  whom  he  has  been  accredited  that  he  is  no  longer  to 
be  regarded  as  the  client's  representative. 

As  has  already  been  seen,  there  are  certain  events  which  may  ter- 
minate an  agency  of  which  no  notice  need  be  given,  since  every  one  is 
bound  to  take  cognizance  of  them.  Death,  adjudications  of  bank- 
ruptcy or  insanity,  war,  and  the  like,  require  no  notice. 

Proceedings  in  the  action  which  operate  to  terminate  the  authority 
must  be  notice  to  the  parties  to  the  action,  at  least ;  and  they  must  also 
doubtless  be  sufficient  as  to  other  persons  who  can  not  work  an  estop- 
pel against  the  client.  On  the  other  hand,  the  withdrawal  of  the  au- 
thority of  an  accredited  agent  can  not  be  operative  as  against  those  to 
whom  he  has  been  so  accredited  until  they  have  been  notified  of  it. 
:  ;y  arti/jflliW  ->08  ti'ff  .&&t>  Stf  .saao  isluolriBq  arfj  oi  Joi/Iv: 

« See  ante,  §  2182.  Where  judg-  «>  Notices  served  In  the  course  of 
ment  was  rendered  for  alimony  by  the  proceedings  upon  the  attorney 
installments,  the  attorney  has  no  au-  of  record  are  sufficient  notice  to  the 
thorlty  to  collect,  but  his  authority  client  until  there  has  been  notice  of 
ends  with  the  entry  of  judgment.  substitution.  Boyd  v.  Stone,  5  Wis. 
Kalmanowitz  v.  Kalmanowitz,  108  N.  240;  Hoppin  v.  First  Nat.  Bank,  25 
Y.  App.  Div.  296;  Conklin  v.  Conk-  Nev.  84;  De  Vail  v.  De  Vail,  57  Oreg. 
lin,  113  N.  Y.  App.  Div.  743.  128. 

1904 


#i' 


§3<a<rt 

>«  >  tfBrtt 

>>  arft 

CHAPTER  II 


.*>8priJ  3i 


OF  AUCTIONEERS. 


§  2317.  Purpose  of  this  chapter. 

1.  Of  the  Auctioneer. 

2318.  Definition. 

2319.  Who  may  be. 

2320.  Whose  agent  he  is. 

2.  How  Authorized. 

2321.  Like  other  agents. 

3.  Auctioneer's     Implied     Authority. 
. 

2322.  To  fix  terms  of  sale. 


2343.  Liable  where  he  exceeds  his 

authority. 

2344.  Liable    where    he    contracts 

personally. 

2345.  Liability  for  selling  property 

of  stranger. 

2346.  Not    liable    for    not    holding 

auction  as  .advertised. 

2347.  Liable   for    refusing    to  sur- 

render property  bought. 

2348.  Liability  for  money  received. 


2323.  To  accept  the  bid. 

2324.  To  make  the  necessary  mem- 

orandum. 


2325.  To  receive  the  price. 

2326.  To  sue  in  his  own  name  for 
the  price. 

2327.  None— To    delegate    his    au- 

thority. 

2328.  None— To  sell  on  credit. 

2329.  None— To    rescind    or    alter 

sale. 

2330.  None— To  sell  at  private  sale. 

2331.  None— To  bid  for  himself. 

2332.  None — To  warrant  quality. 

TQ   II??,   i  IO   1< 

4.  Auctioneer's    Duties    and    Liabili- 
ties to  Principal. 

I  ft  o  i 

2333.  Bound    for    reasonable    skill 

and   diligence. 

2334.  To    act    with     loyalty    and 

good  faith. 

2335.  To  obey  instructions. 

2336.  To  account  for  proceeds. 

2337.  To  take  care  of  goods. 

2338.  To  sell  for  cash  only. 

2339.  To  sell  to  third  parties  only. 

2340.  To  sell  in  person. 

2341.  To  disclose   his  principal, 


6.  Auctioneer's    Rights    against    his 
Principal.^  •(?* 

2349.  Compensation  —  Reimburse- 
ment— Indemnity. 
—    Recoupment    of    dam- 
ages of  principal. 

2351.  Auctioneer's  lien. 

2352.  Cannot     dispute     principal's 


5.  Auctioneer's    Duties    and    Liabili- 
ties to  Third  Persons. 
2342.  Liable     where     he     conceals 

principal. 
I 2O  I9°5 


2350. 


7.  Auctioneer's  Rights  against  Third 

Persons. 

2353.  Right  to  sue  bidder. 

2354.  Right  to  sue  wrong-doer. 

8.  Principal's    Rights    against    Third 

Persons. 

2355.  To  recover  purchase  price. 

2356.  Where     bidder     refuses     to 

complete  purchase. 

9.  Rights   of   Third  Persons   against 

Principal. 

2357.  Principal's   liability  for   auc- 

tioneer's acts. 

2358.  Liability   for  breach   of  con- 

tract. 

2359.  Liability     for     not     holding 

sale,    withdrawing    proper- 
ty, etc. 

2360.  Liability  for  failure  of  title 

to  goods  sold. 
:,;,•;  ," 


§§    23I7-232°]  THE    LAW    OF    AGENCY  [BOOK   V 

§  2317.  Purpose  of  this  chapter. — It  is  not  the  purpose  of  this 
chapter  to  discuss  the  subject  of  auctions  or  auction  sales.  Only  that 
portion  of  those  topics  which  bears  upon  the  question  of  the  agency 
of  the  auctioneer,  is  within  the  scope  of  this  treatise. 


I. 

OF  THE  AUCTIONEER. 

§  2318.  Definition. — An  auctioneer,  considered  as  a  professional 
agent,  has  been  defined  in  the  opening  chapter  of  the  work  to  be  one 
whose  business  it  is  to  sell  or  dispose  of  property,  rights  or  privileges 
at  public  competitive  sale,  to  the  persons  offering  or  accepting  the 
terms  most  favorable  to  the  owner.1  Other  definitions  and  distinctions 
have  there  been  considered. 

§  2319.  Who  may  be. — As  a  general  rule  any  person  who  is  com- 
petent to  act  as  agent,  in  other  departments  of  business,  may  act  in 
this.  On  account  of  the  nature  of  his  functions,  however,  there  will 
be  found,  in  many  of  the  States,  statutory  enactments  prescribing  who 
may  act  as  auctioneer,  and  upon  what  terms  and  conditions.  These 
statutes  usually  require  that  the  auctioneer  shall  be  licensed,  and  shall 
give  a  bond  for  the  faithful  performance  of  his  duty,  and  prescribe 
what  fees  he  may  recover  and  by  what  means.2  Auctioneers  are  also 
not  unfrequently  the  subject  of  municipal  regulations. 

§  2320.  Whose  agent  he  is. — An  auctioneer  employed  by  the 
owner  of  real  or  personal  property  or  of  rights  of  any  kind,  to  sell  or 
dispose  of  the  same  at  auction,  is  primarily  the  agent  of  the  owner,  and 
of  him  alone ;  and  he  remains  his  agent  exclusively  up  to  the  moment 
when  he  accepts  the  bid  of  the  purchaser  and  knocks  down  the  prop- 

1  See  ante,  §  72.  State  v.  Rucker,   24  Mo.   557;    Oska- 

2  These  statutes  are  collected  in  the  loosa  v.  Tullis,  25  Iowa,  440;  Decorah 
Appendix    to    Bateman    on    Auctions.  v.  Dunstan,  38  Id.  96;  Waterhouse  v. 
It   is   not   within   the   scope   of   this  Dorr,  4  Me.  333;    State  v.  Conkling, 
work  to  give  them,  but  the  following  19  Cal.  501;   State  v.  Poulterer,  16  Id. 
cases  may  be  referred  to  as  illustrat-  515;  Wiggins  v.  Chicago,  68  111.  372; 
ing  their  interpretation  and  applica-  Wright  v.  Atlanta,  54  Ga.  645;  Sewall 
tlon.     Carpenter  v.  Le  Count,  93  N.  v.  Jones,  9  Pick.  (Mass.)  412;  Jordan 
Y.  562;  Russell  v.  Miner,  25  Hun  (N.  v.  Smith,  19  Id.  287;    Clark  v.  Cush- 
Y.),  114;  Deposit  v.  Pitts,  18  Id.  475;  man,  5  Mass.  505;  Amite  City  v.  Cle- 
Fretwell  v.  Troy,  18  Kans.  271;  Cran-  mentz,  24  La.  Ann.   27;    Plorance  v. 
dall  v.  State,  28  Ohio  St  479;  Daly  v.  Richardson,  2  Id.  663;   Gunnaldson  v. 
Commonwealth,    75    Penn.    St.    331;  Nyhus,   27  Minn.   440;    McMechen  v. 
Hunt    v.    Philadelphia,    35    Id.    277;  Baltimore,  3  Har.  &  J.  (Md.)  534. 

1906 


CHAP.    II ] 


OF    AUCTIONEERS 


[§    2320 


erty  to  him.  Upon  the  acceptance  of  the  bid,  however,  the  auctioneer 
is  deemed  to  become  by  the  act  and  with  the  consent  of  the  purchaser, 
the  agent  of  the  purchaser  also,  to  the  extent  that  it  is  necessary  to 
enable  the  auctioneer  to  complete  the  sale  and  he  may,  therefore,  bind 
the  purchaser  by  entering  his  name  as  such  and  by  signing  the  mem- 
orandum of  the  sale.8  Such  a  signing  is  sufficient  to  satisfy  the  stat- 
ute of  frauds,4  in  any  State  in  which  authority  to  an  agent  to  make  a 
contract  for  the  sale  of  real  or  personal  property  is  not  required  to  be 


3  Lewis  v.  Wells,  50  Ala.  198;  Doty 
v.  Wilder,  15  111.  407,  60  Am.  Dec. 
756;  Burke  v.  Haley,  2  Gil.  (7  111.) 
614;  Hunt  v.  Gregg,  8  Blackf.  (Ind.) 
105;  Kennell  v.  Boyer,  144  Iowa,  303, 
Ann.  Cas.  1912,  A.  1127,  24  L.  R.  A. 
(N.  S.)  488;  Thomas  v.  Kerr,  3  Bush 
(Ky.),  619,  96  Am.  Dec.  262;  Gill  v. 
Hewett,  70  Ky.  10;  Garth  v.  Davis, 
120  Ky.  106,  117  Am.  St.  Rep.  571; 
McBrayer  v.  Cohen,  13  Ky.  L.  Rep. 
667;  Cleaves  v.  Foss,  4  Me.  1;  Alna 
v.  Plummer,  4  Me.  258;  I  jams  v. 
Hoffman,  1  Md.  423;  Bent  v.  Cobb,  9 
Gray  (Mass.),  397,  69  Am.  Dec.  295; 
White  v.  Dahlquist  Mfg.  Co.,  179 
Mass.  427;  Springer  v.  Kleinsorge,  83 
Mo.  152;  Johnson  v.  Buck,  35  N.  J.  L. 
338,  10  Am.  Rep.  243;  First  Baptist 
Church  v.  Bigelow,  16  Wend.  (N.  Y.) 
28;  McComb  v.  Wright,  4  Johns.  Ch. 
(N.  Y.)  659;  Brown  v.  Doherty,  185 
N.  Y.  383,  113  Am.  St.  Rep.  915; 
Cherry  v.  Long,  61  N.  Car.  466;  Love 
v.  Harris,  156  N.  Car.  88,  Ann.  Cas. 
1912  D,  1065,  36  L.  R.  A.  (N.  S.)  927; 
Pugh  v.  Chesseldine,  11  Ohio,  109; 

Sweeney  v.  Brow,  —  R.  I.  ,  86 

Atl.  115;  Trustees  of  Macon  Church 
v.  Wiley,  2  Hill  Eq.  (S.  Car.)  584, 
30  Am.  Dec.  38G;  Adams  v.  Scales,  60 
Tenn.  337,  23  Am.  Rep.  772;  Smith  v. 
Nelson,  34  Tex.  516;  Harvey  v. 
Stevens,  43  Vt.  653;  Walker  v.  Her- 
ring, 21  Gratt.  (Va.)  678,  8  Am.  Rep. 
G16;  Bamber  v.  Savage,  52  Wis.  110, 
38  Am.  Rep.  723. 

*  Adams  v.  McMillan,  7  Port. 
(Ala.)  73;  Craig  v.  Godfroy,  1  Cal. 
415,  54  Am.  Dec.  299;  Hart  v.  Woods, 
7  Blackf.  (Ind.)  568;  Thomas  v. 
Kerr,  supra;  Linn  Boyd  Tobacco  Co. 


v.  Terrill,  13  Bush  (Ky.),  463;  Bent 
v.  Cobb,  supra ;  Sanborn  v.  Chamber- 
lin,  101  Mass.  409;  O'Donnell  v.  Lee- 
man,  43  Me.  158,  69  Am.  Dec.  54; 
Pike  v.  Balch,  38  Me.  302,  61  Am.  Dec. 
248;  Pugh  v.  Chesseldine,  11  Ohio, 
109,  37  Am.  Dec.  414;  Springer  v. 
Kleinsorge,  83  Mo.  152;  Cherry  v. 
Long,  61  N.  C.  466;  Harvey  v.  Stev- 
ens, 43  Vt.  655;  Brent  v.  Green,  6 
Leigh  (Va.),  16;  Farebrother  v.  Sim- 
mons, 5  B.  &  Aid.  333;  Simons  v.  Mot- 
ivos,  3  Burr,  1921;  Hinde  v.  White- 
house,  7  East,  558;  White  v.  Proctor, 
4  Taunt.  209;  Emmerson  v.  Heelis,  2 
Taunt.  38.  See  also,  cases  in  note  3, 
supra. 

But  where  the  auctioneer  is  a 
party  in  interest,  his  memorandum 
is  not  sufficient.  Wright  v.  Dannah, 
2  Camp.  203;  Farebrother  v.  Sim- 
mons, supra;  Bird  v.  Boulter,  4  B. 
&  Ad.  443;  Bent  v.  Cobb,  supra; 
Tull  v.  David,  45  Mo.  446,  100  Am. 
Dec.  385;  Dunham  v.  Hartman,  153 
Mo.  625,  77  Am.  St.  Rep.  741;  John- 
son v.  Buck,  35  N.  J.  L.  342,  10  Am. 
Rep.  243.  See  Howell  v.  Shewell,  96 
Ga.  454,  51  Am.  St.  Rep.  148. 

Auctioneer's  clerk. — A  memoran- 
dum made  by  the  clerk  of  the  auc- 
tioneer, in  the  presence  and  by  the 
authority  or  direction  of  the  latter, 
will,  under  familiar  rules,  be  deemed 
to  he  in  legal  effect  the  act  of  the 
auctioneer  himself.  See  ante,  §  208; 
Alua  v.  Plummer,  4  Me.  258;  Harvey 
v.  Stevens,  43  Vt.  653. 

Where  the  clerk  does  not  so  act, 
his  authority  to  bind  the  buyer  may 
be  found  from  the  latter's  presence 
and  express  or  tacit  assent  to  the 


1907 


§    2320] 


THE  LAW   OF  AGENCY 


[BOOK  v 


conferred  by  writing.6  The  agency  of  the  auctioneer  for  the  seller 
may  often  begin  before  the  time  of  the  sale  and  continue  after  it.6  But 
where  an  implied  authority  is  to  result  from  the  bid  to  also  bind  the 
purchaser,  the  entry  of  the  name  of  the  purchaser  must  be  made  by 
the  auctioneer  or  his  clerk  immediately  upon  the  acceptance  of  his  bid 
and  the  striking  down  of  the  property ;  it  must  be  made  at  the  time 
and  place  of  the  sale,  and  can  not  be  made  after  the  sale  is  over.7  The 


off  oJ  both/pen  Jorr  ?.i  vJisooiq  huro^ 
act  of  the  clerk.  See  Alna  v.  Plum- 
mer,  supra;  Cherry  v.  Long,  61  N. 
Car.  466;  Hart  v.  Woods,  7  Blackf. 
(Ind.)  568;  Sims  v.  Landray,  [1894] 
2  Ch.  Div.  318. 

The  fact  that  the  clerk  acts  openly 
putting  down  the  bids  as  announced 
is  held  to  be  sufficient  to  bind  one 
who  bids  and  apparently  acquiesces 
in  the  clerk's  act.  Johnson  v.  Buck, 
35  N.  J.  L.  338,  10  Am.  Rep.  243. 

That  a  memorandum  signed  by  the 
the  clerk  is  not  sufficient  has  been 
held  in  Meadows  v.  Meadows,  3  Mc- 
Cord  (S.  Car.),  457;  Entz  v.  Mills,  1 
McMull.  (S.  Car.  L.)  453. 

See  also,  Carmack  v.  Masterson,  3 
Stew.  (Ala.)  411. 

«  See  post,  §  2321.  Thus  in  Missou- 
ri where  the  authority  of  the  agent 
must  be  conferred  by  writing,  it  is 
held  that  the  rule  no  longer  prevails. 
Dunham  v.  Hartman,  153  Mo.  625,  77 
Am.  St.  Rep.  741. 

6  Thus  in  Sweeney  v.  Brow  (R.  I.), 
86  Atl.  115  it  was  held  that  the  ag- 
ency of  the  auctioneer   to   bind  the 
seller  by  a  memorandum  might  well 
continue  after  the  sale,  and  until  he 
had  closed  up  the  undertaking  which 
he  had  assumed  to  sell  and  dispose  of 
the  property.     Here  a  memorandum 
made  the  day  after  the  sale,  was  up- 
held to  bind  the  seller,  it  appearing 
that  the  auctioneer  was  still  acting 
on  that  day  in  closing  up  the  bar- 
gains  made   at   the   sale.     White   v. 
Dahlquist  Mfg.  Co.,  179  Mass.  427,  is 
to   the   same   effect,   and   contains   a 
good  discussion  of  the  question. 

7  "It  appears  now  to  be  settled,  by 
the     English    authorities, 

that  the  auctioneer   is  a  competent 


Off   *IO    ffiOl    tO    i>[fi*:    ^H?  JfK')') 

agent  to  sign  for  the  purchaser  either 
of  lands  or  goods  at  auction;  and  the 
insertion  of  his  name  as  the  highest 
bidder  in  the  memorandum  of  the 
sale  by  the  auctioneer,  immediately 
on  receiving  his  bid,  and  striking 
down  the  hammer,  is  a  signing  with- 
in the  statute,  so  as  to  bind  the  pur- 
chaser." Chancellor  Kent,  in  Mc- 
Comb  v.  Wright,  4  Johns.  (N.  Y.) 
659,  663. 

"It  is  now  well  settled,  by  authori- 
ties that  a  sale  of  real  estate  at  auc- 
tion, where  the  name  of  the  bidder  is 
entered  by  the  auctioneer,  or  by  his 
clerk,  under  his  direction,  on  the 
spot,  and  such  entry  if  so  connected 
with  the  subject  and  terms  of  sale  as 
to  make  a  part  of  the  memorandum, 
is  a  contract  in  writing,  so  as  to  take 
the  case  out  of  the  statute  of  frauds." 
Story,  J.,  in  Smith  v.  Arnold,  5  Ma- 
son (U.  S.  C.  C.),  414,  419.  See  also, 
White  v.  Dahlquist  Mfg.  Co.,  179 
Mass.  427;  Bamber  v.  Savage,  52 
Wis.  110,  38  Am.  Rep.  723;  Mews  v. 
Carr,  1  H.  &  N.  484. 

"The  name  of  the  bidder  must  be 
entered  by  the  auctioneer,  or  by  his 
clerk  under  his  direction,  on  the 
spot."  Shaw,  J.,  in  Gill  v.  Bicknell, 
2  Cush.  (Mass.)  355,  358. 

"The  law,  therefore,  when  it  al- 
lows him  (the  auctioneer)  to  act  in 
the  nearly  unprecedented  relation  of 
agent  for  both  parties,  imposes  a 
qualification  not  applied  in  the  usual 
cases  of  agency,  and  requires  that 
the  single  act  which,  almost  from 
necessity,  he  is  authorized  to  per- 
form for  the  buyer,  shall  be  done  at 
the  time  of  sale,  and  before  the 
termination  of  the  proceedings." 


1908 


CHAP.    Il] 


OF    AUCTIONEERS 


[§    2320 


principle  upon  which  this  rule  is  founded,  as  is  said  by  a  learned  judge, 
is  "that  the  auctioneer  at  the  sale  is  the  agent;  that  the  purchaser,  by 
the  act  of  bidding,  calls  on  him  or  his  clerk,  to  put  down  his  name  as 


Kent,  J.,  in  Horton  v.  McCarty,  53 
Me.  394-398.  To  the  same  effect,  see 
Craig  v.  Godfrey,  1  Cal.  415,  54  Am. 
Dec.  299,  where  the  entry  was  held  too 
late,  though  made  in  the  afternoon 
of  the  same  day;  and  Hicks  v.  Whit- 
more,  12  Wend.  (N.  Y.)  548,  where 
one  hour's  delay  was  held  fatal. 

After  the  sale  is  over,  and  the  auc- 
tioneer's authority  has  in  fact  been 
revoked,  as  the  other  party  knows,  it 
is  then  too  late  for  him  to  make  a 
binding  memorandum.  Schmidt  v. 
Quinzel,  55  N.  J.  Eq.  792. 

In  White  v.  Dahlquist  Mfg.  Co., 
supra,  it  is  said:  "The  general  rule 
is  that  the  memorandum  may  be 
signed  at  any  time  subsequent  to 
the  formation  of  the  contract,  at 
least  before  action  brought.  Browne, 
St.  of  Frauds,  §  352a,  and  cases  cited. 
Lerned  v.  Wannemacher,  9  Allen, 
412,  416;  Sanborn  v.  Chamberlin,  101 
Mass.  409,  416.  And  this  rule  is  ap- 
plicable where  the  contract  is  made 
by  an  agent  and  the  subsequent 
memorandum  is  signed  by  him  dur- 
ing the  existence  of  his  agency.  It 
has  been  sometimes  thought  that 
there  is  an  exception  to  this  rule  in 
the  case  of  auctioneers  (see  the  au- 
thorities referred  to  in  Browne,  St. 
of  Frauds,  §  353),  but  the  exception 
is  more  apparent  than  real.  The 
question  does  not  turn  upon  the  fact 
that  the  agent  is  an  auctioneer  but 
upon  the  scope  and  duration  of  the 
agency.  While  it  is  said  that  an  auc- 
tioneer is  the  agent  of  both  seller 
and  purchaser  for  signing  the  con- 
tract, it  does  not  follow  that  his 
agency  for  the  one  is  co-extensive 
in  its  nature  and  duration  with  that 
for  the  other.  The  word  'auctioneer' 
is  sometimes  used  to  designate  the 
crier  who  simply  calls  for  bids  and 
strikes  the  bargain  at  an  auction 
sale.  His  connection  with  the  sale 


may  begin  with  calling  for  bids  and 
end  with  striking  the  bargain.  If 
that  be  the  only  authority  given  him 
by  seller  and  purchaser,  it  may  be 
said  that  while  the  power  to  strike 
the  bargain  fairly  imports  authority 
to  make  his  work  effectual  by  sign 
ing  the  memorandum  necessary  to 
bind  the  parties,  it  also  implies  that 
that  act  shall  be  substantially  con- 
temporaneous with  the  sale  and  as  a 
part  of  it.  In  such  a  case  the  agency 
of  the  auctioneer  is  substantially 
ended  with  the  auction,  and  his  au- 
thority to  bind  either  party  by  a 
memorandum  would  not  extend  be- 
yond that  time.  And  so  far  as  re- 
spects the  purchaser,  the  authority 
of  the  auctioneer  as  a  usual  rule  is 
confined  to  the  actual  time  of  the 
auction.  It  is  conferred  by  the  bid 
when  accepted,  and  therefore  begins 
with  the  fall  of  the  hammer.  The 
technical  ground  is  that  the  pur- 
chaser by  the  very  act  of  bidding 
'calls  on  the  auctioneer  or  his 
clerk  to  put  down  his  name  as 
the  bidder,  and  thus  confers  an 
authority  on  the  auctioneer  or  clerk, 
to  sign  his  name,  and  this  is  the 
whole  extent  of  the  authority.' 
Shaw,  C.  J.,  in  Gill  v.  Bicknell,  2 
Gush.  355,  358.  Such  an  authority 
must  be  exercised  contemporaneously 
with  the  sale.  See  Browne,  St.  of 
Frauds,  §  353,  and  cases  cited  in  the 
notes. 

"But  primarily  and  actively  the 
auctioneer  as  a  rule  is  the  agent  of 
the  seller,  and  as  to  him  his  author- 
ity is  generally  more  extensive,  and 
may  cover  a  time  both  before  and 
after  the  sale.  Frequently  the  prop- 
erty is  put  into  his  hands  for  sale, 
and  all  the  details  are  left  entirely  to 
him.  He  is  expected  to  make  all 
the  arrangements  by  way  of  public 
advertisement  and  otherwise,  and  to 
1909 


§    2321] 


THE  LAW  OF  AGENCY 


[BOOK  v 


the  purchaser.  The  entry  being  made  in  his  presence,  is  presumed  to 
be  made  with  his  sanction,  and  to  indicate  his  approval  of  the  terms 
thus  written  down.  In  such  case  there  is  but  little  danger  of  mistake 
or  fraud.  But  if  a  third  person,  not  present,  or  even  the  auctioneers, 
may  afterward  add  the  name  of  another  purchaser,  they  may  strike  out 
the  name  already  inserted,  and  substitute  that  of  a  new  and  different 
purchaser.  They  may  defeat  rights  already  vested.  They  may  impose 
liabilities  never  contracted.  The  party  to  be  charged  may  thus  be  held 
liable  by  a  writing  he  never  saw,  signed  by  an  agent  of  whom  he  never 
heard."'8 


II. 


HOW  AUTHORIZED. 

§  2321.  Like  other  agents. — Authority  may  be  conferred  upon  an 
auctioneer  in  the  same  manner  as  upon  any  other  agent  for  the  sale  of 
similar  property;  that  is,  it  may  ordinarily  be  conferred  by  formal 
writing,  or  by  parol,  or  its  existence  may  be  implied  from  conduct.  No 
formal  authorization  is  usually  necessary.  Even  to  make  a  contract 
for  the  sale  of  real  estate,  parol  authority  in  the  auctioneer  is  sufficient, 
in  the  absence  of  a  statute  to  the  contrary." 


act  fully  at  the  sale,  to  receive  the 
deposit  from  the  purchaser  and  to 
carry  the  transaction  to  the  end. 
Such  authority  from  a  seller  to  an 
auctioneer  does  not  end  with  the  auc- 
tion sale  but  extends  beyond  it,  and 
until  it  is  revoked  the  auctioneer  may 
properly  bind  the  seller  by  a  memo- 
randum signed  within  a  reasonable 
time.  He  does  this  not  simply  be- 
cause he  Is  the  crier  at  the  sale,  but 
because  his  agency  by  the  fair  under- 
standing between  him  and  the  seller 
extends  to  the  final  consummation  of 
the  contract,  and  is  not  affected  by 
the  fact  that  he  also  acts  as  crier." 

s  Staples,  J.,  in  Walker  v.  Herring, 
21  Gratt.  (Va.)  678,  8  Am.  Rep.  616. 

» Doty  v.  Wilder,  15  111.  407,  60 
Am.  Dec.  756;  Yourt  v.  Hopkins,  24 
111.  329;  Cossitt  v.  Hobbs,  56  111.  233. 

Neither  the  17th  section  nor  the 
4th  section  of  the  English  statute  of 


frauds  required  that  the  agent  to 
sign  the  memorandum  should  be  au- 
thorized by  writing.  In  this  respect 
the  statutes  in  many  of  the  states  are 
similar.  Some  states,  however,  now 
require  that  the  authority  of  an  agent 
to  contract  for  the  sale  of  land  shall 
be  in  writing.  Where  this  is  true  the 
rule  of  the  text  would  of  course  not 
apply.  Some  reference  to  these  stat- 
utes has  already  been  made  in  an 
earlier  section.  See  §  221  et  seg. 

The  Missouri  statute  now  requires 
that  the  agent  to  sell  land  shall  be 
authorized  by  writing.  Dunham  v. 
Hartman,  153  Mo.  625,  77  Am.  St. 
Rep.  741. 

Also  Michigan,  Muffatt  v.  Gott,  74 
Mich.  672,  and  Louisiana,  Reinach  v. 
Jung,  122  La.  610. 

Ratification.  —  Subsequent  ratifica- 
tion has  the  same  effect  here  as  in 
other  cases.  It  will  sustain  the  prin- 


1910 


CHAP.    II  ] 


OF    AUCTIONEERS 


[§    2322 


Power  to  sell  property  does  not  of  itself  imply  authority  to  sell  it  at 
auction,  and  the  purchaser  at  such  a  sale,  who  has  notice  of  the  agent's 
powers  or  of  facts  sufficient  to  put  him  upon  an  inquiry  which  would 
have  disclosed  the  extent  of  his  power,  gets  no  title  to  the  property.10 

Sending  goods  to  an  auction  room  will,  it  is  said,  in  the  absence  of 
anything  to  indicate  a  contrary  intent,  be  deemed  evidence  of  author- 
ity to  sell  them  at  auction,  so  as  to  protect  a  purchaser  of  them  who 
buys  in  good  faith.11 

•tejfiotttuji 


III. 


AUCTIONEER'S  IMPLIED  AUTHORITY. 

•  -isrfto  off  ynd  . 
§  2322.  To  fix  terms  of  sale. — The  owner  of  property  which  he 

proposes  to  sell  at  auction  has  the  primary  right  to  prescribe  the  man- 
ner, conditions  and  terms  of  the  sale,  and  where  these  are  reasonable 
and  are  made  known  to  the  buyer,  or  where, — the  auctioneer  being  or- 
dinarily a  special  agent,12 — the  purchaser  is  charged  with  notice  of 
them,  they  are  binding  upon  him,  and  he  cannot  acquire  a  title  in  oppo- 
sition to  them  against  the  consent  of  the  owner.13 
ea  oft 


cipal's  claim  against  the  auctioneer 
for  the  proceeds.  Montgomery  v.  Pa- 
cific Coast  Land  Bureau,  94  Cal.  284, 
28  Am.  St.  Rep.  122. 

ioTowle  v.  Leavitt,  23  N.  H.  360, 
55  Am.  Dec.  195. 

"A  sale  at  auction,"  says  Eastman, 
J.,  in  this  case,  "implies  a  sale  at 
any  price  that  may  be  offered.  It  is 
ordinarily  the  last  resort  to  reduce 
property  into  money,  and  we  should 
be  slow  to  ratify  the  doings  of  an 
agent,  clothed  with  the  usual  powers 
to  sell,  who  should  pursue  such  a 
course." 

11  This  is  the  dictum  of  Lord  Ellen- 
borough  in  Pickering  v.  Busk,  15 
East,  38.  Mr.  Ewart  (Estoppel,  246) 
thinks  it  is  "good  and  reasonable 
law." 

Compare  Biggs  v.  Evans,  [1894]  1 
Q.  B.  D.  88.  See  fuller  discussion, 
ante,  §  2112. 

In  Morgan  v.  Darragh,  39  Tex.  171, 
defendant  in  1857  took  a  negro 
woman  to  an  auctioneer  to  sell.  He 


was  requested  to  bring  her  the  next 
day.  The  negro  came  back  alone 
next  day  (without  defendant's  con- 
sent), saying  she  came  to  be  sold, 
and  she  was  sold.  Held,  sale  binding 
on  defendant,  though  he  did  not  in- 
tend to  sell. 

12  Bush  v.  Cole,  28  N.  Y.  161,  84 
Am.  Dec.  343;  The  Monte  Allegre,  9 
Wheat.  (U.  S.)  645. 

is  Farr  v.  John,  23  Iowa,  286,  92 
Am.  Dec.  426.  In  this  case  it  was 
held,  inter  alia,  to  be  competent  for 
the  owner  to  provide  by  public  an- 
nouncement that  no  bid  less  than  a 
certain  sum  should  be  received,  and 
hence  that  a  purchaser  who  bid  less 
obtained  no  title.  To  same  effect: 
McManus  v.  Fortescue,  [1907]  2  K.  B. 
1,  in  which  case  Rainbow  v.  Howkins, 
[19041  2  K.  B.  322  was  doubted  by 
Moulton,  L.  J.  So  it  is  competent 
for  the  owner  to  reserve  to  himself 
one  bid  or  to  employ  another  to  bid 
for  him,  but  he  must  give  fair  notice 
of  the  fact,  so  that  no  one  may  be 


IQII 


§  2323] 


THE  LAW  OF  AGENCY 


[pOOK   V 


Where  no  such  terms  and  conditions  are  prescribed  by  the  owner, 
the  auctioneer  has  implied  power  to  prescribe  such  as  are  reasonable 
and  usual  in  like  cases ; 14  but  he  has  no  implied  power  to  waive  or  ig- 
nore the  terms  and  conditions  fixed  by  the  owner  and  publicly  made 
known,  or  to  adopt  any  rules  of  his  own  inconsistent  with  them.15  Per- 
sons purchasing,  however,  in  good  faith  relying  upon  reasonable  and 
usual  terms  fixed  by  the  auctioneer,  the  owner  having  disclosed  no 


others,  would  acquire  a  good  title.1 


. 


§  2323.  To  accept  the  bid.— The  auctioneer  has,  of  course,  unless 
his  authority  has  previously  been  withdrawn,  implied  authority  to  ac- 
cept the  bid  most  favorable  'to  the  seller,  where  the  sale  is  made  with- 
out reserve,  and  to  strike  the  property  down  to  the  purchaser,  for  this 
is  the  very  purpose  for  which  he  was  employed.17  The  nature  of  an 
auction  sale  implies,  where  no  other  terms  are  prescribed,  that  the 


misled  or  deceived  In  the  sale.  Miller 
v.  Baynard,  2  Houst.  (Del.)  559,  83 
Am.  Dec.  168. 

Terms  of  sale  announced  by  the 
auctioneer  in  the  ordinary  way  bind 
a  buyer,  though  he  did  not  happen  to 
arrive  In  time  to  hear  them.  Ken- 
nell  v.  Boyer,  144  Iowa,  303,  24  L.  R. 
A.  (N.  S.)  488,  Am.  Ann.  Cas.  1912 
A,  1127. 

i*  Bateman  on  Auctions,  114. 

In  White  v.  Dahlquist  Mfg.  Co., 
179  Mass.  427,  It  was  said:  "Fre- 
quently the  property  is  put  into  his 
hands  for  sale,  and  all  the  details 
are  left  entirely  to  him.  He  is  ex- 
pected to  make  all  the  arrangements 
by  way  of  public  advertisement  and 
otherwise,  and  to  act  fully  at  the  sale, 
to  receive  the  deposit  from  the  pur- 
chaser and  to  carry  the  transaction 
to  the  end." 

IB  "The  printed  conditions  under 
which  a  sale  by  auction  proceeds  can 
not  be  varied  or  contradicted  by 
parol  evidence  of  the  verbal  state- 
ments of  the  auctioneer  made  at  the 
time  of  sale,  without  it  be  for  the 
purpose  of  proving  fraud.  Powell  v. 
Edmunds,  12  East,  7;  Shelton  v. 
Livius,  2  Cromp.  &  J.  411;  Slark  v. 
Highgate  Archway  Co.,  5  Taunt 
792.  But  parol  evidence  that  is  not 
repugnant  to  the  printed  terms  of 


sale,  but  Is  consistent  with,  and  ex- 
planatory of  them,  is  admissible. 
Cannon  v.  Mitchell,  2  Desaus,  Eq. 
321;  Wainwright  v.  Read,  1  Id.  573; 
Lessee  of  Wright  &  Deklyne,  1  Pet. 
C.  C.  204;"  Wagner,  J.,  in  Chouteau 
v.  Goddin,  39  Mo.  229,  90  Am.  Dec. 
462.  So  as  between  seller  and  pur- 
chaser, evidence  is  admissible  that 
certain  of  the  conditions  were 
waived.  Mitchell  v.  Zimmerman,  109 
Pa.-  183,  58  Am.  Rep.  715.  And  see 
Rankin  v.  Matthews,  7  Ired.  (N.  C.) 
L,  286;  Satterfield  v.  Smith,  11  Id. 
60,  where  parol  evidence  of  what  the 
auctioneer  said  was  held  to  be  admis- 
sible to  explain,  add  to  or  vary  the 
written  terms  of  sale.  See  also,  Ken- 
nell  v.  Boyer,  144  Iowa,  303,  24  L.  R. 
A.  (N.  S.)  488,  Ann.  Cas.  1912  A, 
1127. 

is  Cf.  Bush  v.  Cole,  28  N.  Y.  261,  84 
Am.  Dec.  343,  where  it  is  held  that 
auctioneers  selling  real  estate  for  less 
than  the  price  fixed  by  the  principal, 
do  not  bind  him. 

IT  Thus  in  Ives  v.  Tregent,  29  Mich. 
389,  the  court  said:  "The  assignees 
had  put  an  auctioneer  in  charge  of 
the  sale,  and  must  be  understood  to 
authorize  him  to  speak  for  them. 
When  he  accepts  a  bid  and  knocks 
down  the  property  a  bargain  Is 
closed." 


CHAP.    Il] 


OF    AUCTIONEERS 


[§    2324 


property  is  to  be  sold  to  the  person  making  the  most  favorable  offer, 
and  the  auctioneer  cannot  therefore,  in  general,  consistently  with  his 
duty  to  his  principal,  refuse  to  accept  bids.18  But  he  is  not  required 
to  accept  the  bid  of  an  irresponsible  or  insufficient  bidder,  or  of  a  bid- 
der who  refuses  or  neglects  to  comply  with  the  terms  of  the  sale.10  So 
he  should  refuse  bids  from  persons  laboring  under  a  legal  incapacity, 
as  infants,  lunatics  and  drunken  persons,  and  persons  standing  in  a 
fiduciary  capacity  to  the  property.20 

The  auctioneer  has,  of  course,  no  authority  to  accept  a  bid  less  than 
the  limit  fixed  and  announced  by  the  owner.21 

§  2324.  To  make  the  necessary  memorandum. — As  has  already 
been  seen,22  the  auctioneer  is  deemed  to  have  authority  from  the  seller 
by  virtue  of  his  employment,  and  from  the  buyer  by  virtue  of  his  act 
of  bidding  if  the  bid  be  accepted,  to  make  and  sign  the  necessary  and 
usual  memoranda  required  to  make  the  sale  effective  under  the  statute 
of  frauds  or  under  other  similar  statutes. 

As  has  also  been  seen,28  this  authority  to  bind  the  seller  is  often  of 
longer  duration  than  to  bind  the  buyer :  being,  in  the  latter  case,  quite 
narrowly  confined  to  the  time  of  the  sale. 

' 

isBateman  on  Auctions  (7th  Ed.),      that  kind  of  bidding  is  initiated  at 

the  outset  and  the  sum  so  offered  is 
utterly  incommensurate  with  the  ac- 
tual known  value  of  the  property. 
It  is  reasonable  to  infer  that  bidding 
of  that  kind  would  have  a  depressing 
effect  upon  the  sale  and  tend  to  in- 
duce a  belief  on  the  part  of  others 
in  attendance  that  the  value  of  the 
property  had  been  approximately 
reached.  We  see  no  reason,  then, 
why  it  is  not  within  the  legitimate 
bounds  of  the  discretion  of  the  auc- 
tioneer to  refuse  to  accept  a  bid 
which  is  little  more  than  a  nominal 


168. 

The  question  of  the  right  to  revoke 
the  authority  at  the  sale,  the  power 
to  withdraw  property,  and  the  obli- 
gation of  the  auctioneer  or  his  prin- 
cipal to  accept  the  highest  bid,  etc., 
are  considered  in  later  sections. 

is  Hobbs  v.  Beavers,  2  Ind.  142,  52 
Am.  Dec.  500;  Den  v.  Zellers,  7  N. 
J.  L.  153;  Michel  v.  Kaiser,  25  La. 
Ann.  57;  Murdock's  Case,  2  Bland 
(Md.),  Ch.  461,  20  Am.  Dec.  381;  Mc- 
Pherson  Bros.  Co.  v.  Okanogan  Co., 
45  Wash.  285,  9  L.  R.  A.  (N.  S.)  748. 

In  Taylor  v.  Harnett,  26  Misc.  (N. 
Y.)  362,  it  was  said:  "It  is,  we  think, 
well  settled  that  he  may  refuse  a  bid 
tendered  in  bad  faith  or  proffered  by 
a  person  who  is  insolvent  or  other- 
wise disabled  from  completing  the 
purchase;  otherwise  the  whole  ob- 
ject of  the  sale  might  be  defeated. 
Within  the  same  reasoning  comes 
the  right,  which  we  think  he  pos- 
sesses, of  refusing  to  accept  trifling 
advances  offered  by  bidders  in  the 
course  of  the  sale,  especially  where 

1913 


advance,  and,  considering  the  sur- 
rounding circumstances,  is,  in  his 
judgment,  likely  to  affect  the  sale  in- 
juriously." 

20  Bateman  on  Auctions  ( 7th  Ed. ) , 
p.  168;  Kinney  v.  Showdy,  1  Hill  (N. 
Y.),  544. 

aiFarr  v.  John,  23  Iowa,  286,  92 
Am.  Dec.  426;  McManus  v.  Fortescue, 
[1907]  2  K.  B.  1. 

22  See  ante,  §  2320. 

23  See  ante,  §  2320. 


§    2325]  THE  LAW  OF  AGENCY  [BOOK   V 

The  authority  to  make  the  memorandum  includes  the  implied  author- 
ity to  make  it  in  the  regular  and  proper  form,  and  to  include  in  it  such 
of  the  terms  of  the  sale  as  are  necessary  to  make  the  memorandum  true 
and  effective. 

After  a  memorandum  has  been  made  and  the  transaction  is  closed, 
the  auctioneer  has  no  implied  authority  to  make  a  new  memorandum 
or  to  change  materially  the  one  already  made.2* 

§  2325.  To  receive  the  price. — The  auctioneer  has  implied  author- 
ity, in  the  absence  of  a  known  limitation  to  the  contrary,  to  receive  so 
much  of  the  purchase  price  of  personal  property  sold  by  him  as,  by 
the  terms  of  the  sale,  is  to  be  paid  down,  although  the  name  of  the 
owner  be  disclosed.28  But  this  authority  to  receive  payment  is  limited 
to  that  which  is  to  be  made  at  the  time  of  the  sale.  So  it  is  not  ex- 
clusive, and  a  payment  by  the  purchaser  to  the  owner  would  be  good. 
In  the  case  of  real  estate,  the  auctioneer  has  no  general  authority  to 
receive  the  purchase  price,  which  is  not  usually  paid  until  the  execu- 
tion and  delivery  of  the  deeds  by  the  owner ;  but  he  may  receive  so 
much  of  the  purchase  price  and  such  deposits  as  are,  by  the  terms  of 
the  sale,  to  be  paid  down.26  He  has  however  no  implied  authority  to 
receive  anything  but  cash  in  payment.  He  cannot  barter,  trade  or  re- 
ceive other  property  in  payment ;  nor  can  he  accept  depreciated  or 
worthless  bills.27  Neither  may  he,  without  express  authority,  receive 
checks,  notes  or  bills  of  exchange  as  payment.28 

24  Schmidt  v.  Quinzel,  55  N.  J.  Eq.  ans,  L.  R.  1  Q.  B.  352;  Sykes  v.  Giles, 
792,    where    some   months   after   the  5  M.  &  W.  645;  Taylor  v.  Wilson,  11 
sale  the  auctioneer  undertook  to  so  Mete.    (Mass.)    44,  45  Am.   Dec.  180. 
change    the    memorandum,    made    at  May   take    check   for    deposit   where 
the  sale,  as  to  make  it  bind  the  wife  that  is  the  custom.     Farrer  v.  Lacy, 
rather  than  the  husband.  25  Ch.  Div.  636. 

25  Thompson    v.    Kelly,    101    Mass.          In    Townes    v.    Birchett,    12   Leigh 
291,    3    Am.    Rep.    353;    Williams   v.  (Va.),    177,    where    the    auctioneers 
Millington,   1   H.   Bl.    81;    Coppin  v.  were  stakeholders  and  had  a  discre- 
Walker,  7  Taunt.  237.  tion  whether  to  sell  on  credit  it  was 

26  Sykes  v.  Giles,  5  M.  &  W.  645;  held  that  they  might  properly  take 
Thompson  v.  Kelly,  supra;  Johnson  the  purchase  price  notes  payable  to 
v.  Buck,  35  N.  J.  L.  338,  10  Am.  Rep.  themselves. 

243.  Where  the  auctioneer  agreed  with 

27  This  rule  stands  upon  the  same  his  principal  to  accept  nothing  but 
footing  as  that  which  governs  agents  "cash    or    good,     secured,    bankable 
generally  who  are  authorized  to  sell  notes"  he  will  be  liable  to  the  prin- 
or  receive  payment  for  their  princi-  cipal  for  accepting  anything  not  im- 
pals.  mediately     convertible      into      cash. 

ss  Broughton  v.  Silloway,  114  Mass.  Rindles  v.  Bordewyk,  —  S.  Dak.  — , 
71,  19  Am.  Rep.  312;  Williams  v.  Ev-  139  N.  W.  113. 

1914 


CHAP.    Il]  OF   AUCTIONEERS  [§§    2326,2327 

§  2326.  To  sue  in  his  own  name  for  the  price. — In  the  case  of  per- 
sonal property,  an  auctioneer  employed  to  sell  may  ordinarily  main- 
tain an  action  in  his  own  name  for  the  price,  or  for  the  recovery  of 
the  goods  if  the  conditions  of  the  sale  be  not  complied  with.29  "This 
doctrine,"  says  Judge  Wells,  "stands  upon  the  right  of  the  auctioneer  to 
receive,  and  his  responsibility  to  the  principal  for  the  price  of  the  prop- 
erty sold,  and  his  lien  thereon  for  his  commissions,  which  give  him  a 
special  property  in  the  goods  intrusted  to  him  for  sale,  and  an  interest 
in  the  proceeds. 

"In  case  of  real  estate,  he  can  have  no  such  special  property,  and 
would  not  ordinarily  be  entitled  to  receive  the  price.  But  when  the 
ferms  of  his  employment,  and  of  the  authorized  sale,  contemplate  the 
payment  of  a  deposit  into  his  hands  at  the  time  of  the  auction,  and  be- 
fore the  completion  of  the  sale  by  the  delivery  of  the  deed,  he  stands,  in 
relation  to  such  deposit,  in  the  same  position  as  he  does  to  the  price  of 
personal  property  sold  and  delivered  by  him.  He  may  receive  and 
receipt  for  the  deposit ;  his  lien  for  commissions  will  attach  to  it ;  and 
we  see  no  reason  why  he  may  not  sue  for  it  in  his  own  name,  whenever 
an  action  for  the  deposit,  separate  from  the  other  purchase  money, 
may  become  necessary."  80  The  auctioneer's  right  to  sue  is  subject 
to  the  same  set-off  which  could  be  made  if  the  action  were  brought  by 
the  owner.31 

§  2327.  None — To  delegate  his  authority. — Like  other  agents  in 
whom  a  personal  trust  and  confidence  are  reposed,  the  auctioneer  has 
no  authority  to  delegate  to  another  the  sale  of  the  property  entrusted 
to  him  to  sell.32  But  this  rule  does  not  require  him  to  perform,  in 

29  Thompson  v.  Kelly,  101  Mass.  trust  within  the  meaning  of  §  113  of 
291,  3  Am.  Rep.  353;  Tyler  v.  Free-  the  code  and  may  sue  in  his  own 
man,  3  Gush.  (Mass.)  261;  Hulse  v.  name.  Bogart  v.  O'Regan,  1  B.  D. 
Younge,  16  Johns.  (N.  Y.),  1;  Seller  Smith  (N.  Y.),  590. 
v.  Block,  19  Ark.  566;  Minturn  v.  Where  the  terms  of  sale  require 
Main,  7  N.  Y.  220;  Flanigan  v.  Crull,  that  the  auctioneer's  fees  be  paid  by 
53  111.  352;  Woolfe  v.  Home,  2  Q.  B.  the  purchaser,  he  may  sue  in  his  own 
D.  355.  name  for  them.  Bleecker  v.  Frank- 
To  same  effect:  Muller  v.  Maxwell,  lin,  2  E.  D.  Smith  (N.  Y.),  93.  But 
15  N.  Y.  Super.  355;  Nixon  v.  Zuri-  compare  Miller  v.  Burke,  6  Daly  (N. 
calday,  12  N.  Y.  App.  Div.  287,  42  N.  Y.),  171. 

Y.  S.  86.  so  Wells,  J.,  in  Thompson  v.  Kelly, 

This  is  so  though  a  public  auction-  supra.    See  also,  Johnson  v.  Buck,  35 

eer   has   received   his   advances   and  N.  J.  L.  338,  10  Am.  Rep.  243. 

commissions  and  has  no  interest  in  si  Coppin  v.   Craig,   7   Taunt.   243; 

the    property    sold    or    its    proceeds.  Grice  v.  Kenrick,  L.  R.  5  Q.  B.  340. 

Minturn  v.  Main,  supra.  32  stone  v.  State,  12  Mo.  400;  Com- 

.     In   New  York   an   auctioneer   who  monwealth     v.     Harnden,     19     Pick, 

sells  goods  is  a  trustee  of  an  express  (Mass.)   482;   Wolf  v.  Van  Metre,  27 

1915 


[§§    2328-2331  THE    LAW    OF    AGENCY  [BOOK   V 

person,  all  of  the  mechanical  or  ministerial  duties  connected  with  the 
sale,  and  he  may  lawfully  employ  another  person  to  make  the  outcry 
or  wield  the  hammer  under  his  immediate  direction  and  supervision.88 

§  2328.  None — To  sell  on  credit. — Sales  at  auction  are  presumed 
to  be  for  cash  in  hand  at  the  completion  of  the  sale,  and  an  auctioneer 
has,  therefore,  in  the  absence  of  a  custom  to  the  contrary,  no  implied 
authority  to  give  to  the  purchaser  a  term  of  credit  upon  the  property 
purchased  by  him.84 

§  2329.  None — To  rescind  or  alter  sale. — The  auctioneer's  duty 
is  to  sell  only,  and  upon  the  completion  of  the  sale  his  authority  ceases. 
A  bidder  who  desires  to  withdraw  his  bid  may  do  so  by  publicly  an- 
nouncing that  fact  at  any  time  before  it  is  accepted ;  but  after  it  is  ac- 
cepted, he  has  no  right  to  withdraw  it  without  the  consent  of  the  owner, 
and  the  auctioneer  has  no  implied  authority  to  permit  him  to  do  so.85 

So  the  auctioneer  has  no  implied  authority  after  the  sale  to  alter  or 
consent  to  the  alteration  of  the  terms  of  the  sale,  or  to  agree  to  a  sale 
to  a  different  person  upon  different  terms.86 

§  2330.  None — To  sell  at  private  sale. — An  auctioneer  employed 
to  sell  at  auction  has  no  implied  authority  to  sell  at  private  sale,87  and 
it  makes  no  difference  that  he  acted  in  good  faith  and  sold  the  prop- 
erty for  more  than  the  minimum  price  fixed  by  the  owner.88 

§  2331.  None — To  bid  for  himself. — In  accordance  with  the  well 
settled  principle  that  an  agent,  authorized  to  sell  for  his  principal,  may 
not,  without  the  principal's  consent,  sell  to  himself,  it  is  clear  that  an 
auctioneer  has  no  implied  authority  to  bid  for  and  purchase  the  prop- 

r  tott  «3ob  arfj;$  «irfj  .mil" ;  *Mibg  of  mill  M 

Iowa,     348;      Singer     Mnfg.     Co.     T.  Bolnest  v.  Leignez,   2  Rich.    (S.  C.) 

Chalmers,  2  Utah,  542;  Blore  v.  Sut-  L.  464. 

ton,  3  Mer.  237;   Coles  v.  Trecothick,          Auctioneer  has  no  implied  author- 

9  Ves.  Jr.  234.  ity,  where    property    has    been    sold 

33  Commonwealth       V.       Harnden,  with  a  warranty,  to  bind  the  princi- 

aupra;  Poree  v.  Bonneval,  6  La.  Ann.  pal   by   agreeing  that   the  warranty 

386.  was  broken  or  to  bind  the  principal 

Auctioneer's  clerk. — Mechanical  or  to  terms  of  settlement  or  by  a  resets- 

ministerial    acts    done    through    his  sion  of  the  sale.    Gardiner  v.  Nichols 

clerk  by  an  auctioneer  do  not  violate  Co.,  48  Pa.  Super.  510. 
this  rule;    neither  are  acts  done  in          se  Muffatt    v.  Gott,  74    Mich.    672; 

his   presence   and    by   his   direction.  McKiernan  v.  Valleau,  23  R.  I.  501. 
See  ante,  §  2320,  note.  s?  Wilkes    v.    Ellis,  2    H.    Bl.  555; 

3*  Williams  v.  Millington,  1  H.  Bl.  Marsh  v.  Jelf,  3  Fost  &  P.  234;  Dan- 

81;  Williams  v.  Evans,  L.  R.  1  Q.  B.  iel   v.   Adams,    Amb.    495;    Seton   v. 

352;   Sykes  v.  Giles,  5  M.  &  W.  645;  Slade,  7  Ves.  Jr.  276. 
Townea  v.  Birchett,  12  Leigh   (Va.),          See  e  converse  Towle  v.  Leavitt,  23 

173    (here   the   auctioneers   had   dis-  N.  H.  360,  55  Am.  Dec.  195. 
cretion  as  to  giving  credit).  ss  Daniel  v.  Adams,  supra. 

»B  Nelson  v.  Aldridge,  2  Stark.  435; 

1916 


CHAP.    II ]  OF  AUCTIONEERS  [§§    2332,  2333 

erty  he  is  employed  to  sell,  either  for  himself  or  any  other  person,  nor 
can  he  authorize  any  other  person  to  bid  and  purchase  for  him,  either 
directly  or  indirectly.  Such  a  purchase  is,  therefore,  not  binding  upon 
the  seller.39  As  is  well  said  by  Staples,  J. :  "It  is  impossible  with  good 
faith  to  combine  the  inconsistent  capacities  of  seller  and  buyer,  crier 
and  bidder,  in  one  and  the  same  transaction.  If  the  *  *  *  auc- 
tioneer faithfully  discharges  his  duties,  he  will,  of  course,  honestly  ob- 
tain the  best  price  he  can  for  the  property.  On  the  other  hand,  if  he 
undertakes  to  become  the  purchaser  for  himself,  or  for  another,  his 
interest  and  his  duty  alike  prompt  him  to  obtain  the  property  upon  the 
most  advantageous  terms.  There  is  an  irreconcilable  conflict  between 
the  two  positions."  *° 

§  2332.  None — To  warrant  quality. — In  the  absence  of  a  custom 
to  give  such  a  warranty,  an  auctioneer  has  no  implied  authority  to 
warrant  the  quality  of  the  property  sold  by  him.41  Custom  may,  how- 
ever, confer  such  a  power,  and,  in  general,  the  same  warranties  will  be 
implied  as  would  be  implied  from  a  similar  sale  of  the  same  property 
by  the  owner  himself,  as  in  the  case  of  a  sale  by  sample.** 
-fifipn  •  .aiwrt  3fiJ  ol  «B  rartv/o  y.«  ;rt  ->ri7  svmifo 

tettKdwrtfefoiffroibfiloitam  elte*  «rf  ^  &««  •$&  *°  wmal- -feat- nan 

IV.  :r»li  i^r 
•renWos3kffJtK>t  .jtaafaqrnoo  !/fcmin3  »d  ot  hisfl  si  ii 

AUCTIONEER'S  DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 

§  2333.  Bound  for  reasonable  skill  and  diligence. — Like  the  at- 
torney, an  auctioneer  holds  himself  out  to  the  public  as  one  qualified 
to  perform  the  duties  of  the  calling  which  he  professes ;  and  the  meas- 

se  Brock   v.   Rice,   27   Gratt.    (Va.)  57  Am.  St.  Rep.  648,  it  was  held  by 

812;     Randall    v.    Lautenberger,    16  the    trial    court    that    an    auctioneer 

R.     I.    158;     Hood    v.    Adams,     128  may  bid  for  a  third  person  so  far  as 

Mass.    207;    Hilleary    &    Johnson    v.  other  bidders  are  concerned.     There 

Thompson,  11  W.  Va.  113;   Veazie  v.  would   be   no   breach   of  duty  as   tq 

Williams,   49   U.   S.   133;    Perkins  v.  them.     The  supreme  court,  while  af- 

Applegate,  27  Ky.  L.  Rep.  522.  firming  the  result  below,  did  not  dis- 

See   also,   Rockford   Watch   Co.   v.  cuss  this  point. 

Manifold,    36    Neb.    801;     Remick  v.  40  jn  Brock  v.  Rice,  supra. 

Butterfleld,  31  N.  H.  70,  64  Am.  Dec.  *i  Blood  v.  French,  9  Gray  (Mass.), 

316;    Moore  v.  Moore,  5  N.  Y.  256.  197;    The    Monte    Allegre,    9   Wheat. 

One  who  acts  simply  as  auctioneer  (U.  S.)   647;   Court  v.  Snyder,  2  Ind. 

or  crier  for  an  officer  at  an  auction  App.  440,  50  Am.  St.  Rep.  247;   Boice 

sale  under  a  writ,  the  officer  being  v.    Palmer,  55    Neb.    389;    Korbel  v. 

present,  may  bid  upon  the  property.  Skoepol,  70  Neb.  45. 

Swires  v.  Brotherline,  41  Pa.  135,  80  See  also,  Dodd  v.  Farlow,  11  Allen 

Am.   Dec.   601.     But  see   Brotherline  (Mass.),  426,  87  Am.  Dec.  726. 

v.  Swires,  48  Pa.  68.  42  Under  North  Dakota  code,   auc- 

In  Flannery  v.  Jones,  180  Pa.  338,  tioneer   may   warrant   title   and   the 

1917 


§§  2334. 2335]  THE  LAW  OF  AGENCY  [BOOK  v 

ure  of  the  undertaking  in  the  two  cases  is  substantially  the  same.  The 
auctioneer,  therefore,  is  bound  to  possess  and  exercise  a  reasonable  de- 
gree of  skill  and  diligence,  not  only  in  obtaining  advantageous  bids, 
but  in  so  conducting  as  to  secure  the  benefit  of  them  to  his  employer, 
and,  if  he  fails  of  this,  he  is  liable  to  his  employer  for  the  loss  occa- 
sioned thereby.48  But,  like  the  attorney,  he  is  not  charged  with  infalli- 
bility, nor  held  liable  for  a  mistake  in  a  case  where  a  reasonable  doubt 
may  be  entertained.44 

§  2334.  To  act  with  loyalty  and  good  faith. — It  is  also  the  duty 
of  the  auctioneer  to  maintain  and  exercise  the  utmost  loyalty  and  good 
faith  to  his  principal.  He  must  not  acquire  or  have  antagonistic  in- 
terests. He  must  not  deal  with  the  property  on  his  own  account  with- 
out his  principal's  full  knowledge  and  consent.  He  must  not  avail  him- 
self of  his  situation  to  make  profit  for  himself  at  his  principal's  ex- 
pense, and  he  must  give  the  principal  timely  notice  of  any  matters  com- 
ing to  his  knowledge  material  for  the  principal  to  know  for  the  protec- 
tion of  his  interests.45 

§  2335.  To  obey  instructions.— It  is  the  duty  of  the  auctioneer  to 
observe  the  reasonable  instructions  of  the  owner  as  to  the  time,  man- 
ner and  terms  of  sale,  and  if  he  sells  in  violation  of  these  instructions, 
he  is  responsible  to  the  owner  for  a  loss  resulting  therefrom.46  Thus 
it  is  held  to  be  entirely  competent  for  the  owner  to  fix  the  price  below 

T^KIJIT  '  A.;'!     ;;i  , 

quality  and  quantity  of  the  article.  passed  and  was  of  doubtful  construc- 

Cysewski  v.  Fried,  —  N.  Dak.  ,  tion  and  had  not  received  judicial  in- 

139  N.  "W.  104.  terpretation.     Hicks  v.   Minturn,   19 

A    misrepresentation    by    the    auc-  Wend.  (N.  Y.)  550. 

tioneer  of  the  size  of  a  parcel  of  land  **  An     action    of    deceit    will    He 

sold,  made  in  the  presence  and  with  against  an  auctioneer  who,  being  em- 

the  tacit  acquiescence  of  the  owner,  ployed  to  sell  property,  conceals  from 

binds  the  latter.     Roberts  v.  French,  his  principal  the  fact  that  a  certain 

153  Mass.  60,  25  Am.  St.  Rep.  611,  10  person  would  buy  at  a  certain  price 

L.  R.  A.  656.  and  allowed  the  principal  to  sell  to 

«  Denew  v.  Daverell,  3  Camp.  451;  another  at    a    less    price.      Ring    v. 

Dranow  v.  MacDonald,   76   N.   J.   L.  Potts,  36  N.  B.   (Canada)   42. 

259.    It  Is  the  duty  of  the  auctioneer  46  Guerreiro  v.   Peile,   3  B.   &  Aid. 

to  call  for  the  name  of  the  bidder  and  616;   Bexwell  v.  Christie,  Cowp.  395; 

enter  the  necessary  memorandum  to  Russel  v.  Palmer,  2  Wils.  325;    Wil- 

complete  the  sale,  and  if  he  fails  to  kinson   v.   Campbell,   1   Bay    (S.   C.), 

do  this  and  his  employer  loses  the  169;  Bodin  v.  McClaskey,  11  La.  Ann. 

benefit  of  the  bid,  the  auctioneer  is  46. 

liable  for  the  loss.    Townsend  v.  Van  Not     liable     for     conversion     but 

Tassel,  8  Daly  (N.  Y.),  261.  merely  for  damage  caused  by  viola- 

44  An  auctioneer  was  held  not  liable  tion   of   instructions.     Lustgarten  v. 

for  a  loss  occasioned  by  his  failure  to  Hecht,  134  N.  Y.  Supp.  567;  Minneap- 

comply  with  the  requirements  of  the  olis  Trust  Co.  v.  Mather,  181  N.  Y. 

statute  which  had  but  recently  been  205. 

1918 


CHAP.    Il]  OF  AUCTIONEERS  [§§    2336-2338 

which  the  goods  shall  not  be  sold,  and  it  thereupon  becomes  the  duty 
of  the  auctioneer  to  observe  this  limit,  as,  for  example,  by  publicly  re- 
serving to  himself  one  bid  for  the  owner,  or  by  stating  the  limitation 
and  starting  the  bids  at  the  price  fixed.  For  a  violation  of  this  duty, 
the  auctioneer  is  liable  to  the  owner  for  a  loss  sustained.47 

§  2336.  To  account  for  proceeds. — It  is  the  duty  of  the  auction- 
eer, like  other  agents,  to  account  to  his  employer  for  the  proceeds  of 
the  goods  sold  by  him.48  He  has  a  lien  upon  the  proceeds  and  may 
deduct  from  them  his  advances  on  the  goods,  his  commissions  for  mak- 
ing the  sale,  and  his  reasonable  and  proper  costs  and  charges,  such  as 
the  expenses  of  advertising,  storing,  insuring  and  caring  for  the  goods, 
where  these  expenses  are  not  covered  by  his  commission.49 

§  2337.  To  take  care  of  goods. — An  auctioneer  is  not  an  insurer 
of  the  safety  of  the  goods  entrusted  to  him  for  sale,  but  he  is  under 
obligation  to  keep  them  with  ordinary  and  reasonable  care.50  In  this 
respect  he  stands  upon  the  same  footing  as  any  other  bailee  for  hire. 

§  2338.  To  sell  for  cash  only. — As  has  been  seen,  an  auctioneer 
has  no  implied  authority  to  give  credit  or  to  receive  anything  but  cash 
in  payment  for  the  property  sold,  and  this  limitation  upon  his  author- 
ity correlatively  defines  his  duty  to  his  employer.51  If,  notwithstand- 
ing this  duty,  the  auctioneer  gives  credit,  or  receives  in  payment  that 
which  is  not  cash  in  hand,  and  the  employer  thereby  suffers  loss,  the 
auctioneer  is  responsible.52 

«•  Steele  v.  Ellmaker,  11  Serg.  &  R.  Russell  v.  Miner,  25  Hun  (N.  Y.),  114; 

(Penn.)  86;  Wolfe  v.  Luyster,  1  N.  Y.  Carpenter  v.  Le  Count,  22  Id.  106. 

Super.    (1  Hall)    146;    Hazul  v.   Dun-  •-•<>  Davis    v.  Garrett,  6    Bing.    716; 

ham,   1   X.  Y.   Super.    (1   Hall)    655;  Maltby  v.  Christie,  1  Esp.  340.     If  he 

Williams  v.  Poor,  3  Cranch  (U.  S.  C.  agrees  to  insure  he  must  do  so,  in 

C.),  251.  good  companies,  or  give  his  principal 

«>Tripp   v.    Barton,   13    R.   I.    130;  reasonable  notice  of  his  failure,  that 

Harington    v.    Hoggart,    1    B.  &    Ad.  he  may  insure  it  himself.     Callander 

577;     Plummer    v.    Bankers'    Surety  v.     Oelrichs,    5     Bing.    N.    Cas.    58; 

Co.,  52  N.  Y.  Misc.  97.  Shoenfeld   v.   Fleisher,   73   111.   404. 

The    auctioneer    may    not    dispute  si  See  ante,   §   2328;    Broughton  v. 

the  principal's  title.    Osgood  v.  Nich-  Silloway,  114  Mass.  71,  19  Am.  Rep. 

ols,    5    Gray    (Mass.),    420;    Hutchin-  312. 

son   v.    Gordon,    2   Harr.    (Del.)    179.  52  Williams  v.  Millington,  1  H.  Bl. 

If  the  auctioneer,  having  received  a  81. 

deposit,  returns  it  to  the  buyer  on  Auctioneer  who  has  agreed  to  sell 
the  mistaken  notion  that  his  princi-  only  for  "cash  or  good,  secured  bank- 
pal's  title  was  not  good,  he  is  liable  able  notes"  cannot  require  his  prin- 
to  the  principal  for  it.  Montgomery  cipal  to  take  any  paper  which  is  not 
v.  Pacific  Coast  Land  Bureau,  94  Cal.  "commercial  paper  immediately  con- 
284,  28  Am.  St.  Rep.  122.  vertible  into  cash."  Rindles  v.  Bor- 

4(>Harlow    v.    Sparr,    15    Mo.    184;       dewyk,  S.   Dak.  ,   139  N.  W. 

113. 
1919 


§§  2339~2342]  THE  LAW  OF  AGENCY  [BOOK  v 

§  2339.  To  sell  to  third  parties  only.  —  It  is  likewise  the  duty  of 
the  auctioneer  to  sell  to  third  persons  only,  and  not  to  buy  for  himself 
directly  or  indirectly.63  Such  a  purchase,  as  has  been  seen,  is  not  bind- 
ing upon  the  owner,  and  he  may  recover  from  the  auctioneer  the  prop- 
erty so  misappropriated,  or  may  hold  him  liable  in  trover  or  other 
proper  action." 

§  2340.  To  sell  in  person.  —  As  has  been  also  seen,  the  auctioneer 
has  no  implied  authority  to  delegate  his  powers,  but  should  exercise 
them  in  person,  except  so  far  as  they  involve  purely  ministerial  or  me- 
chanical duties.85  For  injuries  resulting  from  such  an  unlawful  dele- 
gation, the  auctioneer  is  legally  responsible. 

§  2341.  To  disclose  his  principal.  —  An  auctioneer,  like  other 
agents,  should  disclose  his  principal  and  contract  in  his  name.56  So 
if,  while  a  sale  is  going  on  of  property  as  the  property  of  one  person, 
the  property  of  another  is  also  put  up  for  sale,  then  this  fact  should  be 
announced  by  the  auctioneer,  since  without  it  a  sale  of  the  property 
of  the  latter  person  would  not  be  binding  upon  one  who  bought  it  sup- 
posing it  to  be  the  property  of  the  former." 

ifumjfi  am  notfu  nbiteiimif  BJritubncf.hlca  •vtroqrrrq.  3rfc)  :io}  'JfmnvBq  xir 
«^^^a}Bl!f^5wJoft.)^^.i^.^^vdrqrrftc-sf^i1o^TjHh  aid  a'mfbb  ybvitebi-roorrrJ} 

V. 

srft 


AUCTIONEER'S  DUTIES  AND  LIABILITIES  TO  THIRD  PERSONS. 

§  2342.  Liable  where  he  conceals  principal.  —  An  auctioneer  who, 
at  the  time  of  the  sale,  discloses  the  name  of  his  principal,  and  sells  as 
his  agent,  incurs,  while  keeping  within  the  limits  of  his  authority,  no 
personal  liability  to  the  purchaser  upon  the  contract  of  sale  ;  B8  but,  on 
the  other  hand,  the  rule  is  well  settled  that  an  auctioneer  who  sells  or 
makes  other  contracts  without  then  disclosing  his  principal,  is  per- 
sonally liable  upon  the  contract,  and  the  purchaser  may  hold  him  per- 
sonally responsible  for  its  completion.69 

5»  See  ante,  §  2331.  »»  Hanson  v.  Roberdeau,  Peake's  N. 

54  See  ante,  §  2331.  P.  120;    Mercer  v.  Lelhy,  139  Mich. 

55  See  ante,  §  2327.  447. 

5«  See  following  section.  It  is  not  necessary  to  disclose  the 

57  Thomas  v.  Kerr,  3  Bush  (Ky.),  name  of  the  principal,  if  he  is 

619,  96    Am.    Dec.    262;    Bexwell    v.  pointed  out.    Mercer  v.  Leihy,  supra. 

Christie,  1  Cowp.  395;  Hill  v.  Gray,  1          ••"  Hanson     v.     Roberdeau,     supra; 

Stark.  434;  Coppin  v.  Craig,  7  Taunt.  Jones  v.  Littledale,  6  Ad.  &  El.  486^ 

243.  Franklyn  v.  Lamond,  4  C.  B.  637; 

But  see  contra:  Rice  v.  Andrews,  Thomas  v.  Kerr,  3  Bush  (Ky.),  619 

32  vt  691-  96  Am.  Dec.  262;  Schell  v.  Stephens! 

1920 


CHAP.    II ] 


OF    AUCTIONEERS 


[§    2342 


Thus  where  auctioneers  struck  off  property  of  an  undisclosed  prin- 
cipal for  a  less  sum  than  they  were  authorized  to  sell  it  for,  thereby 
failing  to  bind  the  principal,  it  was  held  that  the  purchaser  could  re- 
cover of  the  auctioneers  the  deposit  he  had  made,  and  the  auctioneers' 
fees,  with  interest ;  and  that  if  the  auctioneers  knew  they  were  not  au- 
thorized so  to  sell,  the  purchaser  could  recover  also  what  the  premises 
were  worth  over  and  above  the  price  bid  therefor.60  So  where  an  auc- 
tioneer acting1  for  an  undisclosed  principal,  advertised  a  sale  to  be 
"without  reserve,"  but  at  the  sale  permitted  the  owner  of  the  property 
to  bid  over  the  highest  bid  offered  by  other  bidders,  and  struck  the 
property  off  to  him,  it  was  held  that  the  next  highest  bidder  could 
maintain  an  action  against  the  auctioneer,  for  a  breach  of  his  contract 
to  sell  "without  reserve."  61 

So  where  an  auctioneer  sells  property  without  disclosing  the  prin- 


50  Mo.  375;    Seemuller  v.  Fuchs,  64      the    question    have    been    expressed. 


Md.  217,  54  Am.  Rep.  766;  Mills  v. 
Hunt,  20  Wend.  (N.  Y.)  431;  Bush 
v.  Cole,  28  N.  Y.  261,  84  Am.  Dec. 
343;  Meyer  v.  Redmond,  205  N.  Y. 
478,  41  L.  R.  A.  (N.  S.)  675;  Davie 
v.  Lynch,  1  White  &  W.  (Tex.)  694. 

»o  Bush  v.  Cole,  supra.  The  court, 
as  will  be  observed,  adopted  the  New 
York  view  respecting  the  measure  of 
damages  for  the  breach  of  a  contract 
to  sell  land — a  view  which,  as  is  well 
known,  does  not  universally  prevail. 
Difference  of  opinion,  however,  upon 
this  point  of  the  extent  of  the  auc- 
tioneer's liability  would  not  affect 
the  fact  of  his  liability  to  some  ex- 
tent. 

si  Warlow  v.  Harrison,  1  Ellis  & 
Ellis,  295,  on  appeal,  Id.  309. 

Warlow  v.  Harrison  has  been  much 
discussed  and  many  doubts  have  been 
expressed  of  its  soundness,  so  far  as 
it  is  based  upon  the  idea,  that  the 
announcement  that  the  sale  will  be 
without  reserve  or  will  be  to  the 
highest  bidder,  amounts  to  a  definite 
offer,  which  ripens  into  a  contract 
by  the  making  of  a  bid.  In  Hals- 
bury's  Laws  of  -England,  Vol.  I,  p. 
515,  the  text  declares  that  the  ques- 
tion cannot  be  regarded  as  free  from 
doubt  and  the  note  gives  a  list  of  the 
cases  in  which  opinions  respecting 


In  the  last  English  edition  (5th  Ed., 
1906)  of  Benjamin  on  Sale,  p.  487, 
there  is  also  a  discussion  of  the  ques- 
tion with  doubt  expressed  as  to  the- 
soundness  of  the  decision.  Doubt  is 
also  expressed  in  Pollock  on  Con- 
tracts, 7th  English  Ed.,  p.  18,  that 
the  announcement  amounts  to  any- 
thing more  than  a  mere  proposal  or 
invitation  which  can  be  withdrawn 
at  any  time  before  a  contract  has 
been  made  by  the  actual  acceptance 
of  a  bid.  There  is  also  a  very  full 
discussion  of  the  question  in  Ander- 
son v.  Wisconsin  Central  Railway  Co., 
107  Minn.  296,  131  Am.  St.  Rep.  462, 
20  L.  R.  A.  (N.  S.)  1133.  The  Eng- 
lish Sales  Act,  section  58,  and  the 
American  Act,  section  21,  both  pro- 
vide that  until  the  acceptance  of  the 
bid  a  bid  may  be  withdrawn,  and 
the  American  Act  provides  that  the 
goods  may  be  withdrawn  unless  the 
auction  has  been  announced  to  be 
without  reserve.  Both  provide  for 
an  express  reservation  of  a  bid  by 
or  on  behalf  of  the  seller,  but  that 
where  no  such  right  has  been  re- 
served it  shall  not  be  lawful  for  a 
bid  to  be  made  by  or  on  behalf  of 
the  seller  or  for  the  auctioneer  to 
knowingly  take  any  bid  by  or  on  be- 
half of  the  seller. 


121 


1921 


§§  2343,2344] 


THE    LAW    OP    AGENCY 


[BOOK  v 


cipil's  name  and  the  purchaser  is  afterwards  divested  by  a  superior  ti- 
tle, it  has  been  held  that  he  may  recover  the  purchase  money  from  the 
auctioneer.62 

The  mere  fact  that  the  auctioneer  is  known  to  be  one  does  not  suf- 
ficiently indicate  that,  on  the  occasion  in  question,  he  was  acting  only 
for  a  principal.63 

§  2343.  Liable  where  he  exceeds  his  authority. — An  auctioneer, 
like  any  other  agent,  may  make  himself  personally  liable  to  third  per- 
sons for  injuries  which  they  sustain  by  reason  of  his  failure  to  possess 
the  authority  which  he  assumed  to  exercise.  The  general  rules  which 
govern  this  question  have  been  previously  considered  and  it  is  unneces- 
sary to  repeat  them  here.64 

In  pursuance  of  those  rules,  an  auctioneer  would  be  held  to  an  im- 
plied warranty  of  his  authority  to  sell  as  he  does.  If  he  sells  the  goods 
as  the  goods  of  a  named  principal,  a  warranty  would  be  implied  that 
the  auctioneer  was  authorized  by  him  to  sell  them ;  and  the  like. 

§  2344.  Liable  where  he  contracts  personally. — So  also  the  auc- 
tioneer like  any  other  agent  may  make  himself  personally  liable  by  ex- 
pressly pledging  his  own  responsibility.65  Thus  where  the  auctioneer 


«z  Seemuller  v.  Fuchs,  64  Md.  217, 
64  Am.  Rep.  766. 

The  majority  of  the  court  held 
that  it  was  unnecessary  to  consider 
whether  there  was  an  implied  war- 
ranty of  title  on  the  part  of  the  auc- 
tioneer, hut  simply  that  there  had 
been  a  failure  of  consideration, 
which  justified  a  recovery  of  the 
money.  Two  judges  dissented,  hold- 
ing that  the  case  involved  the  neces- 
sity of  an  implied  warranty  of  title 
and  that  no  such  warranty  would 
be  implied,  since  even  though  the 
auctioneers  did  not  disclose  the  name 
of  the  owner,  they  nevertheless  pur- 
ported to  sell  as  agents  merely  and 
not  as  owners  and  there  would  be  no 
other  warranty  than  that  they  had 
in  fact  been  authorized  to  sell. 

An  auctioneer  who  does  not  pur- 
port to  sell  as  owner  is  ordinarily 
not  charged  with  an  implied  war- 
ranty of  title.  See  American  Sales 
Act,  section  13,  subdivision  4. 

In  Wood  v.  Baxter,  49  L.  T.  (N.  S.) 
45,  it  was  said  by  Watkin  Williams, 
J.,  "An  auctioneer  who  sells  goods 


not  as  owner  but  as  auctioneer  only, 
though  not  naming  his  principal, 
does  not,  without  more,  warrant  the 
title  to  the  goods  sold;  he  does  no 
more  than  engage  that  he  is  in  fact 
instructed  and  authorized  by  his 
principal  to  sell,  as  for  example  In 
the  present  case  under  the  powers  of 
a  bill  of  sale;  but  he  does  not  guar- 
antee the  validity  of  the  bill  of  sale, 
nor  the  title  of  his  employer  to  the 
goods." 

See  article  in  9  Scottish  Law  Re- 
view, p.  60  (1893);  same  article,  26 
Chicago  Leg.  News,  p.  73. 

In  Davle  v.  Lynch,  1  White  &  W. 
(Tex.)  694,  an  auctioneer  who  had 
sold  goods  without  disclosing  the 
name  of  his  principal  was  held  lia- 
ble on  an  Implied  warranty  of  title. 

63  Mills  v.  Hunt,  20  Wend.  (N.  Y.) 
431;  Meyer  v.  Redmond,  205  N.  Y. 
478,  41  L.  R.  A.  (N.  S.)  675. 

o*  See  ante,  §  1356  et  seq. 

See  also,  Warlow  v.  Harrison,  1 
El.  &  El.  309,  cited  in  note. 

65  Meyer  v.  Redmond,  205  N.  Y. 
478,  41  L.  R.  A.  (N.  S.)  675. 


1922 


CHAP.    II  ] 


OF    AUCTIONEERS 


2345 


upon  exposing  property  for  sale,  in  order  to  arouse  the  confidence  of 
the  bidders,  announced  respecting  the  seller  of  the  goods,  who  was  a 
non-resident  stranger,  that  he,  the  auctioneer,  knew  the  seller  well  and 
would  warrant  that  his  title  was  good,  it  was  held  that  the  auctioneer 
was  personally  responsible  for  a  failure  of  title.66 

§  2345.  Liability  for  selling  property  of  stranger. — An  auctioneer 
who  receives,  sells  and  delivers  stolen  property  is  liable  to  the  true 
owner,  as  for  a  conversion,  although  he  acted  in  good  faith,  and  re- 
ceived the  property  in  the  usual  course  of  trade.67 

So  an  auctioneer  would  undoubtedly  be  liable  as  for  a  conversion 
who,  having  received  property  for  sale  from  one  not  having  authority 
to  cause  it  to  be  sold,  proceeded  to  sell  it  or  to  pay  over  the  proceeds 
after  notice  of  the  rights  of  the  true  owner,  and  without  his  author- 
ity ; 68  and  it  has  been  held  that  an  auctioneer  who  in  good  faith  re- 
ceived and  sold  property  for  one  whom  he  supposed  to  have  the  right 
to  direct  the  sale,  but  who  in  fact  had  no  such  right,  was  guilty  of  a 
conversion.89  But  it  has  also  been  held  that  an  auctioneer  who,  in  good 


«eDent  v.  McGrath,  3  Bush  (66 
Ky.),  174. 

See  also,  Elison  v.  Wulff,  26  111. 
App.  616,  where  it  was  said  to  be  a 
question  of  fact  whether  the  auc- 
tioneer had  made  himself  personally 
liable. 

In  Woolfe  v.  Home,  2  Q.  B.  Div. 
355,  the  court  found  as  a  question  of 
fact  that  the  defendant  auctioneers 
had  made  themselves  personally  lia- 
ble for  the  performance  of  the  condi- 
tions of  sale. 

An  auctioneer  who,  even  in  good 
faith,  makes  positive  representations 
concerning  the  kind  of  goods  sold  by 
him  which  are  not  open  to  inspec- 
tion, is  liable  in  damages  if  the  rep- 
resentations are  untrue,  even  though 
the  goods  were  announced  to  be  sold 
"as  are,"  since  this  applies  to  condi- 
tion and  not  to  kind.  Ruben  v.  Lewis, 
20  Misc.  (N.  Y.)  583. 

87  Rogers  v.  Huie,  1  Cal.  429,  54 
Am.  Dec.  300  (but  see  s.  c.  2  Cal.  571, 
though  compare  Cerkel  v.  Waterman, 
63  Cal.  34,  and  Swim  v.  Wilson,  cited 
below);  Hoffman  v.  Carow,  20  Wend. 
(N.  Y.)  21,  s.  c.  22  Id.  285;  Robinson 
v.  Bird,  158  Mass,  357,  35  Am.  St. 


Rep.   495;    Miller   v.   Laws,   4   Wkly. 
Law    Bui.    (Ohio)   123;    Kearney   v. 
Clutton,    101   Mich.    106,   45   Am.    St. 
Rep.  394;   Barker  v.  Furlong,  [1891] 
2  Ch.  172;  Consolidated  Co.  v.  Curtis,. 
[1892]  1  Q.    B.    Div.  495.     See    also,. 
Koch  v.  Branch,  44  Mo.  542,  100  Am. 
Dec.   324;   Mohr  v.  Langan,   162  Mo. 
474,  85  Am.  St.  Rep.  503;   Morris  v. 
Hall,  41  Ala.  511. 

To  same  effect:  Swim  v.  Wilson,  90 
Cal.  126,  25  Am.  St.  Rep.  110,  13  L, 
R.  A.  605. 

But  he  is  not  liable  where  he  was 
misled  by  the  owner.  Swift  v.  Herk- 
ness,  21  Pa.  Super.  523.  Not  liable 
where  he  can  bring  himself  within 
the  Factors'  Acts.  Shenatone  v.  Hil- 
ton, [1894]  2  Q.  B.  452. 

es  Milliken  v.  Hathaway,  148  Mass. 
69,  1  L.  R.  A.  510. 

«»  Farebrother  v.  Ansley,  1  Camp. 
343;  Adamson  v.  Jarvis,  4  Bing.  66; 
Coles  v.  Clark,  3  Cush.  (Mass.)  399. 
But  the  contrary  rule  prevails  in 
Tennessee.  .See  Roach  v.  Turk,  9 
Heiflk.  (Tenn.)  708,  24  Am.  Rep.  360; 
Frizzell  v.  Rundle,  88  Tenn.  396,  17 
Am.  St.  Rep.  908. 


1923 


§§  2346-2348] 


THE    LAW    OF    AGENCY 


[BOOK   V 


faith,  has  advanced  money  upon  goods  received  from  one  who  had 
fraudulently  purchased  them,  but  who  had  nevertheless  a  title  (though 
defeasible)  would  be  protected  as  against  the  owner,70  and  his  cred- 
itors.71 

§  2346.  Not  liable  for  not  holding  auction  as  advertised. — An 
auctioneer  who  has  advertised  that  he  will  sell  property  at  auction  at 
a  certain  time  and  place,  is  not  liable,  in  the  absence  of  fraud,  to  those 
who  may  incur  expense  or  put  themselves  to  trouble  to  attend,  for  not 
offering  to  sell  the  property  at  auction  in  accordance  with  the  adver- 
tisement, although  no  notice  had  been  given  that  the  property  would 
be  withdrawn.72  No  such  notice  is  required. 

§  2347.  Liable  for  refusing  to  surrender  property  bought. — The 
auctioneer  is  liable  to  the  purchaser  as  for  conversion  where  he  refuses 
to  surrender  property  purchased  and  as  to  which  all  conditions  have 
been  performed,  even  though  he  does  so  under  the  mistaken  belief  that 
the  buyer  has  not  in  fact  complied  with  the  terms.78 

§  2348.  Liability  for  money  received. — The  liability  of  the  auc- 
tioneer to  third  persons  for  money  received  will  ordinarily  be  for  the 


T*Higgins  v.  Lodge,  68  Md.  229,  6 
Am.  St.  Rep.  437. 

He  would  not  be  protected  if  he 
had  knowledge  of  the  fraud.  Morrow 
Shoe  Mfg.  Co.  v.  New  England  Shoe 
Co.,  6  C.  C.  A.  508,  57  Fed.  685,  24 
L.  R.  A.  417. 

TI  Lewis  v.  Mason,  94  Mo.  551; 
Baugh  v.  Klrkpatrick,  54  Pa.  84,  93 
Am.  Dec.  675;  Montieth  v.  Printing 
Co.,  16  Mo.  App.  450. 

72  Harris  v.  Nickerson,  L.  R.  8  Q. 
B.  286.  "The  plaintiff  says,"  re- 
marked Blackburn,  J.,  "inasmuch  as 
I  confided  in  the  defendant's  adver- 
tisement, and  came  down  to  the  auc- 
tion to  buy  the  furniture  (which  it 
is  found  as  a  fact  he  was  commis- 
sioned to  buy)  and  have  had  no  op- 
portunity of  buying,  I  am  entitled  to 
recover  damages  from  the  defendant 
on  the  ground  that  the  advertisement 
amounted  to  a  contract  by  the  de- 
fendant with  anybody  who  should 
act  upon  it,  that  all  the  things  ad- 
vertised would  be  actually  put  up  for 
sale,  and  that  he  would  have  an  op- 
portunity for  bidding  for  them  and 
buying.  This  is  certainly  a  startling 


proposition,  and  would  be  exces- 
sively inconvenient  if  carried  out. 
It  amounts  to  saying  that  any  one 
who  advertises  a  sale  by  publishing 
an  advertisement  becomes  responsi- 
ble to  everybody  who  attends  the 
sale  for  his  cab  hire  or  travelling  ex- 
penses. As  to  the  cases  cited:  in  the 
case  of  Warlow  v.  Harrison,  1  El.  & 
El.  295,  the  opinion  of  the  majority 
of  the  judges  in  the  Exchequer 
Chamber  appears  to  have  been  that 
an  action  would  lie  for  not  knocking 
down  the  lot  to  the  highest  bona  fide 
bidder  when  the  sale  was  advertised 
as  without  reserve;  in  such  a  case  it 
may  be  that  there  is  a  contract  to  sell 
to  the  highest  bidder,  and  that  if  the 
owner  bids,  there  is  a  breach  of  the 
contract.  ...  In  the  present 
case,  unless  every  declaration  of  in- 
tention to  do  a  thing  creates  a  bind- 
ing contract  with  those  who  act  upon 
it,  and  in  all  cases  after  advertising 
a  sale,  the  auctioneer  must  give  no- 
tice of  any  articles  that  are  with- 
drawn, or  be  liable  to  an  action,  we 
cannot  hold  the  defendant  liable." 
73  Smith  v.  Hurley,  29  R.  I.  489. 


1924 


CHAP.    Il] 


OF    AUCTIONEERS 


[§    2349 


return  of  deposits  which  are  returnable  in  view  of  the  express  or  im- 
plied terms  upon  which  they  were  received.  The  general  rules  respect- 
ing- this  question  have  already  been  given  in  an  earlier  chapter,7*  and 
need  not  be  repeated  here.  Under  these  rules  the  auctioneer  will  be 
liable  for  the  return  of  deposits  made  to  await  the  execution  of  the 
contract,  if  such  execution  fails  because  the  seller  can  not  or  will  not 
perform  on  his  part.  The  fact  that  the  auctioneer  may  have  paid  the 
money  over  to  his  principal  will  be  no  defense  where  he  paid  it  over 
in  violation  of  his  duty  to  hold  it  to  await  execution,  or  where  he  paid 
it  over  after  notice  that  the  sale  could  not  or  would  not  be  consum- 
mated by  the  seller.76 


VI. 


AUCTIONEER'S  RIGHTS  AGAINST  HIS  PRINCIPAL. 

§  2349.  Compensation — Reimbursement — Indemnity. — An     auc- 
tioneer has  an  undoubted  right  to  recover  compensation  for  his  serv- 
ices, according  to  the  rate  fixed  by  statute,  or  the  contract  of  the  par 
ties,  or  by  custom,  and,  where  none  of  these  modes  apply,  by  a  quan- 
tum meruit.70    He  is  also  entitled  to  be  reimbursed  for  his  advances 


T*  See  ante,  §  1430  et  seq. 

75  In  Ellison  v.  Kerr,  86  111.  427, 
It  is  said:  "The  general  doctrine  on 
this  subject  seems  to  be  that,  where 
real  estate  is  sold  at  auction,  until 
the  sale  is  completed  the  auctioneer 
is  regarded  as  a  stake-holder  of  the 
deposit,  where  any  is  required  to  be 
made,  and  should  not  pay  it  to  either 
party  without  the  consent  of  the 
other."  Here  the  auctioneer  was 
held  not  liable  where  after  a  long 
time  he  had  paid  over  the  deposit  to 
the  seller  being  led  to  believe  that 
the  buyer  and  the  seller  had  agreed. 

In  Edwards  v.  Hodding,  5  Taunt. 
815,  the  auctioneer  was  held  liable 
for  paying  over  to  the  seller  after 
knowledge  that  the  conditions  could 
not  be  performed  by  him.  In  Wray- 
ton  v.  Naylor,  24  Can.  Sup.  Ct.  295, 
it  was  held  that  upon  the  repudia- 
tion of  the  contract  by  the  seller,  the 
bidder  may  recover  his  deposit  from 
the  auctioneer.  If  the  buyer  has  sued 
the  seller  and  obtained  judgment 


against  him,  he  cannot  afterwards 
recover  from  the  auctioneer.  Cock- 
croft  v.  Muller,  71  N.  Y.  367. 

Where  the  buyer  of  a  chattel  at  an 
auction  sale  has  rescinded  the  pur- 
chase for  a  breach  of  warranty,  he 
may  recover  his  deposit  from  the 
clerk  of  the  auction  to  whom  It  was 
paid.  McClean  v.  Stansberry,  151 
Iowa,  312,  35  L.  R.  A.  (N.  S.)  481. 

See  also,  Teaffe  v.  Simmons,  93 
Mass.  (11  Allen)  342;  Sohns  v. 
Beavis,  200  N.  Y.  268. 

™  Harlow  v.  Sparr,  15  Mo.  184. 
See  also,  Dutillet  v.  Chardon,  5  Mart. 
O.  S.  (La.)  307;  The  Amy  Warwick, 
2  Spr.  160,  Fed.  Cas.  No.  344;  An- 
drews v.  Frierson,  144  Ala.  470;  Car- 
penter v.  Le  Count,  93  N.  Y.  562. 

Where  different  lots  are  sold  sev- 
erally the  auctioneer  is  entitled  to 
his  commission  on  each  lot,  unless 
he  has  agreed  for  a  fixed  sum  for  his 
whole  service.  Robinson  v.  Green,  3 
Mete.  (Mass.)  159. 

Where  the  owner  withdraws  part 


1925 


§§  2350,2351] 


THE    LAW    OF    AGENCY 


[BOOK   V 


and  for  his  reasonable  and  proper  costs  and  charges,  incurred  on  his 
principal's  account  in  the  execution  of  the  agency.77  He  is  also  en- 
titled to  be  indemnified  by  the  principal  against  losses  sustained  or 
liabilities  satisfied  on  his  principal's  account,  in  the  course  of  the  per- 
formance of  his  undertaking,  while  he  was  acting  in  good  faith  and 
without  negligence.78  These  results  grow  out  of  well  settled  principles 
applicable  to  other  agents,  which  have  been  previously  considered. 

§  2350.  Recoupment  of  damages  by  principal. — But  the 

principal  may,  as  in  other  cases,  recoup,  against  the  auctioneer's  claim 
for  compensation,  such  damages  as  he  may  have  sustained  by  reason 
of  the  auctioneer's  failure  in  the  performance  of  his  duty.79 

§  2351.  Auctioneer's  lien. — An  auctioneer  has  a  special  property 
in,  and  a  lien  upon,  the  goods  of  his  principal  in  his  possession,  and 
upon  the  proceeds  thereof  when  sold,  for  his  advances  thereon,  and  for 


of  the  goods  before  sale  the  auction- 
eer's commission  is  to  be  computed 
only  upon  those  sold  in  the  absence 
of  an  agreement  to  the  contrary. 
Leeds  v.  Bowen,  2  Abb.  N.  Y.  Pr. 
(N.  S.)  43. 

Auctioneer,  who  was  to  have  a 
commission  upon  the  proceeds  of 
goods  sold  held  not  entitled  where 
the  sale  was  not  completed.  Coch- 
ran  v.  Johnson,  2  McCord  (S.  C.),  21 

77  Russell  v.  Miner,  25  Hun  (N.  Y.), 
114;  Carpenter  v.  Le  Count,  22  Id. 
106. 

Not  entitled  to  reimbursement  for 
more  than  he  actually  expended.  Un- 
ion Refining  Co.  v.  Pentecost,  79  Pa. 
491. 

Not  entitled  to  reimbursement  for 
money  paid  to  release  the  goods  from 
a  distress  levied  or  threatened  after 
the  title  had  passed  to  the  buyer. 
Sweeting  v.  Turner,  L.  R.  7  Q.  B.  310. 

Entitled  to  recover  advances  made 
upon  the  goods  where  it  was  shown 
that  the  principal  had  no  title  to 
them.  Walker  v.  Kaye,  134  N.  Y. 
Supp.  898. 

78Warlow  v.  Harrison,  1  El.  &  El. 
309.  In  this  case  an  auctioneer  had 
advertised  to  sell  "without  reserve," 
but  before  the  property  was  struck 
down,  the  owner  interposed  a  bid  and 


it  was  struck  off  to  him.  The  auc- 
tioneer was  held  liable  to  the  highest 
bona  fide  bidder  as  for  breach  of  his 
contract  to  sell  "without  reserve," 
but  it  was  also  held  that  he  was  en- 
titled to  indemnity  from  his  princi- 
pal. Said  Martin,  B.,  at  p.  317:  "We 
entertain  on  doubt  that  the  owner 
may  at  any  time  before  the  contract 
is  legally  complete,  interfere  and 
revoke  the  auctioneer's  authority; 
but  he  does  so  at  his  peril;  and,  if 
the  auctioneer  has  contracted  any  lia- 
bility in  consequence  of  his  employ- 
ment and  the  subsequent  revocation 
or  conduct  of  the  owner,  he  is  en- 
titled to  be  indemnified." 

So  an  auctioneer  who  in  good  faith 
has  sold  property  of  a  third  person, 
supposing  it  to  be  his  principal's  who 
directed  the  sale,  and  is  made  to  re- 
spond in  damage,  will  be  entitled  to 
indemnity  from  the  principal.  Fare- 
brother  v.  Ansley,  1  Camp.  343; 
Adamson  v.  Jarvis,  4  Bing.  66.  See 
also,  Allaire  v.  Ouland,  2  Johns.  (N. 
Y.)  Gas.  52;  Turner  v.  Jones,  1  Lans. 
(N.  Y.)  147;  Howe  v.  Buffalo,  etc., 
R.  R.  Co.,  38  Barb.  (N.  Y.)  124; 
Castle  v.  Noyes,  14  N.  Y.  332;  Dug- 
dale  v.  Levering,  L.  R.  10  C.  P.  196. 

7«  See  ante,  §  1594. 


1926 


CHAP.    Il] 


OF   AUCTIONEERS 


his  proper  commissions  and  charges.80  He  may  retain  these  sums 
from  the  proceeds  of  the  sale,81  or  he  may  maintain  an  action  for  them 
against  the  principal.82 

§  2352.  May  not  dispute  principal's  title. — An  auctioneer,  when 
sued  for  the  price  of  goods  entrusted  to  him  to  be  sold,  will  not  be 
permitted  to  set  up  a  title  to  the  goods  in  himself,  where  he  made  no 
such  claim  until  called  upon  for  the  proceeds.83 


VII. 

AUCTIONEER'S  RIGHTS  AGAINST  THIRD  PERSONS. 

§  2353-  Right  to  sue  bidder. — The  auctioneer's  right  to  sue  for 
the  purchase  price,  and  to  recover  the  possession  of  the  goods  when 
the  conditions  of  sale  have  not  been  complied  with,  has  been  already 
considered  under  the  head  of  the  implied  authority  of  the  auctioneer.84 


so  Williams  v.  Millington,  1  H.  Bl. 
81;  Robinson  v.  Rutter,  4  Bl.  &  B. 
954;  Webb  v.  Smith,  30  Ch.  Div.  192; 
Woolfe  v.  Home,  2  Q.  B.  Div.  355; 
Thompson  v.  Kelly,  101  Mass.  291,  3 
Am.  Rep.  353;  Lewis  v.  Mason,  94 
Mo.  551;  Elison  v.  Wulff,  26  111.  App. 
616. 

An  auctioneer,  to  whom  assignees 
for  the  benefit  of  creditors  have  en- 
trusted property  for  sale,  has  no  lien 
upon  the  proceeds  against  the  as- 
signor's general  creditors,  the  assign- 
ment being  found  to  be  void.  Hone 
v.  Henriquez,  13  Wend.  (N.  Y.)  240, 
27  Am.  Dec.  204. 

In  Williams  v.  Millington,  1  H.  Bl. 
81,  Lord  Loughborough  said:  "I  en- 
tertain no  sort  of  doubt  on  the  gen- 
eral question  that  an  auctioneer  has 
a  possession  coupled  with  an  inter- 
est, in  goods  which  he  is  employed 
to  sell,  not  a  bare  custody  like  a  serv- 
ant or  shopman.  There  is  no  differ- 
ence whether  the  sale  be  on  the 
premises  of  the  owner,  or  in  a  pub- 
lic auction  room,  for  on  the  prem- 
ises of  the  owner  an  actual  posses- 
sion is  given  to  the  auctioneer  and 
his  servants  by  the  owner,  not  merely 
an  authority  to  sell.  I  have  said  a 
possession  coupled  with  an  interest; 


but  an  auctioneer  has  also  a  special 
property  in  him,  with  a  lien  for  the 
charges  of  the  sale,  the  commission, 
and  the  auction  duty,  which  he  is 
bound  to  pay."  Gould,  J.,  Heath,  J., 
and  Wilson,  J.,  concurred.  Wilson, 
J.,  said,  however:  "It  struck  me  as 
material  that  the  goods  were  sold  on 
the  premises  of  the  owner,  and  in  his 
name;  as  if  it  were  with  him  that 
the  contract  was  made.  In  the  North 
of  England,  where  cattle  are  often 
sold  by  auction,  it  would  be  thought 
a  strange  thing  if  the  auctioneer 
could  maintain  such  an  action  as 
this:  there  he  is  employed  merely  to 
sell  cattle  on  the  premises,  and  is 
not  considered  as  having  any  sort 
of  interest  in  them.  Where,  in- 
deed, the  auctioneer  has  rooms  for 
the  purpose  of  selling,  he  is  answer- 
able to  the  owner  and  has  a  special 
property." 

si  Harlow  v.  Sparr,  15  Mo.  184; 
Succession  of  Dowler,  29  La.  Ann. 
437. 

82  Robinson  v.  Green,  3  Mete. 
(Mass.)  159. 

ss  Osgood  v.  Nichols,  5  Gray 
(Mass.),  420;  Hutchinson  v.  Gordon, 
2  Har.  (Del.)  179. 

s*  See  ante,  §  2326. 


1927 


§§    2354-2356]  THE    LAW    OF    AGENCY  [BOOK   V 

§  2354.  Right  to  sue  wrongdoer. — The  auctioneer  has  such  a 
special  property  in  the  goods  in  his  possession  as  will  entitle  him  to 
maintain  an  action  for  the  recovery  of  the  goods  or  their  value  against 
a  wrongdoer,  who  injures  or  converts  them.85  As  against  a  mere 
stranger,  he  could  recover  the  full  value  of  the  goods,  but  as  against 
the  owner  or  one  claiming  under  him,  he  could  recover  only  to  the  ex- 
tent of  his  special  interest.86 


VIII. 


' 


PRINCIPALS  RIGHTS  AGAINST  THIRD  PERSONS. 

§  2355.  To  recover  purchase  price.  —  The  sale  is  made  of  the  prin- 
cipal's property  and  for  his  benefit,  and  he  has  therefore  the  prior  right 
to  recover  the  price  agreed  upon.87  As  has  been  seen,  the  auctioneer 
also  may  sue,  but  his  right  is  ordinarily  subordinate  to  that  of  the  prin- 
cipal, who  may  bring  or  control  the  action.88  Even  though  his  name 
was  not  disclosed,  he  has  the  right,  like  other  undisclosed  principals,  to 
interpose  before  payment  to  the  auctioneer,  and  appropriate  the  pro- 
ceeds to  himself,  subject  to  any  off-set  which  the  purchaser  has  in  good 
faith  acquired  against  the  auctioneer,  before  the  disclosure  of  his  prin- 
cipal.89 

But  as  has  been  seen  if,  where  goods  are  being  sold  as  the  goods  of  A, 
the  goods  of  B  are  also  put  up  for  sale  without  notice  of  that  fact  to 
the  auctioneer  or  the  bidders,  a  person  who  buys  the  goods  of  B,  sup- 
posing them  to  be  goods  of  A,  may  on  being  apprised  of  that  fact  re- 
pudiate the  sale  and  B  can  not  thereafter  recover  the  price  bid.00 

§  2356.  Where  bidder  refuses  to  complete  purchase.  —  When  the 
bidder  to  whom  the  property  has  been  struck  off,  refuses  to  complete 
his  purchase,  the  remedy  of  the  seller  is  usually  the  same  as  that  of 

ss  Tyler     v.     Freeman,     3     Cush.  ured  by  the  sum  total  of  his  advance- 

(Mass.)    261;    Robinson  v.  Webb,  11  ments,  commissions  and  charges,  and 

Bush  (Ky.),  464;  Fltzhugh  v.  Wiman,  that  the  surplus  should  be  returned 

9  N.  Y.  559;    Beyer  v.  Bush,  50  Ala.  to  the  sheriff.    Lewis  v.  Mason,  supra. 

19;    Lewis    v.    Mason,    94    Mo.    551;  87  See  ante,  §  2054. 

Davis  v.  Banks,  3  Exch.  435.  ss  See  ante,  §  2054  et  seq. 

R«  See  ante,  §  2050.    Where  a  sher-  so  The  fact  that  one  sells  at  auc- 

Iff  in  an  attachment  against  the  con-  tlon  is  not  notice  that  he  is  not  sell- 

signor    had    taken    goods    from    the  Ing     his     own     goods.       Schell     v. 

possession    of    the    auctioneer,    who  Stephens,  50  Mo.  375.    See  ante,  §  2059. 

thereupon  replevied  and  sold  them,  It  »o  Thomas  v.'Kerr,  3  Bush   (Ky.X, 

•was  held  that  the  amount  of  the  auc-  619,  96  Am.  Dec.  262. 
tioneer's    recovery    should    be   meas- 

1928 


CHAP.    Il]  OF    AUCTIONEERS  [§    2357 

any  other  seller  of  similar  property.  It  may  often  be  found  in  an  ac- 
tion for  damages  for  the  breach  of  the  contract,91  or  in  a  resale  of  the 
property,  and  an  action  against  the  defaulting  bidder  for  the  deficiency 
and  the  costs  of  the  resale.92  But  in  such  a  case  the  resale  must  have 
been  fairly  conducted,  upon  proper  notice,  and  upon  conditions  and 
terms  the  same  as,  or  no  more  onerous  than,  those  of  the  first  sale.98 
The  seller  may  also  in  a  proper  case  have  specific  performance  of  the 
contract.9* 

.3*9  ,^J-j»qo-jq  gniwB-ibrfoiw  ,5ljs^  ^niblorf  ton 

It  *",noii:>38  •gnifcj'j'jiq  &  pi  oton  £  ni  "i>$te9$rlu 

IX. 
ile*  i 

RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

§  2357.  Principal's  liability  for  auctioneer's  acts. — The  liability 
of  the  seller  for  the  acts  and  representations  of  the  auctioneer  rests 
upon  the  ordinary  principles  of  agency.  The  auctioneer  is  usually  a 
special  agent,  whose  general  powers  are  clearly  defined.95  The  seller 
may,  if  he  sees  fit,  confer  greater  powers  upon  him,  but  where  he  does 
not  do  so,  the  auctioneer's  authority  is  limited  to  the  sale  of  the  prop- 
erty for  cash,  and,  where  the  sale  is  without  reserve,  to  the  highest 
bidder,  and  to  the  consummation  of  the  sale  by  the  proper  entries  and 
the  receipt  of  the  purchase  price.96 

Secret  limitations  upon  these  general  powers  can  not  affect  a  pur- 
chaser who  acts  in  good  faith  and  in  ignorance  of  them,  relying  upon 
the  appearance  of  the  auctioneer's  authority;  neither  can  the  unwar- 

9i  Wells  v.  Day,  124  Mass.  38;   Cur-  Am.   Dec.   416;    Adams  v.   McMillan, 

tis  v.   Aspinwall,   114  Mass.   187,   19  7  Port.  (Ala.)  73;  Judge  v.  Booge,  47 

Am.  Rep.  332;    Girard  v.  Taggart,  5  Mo.  544;   Jones  v.  Null,  9  Neb.  254; 

Serg.  &  R.  19,  9  Am.  Dec.  327;  Ansley  Hill  v.  Hill,  58  111.  239. 

v.  Green,  82  Ga.  181.  9*  Pugh    v.    Chesseldine,    11    Ohio, 

92Boinest  v.  Leignez,  2  Rich.    (S.  109,  37  Am.  Dec.  414;    McClaskey  v. 

C.)  L.  464;  Robinson  v.  Garth,  6  Ala.  Albany,  64  Barb.   (N.  Y.)   310;    Free- 

204,   41    Am.    Dec.    47;     Lamkin    v.  man    v.    Paulson,  107    Minn.  64,  131 

Crawford,  8  Ala.  153;  Johns  v.  Trick,  Am.  St.  Rep.  438. 

22  Cal.  511;   Humphrey  v.  McGill,  59  »c  Bush   v.   Cole,   28  N.  Y.   261,   84 

Ga.   649;    Cooper   v.   Borrall,   10   Pa.  Am.  Dec.  343;   The  Monte  Allegre,  9 

491;   Forster  v.  Hayman,  26  Pa.  266;  Wheat.  (U.  S.)  645. 

Kelly  v.   Green,   63   Pa.   299;    Wilson  ee  The  auctioneer  cannot  bind  his 

v.  Loving,  7  Mass.  392;  Ex  parte  Pet-  principal  by  selling  for  less  than  the 

tillo,  80    N.    C.    50;    Bluecher    Bldg.  price  limited    by    the    latter,  but  he 

Ass'n  v.  Sylvester,  35  Pa.  Super.  Ct.  will  be  liable  to  the  purchaser  for 

Rep.  62.  breach  of  his  implied  warranty  of  au- 

93RiggS  v.  Pursell,  74  N.  Y.  370;  thority.    Bush  v.  Cole,  supra. 
Barnard  v.   Duncan,   38   Mo.  170,   90 

1929 


§§    2358-2360]  THE   LAW   OF   AGKXCY  [BOOK   V 

ranted  assumption  by  the  auctioneer  of  greater  powers  affect  the  prin- 
cipal who  has  given  them  no  color  of  authority. 

§  2358.  Liability  for  breach  of  contract. — A  purchaser  who  has 
complied  with  the  terms  of  sale  on  his  part,  may  recover  of  the  seller 
who  refuses  to  complete  the  contract,  such  damages  as  he  has  sustained 
by  the  refusal,  together  with  the  deposits  paid,  and  interest  thereon 
after  a  demand  and  refusal.07  He  may  also  in  a  proper  case  have  spe- 
cific performance  of  the  contract.98 

§  2359.  Liability  for  not  holding  sale,  withdrawing  property,  etc. 
— As  has  already  been  suggested  in  a  note  to  a  preceding  section,"  it 
seems  to  be  settled  by  the  weight  of  modern  authority  that  the  owner 
of  property  does  not  by  advertising  it  for  sale  by  auction,  or  by  ex- 
posing it  for  sale  at  an  auction  sale,  even  though  he  announces  that  it 
will  be  sold  "without  reserve"  or  to  "the  highest  bidder,"  thereby  make 
an  offer  which  is  accepted  by  the  one  whose  bid  is  highest.  It  is  at 
most  but  a  proposal  to  enter  upon  negotiations  and  no  contract  results 
until  the  bidder's  offer  has  been  accepted.  Up  to  the  time  of  such  ac- 
ceptance the  proposed  seller  may  give  up  the  sale,  withdraw  the  prop- 
erty offered,  or  revoke  the  authority  of  the  auctioneer  to  sell,  without 
liability  to  a  proposing  purchaser.1 

§  2360.  Liability  for  failure  of  title  to  goods  sold. — The  princi- 
pal who  sells  goods  by  auction  as  his  own  would  be  subject  to  the  same 
implied  undertakings  for  title  and  freedom  from  encumbrances  which 

»T  Cockcroft   v.    Muller,    71    N.    Y.  tlon  of  agency  its  full  discussion  is 

367.  not  considered  material  here. 

»8  McClaskey   v.   Albany,   64   Barb.  In   Byrne  v.   Fremont  Realty  Co., 

(N.  Y.)  310.  120  N.  Y.  App.  Div.  692,  it  was  held 

99  See  ante,  §  2346.  that    the    auctioneer's    authority    to 

i  Anderson    v.    Wisconsin    Central  sign  the  memorandum  of  contract  to 

Ry.  Co.,  107  Minn.  296,  131  Am.  St.  sell  land  could  be  revoked  even  after 

Rep.  462,  20  L.  R.  A.   (N.  S.)   1133;  the  property  had  been  knocked  down, 

McPherson  v.  Okanogan  Co.,  45  Wash.  but  before   a   binding   contract   had 

285,  9  L.  R.  A.  (N.  S.)  748;   Tillman  been  completed  by  the  making  of  the 

v.  Dunman,  114  Ga.  406,  88  Am.  St.  memorandum. 

Rep.   28,   57   L.   R.   A.   784;    Boyd  v.  In    Marcus    v.    Boston,    136    Mass. 

Greene,  162  Mass.  566;  White  v.  Dahl-  350,  it  was  held  that  a  bill  in  equity 

quist  Mfg.  Co.,  179  Mass.  427.  would   not   lie   by  the   purchaser  to 

The  question  is  very  fully  consid-  compel  the  auctioneer  to  sign  a  mem- 

ered  and  the  English,  Canadian  and  orandum   for  the   sale   of   land.     In 

American  cases  cited  and  discussed  this  case  the  auctioneer  refused  the 

in  the  note  to  Tillman  v.  Dunman,  57  plaintiff's  bid,  which  was  highest,  as 

L.  R.  A.  784,  and  also  in  the  opinion  too  trifling  a  raise  and  the  property 

in    Anderson    v.    Wisconsin    Central  was  knocked  down  to  the  next  bid- 

Ry.  Co.,  supra.    As  this  is  not  a  ques-  der. 

1930 


CHAP.    Il]  OF    AUCTIONEERS  [§    2360 

would  attach  to  any  other  seller  similarly  situated.2  The  seller  may,  of 
course,  interpose  qualifications  and  reservations ;  and  in  many  cases  the 
character  in  which  he  purports  to  sell  would  sufficiently  indicate  that 
there  was  no  implied  assurances  as  to  title  or  encumbrances. 

2  See  First  Nat.  Bank  v.  Jones,  31  of  the  defendants  who  had  not  as- 
Okla.  690,  where  there  was  held  to  sumed  responsibility  for  the  sale  or 
be  no  Implied  warranty  on  the  part  had  possession  of  the  goods. 

1931 


CHAPTER  III. 


OF  BROKERS. 


§  2361.  Purpose  of  this  chapter. 


I.   DEFINITIONS    AND    DIVISIONS. 


2362. 

2363. 
2364. 
2365. 
2366. 
2367- 
2370. 

2371. 
2372. 
2373. 
2374. 

2375. 
2376. 
2377. 

2378. 
2379, 

2381. 

2382. 
2383. 
2384. 
2385. 
2386. 

2387. 
2388. 
2389. 


Brokers — In  general. 
Different  kinds  of  brokers. 
Bill  and  note-brokers. 
Exchange-brokers. 
Insurance-brokers. 

-2369.  Distinctions. 

Broker's   duties   to 

ployer. 

Right  to  sue. 

Right  to  lien. 


em- 


Merchandise  brokers. 

As   agent  of   both   par- 
ties. 

How  authorized. 

When  special  agent. 

When  not  authorized  to 

sign. 

— —  "Bought  and  sold  notes" 
in  the  English  practice. 

2380.  English  rules  gov- 
erning "bought  and  sold 
notes." 

"Bought  and  sold  notes" 

in  the  United  States. 

Pawnbrokers. 
Real  estate  brokers. 
Ship  brokers. 
Stock  brokers. 

New  York  rules  governing 
relation. 

Broker  a  pledgee. 

Massachusetts  rule. 

New  York  view  generally 
adopted  —  Substitution  of 
other  shares — Repledge. 


II.    APPOINTMENT   AND  TERMINATION. 

2390.  Appointed  like  other  agents. 

2391.  How  authority  terminated. 


III.   IMPLIED    AUTHORITY   OF    BROKERS. 

2392.  In  general. 

2393.  How  affected  by  usage. 

2394.  Local  usages  or  customs. 

2395.  Usual  and  necessary  author- 

ity. 

2396.  Authority  to  make  and  sign 

necessary  memorandum. 

2397.  Effect  of  instructions. 

2398.  Acting  for  both  parties. 

2399.  May  not  delegate  his  powers. 

2400.  Usually  must  act  in  the  name 

of  his  principal. 

2401.  Implied  authority  to  fix  the 

price. 

2402.  Terms  of  sale. 

2403.  May    sell    with    warranty — 

When. 

2404.  When  may  sell  on  credit. 

2405.  No  authority  to  receive  pay- 

ment. 

2406.  No   authority   to    rescind   or 

arbitrate. 

2407.  No    authority    to    accept    or 

waive  performance. 

2408.  Authority    to    sell    property 

purchased  by  him. 

2409.  Authority  to  pledge  property. 

IV.   DUTIES    AND    LIABILITIES    TO    PBINOI- 
PAL. 

2410.  Reasonable  skill  and  diligence 

required. 

2411.  Fidelity    to    his    principal- 

Concealing  facts  —  Dealing 
with  or  for  himself. 

2412.  Acting  for  both  parties. 

2413.  How  when   mere   "mid- 
dle-man." 

2414.  Duty  to  obey  instructions, 

2415.  Illustrations, 


1933 


CHAP.    Ill] 


OF   BROKERS 


2416.  Imperiling   broker's   se- 
curity. 

2417.  Duty  to  keep  and  render  ac- 

counts and  to  pay  proceeds 
and  deliver  property. 


V.   DUTIES    AND    LIABILITIES    TO    THIBD 
PERSONS. 

2418.  Not  liable  when  he  contracts 

for  a  principal  disclosed. 

2419.  Liability  when  principal  con- 

cealed. 

2420.  Liable     when     he     expressly 

charges  himself. 

2421.  Liable  when  he  acts  without 

authority. 

2422.  Liability  for  money  received. 

2423.  When  guilty  of  a  conversion. 

VI.   BIGHTS    OF    BROKER   AGAINST   PRINCI- 
PAL. 

1.  Right  to  Compensation. 

2424.  Entitled  to  compensation. 

2425.  How  amount  determined. 

2426.  Broker    must    show    employ- 

ment —  Volunteer  —  Ratifi- 
cation. 

2427.  Broker  must  have  performed 

undertaking. 

2428.  2429.  Real  estate  broker — Na- 

ture of  his  undertaking. 

2430.  Usually  need  not  conclude  a 

binding  sale  —  Find  pur- 
chaser ready,  willing  and 
able  to  buy. 

2431,  2432.  When    is   such   a  pur- 

chaser "found"? 

2433.  Contract   in  particular  cases 

may  require  less. 

2434.  Contract    with    broker    need 

not  be  in  writing. 

2435.  2436.  Broker  must  be  procur- 

ing cause  —  May  be  such 
though  not  present  at  sale 
— Directness  of  cause. 

2437.  Must  be  on  terms  required — 
1.  Where    terms    were    pre- 
scribed. 

2438.  2.  Where  no  terms  were 

prescribed. 

2439.  Must  be  within  time  limited. 


Readiness  and  willingness  of 
purchaser. 

Pecuniary  responsibility  ol 
purchaser. 

Abandonment  by  broker  be- 
fore success. 

Must  be  sale,  not  mere  option 
or  conditional  contract. 

2444.  Must  be  sale,  not  exchange. 

2445.  Sale  by  principal  in  per- 
son— Exclusive  agencies. 

2446.  Giving  time. 

2447.  Broker's  right  not  defeated, 

how — Principal's  default. 

2448.  Buyer's  default. 

2449.  Revocation  of  authority. 

2450.  Reasonable  time  in  which  to 

find  purchaser. 

2451.  Definite  time — Contract  for. 
2452-2454.  When  such  contract  ex- 
ists— Consideration  for. 

2455.  Performance  liberally  viewed 
in  order  to  avoid  hardship 
to  broker. 

Employment  of  two  or  more 
brokers. 

When  one  entitled — How  de- 
termined. 

Same   subject  —  Inter- 
pleader. 

Abandonment     by     one 

broker— Termination  of  his 
authority. 

Duty    to    notify    princi- 
pal, when  purchaser  found. 

How  much  compensation 
broker  entitled  to — Quan- 
tum meruit. 

At  what  time  commission 
payable. 

Broker  to  sell  chattels. 

Abandonment  by  broker. 

Revocation  of  authority. 

Several  brokers. 

Broker  to  effect  loan. 
Broker  to  effect  exchange. 

• Bringing       parties       to 

terms. 

Failure  of  contract. 

Broker  to  purchase  land. 
Broker  to  find  a  tenant. 
Other  cases  within  the  same 

principles. 


2456. 
2457. 
2458. 
2459. 

2460. 
2461. 

2462. 

2463. 
2464. 
2465. 
2466. 
2467. 
2468. 
2469. 

2470. 
2471. 
2472. 
2473. 


1933 


§  2361] 


THE  LAW  OF  AGENCY 


[BOOK   V 


2474.  Commissions  from  both  par- 

ties. 

2475.  How    In    case    of    mere 

middle-man. 

2476.  How  affected  by  misconduct. 

2477.  How   affected    by    disloyalty, 

double  dealing,  etc. 

2478.  No   compensation   where   un- 

dertaking Illegal. 

2479.  How  when  not  licensed. - 

2.  Right  to  Reimbursement  and  In- 
demnity. 

2480.  Entitled  to  reimbursement. 

2481.  Needless  expenses  —  Il- 
legal transactions. 

2482.  How   when   undertaking   not 

performed. 

3.  Right  to  a  Lien. 

2483.  No  general  lien. 

2484.  Liens  in  special  cases — Stock 

brokers — Real   estate    brok- 
ers— Insurance  brokers. 

2485.  Equitable  liens. 

2486.  No  lien  except  for  debt  due 

from  principal. 


VII.    RIGHTS    OP    BROKER    AGAINST    THIKD 
PERSONS. 

1.  In  Contract. 

2487.  In  general,  no  right  of  action 

on  contracts. 

2488.  When  he  may  sue. 

2489.  What  defenses  may  be  made 

when  broker  sues. 

n        ,  m        *  fcS 

2.  In  Tort. 

2490.  May    recover    when    he    sus- 

tains injury  In  the  line  of 
his  business. 

VIII.   RIGHTS    OF    PRINCIPAL    AGAINST 
THIRD  PERSONS. 

2491.  Same    as    in   other    cases    of 

agency. 

2492.  No  set-off  of  broker's  debts  or 

obligations. 

2493.  Right  to  recover  money  and 

property. 

IX.    BIGHTS    OF   THIRD   PERSONS    AGAINST 
PRINCIPAL. 

2494.  Same    as    in    other    cases  of 

agency. 

2495.  No  remedy  if  broker  did  not 

act  as  defendant's  agent. 


§  2361.  Purpose  of  this  chapter. — It  is  the  purpose  of  this  chapter 
to  deal  more  specifically  with  the  rules  applicable  to  the  various  sorts 
of  brokers.  Many  cases  involving  them  have  already  been  dealt  with 
in  the  general  portion  of  the  work,  but  it  seems  desirable,  as  in  the  case 
of  auctioneers,  to  gather  together  in  one  place  the  most  important  of 
the  rules  which  apply  to  this  particular  class  of  agents. 

It  is  not  practicable  here,  moreover,  to  go  exhaustively  into  all  of  the 
cases  which  relate  to  brokers.  Any  one  of  several  of  them  might  well 
be,  and  in  fact  has  been,  made  the  subject  of  elaborate  treatises,  like 
those  upon  Real  Estate  Brokers,  and  Stock  Brokers,  for  example.  All 
that  can  be  attempted  within  the  compass  of  a  single  chapter  is  to  state1 
the  more  important  rules  which  govern  the  relation,  and  to  give  a  suffi- 
cient range  of  citation  to  furnish  illustrations  of  their  application. 

1934 


CHAP.    Ill] 


OF   BROKERS 


[§    2362 


I. 


DEFINITIONS   AND  DIVISIONS. 

§  2362.  Brokers — In  general. — A  broker  has  been  denned,  in  the 
opening  chapter  of  the  work,  to  be  one  whose  occupation  it  is  to  bring 
parties  together  to  bargain,  or  to  bargain  for  them,  in  matters  of  trade, 
commerce  or  navigation.1  As  has  been  there  stated,  he  differs  from  an 
auctioneer  in  that  he  has  usually  no  special  property  in  the  goods  which 


i  Strictly  speaking  the  definition  of 
a  broker  contemplates  one  whose  oc- 
cupation or  business  it  is  to  so  act. 
One,  of  course,  may  act  as  a  broker 
in  a  particular  case,  but  he  does  not 
thereby  become  a  broker  any  more 
than  one  who  may  occasionally  act 
for  another  in  legal  proceedings  be- 
comes an  attorney  at  law.  In  the 
great  majority  of  cases  it  will  be 
entirely  immaterial  whether  the  one 
acting  as  broker  is  a  professional 
broker  or  not,  but  in  many  cases  aris- 
ing under  statutes  it  will  be  clear 
that  the  statute  contemplates  one 
whose  occupation  or  business  is  that 
of  a  broker.  Thus  in  Stratford  v. 
Montgomery,  110  Ala.,  619,  where  the 
question  was  as  to  the  liability  for 
a  license  tax  imposed  by  the  city  of 
Montgomery,  it  was  said:  "Every 
broker  is,  in  a  sense,  an  agent,  but 
every  agent  is  not  a  broker.  There 
are,  however,  so  many  incidents 
common  to  both  relations,  that  it  is 
difficult  to  define  the  precise  line  of 
demarcation.  We  would  say  the 
idea  of  exclusiveness  enters  into  an 
employment  of  agency,  while  with  re- 
spect to  brokers,  there  is  a  holding 
out  of  one's  self,  generally,  for  em- 
ployments in  matters  of  'trade,  com- 
merce and  navigation.'  It  is  the  busi- 
ness or  calling  of  acting  or  of  offer- 
ing to  act,  generally,  as  distinguished 
from  isolated  employments  not  in- 
duced by  or  resulting  from  the  gen- 
eral business  or  calling." 

The  same  distinction  is  still  more 
clear  in  Jackson  v.  Hough,  38  W.  Va. 


?36,  where  the  statute  imposing  the 
license  required  its  payment  by  those 
who  "practiced  the  business  of  a 
stock  or  other  broker."  It  was  held 
that  mere  proof  of  a  single  sale  by 
one  not  shown  to  be  a  broker  by  oc- 
cupation did  not  bring  the  case 
within  the  statute. 

Members  of  the  Chicago  Stock  Ex- 
change were  held  to  be  "brokers," 
rather  than  factors  within  the  mean- 
ing of  a  certain  ordinance  of  the  city 
of  Chicago  requiring  a  license  fee  for 
the  privilege  of  carrying  on  the  busi- 
ness of  a  broker.  Many  definitions 
of  "broker"  are  here  collected.  Banta 
v.  City  of  Chicago,  172  111.  204,  40  L. 
R.  A.  611. 

Contra:  After  ordinance  amended. 
Hately  v.  Riser,  162  111.  App.  542. 

One  who  buys  for  his  own  benefit 
notes  or  claims  is  not  a  broker 
within  an  ordinance  imposing  license 
tax.  Gast  v.  Buckley,  23  Ky.  L.  R. 
992,  64  S.  W.  632. 

In  order  to  convict  one  for  carry- 
ing on  business  of  broker  without  a 
license,  it  must  be  found  that  "he 
was  not  aa  employe  or  attorney  in 
fact,  of  the  owner  of  the  goods  sold, 
but  that  he  negotiated  sales  between 
the  owner  and  purchaser  for  a  com- 
mission by  way  of  compensation 
without  being  intrusted  with  the  pos- 
session of  the  goods  sold."  Harby  v. 
Hot  Springs  (Ark.),  11  S.  W.  694. 

In  Miller  v.  Haskell,  179  Mass.  312, 
the  court  distinguished  between  the 
professional  broker  and  a  business 
man  acting  merely  in  the  particular 


1935 


§  2363] 


THE  LAW  OF  AGENCY 


[BOOK    V 


he  may  be  authorized  to  sell ;  that  he  must  ordinarily  sell  them  in  the 
name  of  the  principal,2  and  that  his  sales  are  private  and  not  at  auction. 
He  ordinarily  receives  a  compensation  or  commission,  usually  called 
brokerage,3  but  he  may  also  serve  gratuitously.  He  differs  from  a  fac- 
tor, also,  in  that  he  does  not  ordinarily  have  the  possession  of  the  prop- 
erty which  he  may  be  employed  to  sell,4  and  that  his  contracts  are  al- 
ways made  in  the  name  of  his  employer.5  As  will  be  seen,  he  is  pri- 
marily the  agent  of  the  first  person  who  employs  him,  and  he  can  not 
without  the  full  and  free  consent  of  both,  be,  throughout  the  transac- 
tion, the  agent  of  both  parties.  Without  such  consent,  he  can  only  act 
as  the  agent  of  the  other  party  when  the  terms  of  the  contract  are  fully 
agreed  upon  between  the  principals,  and  he  is  instructed  to  close  it  up.6 
§  2363,  Different  kinds  of  brokers. — Brokers  are  of  many  kinds, 
according  to  the  particular  class  of  transaction  in  which  they  engage. 
Thus  there  are  money-brokers,  stock-brokers,  ship-brokers,  bill-brok- 


case  aa  a  broker  in  view  of  the  rule 
that  the  broker  is  not  entitled  to  com- 
pensation unless  he  makes  a  sale. 

In  Turner  v.  Crumpton,  21  N.  Dak. 
294,  Ann.  Cas.  1913,  C.  28,  agents  em- 
ployed to  sell  grain  and  then  to  buy 
corn  were  held  to  be*  factors  rather 
than  brokers.  So  also  in  Goesling  v. 
Gross,  15  N.  Mex.  721.  Factor  and 
broker  distinguished.  Hall  v.  French- 
American  Wine  Co.,  149  N.  Y.  App. 
Div.  609;  Robinson  v.  Corsicana 
Cotton  Factory,  124  Ky.  435,  14  Ann. 
Cas.  802. 

For  further  distinctions,  see  Haas 
v.  Ruston,  14  Ind.  App.  8,  56  Am.  St. 
Rep.  288;  Hooper  v.  California,  155  U. 
S.  657. 

2  Brokers  upon  the  stock-exchange 
often    buy    and    sell    in    their    own 
names.    See  Banta  v.  City  of  Chicago, 
172  111.  204,  40  L.  R.  A.  611. 

3  An  agent  who  is  employed  on  sal- 
ary and  not  upon  a  fee  or  commis- 
sion, e.  g.,  the  agent  of  an  express 
company,  who  buys  bills  of  exchange 
with  his  principal's  funds  and  sells 
bills  drawn  by  his  principal  upon  its 
various    offices,    held    not    to    be    a 
"broker"  within  a  city  license  ordi- 
nance.    Portland   v.   O'Neill,    1   Ore. 
218.     This  is  repeated  in  Rodman  v. 
Manning,  53  Ore.  336. 

1936 


*  Stock-brokers,  however,  are  fre- 
quently entrusted  with  the  posses- 
sion of  the  securities  which  they 
have  purchased  on  account  of  the 
principal.  See  Banta  v.  City  of  Chi- 
cago, supra. 

5  The  same  person  may  often  act  as 
both  broker  and  factor,  and  when  he 
does  so  his  duties  and  liabilities  will 
be  determined  by  the  capacity  in 
which  he  acts.  See,  Green  v.  United 
States,  25  App.  Cas.  D.  C.  549. 

One  who  is  regularly  a  broker  may 
also  at  times  be  entrusted  with  the 
possession  of  goods  without  thereby 
losing  his  character  as  broker.  Thus 
in  Sinclair  v.  National  Surety  Co., 
132  Iowa,  549,  plaintiff  was  allowed  to 
recover  upon  a  fidelity  bond  of  an 
agent  described  as  a  broker,  although 
the  agent  was  entrusted  with  the  pos- 
session of  goods  and  was  more  prop- 
erly to  be  described  as  a  commission 
merchant.  The  company,  however, 
knew  how  the  agent  was  acting  and 
itself  described  him  as  broker  in  the 
bond. 

See  also,  Barry  v.  Boninger,  46 
Md.  59. 

«  See  ante,  §  73,  where  other  defini- 
tions and  distinctions  are  referred 
to. 


CHAP.    Ill] 


OF  BROKERS 


[§    2364 


ers,  insurance-brokers,  real  estate-brokers,  pawn-brokers,  and  general 
merchandise  brokers.7 

§  2364.  Bill  and  note-brokers. — "Bill  and  note  brokers  negotiate 
the  purchase  and  sale  of  bills  of  exchange  and  promissory  notes."8 

Such  a  broker,  like  others,  who  discloses  his  principal  and  contracts 
in  his  name  incurs  no  personal  liability,  while  acting  within  the  limits 
of  his  authority.9  Where  such  a  broker,  however,  does  not  disclose  his 
principal,  he  is  himself  liable  as  principal  to  those  with  whom  he  deals, 
and  where,  under  such  circumstances,  he  sells  negotiable  paper,  he  will 
be  held  to  an  implied  warranty  not  only  of  his  authority  to  sell  it,  but 
also  that  the  signatures  of  all  the  prior  parties  to  it  are  genuine,10  al- 
though if  he  does  not  indorse  it  or  otherwise  assume  responsibility  for 
its  payment,  he  does  not  warrant  their  solvency.11  The  mere  fact  that 
one  who  undertakes  to  sell  negotiable  paper  is  known  to  be  a  broker 
by  occupation  is  not,  it  is  held,  sufficient  of  itself  to  show  that  he  acted 
as  broker  upon  the  particular  occasion.12 

• 


T  See  ante,  §  73.  Other  persons  are 
spoken  of  sometimes  as  brokers,  e.  g., 
ticket  broker,  but  he  obviously  is  not 
a  broker  or  agent  of  any  kind  but 
transacts  his  business  on  his  own 
account. 

s  Bouvier's  Law  Dictionary,  Title 
"Brokers." 

» Lyons  v.  Miller,  6  Gratt.  (Va.) 
427,  52  Am.  Dec.  129. 

Defendant  having  represented  to 
plaintiff  that  he  was  the  agent  of  the 
principal  maker  of  the  note  in  pro- 
curing the  loan,  which  note  he  de- 
livers to  the  lender  and  upon  which 
he  receives  the  money  for  his  prin- 
ciple, is  not  liable  for  the  note  being 
of  no  value  because  the  principal  had 
forged  the  names  of  other  makers, 
the  agent  himself  being  ignorant  of 
that  fact  and  acting  in  perfect  good 
faith.  Huston  v.  Tyler,  140  Mo.  252. 
A  broker  who,  in  the  sale  of  a  note 
discloses  the  fact  of  his  agency  and 
the  name  of  his  principal,  is  not  li- 
able, in  the  absence  of  an  express 
warranty,  for  a  loss  resulting  from 
the  fact  that  the  indorsers'  names 
were  forged.  Bailey  v.  Galbraiths, 
100  Tenn.  599. 
122 


10  Thompson  v.  McCullough,  31  Mo. 
224,    77    Am.    Dec.    644;     Hamlin    v. 
Abell,  120  Mo.  188;   Smith  v.  McNair, 
19  Kans.  330,  27  Am.  Rep.  117;  Chal- 
lis  v.  McCrum,  22  Kans.  157,  31  Am. 
Rep.  181;  Bankhead  v.  Owen,  60  Ala. 
457;    Snyder  v.  Reno,  38  Iowa,  329; 
Swanzey  v.  Parker,  50  Penn.  441,  88 
Am.   Dec.   549;    Merriam   v.   Wolcott, 

3  Allen  (Mass.),  258,  80  Am.  Dec.  69; 
Woithington  v.  Cowles,  112  Mass.  30; 
Terry   v.    Bissell,    26   Conn.   23;    Du- 
mont  v.  Williamson,  18  Ohio  St.  515, 
98  Am.  Dec.  186;  Bell  v.  Cafferty,  21 
Ind.  411;    Morrison  v.  Currie,  4  Duer 
(11   N.   Y.   Super.   Ct),   79;    Nott  v. 
Papet,  15  La.  306;   Sere  v.  Faures,  15 
La.  Ann.  189;   Gurney  v.  Womersley, 

4  El.  &  B.  133. 

Contra,:  Fisher  v.  Rieman,  12  Md. 
497;  Buddecke  v.  Alexander,  20  La. 
Ann.  563;  Baxter  v.  Duren,  29  Me. 
434,  50  Am.  Dec.  602,  contra,  is  prac- 
tically overruled  by  Hussey  v.  Sib- 
ley,  66  Me.  192,  22  Am.  Rep.  557; 
Ellis  v.  Wild,  6  Mass.  321,  contra,  is 
overruled  by  Merriam  v.  Wolcott, 
supra. 

11  Aldrich  v.  Jackson,  5  R.  I.  218. 

12  Hamlin  v.  Abell,  120  Mo.  188. 

1937 


§§    2365-2367]  THE  LAW  OF  AGENCY  [BOOK   V 

Even  though  one  is  known  to  be  acting  for  another  on  a  particular 
occasion,  he  may,  in  accordance  with  well  settled  rules,  pledge  his  own 
responsibility,  if  he  sees  fit  to  do  so,  and  that  he  is  pledging  his  own 
responsibility  may  appear  from  the  established  usages  of  the  business 
or  from  the  course  of  dealing  between  the  parties.13 

§  2365.  Exchange-brokers. —  "Exchange  brokers  negotiate  bills 
of  exchange  drawn  on  foreign  countries,  or  on  other  places  in  this 
country."14 

§  2366.  Insurance-brokers. — "Insurance  brokers  procure  insur- 
ance and  negotiate  between  insurers  and  insured."15  The  insurance 
broker  is  ordinarily  employed  by  the  person  seeking  the  insurance,  that 
is  by  the  insured,  and  when  so  employed  is  to  be  distinguished  from  the 
ordinary  insurance  agent,  who  is  commissioned  and  employed  by  the 
insurance  company  to  solicit  and  write  insurance  by  and  in  the  com- 
pany. The  former  is  the  agent  of  the  insured ;  the  latter  is  the  agent 
of  the  insurers.16 

It  is,  of  course,  entirely  possible  for  the  insurer,  e.  g.,  the  insurance 
company,  though  having  regularly  appointed  agents  to  also  employ 
brokers  upon  particular  occasions  and  in  that  event  the  broker  will  be 
primarily  the  agent  of  the  insurer.17  It  is  also  possible  that  the  insured, 
as  in  the  case  of  certain  of  the  great  corporations,  may  maintain  an 
agent  whose  regular  and  perhaps  sole  business  will  be  to  look  after  the 
insurance  of  the  corporation's  property.18  He  is  not  a  broker  in  the  or- 
dinary sense,  but  the  established  and  usually  the  general  agent  of  the 
corporation. 

It  is  also  possible  for  an  insurance  broker,  though  first  employed  by 
one  party,  to  become,  during  the  progress  of  the  negotiations,  the  agent 
of  the  other ;  and  in  that  event,  he  may  acquire  rights,  have  powers  and 
incur  obligations  with  respect  of  both  insurer  and  insured.19 

§  2367.  Distinctions. — I.  The  insurance  agent,  as  the  reg- 
ularly constituted  representative  of  the  insurance  company,  and  thus 
distinguishable  from  the  insurance  broker,  is  usually  the  general  agent 

• 

13  Gurney  v.  Womersley,  4  El.  &  Bl.  And  other  cases  cited  post  under 

133.  the  heading  of  the  broker  employed 

i*  Bouvler's  Law  Dictionary.  Title  by  the  insurer. 

"Brokers."  is  See,   for   example,   Standard   Oil 

IB  Bouvier's  Law   Dictionary,  title,  Co.  v.  Triumph  Ins.  Co.,  64  N.  Y.  85; 

"Brokers."  Tarmenbaum   v.    Federal    Match   Co., 

le  Hartford   Fire   Ins.   Co.   v.   Rey-  189  N.  Y.  75;   Edwards  v.  Home  Ins. 

nolds,  36   Mich.   502;    East  Texas  F.  Co.,  100  Mo.  App.  695;   Insurance  Co. 

Ins.  Co.  v.  Brown,  82  Tex.  631.  v.  Wisconsin  Cent.  Ry.  Co.,  67  C.  C. 

IT  See  Indiana  Ins.  Co.  v.  Hartwell,  A.  300,  134  Fed.  794. 

123  Ind.  177.  i»  See  ante,  §  2362. 

1938 


CHAP.    Ill] 


OF  BROKERS 


[§  2368 


of  the  company  within  the  sphere  of  his  operations.  The  question  of 
his  authority  to  bind  his  principal  has  already  been  considered  in  an 
earlier  chapter  of  this  work,  and  need  not  be  referred  to  here.20  The 
discussion  now  will  be  confined  to  the  case  of  the  insurance  broker 
properly  so  considered. 

§  2368.  •  '  2.  An  insurance  broker  employed  by  tlie  insured 
to  obtain  insurance  for  him,  is  the  agent  of  the  latter,21  and  a  delivery 
of  the  policy  to  him  is  a  delivery  to  his  principal.22  He  is  ordinarily  a 
special  agent.23  His  acts,  statements  and  representations  made  or  done 
within  the  scope  of  his  authority  are  binding  upon  his  employer,24  but 
when  he  has  obtained  the  insurance  as  directed,  his  authority  ceases,25 
and,  except  where  he  is  generally  employed  to  attend  to  keeping  up  his 
principal's  insurance,26  he  has  no  implied  authority  to  return  a  policy 


20  See  ante,  §  1049  et  seq. 

21  Hartford  F.  Ins.  Co.  v.  Reynolds, 
36  Mich.  502;  Allen  v.  German  Amer- 
ican Ins.  Co.,  123  N.  Y.  6;   Common- 
wealth,   etc.,    Ins.    Co.    v.    Fairbank 
Canning    Co.,   173    Mass.     161;    Sea- 
mans    v.    Knapp-Stout  Co.,   89    Wis. 
171,  46  Am.  St.  Rep.  825,  27  L.  R.  A. 
362;    United    Firemen's    Ins.    Co.    v. 
Thomas,  34  C.  C.  A.  240,  92  Fed.  127, 
47  L.  R.  A.  450. 

In  Morris,  etc.,  Co.  v.  Ger.  F.  Ins. 
Co.,  126  La.  32,  20  Ann.  Gas.  1229,  38 
L.  R.  A.  (N.  S.)  614,  it  was  said: 
"The  mere  fact  that  he  receives  a 
commission  from  the  insurer,  for 
placing  the  insurance  with  him,  does 
not  change  his  character  as  agent 
of  the  insured.  United  Firemen's 
Ins.  Co.  v.  Thomas,  92  Fed.  127,  34 
C.  C.  A.  240,  47  L.  R.  A.  450;  East 
Texas  Fire  Ins.  Co.  v.  Brown,  82  Tex. 
631;  Seamans  v.  Knapp-Stout  Co., 
89  Wis.  171,  46  Am.  St.  Rep.  825,  27 
L.  R.  A.  362;  Am.  F.  Ins.  Co.  v. 
Brooks,  83  Md.  22." 

22  Travelers'  Fire  Ins.  Co.  v.  Globe 
Soap  Co.,   85   Ark.   169,   122   Am.   St. 
Rep.    22;   Holmes    v.    Thomason,    25 
Tex.  Civ.  App.  389. 

23  Maryland   Casualty    Co.    v.    Peo- 
ples, 26  Pa.  Super.  Ct.  142. 

24  Standard  Oil  Co.  v.  Triumph  Ins. 
Co.,  64  N.  Y.  85.  . 

In  Davis  Lumber  Co.  v.  Hartford 
Fire  Ins.  Co.,  95  Wis.  226,  37  L.  R.  A. 


131,  it  was  held  that  an  insurance 
broker,  authorized  to  procure  a  "line 
of  insurance"  had  implied  authority 
to  agree  with  the  insurers  that  hiss 
principal  would  not  take  out  a  second 
line  in  the  same  companies  through 
other  agents  in  other  places  it  ap- 
pearing that  it  was  the  usual  and 
proper  course  to  pursue,  that  it  was 
the  custom  of  insurance  companies 
to  require  such  an  agreement,  and 
that  without  it  they  would  not  have 
issued  the  policies  and  that  the 
broker's  principal  was  aware  that 
this  was  the  course  of  dealing  pur- 
sued by  the  insurance  company. 

Concealment  of  material  facts  by 
the  broker  will  affect  the  principal 
in  the  same  manner  as  if  he  had  con- 
cealed them  when  acting  in  person. 
Hamblet  v.  City  Ins.  Co.,  36  Fed.  118. 

Principal  affected  by  the  fraud  and 
forgery  of  the  broker.  Mahon  v.  Roy- 
al Union  L.  Ins.  Co.,  67  C.  C.  A.  636, 
134  Fed.  732. 

2'--  The  authority  of  a  broker  em- 
ployed by  the  insured  may  be  found 
to  have  terminated  when  the  policy 
has  been  countersigned  by  the  gen- 
eral agent  of  the  company  and  by 
him  handed  to  a  clerk  to  be  delivered 
directly  to  the  insured.  Green  v.  Star 
Fire  Ins.  Co.,  190  Mass.  586. 

26  Standard  Oil  Co.  v.  Triumph  Ins. 
Co.,  supra.  In  this  case  the  broker 
was  apparently  the  general  agent  of 


1939 


§ 


THE  LAW  OF  AGENCY 


[BOOK  v 


for  cancellation  or  to  substitute  another  in  its  place,27  and  subsequent 
notice  to  him  of  the  termination  of  the  insurance,  is  not  notice  to  his 
principal.28 

The  mere  fact  that  the  policy  is  left  temporarily  in  the  custody  of  the 
broker  does  not  change  this  rule.29  The  authority  of  the  broker  to  ac- 
cept cancellation  of  the  policy  may,  of  course,  be  expressly  conferred, 
or  it  may  be  inferred  from  the  facts  of  a  particular  case,  as,  for  ex- 
ample, where  the  principal  has  previously  acquiesced  in  his  doing  so.80 

A  provision  in  the  policy  that  such  notice  may  be  given  to  the  broker 
does  not  change  the  general  rule,  nor  can  it  be  altered  by  usage  among 
insurance  men.81 


the  insured  to  see  that  the  property 
of  his  principal  was  kept  properly 
insured  from  time  to  time.  In  Tan- 
nenbaum  v.  Federal  Match  Co.,  189  N. 
Y.  75,  the  broker  had  a  general  con- 
tract with  the  insured  to  keep  the 
principal's  property  protected  by  the 
year  up  to  a  certain  amount  of  in- 
surance. 

In  Edwards  v.  Home  Ins.  Co.,  100 
Mo.  App.  695,  it  is  said:  "When  a 
broker  is  entrusted  by  an  owner  with 
the  duty  of  keeping  the  owner's 
property  insured,  taking  out  policies 
thereon,  renewing  the  same  when 
they  expire,  paying  premiums  to  be 
repaid  to  the  broker  by  the  owner, 
and  obtaining  other  insurance  in 
lieu  of  expired  or  cancelled  policies, 
and  this  course  of  dealing  has  been 
carried  on  for  some  time,  the  broker 
is  the  general  agent  of  the  owner  in 
lespect  to  the  latter's  insurance,  and 
notice  of  cancellation  given  to  the 
broker  binds  his  principal.  McCart- 
ney v.  Ins.  Co.,  33  Mo.  App.  652;  Hug- 
gins  v.  Ins.  Co.,  41  Mo.  App.  530; 
Gardner  v.  Ins.  Co.,  58  Mo.  App.  611; 
Hodge  v.  Ins.  Co.,  33  Hun  (N.  Y.), 
583;  Stone  v.  Ins.  Co.,  105  N.  Y.  543; 
Davis  Lumber  Co.  v.  Ins.  Co.,  95  Wis. 
226;  Schauer  v.  Ins.  Co.,  88  Wis.  561; 
Hartford  Ins.  Co.  v.  Reynolds,  36 
Mich.  502;  Dibble  v.  Ins.  Co.,  70 
Mich.  1,  14  Am.  St.  Rep.  470;  Buick 
v.  Ins.  Co.,  103  Mich.  75;  Royal  Ins. 
Co.  v.  Wight,  55  Fed.  455;  White  v. 
Ins.  Co.,  93  Fed.  161;  Mutual  Assur- 


ance Society  v.  Ins.  Co.,  84  Va.  116, 
10  Am.  St  Rep.  819." 

27  Bennett    v.    City    Ins.    Co.,    115 
Mass.     241;     Van     Valkenburgh     v. 
Lenox  F.  Ins.  Co.,  51  N.  Y.  465. 

28  Grace  v.  American  Central  Ins. 
Co.,  109  U.    S.    278,  27    L.    Ed.  932; 
Hermann  v.  Niagara  F.  Ins.  Co.,  100 
N.  Y.  411,  53  Am.  Rep.  197;  White  v. 
Connecticut   F.    Ins.   Co.,    120    Mass. 
330;    Johnson  v.  North  British,  etc.. 
Ins.    Co.,  66    Ohio    St.    6;   Wilson    v. 
Hartford  Fire  Ins.  Co.,  17  App.  D.  C. 
14;   Young  v.  Newark  Fire  Ins.  Co., 
59  Conn.  41;  Indiana  Ins.  Co.  v.  Hart- 
well,   100   Ind.   566;    American   Fire 
Ins.  Co.  v.  Brooks,  83  Md.  22;  Kinney 
v.  Rochester  German  Ins.  Co.,  141  111. 
App.  543;  Davis  Lumber  Co.  v.  Home 
Ins.  Co.,  95  Wis.  542;   Broadwater  v. 
Lion  L.  Ins.  Co.,  34  Minn.  465. 

A  broker  employed  by  the  general 
agent  of  a  corporation  charged  with 
the  duty  of  looking  after  insurance 
upon  the  corporation's  property,  and 
who  has  procured  and  delivered  cer- 
tain policies  to  such  agent,  has  there- 
after no  implied  authority  to  consent 
to  the  cancellation  of  such  policies  or 
to  waive  notice  for  the  corporation. 
Insurance  Co.  v.  Wisconsin  Cent.  R. 
R.  Co.,  67  C.  C.  A.  300,  134  Fed.  794. 

29  Wilson  v.  Hartford  F.   Ins.  Co., 
17  App.  D.  C.  14. 

*°  Snyder  v.  Commercial  Union 
Assur.  Co.,  67  N.  J.  L.  7. 

si  Grace  v.  American  Central  Ins. 
Co.,  supra;  Hermann  v.  Niagara  Fire 


1940 


CHAP.    Ill] 


OF  BROKERS 


[§    2369 


The  broker,  as  a  special  agent,  having  performed  his  undertaking  by 
procuring  the  policy,  has  afterwards  no  implied  authority  to  make  or 
consent  to  an  alteration  in  its  terms.32 

§  2369.  •  J.  An  insurance  broker  employed  by  the  insurer 

(as  he  may  be,  though  it  is  not  usually  the  case),  is  ordinarily  to  be 
regarded  as  the  agent  of  the  insurer, — in  this  country  usually  an  incor- 
porated company, — as  to  all  matters  within  the  scope  of  such  employ- 
ment.33 Stipulations  in  the  policy  that  any  broker  employed  in  the 
transaction  shall  be  deemed  to  be  the  agent  of  the  insured  are  com- 
mon, but  the  courts  have  been  quite  astute  in  holding  that  they  would 
not  allow  the  real  situation  to  be  overcome  by  such  stipulations.3*  Stat- 
utes in  several  states  have  also  declared  that  such  a  broker  shall  for 
some  or  all  purposes  be  regarded  as  the  agent  of  the  company,  regard- 
less of  the  provisions  contained  in  the  policy.35  A  broker  authorized  to 
deliver  the  policy  and  collect  the  premium  has  been  quite  generally  held 


Ins.  Co.,  supra;  White  v.  Connecticut 
F.  Ins.  Co.,  supra;  Adams  v.  Manu- 
facturers' &  Builders'  Ins.  Co.,  17 
Fed.  Rep.  630;  Sullivan  v.  Phoenix 
Ins.  Co.,  34  Kan.  170;  Planters'  Ins. 
Co.  v.  Myers,  55  Miss.  479,  30  Am. 
Rep.  521;  Eilenberger  v.  Protective 
Mut  F.  Ins.  Co.,  89  Pa.  464;  Gans  v. 
St  Paul  F.  &  M.  Ins.  Co.,  43  Wis. 
108,  28  Am.  Rep.  535;  Von  Wien  v. 
Scottish  Ins.  Co.,  52  N.  Y.  Super.  Ct. 
490. 

32  Duluth  National  Bank  v.  Knox- 
ville  Fire  Ins.  Co.,  85  Tenn.  76,  4  Am. 
St.  Rep.  744. 

33  In  Indiana  Ins.  Co.  v.  Hartwell, 
123  Ind.  177,  the  court  said:   "Upon 
principle,  we  can  see  no  reason  for 
drawing  a  distinction  between  an  in- 
surance broker,  who  procures  a  risk 
which  is  adopted  and  accepted  by  an 
insurance   company,    and    a   commis- 
sioned agent,  who  effects  the  insur- 
ance, so  far  as  their  relations  to  the 
company   are   concerned.     In   either 
case,  what  is  done  is  the  authorized 
act  of  the  company,  and  for  the  serv- 
ices rendered  the  company  responds." 

3*  Where  the  broker  was  really  act- 
ing as  agent  for  the  company  a  stipu- 
lation that  he  should  be  deemed  to 
te  the  agent  of  the  insured  is  gener- 
ally held  not  operative.  Indiana  In- 


surance Company  v.  Hartwell,  100 
Ind.  566;  Union  Ins.  Co.  v.  Chipp,  93 
111.  96;  Newark  Fire  Ins.  Co.  v. 
Sammons,  110  111.  166;  Kister  v.  In- 
surance Co.,  128  Pa.  553,  15  Am.  St. 
Rep.  696,  5  L.  R.  A.  646. 

And  many  other  cases  cited,  ante, 
§  1071. 

Contra:  Rohrbach  v.  Germania  F. 
Ins.  Co.,  62  N.  Y.  47,  20  Am.  Rep.  451; 
Allen  v.  German  Amer.  Ins.  Co.,  123 
N.  Y.  6. 

Where  the  policy  contains  such  a 
stipulation  the  broker  will  not  be 
deemed  the  agent  of  the  company 
unless  there  was  some  evidence  that 
he  was  in  fact  such.  Allen  v.  Ger- 
man Am.  Ins.  Co.,  supra. 

?•••  Thus  §  90  of  the  Massachusetts 
Laws  of  1887,  Ch.  214,  provides  that 
the  broker  shall  be  deemed  to  be  the 
agent  of  the  company  for  the  purpose 
of  receiving  the  premiums  upon  the 
policy,  "whatever  conditions  or  stipu- 
lations may  be  contained  in  the  pol- 
icy or  contract."  See  Davis  v.  Aetna 
Ins.  Co.,  67  N.  H.  335. 

Section  3644,  Ohio  Rev.  Statutes 
provides:  "A  person  who  solicits  in- 
surance and  procures  the  application 
therefor,  shall  be  held  to  be  the  agent 
of  the  party  hereafter  issuing  the 
policy  upon  such  application,  or  a 


1941 


§  2369] 


THE  LAW  OF  AGENCY 


[BOOK   V 


to  be  the  agent  of  the  company  in  respect  to  those  acts.8'  Such  a  broker 
is  usually  a  special  agent  with  limited  authority  which  will  cease  as 
soon  as  the  acts  authorized  have  been  performed.87  To  the  extent  that 
he  was  the  agent  of  the  company,  the  latter  will  be  affected  by  the 
knowledge,  representations,  frauds  and  the  like  of  such  an  agent,  as  in 
the  case  of  any  other  similar  agent  of  the  company.39  Even  though  he 
was  not  formally  employed,  the  insurance  company  may  accept  and  act 
upon  insurance  proposals  made  upon  its  account  by  an  assumed  agent, 
and  thus  make  him  its  agent  for  that  transaction  by  ratification.89 


renewal  thereof,  anything  In  the  ap- 
plication or  policy  to  the  contrary 
notwithstanding."  Central  Ohio  Ins. 
Co.  v.  Lake  Erie  Provision  Co.,  13 
Ohio  Cir.  Ct  Rep.  661.  For  other 
states,  having  more  or  less  similar 
statutes,  see  ante,  §  1071,  note. 

s«  A  mere  insurance  broker  as  such 
has  no  implied  power  to  receive  the 
premium.  Gentry  v.  Connecticut 
Mut.  L.  Ins.  Co.,  15  Mo.  App.  215. 

The  mere  fact  that  the  company 
upon  one  occasion  confided  to  a 
broker  the  delivery  of  a  policy  which 
contained  a  clause  that  no  broker 
should  be  deemed  to  be  the  agent  of 
the  company  unless  authorized  in 
writing,  held,  not  of  itself  enough  to 
charge  the  company  with  the  loss  of 
the  premium  paid  by  the  insured  to 
the  broker  but  not  paid  over  to  the 
company.  Citizens'  Fire  Ins.  Co.  v. 
Swartz,  21  N.  Y.  Misc.  671. 

Payment  of  premiums  to  broker 
held  good  when  justified  by  course  of 
dealing.  Mannheim  Ins.  Co.  v.  Chip- 
man,  124  Fed.  950.  To  same  effect, 
Globe  Ins.  Co.  v.  Robbins,  43  N.  Y. 
Misc.  65. 

Whether  correspondence  and  course 
of  dealing  justified  payment  to  broker 
held  a  question  of  fact  and  affirma- 
tive finding  not  disturbed  by  Su- 
preme Court  Sun  Mut.  Ins.  Co.  v. 
Saginaw  Barrel  Co.,  114  111.  99. 

Where  the  insured  applied  to 
broker  A.  to  procure  a  policy  for  him, 
and  A  applied  to  B  who  applied  to  C 
who  applied  to  D,  who  obtained  it, 
but  did  not  pay  for  it,  and  D  passed 
it  back  through  C  and  B  and  A  to  the 

TQ4 


insured  who  paid  A  for  It,  and  A  paid 

B,  but  B  never  paid  C  nor  did  anyone 
ever  pay  the  company,  it  was  held 
that   the   company    was    not   bound, 
since   the  policy  contained   a  clause 
that  the  policy  should  not  be  bind- 
ing "until  the  actual  cash  payment  of 
the  premium   into   the   office   of  the 
company,"   and   also   clauses  against 
waivers  by  agents.     Pottsville  Mut. 
Fire  Ins.  Co.  v.  Minnequa  Spgs.  Imp. 
Co.,  100  Pa.  137. 

Where  company  permitted  broker 
to  deliver  policies,  charging  the 
premiums  to  him  and  looking  to  him 
for  payment,  payment  to  him  by  the 
insured  is  good.  Wytheville  Ins.  Co. 
v.  Teiger,  90  Va,  277. 

37  Even  if  broker  authorized  to  de- 
liver a  policy  becomes  thereby  the 
agent  of  the  company  his  authority 
is  confined  to  the  delivery  and  he  has 
no  implied  authority  to  waive  condi- 
tions or  consent  to  other  insurance. 
Goldin  v.  Northern  Assur.  Co.,  46 
Minn.  471.  To  same  effect,  Gude  v. 
Exchange  Fire  Ins.  Co.,  53  Minn. 
220. 

ss  In  East  Texas  F.  Ins.  Co.  v. 
Brown,  82  Tex.  631,  held  that  facts 
did  not  show  that  broker  was  agent 
of  insurer  or  company,  and  therefore 
his  knowledge  was  not  imputed. 

Broker  employed  by  insured  not 
agent  of  company  so  as  to  charge 
company  with  his  knowledge.  United 
Firemens'  Ins.  Co.  v.  Thomas,  34  C. 

C.  A.  240,  92  Fed.  127,  47  L.  R.  A.  450. 
8»  Packard  v.  Dorchester  Mut  Fire 

Ins.  Co.,  77  Me.  144;   Hahn  v.  Guard- 
ian Assr.  Co.,  23  Ore.  576,  37  Am.  St. 


CHAP.    Ill] 


OF  BROKERS 


[§§  2370,2371 


§  2370.  Broker's  duties  to  employer. — His  duties  to  his 

employer  are  similar  to  those  of  any  other  broker.  He  is  bound  to  ex- 
ercise reasonable  care  and  diligence  in  selecting  none  but  reliable  com- 
panies, and  in  securing  proper  and  sufficient  policies  to  cover  the  risks 
against  which  he  was  employed  to  insure ; 40  but  he  will  not  be  liable  if, 
in  the  exercise  of  such  diligence,  he  selects  a  company  then  in  good 
standing  though  it  subsequently  becomes  insolvent.41 

§  2371.  Right  to  sue. — His  right  to  sue  upon  the  policy 

has  been  already  touched  upon  in  another  place.42  As  there  seen,  where 
the  policy  is  in  his  name  or  the  loss  is  made  payable  to  him,  he  may 
maintain  the  action  in  his  own  name.43  His  right  in  this  case,  however, 
as  in  others,  is  subordinate  to  the  principal's  right  to  bring  the  action 
himself,44  subject  to  equities  where  he  was  not  disclosed,45  but  not 


Rep.  709;  Welsh  v.  Fire  Ass'n,  120 
Wis.  456;  Abraham  v.  North  German 
Ins.  Co.,  40  Fed.  717. 

*»Gettins  v.  Scudder,  71  111.  86; 
Park  v.  Hammond,  6  Taunt.  495; 
Maydew  v.  Forrester,  5  Id.  615.  See 
ant->,  §  1297. 

Broker  liable  for  negligently  or 
fraudulently  procuring  policy  in 
company  which  had  no  existence. 
Vann  v.  Downing,  10  Pa.  Co.  Ct.  Rep. 
59. 

Broker  liable  for  negligently  plac- 
ing insurance  in  insolvent  company. 
Mallery  v.  Frye,  21  App.  D.  C.  105; 
or  in  one  not  authorized  to  do  busi- 
ness in  that  territory:  idem. 

Liable  for  putting  warranty  in 
policy  not"  founded  in  fact,  where- 
fore insurance  can  not  be  collected. 
Walker  v.  Black,  216  Pa.  395. 

Where  the  broker  cannot  place  the 
insurance  he  must  give  notice  of  his 
failure  so  to  do.  Backus  v.  Ames,  79 
Minn.  145. 

Broker  liable  for  negligently  fail- 
ing to  pay  the  premium  over  to  the 
company.  Criswell  v.  Riley,  5  Ind. 
App.  496. 

No  duty  to  inform  insured  of  the 
provisions  and  conditions  of  policy 
where  the  policy  was  in  the  usual 
form.  Fries-Breslin  Co.  v.  Bergen,  99 
C.  C.  A.  384,  176  Fed.  76. 


Not  liable  for  taking  out  policy 
with  provision  against  chattel  mort- 
gages, where  he  had  no  reason  to  be- 
lieve there  was  such  a  mortgage. 
Fries-Breslin  Co.  v.  Bergen,  168  Fed. 
360. 

Liable  for  not  obtaining  vacancy 
permits,  when  furnished  with  the 
money  and  instructed  to  obtain 
same.  Emery  v.  Lord,  29  App.  Cas. 
D.  C.  589. 

41  Gettins  v.   Scudder,  supra.     See 
ante,  §  1297. 

42  See  ante,  §  2031. 

43  Jefferson   Ins.   Co.  v.   Cotheal,   7 
Wend.    (N.  Y.)   72,  22  Am.  Dec.  567; 
Farrow  v.  Commonwealth  Ins.  Co.,  18 
Pick.    (Mass.),  53,  29  Am.  Dec.  564; 
Provincial  Ins.  Co.  v.  Leduc,  L.  R.  6 
P.  C.   224;    Protection  Insurance  Co. 
v.  Wilson,  6  Ohio  St.  554;   Hamburg- 
Bremen  F.  Ins.  Co.  v.  Lewis,  4  App. 
Cas.  D.  C.  66. 

One  who  takes  out  insurance  in 
his  own  name  for  another  or  for 
whom  it  may  concern  cannot  sue  in 
his  own  name  if  his  authority  has 
been  revoked,  unless  there  is  express 
provision  in  the  policy  authorizing 
him  to  sue  or  he  has  some  interest 
in  the  property.  Reed  v.  Pacific  Ins. 
Co.,  42  Mass.  (1  Mete.)  166. 

44  Farrow    v.    Commonwealth    Ins. 
Co.,  18  Pick.  (Mass.)  53,  29  Am.  Dec. 


45  Browning  v.  Provincial  Tns.  Co.,  L.  R.  5  P.  C.  263. 
1943 


§§    2372-2374]  THE  LAW  OF  AGENCY  [BOOK   V 

where  the  principal's  name  is  disclosed,  as  by  being  stated  in  the  pol- 
icy.49 

§  2372.  Right  to  lien. — His  right  to  a  lien  is  considered 

hereafter.47 

§  2373.  Merchandise  brokers. — "Merchandise  brokers  negotiate 
the  sale  of  merchandise  without  having  possession  or  control  of  it,  as 
factors  have."48  Merchandise  brokers  are  a  numerous  class,  dealing 
with  reference  to  all  the  varieties  of  commercial  commodities.  They 
are  governed  by  the  general  rules  of  agency,  as  will  be  seen  in  the  fol- 
lowing sections,  but  there  has  also  grown  up  around  their  transactions 
a  body  of  usages  which  enter  into  their  negotiations  and  which  have 
been  recognized  and  enforced  by  the  courts.  They  are  also  often  reg- 
ulated by  statute.  The  rules  governing  their  operations  have  been  more 
fully  developed  in  England  both  by  custom  and  statute,  than  in  the 
United  States. 

§  2374.  As  agent  of  both  parties. — The  merchandise 

broker,  like  other  agents,  owes  a  duty  of  fidelity  and  single-mindedness 
to  his  employer  which  renders  him  incompetent  to  enter  into  the  service 
of  both  parties  to  the  same  transaction,  except  with  the  full  knowledge 
and  consent  of  both.  With  this  knowledge  and  consent,  however,  he 
may  act  for  both,49  and  in  a  great  number  of  mercantile  transactions  he 
represents  both  parties  by  their  express  or  implied  authority  ;  and  where 
he  does  so,  his  signing  of  the  name  of  each  party  binds  each.50 

564;   Newson  v.  Douglass,  7  H.  &  J.  N.  Y.  576;    Bacon  v.  Bccles,  43  WIs. 

(Md.)  417,  16  Am.  Dec.  317;  Lazarus  227;  Coddington  v.  Goddard,  16  Gray 

v.   Commonwealth   Ins.   Co.,   5   Pick.  (Mass.),  436. 

(Mass.)  76;  Sargent  v.  Morris,  3  so  Thus  It  is  said  by  Lord  Black- 
Barn.  &  Aid.  277;  Aldrich  v.  Equit-  burn  in  his  treatise  on  the  law  of 
able  Safety  Ins.  Co.,  1  Woodb.  &  M.  Sales  (2d  ed.  p.  78) :  "It  does  not  mat- 
(U.  S.  C.  C.)  272,  Fed.  Cas.  No.  155;  ter  which  party  was  the  first  to  em- 
Williams  v.  Ocean  Ins.  Co.,  2  Mete.  ploy  the  broker,  the  benefit  of  find- 
(Mass.)  303;  Somes  v.  Equitable  ing  a  customer,  coming  to  an  under- 
Safety  Ins.  Co.,  12  Gray  (Mass.),  531;  .  standing  with  him,  and  having  the 
Browning  v.  Provincial  Ins.  Co.,  L.  contract  effectually  made  is  the  same 
R.  5  P.  C.  263.  for  each  party.  There  is,  therefore, 

^e  Braden   v.   Louisiana   State   Ins.  nothing  in  the  nature,  of  his  employ- 
Co.,  1  La.  220,  20  Am.  Dec.  277.     See  ment   to   prevent   the   broker   acting 
also,  Sweeting  v.  Pearce,  7  C.  B.  (N.  for  both  parties  to  this  extent. 
S.)   449;    Scott  v.  Irving,  1  B.  &  Ad.  "But  in  practice  he  who  employs 
605.  a  broker  very  often  gives  him  a  dis- 

«  See  post,  §  2484.  cretion  as  to  the  terms  on  which  he 

*s  Bouvier's  Law  Dictionary.    Title  is  to  sell  or  buy,  and  when  this  is  the 

"Brokers."  case  the  broker  has  to  promote  an 

«Wood   on    Statute   of   Frauds,    §  interest  hostile  to  that  of  the  other 

429;  Butler  v.  Thomson,  92  U.  S.  412,  side.     The  vendor  seeks  to  sell  dear, 

23  L.  Ed.  684;   Newberry  v.  Wall,  84  the  purchaser  to  buy  cheap,  and  it 

1944 


CHAP.    Ill] 


OF  BROKERS 


[§§  2375,2376 


§  2375-  How  authorized. — The  authority  of  the  merchan- 
dise broker  need  not  be  expressly  conferred,  and  in  practice  ordinarily 
is  not.  At  the  outset  the  broker  is  the  agent  of  the  party  who  first  em- 
ployed him,  but  he  becomes  the  agent  of  the  other  also,  when  the  latter 
instructs  him  to  close  the  bargain,51  or  deals  with  him  as  representing 
both  parties,52  or  subsequently  ratifies  what,  as  agent  of  both  parties,  he 
has  assumed  to  do.53  When  so  authorized  he  has,  like  other  agents,  im- 
plied authority  to  do  whatever  is  necessary  and  proper  to  carry  his 
authority  into  effect,  including  herein  the  signing  of  the  necessary 
memorandum. 

§  2376.  When  special  agent. — Where,  however,  he  is  thus 

authorized  to  represent  the  other  party  in  a  single  transaction  inaugu- 
rated by  the  broker  as  agent  of  the  first,  he  is  deemed  to  be  a  special 
agent,  and  he  will  not  bind  such  other  party  unless  he  keeps  within  the 
limits  of  the  authority  conferred  upon  him:54 


would  be  a  fraud  In  the  broker  to 
undertake  to  promote  at  once  these 
opposite  interests;  the  broker,  there- 
fore, cannot  act  as  agent  for  both 
parties  in  settling  any  of  the  terms 
of  the  contract,  unless  both  parties 
agree  to  submit  to  him  as  umpire  on 
some  point.  But  though  in  exercis- 
ing any  discretion  as  to  the  terms  of 
the  contract,  the  broker  must  be 
agent  for  one  party  exclusively, 
there  is  nothing  to  prevent  his  still 
being  agent  for  both  parties  on  those 
points  where  their  interests  are  the 
same.  The  broker  who  is  trusted  to 
sell  at  the  best  price  he  can  get,  must 
be  the  vendor's  agent,  and  his  only, 
in  settling  what  the  price  is  to  be; 
but  when  that  is  agreed  upon,  he  may 
well  be  agent  for  both  buyer  and 
seller  in  seeing  that  the  terms  of  the 
contract  are  clearly  understood  and 
made  binding  in  law. 

"These  considerations  show  the  ex- 
tent to  which  it  is  possible  for  a 
broker  to  be  agent  for  both  parties, 
and  the  practical  question  how  far 
the  broker  actually  is  agent  for  one 
party  or  for  both,  depends  upon  acr 
tual  agreement  or  mercantile  usage. 
There  can  be  no  doubt  that  the  vend- 
or and  purchaser  might  give  the 
broker  authority  to  bind  them  by  any 
memorandum  whatsoever,  and  if  so 


they  would  be  bound  by  any  complete 
memorandum  signed  by  him;  and 
there  can  be  as  little  doubt,  that  if 
they  prescribed  to  him  a  particular 
form  in  which  alone  he  was  to  bind 
them,  he  could  bind  them  by  a  mem- 
orandum in  that  form  and  no  other." 

51  Coddington  v.  Goddard,  supra. 

82  Bacon  v.  Eccles,  supra.  So 
where  a  broker,  originally  employed 
by  the  buyer,  having  closed  a  bargain 
with  the  sellers,  made  a  memoran- 
dum of  it,  at  the  time  and  in  their 
presence,  in  which  they  were  de- 
scribed as  sellers,  it  was  held  that  the 
sellers  thereby  recognized  him  as 
their  agent  also.  Clason  v.  Bailey, 
14  Johns.  (N.  Y.)  484. 

53  Their  assent  may  be  presumed 
where  they  receive  and  retain  with- 
out dissent  a  memorandum  of  the 
sale  made  by  the  broker  as  their 
agent  as  well  as  of  the  other  party: 
Newbery  v.  Wall,  35  N.  Y.  Super.  Ct 
106;  s.  c.,  65  N.  Y.  484;  s.  c.,  84  N.  Y. 
576;  Remick  v.  Sandford,  118  Mass. 
102. 

s*  T'hus  in  Coddington  v.  Goddard, 
supra,  where  the  broker,  acting  pri- 
marily for  the  buyer,  did  not  include 
in  the  memorandum  terms  and  condi- 
tions upon  which  the  seller  author- 
ized him  to  close  the  sale,  it  was 
held  that  the  seller  was  not  bound. 


1945 


§§    2377»  2378J  THE  LAW  OF  AGENCY  [BOOK   V 

§  2377-  When  not  authorized  to  sign. — And  where  he  is 

not  employed  to  make  the  contract,  but  simply  acts  as  a  "go-between," 
to  bring  together  the  parties,  who  make  the  contract  themselves,  he  has 
no  implied  authority  therefrom  to  afterwards  make  any  memorandum 
of  the  contract  at  all.55 

§  2378.  "Bought  and  sold  notes"  in  the  English  practice. 

— As  has  been  pointed  out,  the  English  practice  has  developed  the  sub- 
ject more  fully  than  in  this  country,  particularly  with  reference  to  what 
are  termed  "bought  and  sold  notes,"  and  in  respect  of  this  function  of 
the  merchandise  broker  regard  may  well  be  had  to  English  authority. 
"When  such  a  broker  has  succeeded  in  making  a  contract,"  says  Mr. 
Benjamin  in  his  work  on  Sale,56  "he  reduces  it  to  writing,  and  delivers 
to  each  party  a  copy  of  the  terms  as  reduced  to  writing  by  him.  He 
also  ought  to  enter  them  in  his  book,  [though  this  is  no  longer  required 
in  London]  and  sign  the  entry.  What  he  delivers  to  the  seller  is  called 
the  sold  note;  to  the  buyer,  the  bought  note.  [In  American  practice 
this  rule  is  often  reversed.]  No  particular  form  is  required,  and  from 
the  cases  it  seems  that  there  are  four  varieties  used  in  practice.  The 
first  is  where  on  the  face  of  the  notes  the  broker  professes  to  act  for 
both  the  parties  whose  names  are  disclosed  in  the  note.  The  sold  note, 
then,  in  substance,  says,  'Sold  for  A  B  to  C  D,'  and  sets  out  the  terms 
of  the  bargain;  the  bought  note  begins,  'Bought  for  C  D  of  A  B'  or 
equivalent  language,  and  sets  out  the  same  terms  as  the  sold  note,  and 
both  are  signed  by  the  broker.  The  second  form  is  where  the  broker 
does  not  disclose  in  the  bought  note  the  name  of  the  vendor,  nor  in  the 
sold  note  the  name  of  the  purchaser,  but  still  shows  that  he  is  acting  as 

Said  the  court:  "A  broker,  from  the  his  agent,  unless  he  complies  with  the 
very  nature  of  his  employment,  has  terms  of  his  special  authority  as  de- 
only  a  limited  authority,  when  it  rived  from  the  contract.  In  short,  a 
appears,  as  it  does  in  the  present  broker  is  authorized  to  sign  only 
case,  that  he  had  no  relation  to  a  that  contract  into  which  the  vendor 
party,  other  than  what  is  derived  has  entered,  not  another  and  differ- 
from  a  single  contract  of  sale.  When  ent  contract.  If  he  omits  to  include 
he  applies  to  a  vendor  to  negotiate  a  in  the  memorandum  special  excep- 
sale,  he  is  not  his  agent.  He  does  tions  and  conditions  to  the  bargain, 
not  become  so  until  the  vendor  enters  he  signs  a  contract,  which  he  has  no 
into  the  agreement  of  sale.  It  is  authority  to  make,  and  the  party  re- 
from  this  agreement  that  he  derives  lying  upon  it  must  fail,  because  it  is 
his  authority,  and  it  must  necessa-  shown  that  the  broker  was  not  the 
rily  be  limited  by  its  terms  and  con-  agent  of  the  vendor  to  sign  that  con- 
ditions. He  is  then  the  special  tract."  To  same  effect:  Remick  v. 
agent  of  the  vendor  to  act  in  con-  Sandford,  118  Mass.  102. 
formity  with  the  contract  to  which  55  Allen  v.  Aguirre,  7  N.  Y.  543. 
his  principal  has  agreed,  but  no  fur-  Be  §  276.  (5th  English  ed.  p.  285.) 
ther,  and  he  cannot  be  regarded  as 

1946 


CHAP.    Ill]  OF  BROKERS  [§    2379 

broker,  not  principal.  The  form  then  is  simply,  'Bought  for  C  D'  and 
'Sold  for  A  B.'  The  third  form  is  where  the  broker,  on  the  face  of  the 
note,  appears  to  be  the  principal,  though  he  is  really  only  an  agent. 
Instead  of  giving  to  the  buyer  a  note,  'Bought  for  you  by  me,'  he  gives 
it  in  this  form  :  'Sold  to  you  by  me.'  By  so  doing  he  assumes  the  ob- 
ligation of  a  principal,  and  cannot  escape  responsibility  by  parol  proof 
that  he  was  only  acting  as  broker  for  another,  although  the  party  to 
whom  he  gives  such  a  note  is  at  liberty  to  show  that  there  was  an  un- 
named principal,  and  to  make  this  principal  responsible.  The  fourth 
form  is  where  the  broker  professes  to  sign  as  a  broker  but  is  really  a 
principal,  as  in  the  cases  of  Sharman  v.  Brandt  5T  and  Mollett  v.  Robin- 
son,58 in  which  case  his  signature  does  not  bind  the  other  party,  and 
he  cannot  sue  on  the  contract. 

"According  to  either  of  the  first  two  forms,  the  party  who  receives 
and  keeps  a  note,  in  which  the  broker  tells  him  in  effect,  'I  have  bought 
for  you,'  Or  'I  have  sold  for  you,'  plainly  admits  that  the  broker  acted 
by  his  authority,  and  as  his  agent,  and  the  signature  of  the  broker  is 
therefore  the  signature  of  the  party  accepting  and  retaining  such  a 
note  ;  but  according  to  the  third  form,  the  broker  says,  in  effect,  'I  my- 
self sell  to  you,'  and  the  acceptance  of  a  paper  describing  the  broker 
as  the  principal  who  sells,  plainly  repels  any  inference  that  he  is  act- 
ing as  agent  for  the  party  who  buys,  and,  in  the  absence  of  other  evi- 
dence, the  broker's  signature  would  not  be  that  of  an  agent  of  the  party 
retaining  the  note  ;  and  by  the  fourth  form,  the  language  of  the  writ- 
ten contract  is  at  variance  with  the  real  truth  of  the  matter." 

§  2379.  •  English  rules  governing  bought  and  sold  notes.  — 
As  to  the  rules  governing  the  bought  and  sold  notes,  the  learned  editors 
of  the  last  edition  of  Benjamin  on  Sale,  altering  the  form  and  to  some 
extent  the  substance  59  of  the  summary  made  by  Mr.  Benjamin  in 


.  R.  6  Q.  B.  720.  that    the    broker    was,    at    the    time 

BS  L.  R.  7  H.  L.  802.  when  those  cases  were  decided,  bound 

so  With    reference    to    the    reasons  by  law  to  enter  the  terms  of  the  con 

for  this  change,  the  Editors  say   (p.  tract  in  his  book,  and  this  fact  was 

287)  :    "On  a  review  of  the  authori-  regarded  by  the  courts  as  very  ma- 

ties  on  this  point  it  was  submitted  in  terial   in   leading   to   the   conclusion 

previous  editions  of  this  work,  as  a  that  the  parties  intended  the  entry 

result,   that  the  better   opinion  was  to  be  conclusive  between  them.     As 

that  the  broker's  entry  in  his  book  this  obligation  no  longer  exists,  the 

was  the  written  contract  between  the  question,  it  is  conceived,  is  one  to  be 

parties,  but  that  it  was  competent  to  solved  by  ordinary  legal  principles, 

the  parties,  by  accepting  notes  vary-  such  question  being  whether  the  doc- 

ing  from  the  entry,  to  enter  into  a  ument  was  intended  to  be  the  con- 

new   contract   on   the   terms   of   the  tract  in  writing,  or,  if  the  contract 

notes.     But  it  must  be  remembered  was  verbal,  whether  it  is  a  memoran- 

1947 


§  2379J  THE  LAW  OF  AGENCY  [BOOK  v 

earlier  editions,  say :  "The  following  propositions  are  submitted  as 
fairly  deducible  from  the  authorities  just  reviewed,  and  others  quoted 
in  the  notes,  though  some  of  these  points  cannot  be  considered  as  finally 
settled. 

"i.  When  a  broker  is  employed  by  one  party  to  negotiate  a  contract 
of  sale,  and  the  other  party  deals  with  him  as  a  broker,  as  soon  as  the 
terms  are  settled,  he  has  the  authority  of  both  parties  to  make  and  sign 
a  contract  in  writing;  60  or,  to  make  and  sign  a  memorandum  of  an  oral 
contract,  unless  an  oral  contract  is  unauthorized.81 

"Where,  however,  a  party  does  not  deal  with  a  broker  as  such,  but 
believes  him  to  be  the  principal,  the  broker  has  no  authority  to  make 
and  sign  any  memorandum  of  the  contract  on  behalf  of  that  party.62 

"2.  Judicial  opinion  has  differed  as  to  whether  a  broker's  authority, 
in  the  absence  of  special  instructions,  is  limited  to  making  a  contract 
in  writing,  or  whether  it  enables  him  to  make  an  oral  contract  and  a 
memorandum  of  it.83  It  is  submitted  that  usually  he  has  authority  to 
do  either. 

"3.  A  contract  in  writing  or  a  memorandum  of  a  contract  is  usually 
made  by  a  broker  by  bought  and  sold  notes  signed  by  him.  A  signed 
entry  by  the  broker  of  the  terms  of  the  contract  in  his  book  is  also  a 
good  memorandum,  or  in  some  cases  may  constitute  a  contract  in  writ- 
ing.8* 

dum?     In  this  connection  it  may  be  and  sold  notes  varied  inter  se,  such 

mentioned    that   it   is    not    now    the  an  entry  (unless  it  were  proved  that 

usual  practice  of  a  broker  to  make  an  it  did  not  truly  represent  the  terms 

entry    (except   for   his   own   private  of  the  contract)  would,  on  principle, 

information)   and  it  also  appears  to  be  a  sufficient  memorandum." 

be   almost   universal,   so   far  as  the  60  "Sievewright  v.  Archibald  (1851), 

Editor's  enquiries  have  extended,  to  17  Q.  B.  103." 

consider  the  bought  and  sold   notes  61  "Story  on  Agency,  S.  28;   Black- 
to  be  the  proper  evidence  of  the  con-  burn,  81-84;   2nd  ed.  78-80." 
tract.     On  the  whole  It  seems  doubt-  62  "McCaul  v.  Strauss   (1883),  Cab. 
ful  at  the  present  day,  whether,  if  a  &  El.  106." 

broker  makes  and  signs  an  entry  in  8S  In    "Sievewright    v.    Archibald, 

his  book,  this  being  a  private  entry  ante,    290-297,    Lord    Campbell,    and 

and  not  made  under  any  legal  obliga-  Wightman,  J.,  held  that  his  authori- 

tion,  it  would,  in  the  absence  of  spe-  ty    was    so    limited,    Patteson    and 

cial  circumstances,  be  held  that  the  Erie,  J.  J.,  that  it  was  not." 

parties   had   by  such   entry   reduced  6*  "Per  Parke,  B.,   in  Thornton  v. 

the  agreement  to  writing,  and  agreed  Charles  (1842),  9  M.  &  W.  802,  at  807, 

or  intended  that  that  writing  should  808;    per  Lord   Campbell  and  Patte- 

be    their    agreement;     but    on    the  son,  J.,  in  Sievewright  v.  Archibald 

other  hand,   it  seems   clear  that,   If  (1851),  17  Q.  B.  at  124,  115;  Thomp- 

not  contradicted  by  other  documents,  son  v.  Gardiner    (1876),  1  C.  P.  D. 

it    would    be   a   sufficient   memoran-  777." 
dum;    and  that  in  case  the  bought 

1948 


CHAP.    Ill]  OF  BROKERS  [§    2380 

"4.  Where  the  contract  has  been  reduced  to  writing,  it  will  not  be 
affected  by  subsequent  bought  and  sold  notes  containing  other  terms, 
unless  the  parties  have  agreed  to  make  a  new  contract  in  accordance 
with  the  terms  of  the  notes.65 

"But  evidence  of  an  intention  (which  may  be  inferred  from  the 
course  of  dealing  between  the  parties  or  the  usage  of  trade)  to  con- 
tract only  by  means  of  two  notes  is  relevant  to  show  that  what  is  ap- 
parently a  concluded  contract  in  writing  was  not  intended  as  such.66 

"5.  The  bought  and  sold  notes  are  deemed  to  constitute  a  single  doc- 
ument.67 If,  therefore,  they  materially  differ,  they  are  nullities,68  un- 
less the  parties  have  assented  to  one  as  containing  the  terms  of  the  con- 
tract, in  which  case  the  difference  is  immaterial.69 

"6.  The  bought  and  sold  notes  are  prima  facie  presumed  to  agree. 
If,  therefore,  one  is  put  in  evidence,  the  other  will  be  presumed  to  cor- 
respond with  it,  until  the  contrary  is  shown.70 

"7.  If  a  sale  on  credit  be  made  by  a  broker  to  a  buyer  previously  un- 
known to  the  seller,  a  custom  that  the  seller  shall  have  a  reasonable 
time  after  receipt  of  the  sold  note  to  object  to  the  sufficiency  of  the 
buyer,  is  reasonable."  71 

§  2380.  •  The  same  learned  editors  also  say:  "It  has  been 

seen  that  it  is  customary  for  the  broker  to  send  a  sold  note  to  the  seller 
and  a  bought  note  to  the  buyer.72  When  the  names  of  both  parties  are 
disclosed  on  each,  note,  each  is  a  complete  memorandum  of  the  bargain, 
and  the  only  question  is  whether  the  broker  signed  it  as  agent  for  the 
party  sought  to  be  charged.73  When  one  note  discloses  only  the  name 
of  one  party  and  the  other  note  the  name  of  the  other,  the  two  notes 

«B  "Heyworth  v.  Knight   (1864),  17  B.  737;  per.  Wllles,  J.,  in  Caerleon  Tin- 

C.   B.   N.   S.   298;    Hawes   v.  Forster,  Plate  Co.  v.  Hughes  (1891),  65  L.  T. 

(1834),  1  Moo.  &  R.  368,  as  explained  118  at  119." 

by  Parke,  B.,  in  Thornton  v.  Charles,          «»  "R0we     v.     Osborne     (1815),     1 

supra.      See    also,    Lewis    v.    Brass  Stark.  140;  Moore  v.  Campbell  (1854), 

(1877),  3  Q.  B.  D.  667,  C.  A."  10    Ex.    323.      It    is    submitted    that 

««  "Heyworth     v.     Knight,     supra;  such  should  have  been  the  decision  of 

Cowie  v.  Remfry  (1846),  5  Moo.  P.  C.  the  P.  C.  in  Cowie  v.  Remfry  (1815), 

232,    ante,    300;    Moore   v.    Campbell  5  Moo.  P.  C.  232;   see  per  Willes  J., 

(1854),  10  Ex.  323,  ante,  300."  in  Heyworth  v.  Knight  (1864),  17  C. 

er  "Sievewright  v.  Archibald  (1851),  B.  N.  S.  298,  at  311." 
17    Q.    B.    103,   ante,    290;    Gr#nt   v.          ™  "Hawes  v.  Forster  (1834),  1  Moo. 

Fletcher  (1826),  5  B.  &  C.  436;  Goom  &  R.  368;  Parton  v.  Crofts  (1864),  16 

v.  Aflalo  (1826),  6  B.  &  C.  117.     The  C.  B.  N.  S.  11." 
principle  runs  through  all  the  cases."          "  "Hodgson    v.    Davies    (1810),    2 

cs  "By  the  majority  of  the  Court  in  Camp.  530." 
Sievewright  v.  Archibald,  diss.  Erie,          "2  ''Ante,  285." 

J.,    ante,    295;     Grant    v.    Fletcher,          ™  "Blackburn  on  Sale,  90;   2nd  ed. 

supra;  Gregson  v.  Ruck  (1843),  4  Q.  85." 

1949 


§    2381]  THE  LAW  OF  AGENCY  [BOOK   V 

may  be  treated  as  forming  one  memorandum.74  Yet  it  is  usually  suffi- 
cient for  a  party  suing  on  the  contract  to  put  in  evidence  only  one  of 
the  notes — either  that  sent  to  himself  75  or  that  sent  to  the  defendant T0 
— for  the  presumption  is  that  both  notes  correspond  in  their  terms.77  If, 
however,  it  turns  out  that  the  notes  vary  inter  se,  they  do  not  then  con- 
stitute a  sufficient  memorandum  in  writing ; 78  but  even  in  such  a  case 
a  sufficient  memorandum  in  writing  may  be  proved,  as,  for  example, 
where  a  complete  contract  can  be  gathered  from  correspondence  signed 
by  the  defendants'  broker,79  or  (as  has  been  already  stated  80)  by  an 
entry  signed  by  the  broker  in  his  book.  In  other  words,  although 
bought  and  sold  notes  are  prima  facie  evidence  of  the  contract,  where 
some  writing  other  than  bought  and  sold  notes  constitutes  the  contract, 
that  writing  can  be  put  in  evidence  to  prove  the  contract,  notwithstand- 
ing that  the  bought  and  sold  notes  may  conflict  with  each  other,  or  may 
both  be  shown  not  to  contain  the  real  terms  of  the  contract ; 81  or, 
where  an  oral  contract  is  proved  to  have  been  made,  any  writing  shown 
to  contain  the  terms  of  it  and  signed  by  the  defendant  or  his  agent  in 
that  behalf  will  be  a  sufficient  memorandum.  In  forward  contracts,  a 
formal  contract  is  generally  made  which  supersedes  the  notes."  82 

§  2381.  "Bought  and  sold  notes"  in  the  United  States. — 

The  usages  of  the  London  brokers  have  not  been  generally  adopted  in 
the  United  States,  though  "bought  and  sold  notes"  are  not  rare ;  but, 
in  general,  here  the  broker's  book  constitutes  the  appropriate  place  for 
his  entry,83  and  such  entries,  as  has  been  seen  in  the  preceding  sections, 
are  looked  upon  with  favor ;  and,  however  informal  or  inartificial  they 
may  be,  if  they  contain  the  essential  elements  of  the  contract  and  are 
duly  signed  in  such  manner  as  has  been  found  to  be  required,  they  will 
suffice. 

74"Trueman   v.    Loder    (1840),    11  friendly  way    or    to    arbitrate;    and 

A.  &  B.  589,  at  594;  per  Patteson,  J.,  every  formal  contract  which  the  edi- 

in  Sievewright  v.  Archibald    (1851),  tor's  have  seen  contains  an  arbitra- 

17  Q.  B.  103,  at  117."  tion  clause." 

75  "As  in  the  first  trial  of  Hawes          ™  "Heyworth  v.  Knight  (1864),  17 
v.  Forster   (1834),  1  Moo.  &  R.  368,  C.  B.  N.  S.  298." 

post,  289."  so  "Supra." 

76  "As  in  Parton  v.  Crofts   (1864),          si  "Heyworth  v.  Knight  (1864),  17 
16  C.  B.  N.  S.  11."  C.  B.  N.  S.  298." 

™  "Parton  v.  Crofts,  supra."  82  "The     editors,     after     inquiries 

78  "Sievewright        v.         Archibald  among  various  trade  associations  in 

(1851),  17  Q.  B.   103,  post,  290.     In  the   city,    have   been    informed   that 

case  of  variance  between  the  notes,  this  is  the  usual  practice." 

or  any  dispute,  it  is  practically  uni-  83  Bacon  v.  Eccles,  43  Wis.  227. 
versal  to    arrange    the    matter  in  a 

1950 


CHAP.    Ill] 


OF   BROKERS 


[§§  2382,2383 


If,  however,  the  parties  adopt  the  English  system,  the  rules  laid 
down  by  the  English  courts  would  of  course  be  applicable.84  Thus  in 
several  cases  the  court  has  said  that,  where  there  was  no  book  entry 
or  none  produced,  the  bought  and  sold  notes  would  constitute  the  con- 
tract or  satisfy  the  statute  of  frauds.85 

In  a  number  of  authorities  in  this  country  the  order  of  distributing 
the  notes,  has  been  reversed,  that  is  to  say,  the  sold  note  is  given  to 
the  buyer,  and  the  bought  note  to  the  seller,86 — a  practice  which  seems 
more  in  accord  with  their  purposes  than  the  other,  where  the  notes  are 
to  be  relied  upon  to  enforce  the  contract. 

§  2382.  Pawnbrokers. — "Pawnbrokers  lend  money  in  small  sums, 
on  the  security  of  personal  property,  at  usurious  rates  of  interest. 
They  are  licensed  by  the  authorities  and  excepted  from  the  operation 
of  usury  laws."  8T  In  this  view  they  are  not  properly  to  be  regarded 
as  brokers  at  all,  as  they  are  ordinarily  the  principals  in  their  part  of 
the  transaction  rather  than  agents.  Their  business  is  usually  regulated 
by  the  State  or  lesser  municipal  authority. 

§  2383.  Real  estate  brokers. — "Real  estate  brokers  negotiate  the 
sale  or  purchase  of  real  property.  They  are  a  numerous  class,  and  in 
addition  to  the  above  duty,  sometimes  procure  loans  on  mortgage  se- 
curity, collect  rents,  and  attend  to  the  letting  and  leasing  of  houses  and 
lands."  88 


s* Thus  If  "bought  and  sold  notes"      hy  the  courts  In  Illinois:  Saladin  v. 


are  given,  a  material  variance  be- 
tween them  will  vitiate  them.  Bacon 
v.  Eccles,  43  Wis.  227;  Suydam  v. 
Clark,  2  Sandf.  (N.  Y.)  133;  Peltier 
v.  Collins,  3  Wend.  (N.  Y.)  459,  20 
Am.  Dec.  711. 

In  Bau  Claire  Canning  Co.  v. 
Brokerage  Co.,  213  111.  561,  the  note 
delivered  to  the  buyer  of  canned  to- 
matoes contained  the  words  "usual 
guaranty  against  swells  and  quality" 
and  "terms  regular;"  the  one  given 
the  seller  did  not  contain  them. 
Held,  the  words  added  nothing  and 
the  variance  was  immaterial. 

In  Howell  v.  Maas,  13  Daly  (N.  Y). 
221,  one  note  stated  the  amount  of 
grape  sugar  sold  as  "about  240  cases," 
the  other  as  "about  250  cases."  Held, 
the  variance  did  not  vitiate  the  con- 
tract. 

ss  Bought  and  sold  notes  have  been 
several  times  recognized  as  sufficient 


Mitchell,  45  111.  79;  Memory  v.  Nie- 
pert,  131  111.  623;  Murray  v.  Doud, 
167  111.  368,  59  Am.  St.  Rep.  297,  af- 
firming Murray  v.  Doud,  63  111.  App. 
247;  Eau  Claire  Canning  Co.  v.  West- 
ern Brokerage  Co.,  213  111.  561. 

New  York:  Newberry  v.  Wall,  84 
N.  Y.  576. 

Wisconsin:  Pope  Metals  Co.  v. 
Sadek,  149  Wis.  394. 

United  States:  Bibb  v.  Allen,  149 
U.  S.  481. 

See  also,  Butler  v.  Thomson,  92  U. 
S.  412,  23  L.  Ed.  684;  Day  Leather 
Co.  v.  Michigan  Leather  Co.,  141 
Mich.  533. 

se  Story  on  Agency,  §  28;  Saladin 
v.  Mitchell,  45  111.  79. 

ST  Bouvier's  Law  Dictionary.  Title, 
"Brokers." 

as  Bouvier's  Law  Dictionary.  Title, 
"Brokers." 


1951 


§§    2384-2386]  THE  LAW  OF  AGENCY  [BOOK   V 

The  general  nature  of  their  rights  and  duties  will  be  considered  in  a 
subsequent  section,  when  dealing  of  the  broker's  right  to  compensa- 
tion.80 

§  2384.  Ship  brokers. — "Ship  brokers  negotiate  the  purchase  and 
sale  of  ships  and  the  business  of  freighting  vessels."  90 

§  2385.  Stock  brokers. — "Stock  brokers  are  employed  to  buy  and 
sell  shares  of  stock  in  incorporated  companies  and  the  indebtedness  of 
governments."  91  The  stock  broker  regularly  is  employed  as  a  broker 
merely,  buying  or  selling  in  the  name  of  his  principal  to  whom  he 
stands  purely  in  the  relation  of  an  agent.  But  in  modern  times  he  is 
frequently  employed  in  transactions  in  which  he  assumes  a  different 
character.  These  transactions  are  those  in  which  the  broker  acting 
upon  the  order  of  his  principal,  but  with  his  own  money,  purchases  or 
sells  stocks  or  securities  for  the  principal  for  purposes  of  speculation. 
The  stock-broker  in  these,  as  in  other  cases,  usually  acts  for  a  com- 
mission agreed  upon  or  regulated  by  usage,  and  the  business  is  ordi- 
narily confined  to  those  brokers  who  are  members  of  the  stock-ex- 
change. 

It  not  infrequently  happens  that  the  so-called  stock-broker  is  ap- 
proached merely  as  one  of  whom  shares  may  be  obtained,  and  under 
circumstances  showing  that  it  is  a  matter  of  indifference  to  tlje  prin- 
cipal, whether  the  broker  supplies  shares  which  he  already  owns  or 
shares  which  he  buys  for  the  principal  in  the  market,  so  long  as  the 
principal  obtains  them  at  the  price  indicated  by  him.  In  the  former 
case,  the  broker  is  rather  a  seller  than  an  agent. 

§  2386.  New  York  rules  governing  relation. — The  law  governing 
the  transactions  of  stock  brokers  is  too  extensive  to  be  given  fully  here, 
but  the  ordinary  course  of  a  transaction  between  such  a  broker  and  his 
client  has  been  described  in  a  leading  case  in  New  York  92  as  follows : — 

"The  customer  employs  the  broker,  to  buy  certain  stocks  for  his  ac- 
count, and  to  pay  for  them,  and  to  hold  them  subject  to  his  order  as  to 
the  time  of  sale.  The  customer  advances  ten  per  cent,  of  their  market 
value,  and  agrees  to  keep  good  such  proportionate  advance  according 
to  the  fluctuations  of  the  market. 

8»  See  post,  §§  2428  et  seg.  The  language  in  this  case  was  quoted 

»o  Bouvier's  Law  Dictionary.  Title,      with  approval  in  Richardson  v.  Shaw, 

"Brokers."  209  U.  S.  365,  52  L.  Ed.  835,  14  Ann. 

»i  Bouvier's  Law  Dictionary.  Title,      Cas.  981;   Skiff  v.  Stoddard,  63  Conn. 

"Brokers."  198,  21  L.  R.  A.  102. 

92  Markham   v.    Jaudon,   41  N.   Y. 
235. 

1952 


CHAP.    Ill] 


OF  BROKERS 


[§  2386 


"The  broker  undertakes  and  agrees  : — 

"i.  At  once  to  buy  for  the  customer  the  stocks  indicated.93 

"2.  To  advance  all  the  money  94  required  for  the  purchase,  beyond 
the  ten  per  cent,  furnished  by  the  customer. 

"3.  To  carry  or  hold  such  stocks  for  the  benefit  of  the  customer  so 
long  as  the  margin  of  ten  per  cent,  is  kept  good,  or  until  notice  is  given 
by  either  party  that  the  transaction  must  be  closed.95  An  appreciation 


»s  It  is  the  broker's  duty  where 
the  quantity  or  price  is  fixed  by  the 
principal  to  observe  the  directions. 
Taussig  v.  Hart,  58  N.  Y.  425;  Day  v. 
Holmes,  103  Mass.  306. 

Must  follow  instructions  or  give 
notice  of  declining  the  agency;  other- 
wise he  will  be  liable  for  losses  re- 
sulting from  his  failure.  Galigher 
v.  Jones,  129  U.  S.  193,  32  L.  Ed.  658. 

In  Ingraham  v.  Taylor,  58  Conn. 
503,  18  Am.  St.  Rep.  291,  it  is  held 
not  to  be  indispensable  that  a  broker, 
ordered  to  buy  stock  on  margin  of  a 
sort  constantly  procurable  in  the 
market,  should  actually  buy  it:  it 
is  sufficient  if  he  is  at  all  times  ready 
and  able  to  deliver  it  upon  proper  de- 
mand and  payment. 

Like  other  brokers,  the  stock 
broker  can  not,  without  his  princi- 
pal's knowledge  and  consent,  buy  of 
or  sell  to  himself.  Taussig  v.  Hart, 
supra;  Levy  v.  Loeb,  85  N.  Y.  365; 
Day  -V.  Holmes,  supra;  Stokes  v. 
Frazier,  72  111.  428;  Richardson  v. 
Mann,  30  La.  Ann.  1060;  Maryland 
Fire  Ins.  Co.  v.  Dalrymple,  25  Md. 
242,  89  Am.  Dec.  779;  Baltimore  Ma- 
rine Ins.  Co.  v.  Dalrymple,  Id.  269; 
Bryson  v.  Rayner,  Id.  424,  90  Ain. 
Dec.  69;  Martin  v.  Moulton,  8  N.  H. 
504;  Marye  v.  Strouse,  5  Fed.  483; 
Bischoffsheim  v.  Baltzer,  20  Id.  890; 
Pickering  v.  Demerritt,  100  Mass.  416. 

A  broker  authorized  to  buy  stock 
"on  a  sixty  days'  buyer's  option," 
does  not  perform  merely  by  buying 
the  stock  himself  and  holding  it  on 
the  customer's  account  for  sixty  days. 
Pickering  v.  Demerritt,  100  Mass. 
416. 

»*  The  relation  is  not  changed  by 


the  fact  that  the  broker  advances  all 
of  the  money.  Content  v.  Banner, 
184  N.  Y.  121,  6  Ann.  Cas.  106. 

9s  The  broker  must  not  close  out 
the  transaction  without  the  princi- 
pal's authority,  unless,  after  reason- 
able notice,  the  latter  has  failed  to 
keep  good  the  margin.  If  he  does, 
the  broker  will  forfeit  his  commis- 
sion. Ball  v.  Clark,  28  Fed.  Rep.  179; 
Larminie  v.  Carley,  114  111.  196; 
Perin  v.  Parker,  17  111.  App.  169; 
Blakemore  v.  Heyman,  23  Fed.  Rep. 
648.  And  be  liable  for  conversion. 
Baker  v.  Drake,  66  N.  Y.  518,  23  Am, 
Rep.  80;  Content  v.  Banner,  184  N.. 
Y.  121,  6  Ann.  Cas.  106;  Keller  v. 
Halsey,  202  N.  Y.  588;  Hughes  v.- 
Barrell,  167  111.  App.  100. 

Not  guilty  of  conversion,  however, 
where  all  broker  had  acquired  was 
not  title  but  a  contract  of  purchase 
for  the  principal.  Corbett  v.  Under- 
wood, 83  111.  324,  25  Am.  Rep.  392; 
Smith  v.  Craig,  151  N.  Y.  App.  Div. 
648. 

A  mere  call  to  put  up  margin  is 
not  alone  enough  to  authorize  the 
broker  to  sell,  but  there  must  be  no- 
tice of  the  time  and  place  of  sale. 
Content  v.  Banner,  184  N.  Y.  121,  6 
Ann.  Cas.  106;  Rothschild  v.  Allen, 
90  App.  Div.  (N.  Y.)  233,  affirmed  in 
180  N.  Y.  561;  Fairchild  v.  Flomer- 
felt,  79  N.  Y.  Misc.  42. 

What  efforts  to  notify  sufficient 
Smith  v.  Craig,  151  N.  Y.  App.  Div. 
648;  Hughes  v.  Barrell,  supra. 

Even  if  the  broker  sells  without 
notice,  "he  does  not  thereby  extin- 
guish all  claim  against  the  customer 
for  the  advance,  but  the  customer  is 
entitled  to  be  allowed  as  damages 


123 


1953 


§  2386] 


THE  LAW  OF  AGENCY 


[BOOK  v 


in  the  value  of  the  stocks  is  the  gain  of  the  customer,  and  not  of  the 
broker.96 

"4.  At  all  times  to  have  in  his  name,  or  under  his  control,  ready  for 
delivery,  the  shares  purchased,  or  an  equal  amount  of  other  shares  of 
the  same  stock.97 

"5.  To  deliver  such  shares  to  the  customer  when  required  by  him, 
upon  the  receipt  of  the  advances  and  commissions  accruing  to  the 
broker ;  or 

"6.  To  sell  such  shares  upon  the  order  of  the  customer,  upon  pay- 
ment of  the  like  sums  to  him,  and  account  to  the  customer  for  the  pro- 
ceeds of  such  sale.98 


the  difference  between  the  price  for 
which  the  stock  sold  and  for  which 
he  received  credit,  and  its  market 
price  then,  or  within  such  reasonable 
time  after  notice  of  sale  as  would 
have  enabled  him  to  replace  the 
stock  in  case  the  market  price  ex- 
ceeded the  price  realized."  Minor 
v.  Beveridge,  141  N.  Y.  399,  38  Am. 
St.  Rep.  804. 

But  if  the  principal  fail  after  no- 
tice to  put  up  the  necessary  margin, 
the  broker  may  sell  after  the  custom- 
ary and  usual  notice  of  the  time  and 
place,  unless  such  notice  has  been 
waived.  Corbett  v.  Underwood,  83 
111.  324,  25  Am.  Rep.  392;  Baker  v. 
Drake,  66  N.  Y.  518,  23  Am.  Rep.  80; 
Markham  v.  Jaudon,  41  N.  Y.  235; 
Gruman  v.  Smith,  81  N.  Y.  25; 
Knowlton  v.  Fitch,  52  N.  Y.  288; 
Stenton  v.  Jerome,  54  N.  Y.  480. 

The  right  to  notice  is  frequently 
waived  by  the  express  terms  of  the 
contract  between  the  parties.  Smith 
V.  Craig,  151  N.  Y.  App.  Div.  648. 

Although  he  may  have  reserved 
the  right  to  sell  without  notice,  he 
may  so  assure  the  principal  that  he 
will  not  so  sell  as  to  entitle  the  prin- 
cipal to  damages  if  the  broker  sells 
without  notice.  Miller  v.  Lyons,  113 
Va.  275. 

Unless  there  be  an  agreement  to 
that  effect,  a  stock  broker  is  not 
obliged  to  sell  collaterals  deposited 
with  him  before  suing  to  recover 
•what  the  principal  owes  him.  De 


Cordova  v.  Barnum,  130  N.  Y.  615,  27 
Am.  St.  Rep.  538. 

Upon  the  death  of  the  principal  for 
whom  the  broker  is  carrying  shares, 
the  broker  may  close  the  account  at 
once  and  either  sell  the  shares,  or 
take  them  over  himself  at  their  then 
market  value.  In  re  Finlay,  [1913] 
1  Ch.  247. 

as  Profits  belong  to  the  principal. 
Gruman  v.  Smith,  81  N.  Y.  25. 

97  It  is  not  necessary  that  the 
broker  should  keep  the  identical  stock 
purchased.  An  equal  amount  of 
other  shares  of  the  same  kind  is  suf- 
ficient. Stewart  v.  Drake,  46  N.  Y. 
449;  Price  v.  Gover,  40  Md.  102; 
Marston  v.  Gould,  69  N.  Y.  220;  Levy 
v.  Loeb,  85  N.  Y.  365;  Taussig  v. 
Hart,  58  N.  Y.  425;  Sprague  v.  Currie, 
133  N.  Y.  App.  Div.  18;  In  re  Brown, 
183  Fed.  861.  See  also,  Gregory  v. 
Wendell,  40  Mich.  432. 

But  he  does  not  perform  his  duty 
if  he  does  not  at  all  times  have  in 
his  possession  or  under  his  control 
the  prescribed  amount  of  stock  of 
that  description  ready  to  be  delivered 
upon  proper  demand.  Cases  supra; 
Shiel  v.  Stoneham,  135  N.  Y.  Supp. 
1024;  Helm  v.  Annis,  109  N.  Y.  App. 
Div.  42;  Caswell  v.  Putnam,  120  N. 
Y.  153. 

88  It  is  the  broker's  duty  to  follow 
the  principal's  instructions  as  to  the 
price  or  time  at  which  he  shall  sell. 
See  nature  and  effect  of  "stop-order" 
explained  in  Porter  v.  Wormser,  94 
N.  Y.  431. 


1954 


CHAP.    Ill]  OF  BROKERS  [§    2387 

''Under  this  contract,  the  customer  undertakes, — 

"i.  To  pay  a  margin  of  ten  per  cent,  on  the  current  market  value  of 
the  shares. 

"2.  To  keep  good  such  margin  according  to  the  fluctuations  of  the 
market. 

"3.  To  take  the  shares  so  purchased  on  his  order,  whenever  required 
by  the  broker,  and  to  pay  the  difference  between  the  percentage  ad- 
vanced by  him  and  the  amount  paid  therefor  by  the  broker. 

"The  position  of  the  broker  is  twofold.  Upon  the  order  of  the  cus- 
tomer, he  purchases  the  shares  of  stock  desired  by  him.  This  is  a  clear 
act  of  agency.  To  complete  the  purchase,  he  advances  from  his  own 
funds,  for  the  benefit  of  the  customer,  ninety  per  cent,  of  the  purchase 
money.  Quite  as  clearly,  he  does  not  in  this  act  as  an  agent,  but  as- 
sumes a  new  position.  He  also  holds  or  carries  the  stock  for  the  bene- 
fit of  the  purchaser,  until  a  sale  is  made  by  the  order  of  the  purchaser, 
or  upon  his  own  action.  In  thus  holding  or  carrying,  he  stands  also 
upon  a  different  ground  from  that  of  a  broker  or  agent,  whose  office 
is  simply  to  buy  and  sell.  To  advance  money  for  the  purchase,  and  to 
hold  and  carry  stocks,  is  not  the  act  of  a  broker  as  such.  In  so  doing, 
he  enters  upon  a  new  duty,  obtains  other  rights,  and  is  subject  to  addi- 
tional responsibilities." 

§  2387.  Broker  a  pledgee.— "In  my  judgment,"  proceeds 

the  same  judge,  "the  contract  between  the  parties  to  this  action,  was 
in  spirit  and  in  effect,  if  not  technically  and  in  form,  a  contract  of 
pledge.  To  authorize  the  defendants  to  sell  the  stock  purchased  they 
were  bound  first  to  call  upon  the  plaintiff  to  make  good  his  margin ;  and 
failing  in  that,  he  was  entitled,  secondly,  to  notice  of  the  time  and  place 
where  the  stock  would  be  sold :  which  time  and  place,  thirdly,  must  be 
reasonable."  " 

This  view  that  the  broker  is  a  pledgee  is  maintained  by  the  Ne\v 
York  courts,  notwithstanding  the  fact  that  the  broker  is  not  required 
to  retain  the  particular  shares  purchased,  but  may  substitute  an  equal 
number  of  other  similar  shares  in  the  same  corporation  in  their  place, 

»» See  also,  Baker  v.  Brake,  53  N.  Like     other     pledgees     of     stock, 

Y.  211,  13  Am.  Rep.  507,  s.  c.  66  N.  Y.  broker  may  take  and  hold  certificate 

518,    23    Am.    Rep.    80;     Stenton    v.  In  his  own  name.    Shiel  v.  Stoneham, 

Jerome,    54    N.    Y.    480;    Taussig    v.  135  N.  Y.  Supp.  1024. 

Hart,  58  N.  Y.  425;  Gruman  v.  Smith,  Not  a  pledgee  where  he  merely  buys 

81  N.  Y.  25;   Maryland  Fire  Ins.  Co.  on  contract. — Corhett  v.  Underwood, 

v.  Dalrymple,  25  Md.  242,  89  Am.  Dec.  83  111.  324,  25  Am.  Rep.  392;  Smith  v. 

779;    Child    v.    Hugg,    41    Cal.   519;  Craig,  151  N.  Y.  App.  Div.  648. 
Thompson  v.  Toland,  48  Cal.  99. 

1955 


§    2388]  THE  LAW  OF  AGENCY  [BOOK   V 

and  even  though  he  may  have  the  right  either  expressly  given  or  result- 
ing from  the  customs  of  the  market  to  repledge  the  shares. 

Where,  however,  instead  of  purchasing,  the  broker  merely  makes  a 
contract  to  purchase,  on  the  principal's  account,  and  carries  that  along 
on  margin,  he  is  not  a  pledgee.  No  title  has  been  taken  by  either  party. 

§  2388.  Massachusetts  rule. — On  the  other  hand  in  Massachu- 
setts the  courts  have  declined  to  adopt  the  view  that  a  broker  who  buys 
and  holds  stocks  in  pursuance  of  an  order  from  a  client  is  to  be  re- 
garded as  a  pledgee,  but  treat  him  as  an  agent  who  has  bought  stock 
in  his  own  name  on  the  order  of  a  principal  and  who  holds  it  subject 
to  the  right  of  the  principal  to  have  it  upon  complying  with  the  terms 
of  the  contract  between  them.1  In  a  recent  case  2  in  which  the  court 
was  urged  to  abandon  this  view  and  adopt  the  New  York  doctrine  the 
court  replied  through  Holmes,  C.  J.,  as  follows :  "We  see  no  sufficient 
reason  for  departing  from  what  has  been  understood  to  be  the  law  of 
Massachusetts  ever  since  the  time  of  Chief  Justice  Shaw.  No  doubt, 
whichever  view  be  taken,  there  will  be  anomalies,  and  no  doubt  it  is 
possible  to  read  into  either  a  sufficient  number  of  implied  understand- 
ings to  make  it  consistent  with  itself.  Purchases  on  margin  certainly 
retain  some  of  the  characteristics  of  ordinary  single  purchases  by  an 
agent,  out  of  which  they  grew.  The  broker  buys  and  is  expected  to 
buy  stock  from  third  persons  to  the  amount  of  the  order.3  He  charges 
his  customer  a  commission.  He  credits  him  with  dividends  and 
charges  him  with  assessments  on  stock.  However  the  transaction  is 
closed,  the  profit  or  loss  is  the  customer's.  But  none  of  these  features 
is  decisive.  Lenders  often  charge  a  commission,  and  a  transaction  in 
similar  form  might  be  a  simple  wager.4  As  in  the  case  of  a  partner- 
ship it  would  be  possible  to  go  through  a  long  time  and  much  business 
without  ever  having  to  consider  where  was  the  title  to  the  assets  em- 
ployed. It  seems  to  us  that  the  duties  and  rights  of  the  broker  with  re- 
gard to  the  stock  which  he  purchases  ought  to  weigh  more  than  any- 
thing else  in  deciding  who  is  the  owner  of  that  specific  stock. 

i  Wood  v.  Hayes,  15  Gray  (Mass.),  2  Chase  v.  Boston,  supra. 

375;  Covell  v.  Loud,  135  Mass.  41,  46  3  "Rothschild  v.  Brookman,  5  Bligh 

Am.  Rep.  446;  Weston  v.  Jordan,  168  (N.   S.),  165;    2   Dow  &  Clark,  188; 

Mass.  401;  Chase  v.  Boston,  180  Mass,  Taussig  v.  Hart,  58  N.  Y.  425." 

458;   Rice  v.  Winslow,  180  Mass.  500.  *  "See  Harvey  v.  Merrill,  150  Mass. 

There  is  nothing  inconsistent  with  1,  15  Am.  St.  Rep.  159,  5  L.  R.  A.  200; 

this  in  Farrar  v.  Paine,  173  Mass.  58.  Morris  v.  Western  Union  Tel.  Co.,  94 

The  question  there  arose  over  the  al-  Me.    423;  North    v.  Phillips,  89    Pa. 

leged  wrongful  sale  of  certain  stock,  250." 
already  owned,  which  the  customer 
had  put  up  as  a  margin. 

1956 


CHAP.    Ill]  OF  BROKERS  [§    2389 

"We  think  that  we  must  assume  that  in  this  case,  as  generally,  the 
brokers  were  not  bound  to  keep  the  stock  of  a  certain  customer  distinct, 
that  they  could  take  a  single  certificate  in  their  own  name  for  this  and 
similar  stock  purchased  for  others,  and  that  they  could  pledge  the 
whole  to  a  bank  for  advances  made  to  them,  although  much  in  excess 
of  the  sum  due  to  them  from  any  one  of  the  persons  upon  whose  or- 
ders the  stock  was  bought.  Probably  they  were. not  bound  to  deliver 
the  identical  stock  purchased,  even  subject  to  the  large  powers  already 
enumerated,  but  could  deliver  any  stock  that  they  happened  to  have 
on  hand.  We  have  read  nothing  in  the  discussions  of  the  question  that 
have  attracted  our  attention  that  makes  it  seem  more  reasonable  to  de- 
scribe rights  of  such  extreme  tenuity  of  connection  with  any  specific 
object,  as  property  in  stock  rather  than  as  contractual  rights.  The 
English  doctrine  seems  to  be  the  same  as  that  of  this  Commonwealth, 
so  that  we  are  not  left  quite  alone  in  a  desert  of  logic."  5 

§  2389.  New  York  view  generally  adopted — Substitution  of  other 
shares — Repledge. — On  account  of  the  preponderating  influence  of 
New  York  in  transactions  of  this  sort,  perhaps,  as  much  as  upon  the 
inherent  soundness  of  the  position,  the  doctrine  of  the  New  York 
courts  has  been  followed  by  the  Supreme  Court  of  the  United  States," 
and  by  most  of  the  state  courts  which  have  had  occasion  to  deal  with 
it.7  With  reference  to  the  right  of  the  broker  to  substitute  other  shares 
in  the  place  of  those  originally  purchased,  the  courts  which  maintain 
this  view  have  said  that  there  was  no  necessary  inconsistency,  in  as 
much  as,  contrary  to  the  case  of  ordinary  property,  shares  in  corpora- 

B  "Bentinck  v.  London  Joint  Stock  California:    Cashman   v.    Root,    89 

Bank,  [1893]  2  Ch.  120,  140,  141."  Cal.  373,  23  Am.  St.  Rep.  482,  12  L. 

s  In  Richardson  v.  Shaw,  209  U.  S.  R.  A.  511. 

365,  52  L.  Ed.  835,  14  Ann.  Gas.  981,  Illinois:  Brewster  v.  Van  Lieu,  119 

the  court  said:  "The  rule  thus  estab-  111.  554,  59  Am.  Rep.  823;  Schaefer  v. 

lished    by    the    courts    of    the    State  Dickinson,  141  111.  App.  234;   Hately 

where  such  transactions  are  the  most  v.  Kiser,  162  111.  App.  542. 

numerous,  and  which  has  long  been  Michigan:  Austin   v.   Hayden,   171 

adopted  and  generally  followed  as  a  Mich.  38. 

settled    rule    of    law,  should    not  be  Pennsylvania:  Esser  v.  Linderman, 

lightly   disturbed,   and   an   examina-  71  Pa.  76;  Learock  v.  Paxon,  208  Pa. 

tion  of  the  cases  and  the  principles  602;   Barbour  v.  Sproul,  239  Pa.  171; 

upon  which  they  rest  lead  us  to  the  Sproul  v.  Sloan,  241  Pa.  284. 

conclusion  that  in  no  just  sense  can  Rhode  Island:  United  Nat.  Bank  v. 

the  broker  be  held  to  be  the  owner  Tappan,  33  R.  I.  1. 

of  the  shares  of  stock  which  he  pur-  Canada:  Clarke  v.  Baillie,  45  Can. 

chases  and  carries  for  his  customer."  Sup.  Ct.  50,  Ann.  Gas.  1912,  B.  548. 

^  The     New    York    view    is     also  In  Ohio,  see  Lamprecht  v.  State,  84 

adopted  in  Connecticut:  Skiff  v.  Stod-  Ohio  St.  32. 
dard   63  Conn.  198,  21  L.  R.  A.  102. 

1957 


§  2389] 


THE  LAW  OF  AGENCY 


[BOOK   V 


tions  have  no  earmark  by  which  they  can  be  identified ;  a  certificate 
of  stock  is  only  a  statement  of  the  extent  of  interest,  and  it  is  entirely 
immaterial  to  the  pledgor  whether  he  has  one  piece  of  paper  rather 
than  another  as  evidence  of  his  interest,  if  the  interest  in  both  cases 
is  the  same.8 

With  reference  to  the  authority  to  repledge,  it  is  said  that,  while  an 
ordinary  pledgee  has^no  such  authority,  there  is  nothing  to  prevent  the 
pledgor  from  giving  him  the  authority,  either  expressly  or  by  implica- 
tion, and  that  the  authority  may  arise  by  implication  when  the  broker 

is  authorized  to  deal  in  a  market  where  such  repledging  is  customary.' 

. 


s  Thus  in  Richardson  v.  Shaw,  209 
U.  S.  365,  supra,  the  court  said:  "It 
is  objected  to  this  view  of  the  rela- 
tion of  customer  and  broker  that  the 
broker  was  not  obliged  to  return  the 
very  stocks  pledged,  but  might  sub- 
stitute other  certificates  for  those  re- 
ceived by  him,  and  that  this  is  incon- 
sistent with  ownership  on  the  part  of 
the  customer,  and  shows  a  proprietary 
interest  of  the  broker  in  the  shares; 
but  this  contention  loses  sight  of  the 
fact  that  the  certificate  of  shares  of 
stock  is  not  the  property  itself,  it  is 
but  the  evidence  of  property  in  the 
shares.  The  certificate,  as  the  term 
implies,  but  certifies  the  ownership 
of  the  property  and  rights  in  the  cor- 
poration represented  by  the  number 
of  shares  named. 

"A  certificate  of  the  same  number 
of  shares,  although  printed  upon 
different  paper  and  bearing  a  differ- 
ent number,  represents  precisely  the 
same  kind  and  value  of  property  as 
does  another  certificate  for  a  like 
number  of  shares  of  stock  in  the 
same  corporation.  It  is  a  misconcep- 
tion of  the  nature  of  the  certificate  to 
say  that  a  return  of  a  different  cer- 
tificate or  the  right  to  substitute  one 
certificate  for  another  is  a  material 
change  in  the  property  right  held  by 
the  broker  for  the  customer.  [Hor- 
ton  v.  Morgan,  19  N.  Y.  170,  75  Am. 
Dec.  311;  Taussig  v.  Hart,  58  N.  Y. 
425;  Skiff  v.  Stoddard,  63  Conn.  198]. 
As  was  said  by  the  Court  of  Appeals 
of  New  York  in  Caswell  v.  Putnam, 


120  N.  Y.  153,  'one  share  of  stock  is 
not  different  in  kind  or  value  from 
every  other  share  of  the  same  issue 
and  company.  They  are  unlike  dis- 
tinct articles  of  personal  property 
which  differ  in  kind  and  value,  such 
as  a  horse,  wagon  or  harness.  The 
stock  has  no  earmark  which  distin- 
guishes one  share  from  another,  so  as 
to  give  it  any  additional  value  or  im- 
portance; like  grain  of  a  uniform 
quality,  one  bushel  is  of  the "  same 
kind  and  value  as  another.' " 

Helm  v.  Ennis,  109  App.  Div.  (N. 
Y.)  42;  Hunt  v.  Marquand,  109  App. 
Div.  (N.  Y.)  729;  holding  that  the 
same  rules  apply  to  bonds  as  to 
stocks. 

But  where  the  broker  reported 
that  he  had  bought  when  in  fact  he 
had  not,  and  subsequently  on  order 
from  the  customer  to  sell  reported 
that  he  had  done  so  and  the  customer 
paid  the  difference,  the  stock  having 
declined,  the  customer  may  recover 
back  the  sum  paid.  Todd  v.  Bishop, 
136  Mass.  386. 

a  Repledging  sustained  in  accord- 
ance with  the  usages  of  the  business. 
Skiff  v.  Stoddard,  63  Conn.  198,  21  L. 
R.  A.  102;  Richardson  v.  Shaw,  209 
U.  S.  365,  52  L.  Ed.  835,  14  Ann.  Cas. 
981;  Samuels  v.  Oliver,  130  111.  73; 
Lawrence  v.  Maxwell,  53  N.  Y.  19; 
Mayor  v.  Monzo,  151  N.  Y.  App.  Div. 
866;  Austin  v.  Hayden,  171  Mich.  38; 
Wahl  v.  Tracy,  139  Wis.  668;  United 
Nat.  Bank  v.  Tappan,  33  R.  I.  1; 
Clarke  v.  Baillie,  45  Can.  Sup.  Ct.  50, 


CHAP.    Ill] 


OF  BROKERS 


[§    2390 


It  may  also  sometimes  arise  by  implication,  as  will  be  seen  from  the 
cases  cited  in  notes,  where  stocks  are  deposited  or  left  with  the  broker 
as  a  means  of  enabling  him  to  carry  out  the  transaction  for  the  benefit 
of  the  principal. 

>H  3i^ifv/  brrd  "to  3\s& 
II. 


:&>:>;  to  <F$  brtuOif  ->d  fcVnnr.'j  fnrj 

APPOINTMENT  AND  TERMINATION. 

§  2390.  Appointed  like  other  agents. — The  broker,  like  other 
agents,  derives  his  authority  from  the  appointment  of  his  principal, 
and  in  order  to  obtain  rights  himself,  or  establish  liabilities  to  others, 
against  his  principal,  or  to  incur  liability  to  his  principal,  the  fact  of  his 
appointment  must  be  made  to  appear.10  No  special  method  is  requisite, 

23  Ann.  Gas.  [1912  B]  548.    (There  was     though  where  the  sub-pledgee  holds 


also  express  reservation  of  right  to 
re-pledge  here.) 

May  pledge  various  securities  en 
bloc.  Skiff  v.  Stoddard,  supra;  Clarke 
v.  Baillie,  supra. 

Any  repledging  of  the  stock  by  the 
broker  which  puts  it  out  of  his  power 
to  deliver  up  the  stock  to  his  princi- 
pal upon  a  tender  of  the  amount  due 
the  broker,  is,  of  course,  wrongful  as 
between  these  parties.  Lawrence  v. 
Maxwell,  53  N.  Y.  19;  Matter  of  Pier- 
son,  19  N.  Y.  App.  Div.  478;  Clarke  v. 
Baillie,  supra. 

The  brokers  "might  have  used  the 
stock  in  making  a  specific  loan  for 
the  purpose  of  enabling  them  to  carry 
the  stock  for  the  [principal],  but, 
when  they  used  it  for  any  other  pur- 
pose, they  made  an  improper  use  of 
it,  and  when  they  pledged  it,  with 
other  securities  under  their  control, 
for  their  own  indebtedness,  they  un- 
lawfully converted  it  to  their  own 
use."  Sproul  v.  Sloan,  241  Pa.  284, 
citing  Douglas  v.  Carpenter,  17  N.  Y. 
App.  Div.  329;  Strickland  v.  Magoun, 
119  N.  Y.  App.  Div.  113,  190  N.  Y. 
545;  German  Savings  Bank  v.  Ren- 
shaw,  78  Md.  475. 

But  the  bono  fide  sub-pledgee  will 
be  protected  (Bentinck  v.  London 
Joint  Stock  Bank,  [1893]  2  Ch.  120) 


other  securities  of  the  broker  also,  he 
will  be  compelled  to  exhaust  those 
before  having  recourse  to  the  stock  in 
question.  Le  Marchant  v.  Moore,  150 
N.  Y.  209. 

Even  under  the  Massachusetts  rule, 
if  stocks  are  delivered  to  the  broker 
to  be  used  as  margins  on  other  trans- 
actions, an  authority  to  pledge  them 
in  order  to  make  them  available  as 
margins  may  be  implied.  Furber  v. 
Dane,  203  Mass.  108. 

But  in  the  latter  case,  It  would  be 
a  wrongful  act,  as  between  broker 
and  principal,  if  the  broker  repledged 
the  securities  before  he  had  made 
any  purchases  or  incurred  any  obli- 
gations. In  re  Tracy,  112  C.  C.  A. 
324,  191  Fed.  810;  or  if  he  repledged 
at  a  time  when  he  was  in  default  in 
the  performance  of  his  duties  to  his 
principal.  In  re  Ennis,  109  C.  C.  A. 
468,  187  Fed.  720. 

10  in  an  action  to  establish  the  lia- 
bility of  the  broker  to  his  principal, 
where  the  broker  denies  the  employ- 
ment, the  fact  of  the  employment  can- 
not be  proved  by  the  acts  of  a  per- 
son not  shown  to  be  the  broker's 
agent  or  by  other  facts  which  do  not 
reasonably  indicate  that  the  plaintiff 
was  the  broker's  client.  Tompson  v. 
Allen,  149  N.  Y.  513. 


1959 


§§  239 1 >  2392J  THE  LAW  OF  AGENCY  [BOOK  v 

however,  except  where  a  statute  prescribes  it,  but,  as  in  the  case  of 
other  agents,  the  appointment  may  be  made  by  an  instrument  in  writ- 
ing, or  by  mere  spoken  words,  or  it  may  be  presumed  from  the  conduct 
of  the  parties.11  Even  the  appointment  of  a  broker  to  negotiate  the 
sale  of  land  where  he  has  no  power  to  sign  a  binding  contract,  and, 
in  some  States  even  where  he  has  such  power,  is  not  required  to  be  by 
writing,  unless  some  statute  changes  the  ordinary  rule.12  The  princi- 
pal cannot  be  bound  by,  or  be  made  liable  for,  services  rendered  by  a 
broker  which  are  purely  voluntary  on  the  part  of  the  latter  and  per- 
formed without  the  express  or  implied  consent  of  the  principal ; 13  but 
even  in  such  cases  the  principal  may,  by  availing  himself  of  the  bene- 
fits of  the  services,  not  only  ratify  and  confirm  the  acts  done,  but  ren- 
der himself  liable  to  the  broker  for  their  value.14 

§  2391.  How  authority  terminated. — The  authority  of  the  broker 
may  be  terminated  by  operation  of  law,  or  by  the  act  of  his  principal. 
What  will  operate,  as  matter  of  law,  to  dissolve  the  relation  of  princi- 
pal and  agent,  and  under  what  circumstances  it  may  be  terminated  by 
the  act  of  parties,  are  matters  which  have  been  already  considered,15 
and  the  rules  there  laid  down  are  applicable  to  this  relation. 

Frequent  illustrations  will  also  be  found  of  termination  by  lapse  of 
time,  by  accomplishment  of  the  object,  by  the  revocation  by  the  princi- 
pal, or  the  abandonment  of  the  undertaking  by  the  broker. 


III. 


IMPLIED  AUTHORITY  OF  BROKERS. 

§  2392.  In  general. — The  field  of  the  broker's  operations  lies 
within  comparatively  narrow  limits.  He  is  essentially  a  middleman, 
making  contracts  for  the  parties  in  many  cases,  but,  not  infrequently, 
simply  introducing  or  bringing  them  together,  and  then  leaving  them 
to  make  the  contract  for  themselves.  He  has,  ordinarily,  no  possession 
of  the  goods  he  sells,  and,  hence,  no  special  property  in  them.  His 
powers  are  limited  by  the  duty  he  undertakes,  by  the  instructions  he 

"Fischer    v.    Bell,    91    Ind.    243;  Market  Co.  v.  Jackson,  102  Perm.  269; 

Brown  v.  Eaton,  21  Minn.  409;   Dick-  Keys  v.  Johnson,  68  Penn.  42;  Holley 

erman  v.  Ashton,  Id.  538;  Thompson  v.  Townsend,  16  How.  (N.  Y.)  Pr.  125. 

v.  Gardiner,  L.  R.  1  C.  P.  Div.  777.  1*  Sibbald  v.  Bethlehem  Iron  Co.,  83 

12  See  ante,  §§  222,  229,  where  this  N.  Y.  378,  38  Am.  Rep.  441. 

question  is  more  fully  discussed.   See  See  Chapter  on  Ratification, 

also,  Rathbun  v.  McLay,  76  Conn.  308.  is  See  ante,  §  548  et  seq. 

is  Hinds  v.  Henry,  36  N.  J.  L.  328; 

1960 


CHAP.    Ill] 


OF  BROKERS 


[§    2393 


receives,  and  by  the  general  scope  of  that  branch  of  the  business  which 
he  pursues ;  and  he  certainly  has  no  general  capacity  to  make  contracts 
for  his  principal,  outside  of  those  limits. 

The  case  of  the  stock  broker,  however,  as  has  been  seen,  often  fur- 
nishes quite  radical  departures  from  these  characteristics. 

§  2393.  How  affected  by  usage. — The  law  governing  the  transac- 
tions of  brokers  is  the  outgrowth  of  commercial  usage,  and,  in  almost 
no  other  branch  of  business,  are  the  powers  and  duties  of  those  who 
engage  in  it,  so  largely  determined  by  reference  to  such  usage  as  in 
the  case  of  brokers.  Particularly  is  this  true  of  stock  brokers,  concern- 
ing whose  operations,  as  conducted  in  this  country,  there  has  been  de- 
veloped a  code  of  rules,  which  is  not  only  observed  by  the  brokers 
themselves,  but  which  has,  in  many  cases,  been  engrafted  upon  the  law 
by  judicial  recognition  and  adoption.16  To  act  in  accordance  with  such 
usages  is  ordinarily  not  only  the  right  but  the  duty  of  the  broker.17 

Usages,  however,  will  not  be  enforced  which  the  law  deems  to  be 
unreasonable,18  or  opposed  to  public  policy,19  nor  can  an  usage  be  per- 
mitted to  contravene  express  instructions  to  the  contrary,20  except 
where,  so  far  as  third  persons  are  concerned,  the  instructions  to  the 
contrary  may  be  deemed  to  be  private  instructions  within  the  rule  so 

is  See  ante,  §  2385;  Bibb  v.  Allen,  "Thus  in  Cameron  v.  Real  Estate 

Co.,  76  Mo.  App.  366,  it  was  held  that 
a  broker  was  liable  to  his  principal 
for  failing  to  take  the  usual  precau- 
tions, e.  g.,  for  allowing  water  to  col- 
lect in  pipes  and  freeze,  in  a  house 
which  the  broker  had  been  employed 
to  rent,  it  being  the  custom  in  that 
city  for  brokers  to  look  after  this 
matter  in  the  case  of  property  placed 
in  their  hands  to  rent. 

Compare  Sawtelle  v.  Drew,  122 
Mass.  228. 

is  See  ante,  §  716. 

ID  Where  a  broker,  engaged  to  sell 
land,  followed  a  general  custom  and 
employed  a  sub-agent,  promising  him 
as  commission  whatever  sum  over 
and  above  the  vendor's  price  he 
should  sell  the  land  for,  it  was  held 
this  agreement  with  sub-agent  was 
contrary  to  public  policy.  Chilberg 
v.  Lyng,  63  C.  C.  A.  451,  128  Fed.  899. 

20  See  ante,  §  716;  Day  v.  Holmes, 
103  Mass.  306. 


149  U.  S.  481,  37  L.  Ed.  819,  where  it 
is  said:  "It  is  settled  by  the  weight 
of  authority  that  where  a  principal 
sends  an  order  to  a  broker  engaged 
in  an  established  market  or  trade, 
for  a  deal  in  that  trade,  he  confers 
authority  upon  the  broker  to  deal  ac- 
cording to  any  well-established  usage 
in  such  market  or  trade,  especially 
when  such  usage  is  known  to  the 
principal,  and  is  fair  in  itself,  and 
does  not  change  in  any  essential  par- 
ticular the  contract  between  the  prin- 
cipal and  agent,  or  involves  no  de- 
parture from  the  instructions  of  the 
principal;  provided,  the  transaction 
for  which  the  broker  is  employed  is 
legal  in  its  character,  and  does  not 
violate  any  rule  of  law,  good  morals, 
or  public  policy." 

A    stock    broker    who    sells    stock 
"dividend  on"  without  actual  author- 
ity will  be  liable  to  his  principal  un- 
less he  can  show  a  usage  so  to  sell. 
Cronan  v.  Hornblower,  211  Mass.  538. 


1961 


§  2394] 


THE  LAW  OF  AGENCY 


[BOOK  v 


frequently  referred  to  which  does  not  permit  a  power  conferred  by 
usage  to  be  limited  by  secret  instructions  of  which  the  other  party  had 
no  notice  and  which  he  had  no  reason  to  anticipate. 

§  2394.  Local  usages  or  customs. — But  while  the  princi- 
pal is  bound  by  these  general  usages  which  govern  the  nature  of  the 
broker's  business,  he  is  not,  when  a  nonresident,  bound  by  purely  local 
customs  of  which  he  was  ignorant,  and  which  he  had  no  reason  to 
anticipate.21 

In  Pennell  v.  Delta  Transportation 
Co.,  94  Mich.  247,  the  plaintiffs  were 
hired  by  the  captain  in  charge  of 
defendant's  boat  to  clean  out  a  river. 
There  was  a  custom  among  lumber- 
men to  pay  the  board  of  those  em- 
ployed. Held:  It  was  improper  to  ex- 
clude evidence  that  the  captain  knew 
nothing  of  the  custom,  the  custom  be- 
ing confined  to  a  particular  locality 
and  business. 

A  custom  as  to  the  charges  of  an 
abstracter,  confined  to  a  county  is  not 
binding  on  one  residing  elsewhere. 
Kenyon  v.  Charlevoix  Improvement 
Co.,  135  Mich.  103.  A  custom  In  New 
York  city  to  regard  a  building  sepa- 
rated by  two  partition  walls,  though 
under  the  same  management,  as  one 
risk,  is  not  binding,  on  one  living  in 
Alabama.  German-American  Ins.  Co. 
v.  Commercial  Fire  Ins.  Co.,  95  Ala. 
469,  16  Li.  R.  A.  291.  A  local  custom 
to  the  effect  that  a  purchaser  receiv- 
ing corn  in  bulk  waives  all  rights 
against  the  seller  is  not  binding  on 
those  who  have  not  recognized  it  in 
their  own  transactions.  Miller  &  Co. 
v.  Moore,  83  Ga.  684,  6  L.  R.  A.  374. 

A  local  custom  giving  brokers  the 
right  to  set  off  mutual  accounts  is  not 
binding  on  a  principal  living  else- 
where. Baxter  v.  Sherman,  73  Minn. 
434,  72  Am.  St.  Rep.  631. 

A  local  custom  for  brokers  to  con- 
tract in  their  own  name  is  not  bind- 
ing on  a  non-resident  principal  in  the 
absence  of  a  knowledge  of  it  Rob- 
bins  v.  Maher,  14  N.  Dak.  228.  A  lo- 
cal custom  for  brokers  to  employ  sub- 
agents  is  not  binding  without  knowl- 
edge by  the  principal.  Chilberg  v. 
Lyng,  63  C.  C.  A.  451,  128  Fed.  899. 
1962 


21  In  American  Sugar  Co.  v.  Me- 
Ghee,  96  Ga.  27,  plaintiffs,  on  the  or- 
der of  their  broker  in  Macon,  Ga.f 
shipped  goods  to  a  customer  there. 
The  consignee  refused  to  accept  and 
on  the  broker's  order  defendant  de- 
livered the  goods  to  a  third  party. 
Held:  A  local  custom  in  Macon  for 
brokers  to  do  this  in  the  absence  of 
knowledge  of  such  custom,  is  not 
binding  on  plaintiffs.  The  same  was 
decided  in  Kelly  v.  Kauffman  Milling 
Co.,  92  Ga.  105. 

In  Horan  v.  Strachan,  86  Ga.  408, 
22  Am.  St.  Rep.  471,  plaintiffs  were 
employed  by  the  captain  of  defend- 
ant's ship  to  take  charge  of  it,  the 
ship  being  loaded  with  cotton  and 
having  taken  fire.  In  plaintiff's  bill 
was  a  charge  for  "commission  on 
disbursements."  The  captain  did  not 
know  of  a  custom  to  charge  such  a 
fee  and  the  court  held  that  where  the 
custom  is  purely  local  a  person  who 
has  not  been  there  before  Is  not 
bound. 

In  Simon  v.  Johnson,  101  Ala.  368, 
a  local  custom  to  pay  travelling  sales- 
man for  goods  bought  was  held  not 
binding  on  the  principal  in  the  ab- 
sence of  knowledge  of  the  custom. 

In  Gould  v.  Gates  Chair  Co.,  147 
Ala.  629,  it  was  material  to  decide 
whether  the  plaintiff's  travelling 
salesman  had  merely  taken  an  offer 
to  be  submitted  to  plaintiff  or 
whether  a  contract  had  been  perfect- 
ed. The  court  said:  "The  plaintiff 
was  domiciled  in  North  Carolina, 
and  it  cannot  be  presumed  that  it  had 
knowledge  of  the  custom  in  Mobile, 
Ala." 


CHAP.    Ill] 


OF  BROKERS 


[§    2394 


On  the  other  hand,  where  a  principal  employs  a  broker  to  act  for 
him  in  a  particular  market,  e.  g.,  a  stock  exchange,  where  it  is  reason- 
able to  anticipate  that  special  rules  or  usages  may  prevail,  it  will,  in 
the  absence  of  anything  to  indicate  a  contrary  intention,  be  presumed 
not  only  that  he  authorized  him  to  deal  according  to  the  general  cus- 
tom of  brokers,  but  also  to  follow  and  observe  the  usages  which  govern 
the  transactions  of  such  business  in  the  market  in  question.22  That 
the  principal  was  not  informed  of  the  usages  will  ordinarily  make  no 
difference  if  the  usage  be  a  general  and  reasonable  one  and  be  one 
which  regulates  the  mode  of  performance  of  the  contract  merely  and 
does  not  change  its  intrinsic  character.  It  is  his  duty,  before  dealing 
or  employing  others  to  deal  in  such  a  market,  to  inquire  as  to  such 
usages  if  he  wished  to  provide  against  them. 

But  unless  it  be  shown  that  he  had  such  knowledge  of  it  that  he  must 
be  presumed  to  have  contracted  in  reference  to  it,  the  principal  cannot 
be  bound  by  an  usage  which  changes  the  character  of  the  broker  or 
the  nature  of  the  dealing.23  So  an  usage  not  known  to  the  principal 


A  general  usage  of  a  seaport,  that, 
If  the  seller  of  a  ship  employs  a 
broker  who  introduces  him  to  a  buyer 
and  who  is  ready  to  continue  his  serv- 
ices, the  seller  shall  pay  the  broker's 
commission  though  the  sale  has  not 
been  made  through  the  broker,  is 
binding  on  a  non-resident,  though  ig- 
norant of  it.  Loud  v.  Hall,  106  Mass. 
404. 

In  Pennsylvania  R.  R.  Co.  v.  Naive, 
112  Tenn.  239,  64  L.  R.  A.  443,  it  was 
held  that  one  shipping  perishable 
goods  to  Philadelphia  is  bound  with 
constructive  notice  of  the  custom  of 
railroads  not  to  transact  business  on 
July  the  fourth. 

Usages  of  particular  "broker. — As  to 
an  agreement  to  be  bound  by  the  us- 
ages of  the  particular  broker's  office, 
see  Baker  v.  Drake,  66  N.  Y.  518,  23 
Am.  Rep.  80. 

22  What  is  meant  by  a  "particular 
market"  within  this  rule  has  not 
been  defined.  It  clearly  means  more 
than  the  particular  market  in  which 
the  parties  happen  to  be  dealing.  A 
stock  exchange  or  board  of  trade 
seems  to  be  the  most  common  illus- 
tration. As  an  organized  distinct 


and  more  or  less  exclusive  market,  It 
must  have  rules  or  customs  for  the 
control  of  the  business  done  there; 
and  it  seems  reasonable  that  this 
should  be  anticipated.  Cases  of  this 
sort  are: — Van  Dusen-Harrington  Co. 
v.  Jungeblut,  75  Minn.  298,  74  Am.  St. 
Rep.  463;  Bailey  v.  Bensley,  87  111. 
556;  Pardridge  v.  Cutler,  68  111.  App. 
569;  Samuels  v.  Oliver,  130  111.  73; 
Skiff  v.  S-toddard,  63  Conn.  198,  21  L. 
R.  A.  102;  Bibb  v.  Allen,  149  U.  S. 
481,  37  L.  Ed.  819;  Bayliffe  v.  Butter- 
worth,  1  Welsh.  H.  &  G.  (Ex.)  428; 
Sutton  v.  Tatham,  10  Ad.  &  El.  27. 
Contra:  Blakemore  v.  Heyman,  6  Fed. 
581. 

It  is  possible  also  that  a  particular 
town  or  city  or  a  particular  place, 
may  be  so  distinctively  the  market 
for  a  certain  commodity,  as  to  bring 
it  within  the  same  rule,  for  example, 
the  Union  Stock  Yards  of  Chicago. 
See  Union  Stock  Yards  Co.  v.  Mallory, 
157  111.  554,  48  Am.  St.  Rep.  341. 

23  in  Irwln  v.  Williar,  110  U.  S.  at 
p  513,  Mr.  Justice  Matthews  says: 
"The  relation  between  the  parties  to 
this  litigation  was  that  of  principal 
and  agent;  and  the  defendants  in  er- 


1963 


§  2394] 


THE  LAW  OF  AGENCY 


[BOOK  v 


cannot  operate  to  authorize  the  making-  of  an  invalid  instead  of  a  valid 
contract,  or  to  bind  him  to  take  one  thing  when  he  has  ordered  an- 


ror,  acting  as  brokers,  in  executing 
the  orders  to  sell,  undertook  to  ob- 
tain, and,  as  they  allege  in  their  dec- 
laration, did  obtain  a  responsible 
purchaser;  so  that  the  plaintiff  in 
error  would,  upon  the  contract  of 
sale  against  such  purchaser  when  dis- 
closed, have  been  entitled  to  main- 
tain an  action  in  case  of  default  In 
his  own  name.  Although  the  broker 
guaranteed  the  sale,  it  was  not  a  sale 
to  himself;  for,  being  agent  to  sell, 
he  could  not  make  himself  the  pur- 
chaser. The  precise  effect,  therefore, 
of  the  custom  proved  was,  that  at  the 
time  of  settlement,  in  anticipation  of 
the  maturity  of  the  contracts,  the 
brokers,  by  an  arrangement  among 
themselves,  by  a  process  of  mutual 
cancellation,  reduced  the  settlement 
to  a  payment  of  differences,  exchang- 
ing contracts,  so  as  to  substitute  new 
purchasers  and  new  sellers  respect- 
ively for  the  balances.  The  question 
is  not  whether  in  a  given  case,  with- 
out the  assent,  express  or  implied,  of 
the  principal,  this  change  of  his 
rights  and  obligations  can  be  effected 
(for  that  proposition  is  not  doubt- 
ful), but  whether  the  fact  of  his 
transacting  business  through  a  mem- 
ber of  the  Exchange,  without  other 
knowledge  of  the  custom,  makes  it 
part  of  his  contract  with  the  broker. 
"In  Nickalls  v.  Merry,  L.  R.  7  H. 
L.  530,  it  was  said  by  Lord  Chelms- 
ford,  p.  543,  that  the  contract  'having 
been  made  between  a  broker  and  a 
jobber,  members  of  the  Stock  Ex- 
change, the  usage  of  that  body  enters 
into,  and  to  a  certain  extent  deter- 
mines and  governs,  the  nature  and  ef- 
fect of  the  contract.'  To  what  extent 
such  a  custom  shall  be  allowed  to  op- 
erate, as  between  the  broker  and  his 
principal,  was  very  thoroughly  con- 
sidered and  finally  decided  by  the 
House  of  Lords  in  the  case  of  Robin- 
son v.  Mollet,  L.  R.  7  H.  L.  802,  after 
much  division  of  opinion  among  the 


judges.  The  custom  questioned  in 
that  case  was  one  established  in  the 
London  tallow  trade,  according  to 
which,  brokers,  when  they  received 
an  order  from  a  principal  for  the  pur- 
chase of  tallow,  made  a  contract  or 
contracts  in  their  own  names,  with- 
out disclosing  their  principals,  either 
for  the  specific  quantity  of  tallow  so 
ordered,  or  to  include  such  order 
with  others  in  a  contract  for  the  en- 
tire quantity,  or  in  any  quantities  at 
their  convenience,  at  the  same  time 
exchanging  bought  and  sold  notes 
with  the  selling  brokers,  and  passing 
to  their  principals  a  bought  note  for 
the  specific  quantity  ordered  by  them. 
When  a  broker  so  purchased  in  his 
own  name,  he  was  personally  bound 
by  the  contract.  On  the  usual  set- 
tling days,  the  brokers  balanced  be- 
tween themselves  the  purchases  and 
sales  made,  and  made  or  received  de- 
liveries to  or  from  their  principals, 
as  the  case  might  be,  or  if  their  prin- 
cipals refused  to  accept  or  deliver, 
then  they  sold  or  bought  against 
them,  and  charged  them  with  the 
loss,  if  any;  or  if  delivery  was  not 
required  on  either  side,  then  any  dif- 
ference arising  from  a  rise  or  fall  in 
the  market  was  paid  by  one  to  the 
other.  It  was  held  that  this  custom 
did  not  bind  a  principal  giving  an  or- 
der to  a  broker  to  purchase  for  him, 
being  ignorant  of  its  existence.  It 
was  admitted  by  Lord  Chelmsford,  p. 
836,  'that  if  a  person  employs  a 
broker  to  transact  for  him  upon  a 
market,  with  the  usages  of  which  the 
principal  is  unacquainted,  he  gives 
authority  to  the  broker  to  make  con- 
tracts upon  the  footing  of  such  us- 
ages, provided  they  are  such  as  regu- 
late the  mode  of  performing  the  con- 
tracts and  do  not  change  their  intrin- 
sic character;'  and  he  added,  'of 
course,  if  the  appellant  knew  of  the 
existence  of  the  usage,  and  chose  to 
employ  the  respondents  without  any 


1964 


CHAP.    Ill] 


OF  BROKERS 


[§§  2395,2396 


other ; 2*  or  to  permit  the  agent  to  appropriate  the  principal's  property 
to  the  payment  of  the  agent's  debt.28 

§  2395.  Usual  and  necessary  authority. — A  broker,  like  any  other 
agent,  is  presumed  in  the  absence  of  anything  to  indicate  a  contrary  in- 
tent, to  be  invested  also  with  that  incidental  authority  which  is  reason- 
able and  necessary  for  the  accomplishment  of  the  object  of  his  agency, 
and  which  is  usually  and  ordinarily  exercised  under  like  circumstances. 
Thus  if  he  be  directed  to  make  a  contract  for  his  principal,  he  has  un- 
doubted authority  to  bind  his  principal  by  the  usual  and  ordinary  terms 
and  agreements,26  and  to  sign  the  necessary  evidence  thereof.27 

§  2396.  Authority  to  make  and  sign  necessary  memorandum. — 
Within  this  principle  would  undoubtedly  be  included  the  authority  to 
make  and  sign  the  contracts  or  memoranda  required  in  order  to  make 
the  dealings  effective  under  the  statute  of  frauds.28 

This  rule,  however,  is  to  be  limited  by  the  nature  and  extent  of  the 
broker's  undertaking.  Thus,  as  has  been  several  times  pointed  out,  the 


restriction  upon  them,  he  might  be 
taken  to  have  authorized  them  to  act 
for  him  in  conformity  to  such  usage.' 

"Mr.  Justice  Brett,  in  his  opinion 
p.  816,  points  out  very  clearly  that 
the  custom,  if  allowed  to  prevail, 
would  work  a  change  in  the  relation 
between  the  broker  and  his  principal, 
by  permitting  the  agent  to  buy,  to 
convert  himself  into  a  principal  to 
sell. 

"Mr.  Baron  Cleasby,  p.  828,  said: 
'The  vice  of  the  usage  set  up  in  the 
present  case  cannot  be  appreciated  by 
examining  its  parts  separately.  It 
must  be  looked  at  as  a  whole,  and  its 
vice  consists,  I  apprehend,  in  this, 
that  the  broker  is  to  make  the  con- 
tract of  purchase  for  another  whose 
interest  as  buyer  is  to  have  the  ad- 
vantage of  every  turn  of  the  market; 
but  if  the  broker  may  eventually 
have  to  provide  the  goods  as 
principal,  then  it  becomes  his 
interest,  as  seller,  that  the  price 
which  he  is  to  receive  should  have 
been  as  much  in  favor  of  the  seller  as 
the  state  of  the  market  would  admit. 
Thus  the  two  positions  are  opposed.' 

"The  principle  of  this  decision 
seems  to  us  to  be  incontrovertible, 
and  applies  in  the  present  case." 


See  also,  Van  Dusen-Harrington  Co. 
v.  Jungeblut,  75  Minn.  298,  74  Am. 
St.  Rep.  463;  Day  v.  Holmes,  103 
Mass.  306;  Pickering  v.  Demerritt, 
100  Mass.  416;  Rosenstock  v.  Tormey, 
32  Md.  169,  3  Am.  Rep.  125. 

24  Perry  v.  Barnett,  15  Q.  B.  Div. 
388. 

25  Baxter  v.  Sherman,  73  Minn.  434, 
72  Am.  St.  Rep.  631. 

2e  Bass  Dry  Goods  Co.  v.  Granite 
City  Mfg.  Co.,  119  Ga.  124;  Ludlow, 
etc.,  Co.  v.  Pribley,  etc.,  Co.,  67  Kan. 
710  (quaere). 

27  See   Coddington  v.   Goddard,   82 
Mass.     (16    Gray),    436,    and    cases 
supra. 

28  Thus  in  Coddington  v.  Goddard, 
supra,  it  was  said:  "There  can  be  no 
doubt  that  the  broker,  if  he  acted  as 
the  agent  of  both  parties  in  complet- 
ing the  contract  of  sale,  was  empow- 
ered to  do  all  that  was  necessary  to 
make  the  bargain  valid  and  binding 
in  law.    For  this  purpose  he  had  au- 
thority to  make  the  requisite  memo- 
randum   to    satisfy    the    statute    of 
frauds." 

The  time  within  which  such  memo- 
randa are  to  be  made  in  the  case  of 
such  an  agent  as  an  auctioneer,  has 
been  considered,  ante,  §  2320. 


1905 


§  2397] 


THE  LAW  OF  AGENCY 


ordinary  real  estate  broker  has  usually  no  authority  to  conclude  a  bind- 
ing contract  and  can  therefore  have  neither  the  occasion  nor  the  au- 
thority to  make  or  sign  any  memoranda  or  agreements  which  are  to 
bind  his  principal.  But  if  the  agent  in  this  case  were  authorized  to 
make  a  binding  contract,  implied  authority  to  do  what  was  necessary 
to  effectuate  it  would  follow  in  this  case  as  in  the  other.20 

§  2397.  Effect  of  his  instructions. — A  broker  in  the  ordinary  case 
is  known  to  be  an  agent  acting  under  a  limited  authority.  He  is 
usually  authorized  to  buy  or  sell  a  particular  thing  in  specified  quanti- 
ties and  at  a  limited  price.  He  is  often  described  in  the  books  as  a 
special  agent  and  in  order  to  bind  his  principal  he  must  keep  within 
the  limits  of  the  authority  conferred  upon  him.80  Secret  or  private 
instructions,  as  that  term  has  heretofore  been  defined,31  which  conflict 
with  usual  or  apparent  powers  will  no  more  affect  the  rights  of  third 
persons  who  in  good  faith  deal  with  the  broker  in  ignorance  of  them 
than  in  the  case  of  dealing  with  any  other  agent,  though  their  violation 
may  make  the  broker  liable  to  his  principal.32  The  instructions  to  the 
broker,  however,  may  be  the  measure  as  well  as  the  source  of  his  au- 
thority and  in  such  a  case  the  principal  will  not  be  bound  if  they  are 
exceeded.38  In  cases  in  which  the  broker  must  be  authorized  in  some 


ao  Authority  to  a  real  estate  broker 
to  sell  partly  for  cash  and  partly  on 
time,  with  no  further  instructions, 
gives  the  broker  a  discretion  to  stipu- 
late that  the  vendor  shall  furnish  to 
the  buyer  an  abstract  of  title  showing 
the  title  to  be  good,  and  free  from 
incumbrances,  providing  for  a  forfeit- 
ure of  the  deposit  if  the  buyer  failed 
and  for  a  return  of  cash  payment  in 
case  the  title  proved  not  to  be  good, 
and  making  time  material.  "Whether 
we  may  take  judicial  notice  of  the 
fact  or  not,"  said  the  court,  "it  is 
a  matter  of  common  knowledge  that 
substantially  these  provisions  are 
usually  embraced  by  dealers  in  real 
estate  in  Chicago  in  their  contracts 
of  sale."  Smith  v.  Keeler,  151  111. 
518. 

Authority  to  a  loan  broker  to  make 
the  contract  "in  your  usual  form,"  re- 
lates to  the  form  of  the  transaction 
only  and  does  not  justify  an  agree- 
ment to  repay  in  a  particular  kind  of 
money,  e.  g.,  gold  coin.  Peabody  v. 
Dewey,  153  111.  657,  27  L.  R.  A.  322. 


so  See  Clark  v:  Gumming,  77  Ga.  64, 
4  Am.  St.  Rep.  72;  Baxter  v.  Lament, 
60  111.  237;  Bell  v.  Offutt,  10  Bush  (73 
Ky.),  632;  Hardwick  v.  Kirwan,  91 
Md.  285;  Everman  v.  Herndon,  71 
Miss.  823;  Molloy  v.  Whitehall  Ce- 
ment Co.,  116  App.  Div.  839;  Halsey 
v.  Monteiro,  92  Va.  581. 

si  See  ante,  §  730. 

32  See  ante,  §  1244. 

as  In  Clark  v.  Gumming,  supra,  it  is 
said:  "When  definite  instructions  are 
given  by  the  principal  to  the  broker 
to  sell  goods  for  him  at  a  certain 
specified  price  for  a  certain  time  and 
day  only,  this  will  not  authorize  the 
broker  to  contract  and  sell  the  same 
kind  of  goods  for  his  principal  at  a 
different  and  subsequent  time  for  the 
same  price,  his  power  is  limited  by 
and  ceases  with  his  instructions." 

Where  a  live-stock  broker  is  in- 
structed by  letter  to  buy  a  certain 
number  of  hogs  of  a  certain  descrip- 
tion and  at  a  named  price  to  be  de- 
livered at  a  specified  place  and  time 
he  is  a  special  agent  and  can  bind  his 


1966 


CHAP.    Ill] 


OF  BROKERS 


[§§  2398,2399 


particular  manner, — as,  in  some  states,  by  writing,  where  he  is  to  con- 
tract for  the  sale  of  land, — the  third  person  must  be  deemed  to  deal 
with  the  writing  before  him,  and  the  principal  can  be  bound  only  by 
a  contract  made  in  pursuance  of  the  authority.34 

§  2398.  Acting  for  both  parties. — A  broker  is,  ordinarily,  an  agent 
in  whom  a  special  trust  and  confidence  are  reposed.  His  principal,  un- 
less he  agrees  to  less,  is  entitled  to  the  undivided  benefit  of  the  brok- 
er's skill,  knowledge  and  experience.  If  his  principal,  with  full  knowl- 
edge of  the  facts,  consents  to  the  broker's  also  acting  for  the  other 
party  in  the  same  transaction,  there  is  no  legal  objection  to  such  a 
course ; 85  but,  except  with  such  consent,  the  broker  will  not  be  per- 
mitted to  assume  a  double  agency,  and  if  he  does  so  the  principal  may 
avoid  liability.36 

§  2399.  May  not  delegate  his  powers. — For  similar  reasons  the 
broker  has  no  implied  authority  to  delegate  to  another  the  powers  and 
duties  confided  to  him.87  This  rule  is,  however,  subject  to  the  same  ex- 
ceptions which  apply  to  the  delegation  by  other  agents,  and  in  actual 
practice,  particularly  upon  the  stock  exchange,  it  is  a  recognized  usage 
for  many  of  the  transactions  of  the  broker  to  be  carried  on  through  a 
substitute.38 


principal  only  as  specified  in  the  let- 
ter.   Bell  v.  Offutt,  supra. 

A  real  estate  broker  is  ordinarily 
a  special  agent  and  can  bind  his  prin- 
cipal only  in  accordance  with  the  au- 
thority conferred  upon  him.  Monson 
v.  Kill,  144  111.  248;  Field  v.  Small, 
17  Colo.  386;  Everman  v.  Herndpn, 
supra;  Halsey  v.  Monteiro,  supra; 
Balkema  v.  Searle,  116  Iowa,  374; 
Michael  v.  Eley,  61  Hun  (N.  Y.),  180. 

s*  Baxter  v.  Lament,  supra;  Mich- 
ael v.  Eley,  supra. 

35  Adams  Mining  Co.  v.  Senter,  26 
Mich.  73;  Colwell  v.  Keystone  Iron 
Co.,  36  Mich.  51;  Fitzsimmons  v. 
Southern  Express  Co.,  40  Ga.  330,  2 
Am.  Rep.  577;  Joslin  v.  Cowee,  56  N. 
Y.  626;  Rolling  Stock  Co.  v.  Railroad, 
34  Ohio  St.  450;  Alexander  v.  North- 
western University,  57  Ind.  466,  and 
cases  in  following  note. 

aeHinckley  v.  Arey,  27  Me.  362; 
Copeland  v.  Mercantile  Ins.  Co.,  6 
Pick.  (Mass.)  197;  New  York  Ins. 
Co.  v.  National  Ins.  Co.,  14  N.  Y.  85; 
Greenwood  v.  Spring.  54  Barb.  (N. 


Y.)  375;  Sumner  v.  Charlotte,  etc.,  R. 
R.  Co.,  78  N.  C.  289;  Ferguson  v. 
Gooch,  94  Va.  1,  40  L.  R.  A.  234; 
Shirland  v.  Monitor  Iron  Works,  41 
Wis.  162;  Bray  v.  Morse,  41  Wis.  343; 
Farnsworth  v.  Brunquest,  36  Wis. 
202.  See  also,  ante,  §  2374;  post, 
§  2412. 

37  See  ante,  §§  306  et  seq;  Sims  v. 

St.  John, Ark.  ,  152  S.  W.  284, 

43  L.  R.  A.  (N.  S.)  796  (real  estate 
broker) ;  Doggett  v.  Greene,  254  111. 
134,  Ann.  Cas.  1913  B.  1166;  Lucas  v. 
Rader,  29  Ind.  App.  287;  Groscup  v. 
Downey,  105  Md.  273;  Kilpatrick  v. 
Wiley,  197  Mo.  123,  160;  Insurance 
Co.  v.  Railroad,  97  Tenn.  326. 

There  is  no  privity  of  contract  be- 
tween the  principal  and  a  sub-agent 
employed  by  the  broker  without  the 
principal's  authority,  and  the  princi- 
pal is  not  liable  to  such  a  sub-agent 
for  commissions.  Hand  v.  Conger,  71 
Wis.  292. 

ssQheen    v.    Johnson,    90   Pa.    38; 
Gregory   v.    Wendell,    40    Mich.    432; 


1907 


THE  LAW  OF  AGENCY  [BOOK    V 

§  2400.  Usually  must  act  in  the  name  of  his  principal. — The  busi- 
ness of  the  broker  being  primarily  to  make  contracts  between  others, 
he  usually  contracts  only  in  the  name  of  his  principal,  and  it  is  a  gen- 
eral rule  that  he  has  no  implied  authority  to  deal  in  his  own  name.30 
But  this  rule  also  is  subject  to  be  controlled  by  usage,  and  it  has  been 
held  that  a  stock  broker  violates  no  duty  to  his  principal,  where  he 
takes,  in  his  own  name,  the  title  of  stocks  which  he  was  directed  to 
purchase  for  his  principal,  it  being  shown  that  such  was  the  custom  of 
brokers  at  that  time  and  place.46  Indeed  this  is  not  only  the  custom 
but  is  often  required  by  the  rules  of  the  stock  and  other  exchanges. 

§  2401.  Implied  authority  to  fix  the  price. — A  broker,  who  is  in- 
structed to  buy  or  sell  property,  with  no  limitations  as  to  the  price, 
would  have  implied  authority  to  agree  upon  the  price  and  to  bind  his 
principal  by  such  agreement,  where  the  broker  acts  honestly  and  in 
good  faith,  and  the  price  fixed  is  the  usual  one,  or,  where  there  is  no 
usual  price,  then  a  fair  and  reasonable  and  not  an  extraordinary  one.41 
If  there  is  a  market  price,  that  price  should  govern  in  the  absence  of 
anything  indicating  a  contrary  intent  on  the  part  of  the  principal.42 

Where  the  price  is  fixed  by  the  principal  and  there  is  nothing  reason- 
ably justifying  the  inference  that  the  broker  has  authority  to  determine 
the  price,43  an  agreement  to  sell  at  a  less  favorable  price  than  that  fixed 
by  the  principal  will  not  bind  him.44 

Rosenstock  v.  Tormey,  32  Md.  169,  3  principal  refuses  to  perform  the  con- 
Am.  Rep.  125.  tract,     the    broker    cannot     recover 

8»  "He  is  a  mere  negotiator  be-  damages  caused  by  being  obliged  to 
tween  other  parties,"  says  Chief  get  the  goods  elsewhere  to  fulfill  the 
Justice  Breese,  "and  never  acts  in  his  contract.  Delafield  v.  Smith,  101 
own  name,  but  in  the  name  of  those  Wis.  664,  70  Am.  St.  Rep.  938. 
who  employ  him."  In  Saladin  v.  The  broker  must  also,  usually, 
Mitchell,  45  111.  79,  83;  same  point,  make  separate  and  individual  con- 
Baring  v.  Corrie,  2  B.  &  Aid.  137.  tracts  for  his  principal,  and  not 
See  also,  Drakeford  v.  Piercy,  7  B.  &  "lump"  them  in  with  others.  Beck- 
S.  515,  519;  Pearson  v.  Scott,  9  Ch.  huson  v.  Hamblet,  [1900]  2  Q.  B.  18. 
Div.  198,  203;  Cooke  v.  Eshelby,  12  *o  Horton  v.  Morgan,  19  N.  Y.  170, 
App.  Gas.  271,  275;  Higgins  v.  Moore,  75  Am.  Dec.  311;  Markham  v.  Jau- 
34  N.  Y.  417,  419.  don,  41  N.  Y.  235. 

Broker  cannot  enforce   a   contract  41  See  ante,  §  854.   Daylight  Burner 

which  without  authority  he  has  made  Co.    v.  Odlin,  51    N.    H.    56,    12  Am. 

in  his  own  name.     Haas  v.  Ruston,  Rep.   45;    Putnam  v.   French,   53  Vt. 

14  Ind.  App.  8,  56  Am.  St.  Rep.  288.  402,  38  Am.  Rep.  682. 

Where  a  broker  makes  a  contract  *-  Bigelow  v.  Walker,  24  Vt.  149,  58 

in  his   own    name    for    the    sale  of  Am.  Dec.  156. 

goods,   without  being   authorized   by  « Where   a    principal-  wrote    to    a 

his  principal  so  to  make  it,  and  the  special  agent  authorizing  him  to  sell 

<*  Lucas  v.  Rader,  29  Ind.  App.  287;  Hardwick  v.  Kirwan,  91  Md.  285. 
Nester  v.  Craig,  69  Hun  (N.  Y.),  543;  See  also,  post,  Real  Estate  Brokers. 

1968 


CHAP.    Ill] 


OF  BROKERS 


[§§    2402,2403 


§    2402. 


Terms  of  sale. — The  same  principles  apply  to  the 


matter  of  the  terms  of  sale.  As  has  been  seen,  a  broker  not  limited  in 
this  respect  would  have  implied  power  to  agree  upon  terms  of  sale 
within  the  limit  of  what  is  usual  or  reasonable;  but. where  the  terms  of 
sale  have  been  fixed  by  the  principal,  the  broker  cannot  bind  his  prin- 
cipal by  other  terms,  unless  there  be  something  reasonably  justifying 
the  inference  that  he  was  more  than  an  agent  clothed  with  limited 
powers.45 

§  2403.  May  sell  with  warranty — When. — A  broker,  employed  to 
sell  property,  has  no  implied  general  authority  to  warrant  the  quality 
of  the  property  sold ;  but  if  it  be  such  as,  at  the  time  and  place  at  which 
he  is  authorized  to  sell,  is  usually  sold  under  like  circumstances  with  a 
warranty  of  quality,  a  broker  employed  to  sell  such  property,  without 
restrictions  as  to  warranty,  may  give  such  a  warranty  upon  the  sale 
as  is  usually  given  in  such  cases.46  So  where  a  broker  is  given  gen- 
eral authority  to  sell  goods  of  a  kind  usually  sold  by  sample,  he  may 
bind  his  principal  by  a  sale  by  sample  with  its  consequent  warranty.47 

In  Massachusetts,  however,  it  is  held  that  usage  will  not  justify  the 
assumption  of  authority  to  warrant  the  merchantable  quality  of  goods 
by  the  broker.48 


particular  property  to  a  certain  per- 
son but  said  nothing  about  price. 
Held,  that  the  buyer  was  justified 
from  the  letter  in  believing  that  the 
agent  was  authorized  to  agree  upon 
the  price  and  was  not  bound  by  pri- 
vate instructions  with  reference  to 
the  price.  Baas  Dry  Goods  Co.  v. 
Granite  City  Mfg.  Co.,  119  Ga.  124. 

45  A  special  authority  to  sell  bar- 
ley for  cash  upon  delivery  in  one 
state,  [Michigan]  at  one  dollar  and 
fifty  cents  per  hundred  pounds  does 
not  authorize  the  agent  to  sell  for 
delivery  in  another  state,  [New 
York]  at  a  stipulated  rate  per  week 
(or  faster  if  so  ordered)  during  a 
period  of  from  two  to  four  months 
(depending  upon  the  rate  of  deliv- 
ery), at  eighty  cents  a  bushel.  Nes- 
ter  v.  Craig,  supra. 

Authority  to  sell  for  cash  on  de- 
livery does  not  justify  a  contract  for 
delivery  in  a  different  state  and 
with  an  allowance  for  interest 
against  the  seller  upon  delayed  de- 
liveries. Hardwick  v.  Kirwan,  supra. 


In  Ludlow,  etc.,  Co.  v.  Fribley,  etc., 
Co.,  G7  Kan.  710,  it  was  held  that  a 
traveling  salesman  making  a  sale  in 
February  had  implied  authority  to 
guarantee  that  the  price  would  be 
no  more  on  the  date  of  payment  in 
the  following  May.  [The  writer, 
however,  ventures  to  doubt  the 
soundness  of  this  decision.] 

4oPickert  v.  Marston,  68  Wis.  465, 
60  Am.  Rep.  876;  Smith  v.  Tracy,  36 
N.  Y.  79;  Herring  v.  Skaggs,  62  Ala. 
180,  34  Am.  Rep.  4;  Upton  v.  Suffolk 
County  Mills,  11  Cush.  (Mass.)  586, 
59  Am.  Dec.  163;  Ahern  v.  Good- 
speed,  72  N.  Y.  108;  Dingle  v.  Hare, 
7  C.  B.  (N.  S.)  145;  Graves  v.  Legg, 
2  Hurl.  &  'N.  210;  Bayliffe  v.  But- 
terworth,  1  Exch.  425.  Compare 
Hitchcock  v.  Griffin,  99  Mich.  447,  41 
Am.  St.  Rep.  624. 

See  also,  §  880  et  seq.  and  notes. 

47  Andrews  v.  Kneeland,  6  Cow. 
(N.  Y.)  354. 

43  in  Dodd  v.  Parlow,  11  Allen 
(Mass.),  426,  87  Am.  Dec.  726,  it  is 
held  that  a  merchandise  broker  has 


124 


1969 


§§  2404,2405] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2404.  When  may  sell  on  credit. — A  broker  who  is  employed  to 
sell  goods,  has,  unlike  the  factor,  no  implied  authority  to  sell  upon 
credit,  in  the  absence  of  usage  to  the  contrary.49 

§  2405.  No  authority  to  receive  payment. — The  broker  being 
usnallv  employed  to  make  contracts  between  others  only,  and  not  be- 
ing entrusted  with  the  possession  of  the  goods  he  sells,  or  authorized 
to  deliver  them,  has  ordinarily  no  implied  authority  to  collect  or  re- 
ceive payment  for  goods  sold  by  him ; 50  nor,  it  is  held,  can  such  au- 
thority be  conferred  by  a  mere  local  usage.51  A  payment  made  to  the 
broker  is,  therefore,  at  the  payer's  own  risk,  unless  from  other  circum- 
stances, authority  to  receive  it  can  be  inferred.52 

Where  he  was  given  possession  and  authorized  to  deliver  upon  the 
sale,  a  different  rule  would  apply. 


no  implied  authority  to  warrant 
goods  sold  by  him  to  be  of  a  mer- 
chantable quality;  and  that  such  an 
authority  can  not  be  conferred  by  a 
usage  of  trade.  This  case  is  clearly 
opposed  to  the  doctrine  of  the  text, 
but  it  seems  to  be  contrary  to  the 
principle  of  the  cases  cited  in  sup- 
port of  the  text. 

In  this  case  Bigelow,  C.  J.,  said: 
"It  was  contended  on  the  part  of  the 
plaintiffs  that  an  authority  to  make 
such  warranty  is  derived  from  the 
usage  of  trade;  and  evidence  was 
offered  from  which,  under  instruc- 
tions from  the  court,  the  jury  have 
found  that  an  authority  was  implied, 
in  case  of  a  sale  by  a  broker  of  the 
kind  of  merchandise  described  in  the 
memorandum  to  insert  a  warranty  of 
their  quality  which  would  be  binding 
on  the  vendor.  But  notwithstanding 
this  finding,  we  are  clearly  of  opin- 
ion that  the  plaintiffs  are  not  entitled 
to  recover,  because  the  alleged  usage, 
on  which  the  jury  have  based  their 
verdict  is  unauthorized  by  law,  and 
can  not  be  regarded  as  valid.  It  con- 
travenes the  principle,  which  has 
been  sanctioned  and  adopted  by  this 
court  upon  full  and  deliberate  con- 
sideration, that  no  usage  will  be  held 
legal  or  binding  on  parties  which  not 
only  relates  to  and  regulates  a  par- 
ticular course  or  mode  of  dealing, 
but  which  also  ingrafts  on  a  contract 


of  sale  a  stipulation  or  obligation 
which  is  different  from  or  inconsist- 
ent with  the  rule  of  the  common  law 
on  the  same  subject.  Dickinson  v. 
Gay,  7  Allen,  29,  37,  83  Am.  Dec. 
656."  See  also  to  same  effect:  Board- 
man  v.  Spooner,  13  Allen  (Mass.), 
353,  90  Am.  Dec.  196. 

49  Wiltshire  v.  Sims,  1  Camp.  258; 
Daylight  Burner  Co.  v.  Odlin,  51  N. 
H.  56,  12  AID.  Rep.  45  (a  factor); 
Riley  v.  Wheeler,  44  Vt  189  (a  fac- 
tor); Dresden  School  District  v. 
Aetna  Ins.  Co.,  62  Me.  330;  State  v. 
Delafield,  8  Paige  (N.  Y.),  527;  White 
v.  Fuller,  67  Barb.  (N.  Y.)  267. 

so  Campbell  v.  Hassel,  1  Stark.  233; 
Graham  v.  Duckwall,  8  Bush  (Ky.), 
12;  Robinson  v.  Corsicana  Cotton 
Factory,  124  Ky.  435,  14  Ann.  Gas. 
802;  Saladin  v.  Mitchell,  45  111.  79; 
Baring  v.  Corrie,  2  B.  &  Aid.  137; 
Higgins  v.  Moore,  34  N.  Y.  417;  Gal- 
lup v.  Lederer,  3  Thomp.  &  C.  ON. 
Y.)  710,  s.  c.  1  Hun,  282;  Bassett  v. 
Lederer,  1  Hun  (N.  Y.),  274;  Crosby 
v.  Hill,  39  Ohio,  100;  Adams  v. 
Fraser,  27  C.  C.  A.  108,  82  Fed.  211. 

The  same  principle  applies  to  a 
loan  broker.  Ortmeier  v.  Ivory,  208 
111.  577. 

BI  Higgins  v.  Moore,  34  N.  Y.  417. 

See  also,  Pearson  v.  Scott,  9  Ch. 
Div.  198. 

•12  See  cases  cited  under  first  note 
to  this  section. 


1970 


CHAP.    Ill]  OF  BROKERS  [§§    2406-2408 

§  2406.  No  authority  to  rescind  or  arbitrate. — A  broker's  author- 
ity to  make  a  contract  ordinarily  ends  when  that  contract  is  made,  and 
certainly  carries  with  it  no  implied  authority  to  rescind  that  contract 
when  made,  without  his  principal's  consent,58  or  to  bind  his  principal 
by  an  agreement  to  submit  to  arbitration  any  disputes  arising  from  it.54 

§  2407.  No  authority  to  accept  or  waive  performance. — For  simi- 
lar reasons,  a  broker  who  was  authorized  to  make  or  negotiate  a  con- 
tract, has  ordinarily  no  implied  authority  from  that  fact  to  demand, 
accept  or  waive  performance  of  it.55 

§  2408.  Authority  to  sell  property  purchased  by  him. — A  broker 
who  has  purchased  property  for  his  principal  in  pursuance  of  the  lat- 
ter's  instructions  has  ordinarily  no  implied  authority  to  sell  the  prop- 
erty so  purchased.58  Such  an  authority  may,  of  course,  be  expressly 
conferred  or  may  arise  by  implication  from  a  course  of  dealing.  Stock- 
brokers, for  example,  are  frequently  employed  to  both  buy  and  sell, 
and  may  be  authorized  to  sell  either  specifically  in  each  instance,  or  gen- 
erally when  the  stock  reaches  a  certain  price  or  when  the  broker 
deems  it  for  the  best  interests  of  the  principal.  Such  brokers,  also, 
who  have  advanced  money  on  stocks -or  purchased  stocks  upon  their 
own  credit  in  whole  or  in  part  not  infrequently  demand  and  receive 
express  authority  to  sell  for  their  own  protection ; 5T  and,  even  in  the 

63  Saladin  v.  Mitchell,  45  111.  79.  authority  or  default  and  without  re- 
See  also,  Stilwell  v.  Mutual  Life  Ins.  taining  enough  of  the  same  sort  to 
Co.,  72  N.  Y.  385;  Stoddart  v.  War-  deliver  to  his  principal,  though  he  is 
ren,  7  Rep.  517,  Fed.  Cas.  No.  13,471,  not  required  to  keep  the  identical 
affirmed  105  U.  S.  224,  26  L.  Ed.  1117;  certificate.  Katz  v.  Nast,  109  C.  C.  A. 
Groneweg,  etc.,  Co.  v.  Estes,  144  Mo.  295,  187  Fed.  529. 
App.  418;  Kelly  v.  Kauffman  Mill.  r>7  Thus  such  a  clause  as  this  is  not 
Co.,  92  Ga.  105;  Andrews  v.  Himrod,  uncommon:  "It  is  agreed  that  [the 
37  111.  App.  124.  brokers]  have  the  right  to  hypothe- 

s*  Ingraham  v.  Whitmore,  75  111.  cate,  sell  or  dispose  of,  without  no- 
24.  See  also,  Michigan  Central  R.  R.  tice,  any  and  all  stocks,  bonds,  corn- 
Co,  v.  Gougar,  55  111.  503;  Huber  v.  modities,  securities,  certificates,  or 
Zimmerman,  21  Ala.  488,  56  Am.  Dec.  interests  therein,  however  held, 
255;  Scarborough  v.  Reynolds,  12  ...  whenever  in  their  judg- 
Ala.  252.  ment  the  same  may  be  necessary  to 

55  Tender  of  performance  to  broker  protect  the  account,     .     .     .     and,  in 

not   a   good   tender   without   further  cases   where   transactions   are   made 

proof    of    authority.      Groneweg    v.  through    other   bankers    or   brokers, 

Estes,  144  Mo.  App.  418.  may  delegate  the  same  authority  to 

ee  See  ante,  §  928.     It  is  a  breach  them."     See    United    Nat.    Bank    v. 

of  duty  for  a  stock  broker  who  has  Tappan,  33  R.  I.  1;   Furber  v.  Dane, 

purchased  stock  for  his  principal  to  203  Mass.  108. 
sell  it  again  without  his  principal's 

1971 


§    2409]  THE  LAW  OF  AGENCY  [BOOK    V 

absence  of  such  an  express  authority,  such  brokers  where  they  are  re- 
garded as  pledgees  would  have  authority  to  sell,  after  demand  and  no- 
tice, in  foreclosure  of  the  pledge. 

Even  where  a  sale  could  not  be  deemed  to  be  authorized,  the  broker 
may  often  be  so  clothed  with  the  indicia  of  ownership  or  authority  as 
to  be  able  to  convey  a  good  title  to  a  bona  fide  purchaser  for  value  al- 
though such  sale  might  be  wholly  wrongful  as  between  the  broker  and 
his  principal.58 

§  2409.  Authority  to  pledge  property. — An  agent  authorized  to 
sell  property  has  therefrom  no  implied  authority  to  pledge  it;59  and  a 
fortiori  an  agent  who  has  purchased  property  for  his  principal  has 
therefrom  no  implied  authority  to  pledge  the  property  so  purchased. 
As  has  been  already  seen,  however,  in  the  case  of  the  stockbroker  for 
example,  a  broker  who  has  purchased  property  for  his  principal  but 
upon  the  broker's  credit  in  whole  or  in  part  may  often  be  regarded  as 
being  himself  a  pledgee  of  the  property  so  bought  to  secure  his  reim- 
bursement.60 The  printed  forms  used  by  such  brokers  often  contain 
full  and  express  provisions  authorizing  them  to  sell  or  pledge  the  prop- 
erty for  their  own  protection ; 61  and  even  where  there  is  no  express 
authority,  implied  authority  is  frequently  found  for  the  broker  to  re- 
pledge  the  stock  so  purchased  for  amounts  not  exceeding  his  own  ad- 
vances thereon,  thus  keeping  it  within  his  power  to  surrender  it  upon 
demand  and  payment  by  the  principal. 6- 

Even  where  no  pledge  can  be  deemed  authorized,  the  principal  may, 
nevertheless,  clothe  the  broker,  or  permit  him  to  clothe  himself,  with  the 
indicia  of  ownership  or  authority  to  such  an  extent  that  a  bona  fide 
pledgee  for  value  will  be  protected  however  wrongful  the  act  of  pledg- 
ing may  be  as  between  the  principal  and  the  broker.08 


™  See  ante,  §  2119;  McNeil  v.  the  broker  is  implledly  authorized 

Tenth  Nat.  Bank,  46  N.  Y.  325,  7  Am.  to  pledge  them,  and,  though  the 

Rep.  341;  Austin  v.  Hayden,  171  broker  pledges  them  in  violation  of 

Mich.  38;  National  Safe  Deposit  Co.  his  instructions,  a  bona  fide  pledgee 

v.  Hibbs,  32  App.  D.  C.  459.  for  value  will  be  protected.  Furber 

so  See  ante,  §  897.  v.  Dane,  203  Mass.  108. 

See  In  re  Ennis,  109  C.  C.  A.  468,  «8  See  ante,  §  2119.  McNeil  v. 

187  Fed.  720.  Tenth  Nat.  Bank,  46  N.  Y.  325,  7  Am. 

oo  See  ante,  §  2387.  Rep.    341;     Austin    v.    Hayden,    171 

°i  See  note  to  preceding  section.  Mich.  38;    National  Safe  Deposit  Co. 

«2  See  ante,  §  2389.  v.  Hibbs,  32  App.  D.  C.  459. 

Where  the  principal  deposits  stocks  Transferree  charged  with  construc- 

with  the  broker  to  use  as  margins,  tive  notice.  Austin  v.  Hayden,  supra. 

1972 


CHAP.    Ill]  OF  BROKERS  [§ 


•/^ildbll    .Hi 
IV. 

DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 

§  2410.  Reasonable  skill  and  diligence  required.  —  The  broker  car- 
ries on  an  independent  calling,  requiring  not  only  a  knowledge  of  the 
rules  of  law  and  the  usages  which  govern  his  transactions,  but  also 
the  exercise  of  judgment,  discretion  and  diligence.  Important  inter- 
ests are  entrusted  to  his  care  and  constant  demands  are  made  upon  him 
for  prudence,  watchfulness  and  sagacity.  He  holds  himself  out  to  the 
public  as  qualified  to  perform  the  duties  of  his  office,  and,  while  he 
does  not  warrant  the  success  of  his  undertakings,  the  law  requires  of 
him,  as  of  other  persons  pursuing  similar  vocations,  that  he  shall 
possess  and  exercise  a  reasonable  degree  of  skill  and  knowledge,  and 
that  he  will  perform  his  undertakings  with  reasonable  diligence  and 
care.  If  he  fails  to  satisfy  this  requirement  and  his  principal  suffers 
loss  thereby,  he  will  be  held  responsible  for  it.64  In  this  respect  his 
liability  is  similar  to  that  of  the  attorney. 

Where  the  broker  acts  as  agent  for  both  parties,  as  he  may  properly 
do  with  the  consent  of  both,  his  obligations  to  each  principal  will  be 
modified  by  the  fact  of  this  dual  relation.  Here,  it  is  said,  "his  engage- 
ment is  double  and  requires  that  he  should  observe  the  same  fidelity  to 
all  parties,  and  not  favor  one  more  than  the  other."  65  Notwithstand- 
ing this,  however,  each  principal  would  have  a  right  to  expect  such 
reasonable  care,  skill  and  diligence  as  is  compatible  with  a  like  duty 
to  the  other. 

As  stated  above,  the  broker  is  not  an  insurer,  and  where  he  has  ex- 
ercised the  requisite  care,  skill  and  diligence,  he  can  not  be  held  re- 
sponsible although  the  transaction  results  in  loss.66 

Even  though  he  would  not  be  liable  under  the  ordinary  rule,  it  may 
appear  that  the  broker  in  the  particular  case  has  undertaken  a  larger 
responsibility,  and  in  that  event  his  liability  will  be  measured  accord- 
ingly.67 


v.  Bourke,  27  La.  Ann.  385;  ««  Gettins    v.    Scudder,    71    111.    86; 

Carnthers  v.  Ross    (Tex.  Civ.  App.),  Stewart  v.  Muse,  62  Ind.  385. 

63  S.  W.  911;   Hinricks  v.  Brady,  20  In  Louisiana,  by  statute,  a  broker 

S.  Dak.  599;  Hopkins  v.  Clark,  7  App.  is  not  responsible  for  the  solvency  of 

Div.    207,  158  N.    Y.    299;   Harlow  v.  the  buyer  unless  he  has  been  guilty 

Bartlett,    170    Mass.    584;    Morris    v.  of  fraud.    C.  Code,  §  2988. 

Bradley,  20  N.  Dak.  646,  128  N.  W.  <*  See  Boorman  v.  Brown,  3  Q.  B. 

118.  Rep.   (Ad.  &  El.  N.  S.)  511;   Barnard 

os  Per     Howell,     J.,     in     Todd     v.  v.  Coffin,  138  Mass.  37. 
Eourke,  supra. 

1973 


§  24ii] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2411.  Fidelity  to  his  principal — Concealing  facts — Dealing  with 
or  for  himself. — Like  other  agents  in  whom  trust  and  confidence  are 
reposed,  the  broker  owes  to  his  principal  the  utmost  good  faith  and 
loyalty  to  his  interests.  This  rule  clearly  requires  that  the  broker  shall 
not  cheat  or  defraud  his  principal  in  any  dealings  which  they  may 
have  together,  or  deceive  him  to  his  injury  by  false  statements  or  rep- 
resentations, or  allow  his  principal  to  be  injured  in  his  dealings 
through  the  broker  by  reason  of  any  concealment  or  suppression  by 
the  broker  of  information  necessary  for  the  principal  to  have  for  the 
protection  of  his  own  interests.88  But  the  broker's  duty  also  goes 


08  Plaintiff,  relying  on  false  state- 
ments of  defendant,  who  held  certain 
stock  for  him  as  broker,  that  certain 
reported  sales  on  the  Boston  stock 
Exchange  of  similar  stock  were  gen- 
uine, when  defendant  knew  they 
were  not,  countermanded  an  order 
to  sell.  Later  the  stock  fell  in  price 
on  account  of  an  embezzlement  by 
an  agent  of  the  corporation  which 
issued  the  stock.  Held,  the  broker 
was  liable  for  the  loss  sustained. 
Fottler  v.  Moseley,  185  Mass.  563. 

Where  a  broker  authorized  to  ob- 
tain an  offer,  misstated  the  offer  and 
misappropriated  the  difference  be- 
tween that  and  the  real  offer,  he  was 
guilty  of  a  fraud  and  liable  for  dam- 
ages for  the  tort.  Emmons  v.  Alvord, 
177  Mass.  466.  To  same  effect: 
Schick  v.  Suttle,  94  Minn.  135,  hold- 
ing him  for  money  had  and  received. 

Where  a  stock  broker,  directed  to 
buy  certain  stocks  and  given  the 
money  to  pay  for  them,  reports  that 
he  has  bought  them,  when  he  has 
only  acquired  a  right  to  them  on 
margin  through  another  broker,  and 
later  completes  the  purchase  at  the 
then  market  price  which  has  fallen, 
he  must  account  to  the  principal  for 
the  profit  so  made.  Wahl  v.  Tracy, 
139  Wis.  668. 

Where  a  broker  authorized  to  sell 
land  from  a  specified  price  learns  that 
a  better  price  may  be  obtained  and 
fails  to  notify  his  principal,  he  is 
guilty  of  a  fraud  in  law  and  liable 
for  damages.  Holmes  v.  Cathcart,  88 


Minn.  213,  97  Am.  St.  Rep.  513,  60  L. 
R.  A.  734. 

Where  a  real  estate  broker  advised 
his  client  to  sell  for  a  certain  price 
to  a  third  person,  which  person  was 
really  acting  for  the  broker,  the  con- 
veyance may  be  set  aside.  Clark  v. 
Bird,  66  N.  Y.  App.  Div.  284.  Where 
the  broker  concealed  offers  from 
third  persons,  on  account  of  which 
the  client  was  led  to  believe  that  the 
property  was  not  worth  its  real  value 
and  to  sell  It  to  the  broker,  the  con- 
veyance may  be  set  aside.  Cornwell 
v.  Foord,  96  111.  App.  366.  Where  the 
broker  submitted  an  offer,  but  con- 
cealed facts  showing  that  the  offerer 
might  offer  more,  whereupon  the  cli- 
ent entered  into  a  contract  to  sell  to 
the  broker.  Held,  that  the  contract 
might  be  cancelled.  Fisher  v.  Lee, 
94  Iowa,  611.  Where  the  broker  pur- 
ports to  make  a  sale  to  a  third  party, 
but  in  reality  to  himself,  held,  he  is 
liable  for  the  profits  he  made  on  the 
transaction.  Merriam  v.  Johnson,  86 
Minn.  61.  Where  the  broker,  to  the 
knowledge  of  the  purchaser,  con- 
cealed facts  indicating  the  real  value, 
and  also  received  a  bonus  from  the 
purchaser,  the  sale  is  rescindable. 
Hegenmyer  v.  Marks,  37  Minn.  6,  5 
Am.  St.  Rep.  808. 

In  Veasey  v.  Carson,  177  Mass.  117, 
53  L.  R.  A.  241,  the  fact  that  the 
broker  conceals  the  name  of  the  real 
purchaser  to  whom  he  sells  his  prin- 
cipal's property  is  held  not  as  a  mat- 
ter of  law  sufficient  to  bar  an  action 


1974 


CHAP.    Ill] 


OF  BROKERS 


[§    2411 


further.  He  must  not  assume  or  continue  the  relation,  if  his  duty  to 
his  principal  and  his  own  interests  will  come  in  conflict.89  It  is  his 
duty,  therefore,  to  freely  and  fully  disclose  to  his  principal  at  all  times, 
the  fact  of  any  interest  of  his  own,  or  of  another  client,  which  may  be 
antagonistic  to  the  interests  of  his  principal,70  and  he  will  not  be  per- 
mitted to  take  advantage  of  his  situation  to  make  gain  for  himself  by 
forestalling  or  undermining  his  principal.71 

If  he  be  employed  to  buy  or  sell  property  for  his  principal,  he  will 
not,  without  the  principal's  full  knowledge  and  consent,  be  permitted 
directly  or  indirectly  to  buy  of,  or  sell  to,  himself ; 12  and  it  will  make 


for  recovery  of  commission.  But 
compare  Pratt  v.  Patterson's  Ex'r, 
112  Pa.  475,  where  the  agent  failed  to 
disclose  the  real  purchaser,  and  per- 
mitted another  and  irresponsible  per- 
son to  be  put  forward  as  buyer, 
where  part  of  the  price  was  to  be 
represented  by  the  buyer's  personal 
bond,  and  court  granted  compulsory 
non-suit  In  the  action  for  commis- 
sions. 

Fraud  or  deceit  as  to  value  of  land 
which  the  broker  is  inducing  the 
seller  to  take  in  part  payment,  al- 
though there  is  ultimately  no  loss, 
works  a  forfeiture  of  commissions. 
Featherston  v.  Trone,  82  Ark.  381. 

So,  where  the  broker  concealed 
from  his  principal  the  fact  that  a 
proposed  buyer  was  willing  and  re- 
solved to  pay  a  higher  price  than 
that  named,  although  the  sale  failed 
for  other  reasons,  he  cannot  recover 
commissions.  Carter  v.  Owens,  58 
Fla.  204,  25  L.  R.  A.  (N.  S.)  736. 
See  also,  Henderson  v.  Vincent,  84 
Ala.  99;  Mullen  v.  Bower,  22  Ind. 
App.  294. 

So  where  a  broker,  authorized  to 
sell  at  a  set  price,  sends  in  a  smaller 
offer  and  fails  to  notify  his  princi- 
pal that  the  client  will  take  the 
terms  set,  if  the  offer  fails,  that 
broker  is  guilty  of  such  concealment 
as  to  forfeit  his  commission.  Wads- 
worth  v.  Adams,  138  U.  S.  380,  34  L. 
Ed.  984. 

In  Soule  v.  Deering,  87  Me.  365,  the 
plaintiff,  the  broker,  had  been  author- 


ized to  sell  at  certain  minimum 
price,  had  advised  his  principal  fre- 
quently that  the  minimum  was  too 
high,  and  sent  directly  to  principal 
customers,  who  were  resolved  to  pay 
that  minimum  if  they  could  not  do 
better.  The  principal  got  his  price, 
but  for  failure  to  disclose  customer's 
resolution  which  he  knew,  the  broker 
lost  his  commission.  The  principal 
got  his  price,  but  through  no  aid  of 
the  broker  and  in  spite  of  the  latter's 
efforts. 

It  is  not  a  breach  of  duty  for  a 
broker,  acting  gratuitously  in  the 
sale  of  stock  at  a  fixed  price,  to  re- 
frain from  disclosing  "that  he  was  a 
stockholder  in  ...  the  pur- 
chasing agent  of  the  buyer,  or  that 
he  was  largely  interested  in  the  se- 
curities of  the  railroad  company 
which  was  seeking  to  acquire  this 
stock."  Clubb  v.  Scullin,  235  Mo. 
585. 

09  See  ante,  §  1189  et  seq.- 

™  See  ante,  §  1207;  Farnsworth  v. 
Hemmer,  1  Allen  (Mass.),  494,  79 
Am.  Dec.  756;  Hafner  v.  Herron,  165 
111.  242. 

71  See  Davis  v.  Hamlin,  108  111.  39, 
48  Am.  Rep.  541;  Pegram  v.  Railroad 
Co.,  84  N.  C.  696,  37  Am.  Rep.  639; 
Atlee  v.  Fink,  75  Mo.  100,  42  Am. 
Rep.  385. 

-2  See  ante,  §§  1191-1203.  See  also, 
Taussig  v.  Hart,  58  N.  Y.  425.  Can- 
not sell  to  or  buy  from  a  firm  or  cor- 
poration of  which  he  is  a  member. 
Francis  v.  Kerker,  85  111.  190;  War- 


1975 


§    2412]  THE  LAW  OF  AGENCY  [BOOK    V 

no  difference  that  his  motive  was  honest,  and  that  he  did  better  for  his 
principal  than  if  he  had  bought  or  sold  in  the  open  market.78  In  any 
such  case,  the  principal  may  repudiate  the  transaction  and  regain  his 
money  or  recover  his  property.7*  And  no  usage  of  trade,  unless  it  be 
shown  that  the  principal  had  such  knowledge  of  it  or  such  reason  to 
expect  it,  that  he  must  be  presumed  to  have  employed  the  broker  with 
reference  to  it,  will  justify  the  broker  in  dealing  with  himself.75 

These  rules,  however,  as  has  been  seen,  are  for  the  principal's  bene- 
fit, and  he  may  waive  them  if  he  sees  fit  to  do  so.  Familiar  cases  are 
those  wherein  the  principal,  after  knowledge,  has  voluntarily  per- 
formed or  received  the  benefit  of  the  performance  of  the  voidable  con- 
tract. 

Moreover,  it  seems  often  to  be  true,  particularly  in  the  case  of  the 
large  stock  and  bond  dealing  houses  which  frequently  act  for  them- 
selves as  well  as  for  others,  that  the  principal  resorts  to  the  so-called 
broker  rather  as  one  from  whom  stock,  bonds  and  other  similar  prop- 
erty can  be  obtained  than  as  a  mere  agent,  and  under  circumstances 
reasonably  indicating  that  it  is  a  matter  of  indifference  to  him  whether 
he  buys  from  the  broker  or  buys  through  his  agency,  so  long  as  the 
price  contemplated  is  not  exceeded.  In  such  cases,  it  is  difficult  to  see 
much  evidence  of  a  fiduciary  relationship. 

§  2412.  Acting  for  both  parties, — For  similar  reasons,  as 

has  been  seen,  the  broker  will  not  be  permitted,  without  the  full  knowl- 
edge and  consent  of  his  principal,  to  represent  the  other  party  also  in 
the  same  transaction.76  If  he  were  commissioned  to  sell,  his  duty  to 

ren  v.  Burt,  58  Fed.  101;    Evans  'v.  Rep.  66;  Ferguson  v.  Gooch,  94  Va.  1, 

Wrenn,  93  N.  Y.  App.  Div.  346;  Bar-  40  L.  R.  A.  234. 

telson  v.  Vanderhoff,   96  Minn.   184;  In    Van    Dusen-Harrington    Co.    v. 

Salomons  v.  Fender,  3  H.  &  C.  639.  Jungeblut,  supra,  rules  of  the  Cham- 

73  Taussig  v.  Hart,  58  N.  Y.   425;  ber  of  Commerce  and  of  the  "Clear- 
Texas  Brokerage  Co.  v.  Barkley,  Ing     Association"     operating     there- 

Tex.  Civ.  App.  ,  128  S.  W.  431.  with,   were   sustained   in   accordance 

74  See  ante,  §§  1190-1238;    Taussig  with   which   the   broker   became   the 
v.  Hart,  supra:  Henninger  v.  Heald,  opposite    party    to    the    transactions 
52  N.  J.  Eq.  431.  with  his  own  principal. 

TO  See  Van  Dusen-Harrington  Co.  v.          76  Bates  v.  Copeland,  11  McArthur 

Jungeblut,  75  Minn.  298,  74  Am.  St.  &  M.    (D.  C.)    50;    Reed  v.  Ziemans, 

Rep.  463;   Robinson  v.  Mollett,  L.  R.  145  111.  App.  425  (defendant  principal 

7  H.  of  L.  802,  reversing  L.  R.  5  C.  was  uninformed  of  double  agency) ; 

P.  646,  L.  R.  7  C.  P.  84;   Farnsworth  Lindt  v.  Schlitz  Brew.  Co.,  113  Iowa, 

v.  Hemmer,  1  Allen   (Mass.),  494,  79  200;   Raisin  v.  Clark,  41  Md.  158,  20 

Am.  Dec.  756;   Walker  v.  Osgood,  98  Am.  Rep.  66;  Maryland  Fire  Ins.  Co. 

Mass.    348,    93    Am.   Dec.    168;    Com-  v.  Dalrymple,  25  Md.  242,  89  Am.  Dec. 

monwealth  v.  Cooper,  130  Mass.  285;  779;  Quinn  v.  Burton,  195  Mass.  277; 

Raisin  v.  Clark,  41  Md.  158,  20  Am.  Veasy  v.   Carson,   177  Mass.   117,   53 

1976 


CHAP,    llij 


OF  BROKERS 


[§    2412 


the  seller  requires  that  he  shall  obtain  as  large  a  price  as  possible,  while 
if  he  were  commissioned  to  buy,  his  duty  to  the  buyer  would  be  to  buy 
at  as  low  a  price  as  possible.  To  undertake  to  perform  both  duties  at 
the  same  time,  involves  a  manifest  incongruity,  and  one  or  both  of  his 
principals  must  suffer  from  the  attempt.  If,  however,  each  having  full 
knowledge  of  his  relations  to  the  other,  sees  fit  to  trust  him  to  bargain 

for  him,  there  is  no  legal  objection  to  such  a  course,  and  neither  prin- 

r 


241; 


Alvord 


L.  R.  A.  241;  Alvord  v.  Cook,  174 
Mass.  120;  Rupp  v.  Samson,  16  Gray 
(Mass.),  398,  77  Am.  Dec.  416;  Farns- 
worth  v.  Hemmer,  1  Allen  (Mass.), 
494,  79  Am.  Dec.  756;  Walker  v.  Os- 
good,  98  Mass.  348,  93  Am.  Dec.  168; 
Rice  v.  Wood,  113  Mass.  133,  18  Am. 
Rep.  459;  Scribner  v.  Collar,  40 
Mich.  375,  29  Am.  Rep.  541;  Collins 
v.  Fowler,  8  Mo.  App.  588;  Lyon  v. 
Mitchell,  36  N.  Y.  235,  93  Am.  Dec. 
502;  Murray  v.  Beard,  102  N.  Y.  505; 
Bell  v.  McConnell,  37  Ohio,  396,  41 
Am.  Rep.  528;  Everhart  v.  Searle,  71 
Pa.  256;  Lynch  v.  Fallen,  11  R.  I.  311, 

23  Am.  Rep.  458;  Scott  v.  Kelso, 

Tex.  Civ.  App. ,  130  S.  W.  610; 

Barry  v.  Schmidt,  57  Wis.  172,  46 
Am.  Rep.  35;  Meyer  v.  Hanchett,  43 
Wis.  246;  Robbins  v.  Sears,  23  Fed. 
874. 

In  Lewis  v.  Denison,  2  App.  Gas. 
D.  C.  387,  it  is  said  that  where  the 
owner  of  real  estate  puts  it  in  the 
hands  of  a  broker  for  sale  at  a  fixed 
price,  and  the  broker  sells  it  for 
more  to  one  for  whom  he  is  at  the 
same  time  agent  for  the  investment 
of  money,  and  secretly  retains  the 
excess,  he  commits  a  fraud  upon  both 
parties  and  subjects  himself  to  a  dou- 
ble recovery  of  the  excess. 

Where  the  brokers  on  both  sides  of 
a  proposed  sale  secretly  agreed  to 
pool  all  of  the  commissions  and  di- 
vide them  equally,  it  was  held  the 
plaintiff — one  of  these  brokers — 
could  recover  no  commissions  from 
his  employer.  Quinn  v.  Burton,  195 
Mass.  277  (distinguishing  Alvord  v. 
Cook,  174  Mass.  120,  upon  the  ground 
that  in  the  latter  case  the  commis- 
sions were  to  be  a  fixed  sum,  and 

1977 


was     no     inducement     to 


therefore 

slight  the  service).  See  also,  Nor- 
man v.  Roseman,  59  Mo.  App.  682; 
Levy  v.  Spencer,  18  Colo.  532;  Hobart 
v.  Sherburne,  66  Minn.  171. 

In  Kinsland  v.  Grimshawe,  146  N. 
Car.  397,  the  court  pointed  out  that 
this  rule  did  not  apply  to  a  case 
where  the  broker,  who  has  procured 
a  customer  for  his  principal,  (a  man 
who  took  an  option  and  subse- 
quently bought  under  the  option), 
may  then  turn  about  and  with  no 
breach  of  duty  to  his  original  prin- 
cipal make  a  contract  with  the  cus- 
tomer to  resell  the  property  for  him. 
In  such  case,  the  broker  does  not  un- 
dertake to  act  for  conflicting  inter- 
ests. See  also,  Finnerty  v.  Fritz,  5 
Colo.  174. 

In  Winter  v.  Carey,  127  Mo.  App. 
601,  an  unusual  case,  the  agent,  with- 
out the  knowledge  of  his  principal, 
made  an  arrangement  with  the  ad- 
verse party  that  the  latter  should 
pay  $1,000  as  part  of  his  commission. 
The  agent  later  sued  his  principal 
for  the  "rest  of  the  commission"  and 
claimed  that  in  securing  the  pay- 
ment from  the  adverse  party  he  was 
trying  to  reduce  principal's  obliga- 
tion. Held,  that  he  could  not  recover. 
The  fact  that  the  agent  acted  without 
the  principal's  knowledge,  consent  or 
request,  indicates  that  the  act  was 
not  for  principal's  interest.  "It  was 
clearly  accepting  pay  from  the  ad- 
versary party  without  the  knowledge 
of  his  principal."  Though  it  might 
be  explained,  "yet  it  must  be  ad- 
mitted by  all  persons  of  common  un- 
derstanding that  it  has  a  bad  look." 


§    2412] 


THE  LAW  OF  AGENCY 


[BOOK   V 


cipal  could  complain.77  But  if  neither  has  such  knowledge,  and  each 
relies  upon  the  broker's  undivided  allegiance,  it  is  an  obvious  fraud 
upon  both,  which  the  law  will  not  tolerate,  for  him  to  undertake  to  rep- 
resent both  parties.  A  contract  made  under  such  circumstances  would 
be  voidable  at  the  option  of  either  party,78  and  each  would  have  a  cause 


77  Alexander  v.  Northwestern  Uni- 
versity, 57  Ind.  466;  Rice  v.  Wood, 
supra;  Scribner  v.  Collar,  supra; 
Bell  v.  McConnell,  supra;  Rowe  v. 
Stevens,  53  N.  Y.  621;  Joslin  v. 
Cowee,  56  N.  Y.  626;  Rolling  Stock 
Co.  v.  Railroad  Co.,  34  Ohio, 
Leekins  v.  Nordyke,  66  Iowa, 


450; 
471; 
App. 


Lipscomb   v.    Hasten,   142   Mo. 
228. 

It  is  held  in  some  cases  that  al- 
though the  party  who  last  employed 
the  broker  knew  of  his  previous  em- 
ployment by  the  other  party,  yet  the 
contract  between  the  broker  and  his 
second  employer  is  void  as  against 
public  policy.  See  Sullivan  v.  Tufts, 
203  Mass.  155;  Rice  v.  Wood,  113 
Mass.  133,  18  Am.  Rep.  459;  Smith  v. 
Townsend,  109  Mass.  500;  Rice  v. 
Davis,  136  Pa.  439,  20  Am.  St.  Rep. 
931;  Sternberger  v.  Young,  73  N.  J. 
Eq.  586;  Summa  v.  Dereskiawicz,  82. 
Conn.  547;  Lynch  v.  Fallen,  11  R.  I. 
311,  23  Am.  Rep.  458;  Raisin  v.  Clark, 
41  Md.  158,  20  Am.  Rep.  66;  Bverhart 
v.  Searle,  71  Pa.  256;  Meyer  v.  Han- 
chett,  43  Wis.  246. 

That  this  would  be  true  wherever 
the  engagement  by  the  second  prin- 
cipal could  be  deemed  an  attempt  to 
corrupt  the  broker  or  induce  him  to 
betray  his  first  employer,  see  ante, 
§§  2137  et  seg. 

Such  an  engagement  would  of 
course  be  a  fraud  upon  the  broker's 
first  employer  who  had  no  knowledge 
that  his  agent  was  entering  into  the 
service  of  the  opposite  party. 

See  Sternberger  v.  Young,  and 
cases,  supra. 

In  Sternberger  v.  Young,  supra, 
one  W  employed  the  plaintiff  to  pro- 
cure a  purchaser  for  lands  at  a  cer- 
tain price.  Plaintiff  agreed  with  de- 
fendant purchaser  to  get  W  to  take 
a  lesser  sum,  in  consideration  of  de- 


fendant's promise  to  let  plaintiff  act 
as  exclusive  agent  for  defendant  in 
the  collection  of  rents  from  the 
premises,  and  in  the  sale  of  same,  at 
certain  commissions.  Plaintiff  made 
the  lower  offer  to  W,  who  consented 
to  sell  at  the  lower  sum.  Plaintiff 
has  since  sold  this  land,  and  by  a 
bill  in  equity  for  an  accounting  seeks 
to  recover  his  commissions.  Held. 
that  he  could  not  recover,  for  the 
fraud  existing  in  the  original  trans- 
action infected  every  collateral  con- 
tract growing  out  of  the  transaction, 
and  hence  stops  plaintiff  from  getting 
equitable  relief. 

In  Andrews  v.  Ramsey  &  Co., 
[1903]  2  K.  B.  635,  the  principal  who, 
after  the  dealing  was  ended,  found 
that  his  agent  had  also  received  a 
commission  from  the  buyer,  had  first 
sued  for  and  recovered  the  amount 
of  that  other  commission  as  secret 
profits.  Now,  in  the  principal  case 
itself,  he  sues  for  and  is  allowed  to 
recover  the  commission  which  he  had 
paid  the  agent,  since  the  agent  was 
not  entitled  to  that  commission  be- 
cause of  his  double  dealing. 

See  also,  Plotner  v.  Chillson,  21 
Okla.  224,  129  Am.  St.  Rep.  776; 
Burnham  City  Lumber  Co.  v.  Rannie, 

59  Fla.  179. 

TS  Herman  v.  Martineau,  1  Wis.  151, 

60  Am.  Dec.  368;  Wassell  v.  Reardon, 
11  Ark.  705,  54  Am.  Dec.  245;  Hinck- 
ley  v.  Arey,  27  Me.  362;    Greenwood 
v,  Spring,  54  Barb.  (N.  Y.)  375;  Har- 
rison v.  McHenry,  9  Ga.  164,  52  Am. 
Dec.  435;    Switzer  v.  Skiles,  3  Gilm. 
(111.)    529,  44  Am.  Dec.  723;    Hunter 
Realty  Co.  v.  Spencer,  21  Okla.  155, 
17  L.  R.  A.    (N.  S.)    622;    Hanna  v. 
Haynes,    42    Wash.    284;     Green    v. 
Southern  States  Lumb.  Co.,  141  Ala. 
680,  163  Ala.  511. 


I978 


CHAP.    Ill] 


OF  BROKERS 


[§    2413 


of  action  against  the  broker  for  the  commission  paid  to  him,  and  for 
such  other  damages  as  had  been  sustained,  or  might  defend  upon  that 
ground  an  action  brought  by  the  broker.70 

§  2413.  How  when  mere  "middle-man." — Where,  how- 
ever, the  broker  acts  as  a  middleman  merely,  bringing  together  parties 
who  then  deal  with  themselves  and  make  their  own  bargains,  relying 
upon  their  own  judgment  and  skill, — especially,  according  to  some 
cases,  where  the  bargain  is  to  be  at  a  price  fixed  by  the  principal, — 
it  has  been  held  in  a  considerable  number  of  cases  that  there  is  no  in- 
consistency in  the  broker's  attitude  to  either,  and  that  no  reason  for 
complaint  arises  although  he  was  employed  by  each  without  the  knowl- 
edge of  the  other.80  It  is  believed,  however,  that, — unless  in  excep- 
tional cases  where,  for  example,  the  broker  is  employed  to  bring  two 
specified  persons  together,  and  has  no  duty  in  negotiation  and  has  not 
engaged  to  either  principal  his  skill,  knowledge  or  influence,81 — this 

™  See  cases  cited  under  first  note      a  breach  of  duty  to  the  seller.    Siege! 

v.  Rosenzweig,  129  N.  Y.  App.  Div. 
547. 

si  In  Knauss  v.  Krueger  Brew. 
Co.,  supra,  it  is  said:  "It  is  undenia- 
ble that  where  the  broker  or  agent  is 
invested  with  the  least  discretion,  or 
where  the  party  has  the  right  to  rely 
on  the  broker  for  the  benefit  of  his 
skill  or  judgment,  in  any  such  case 
an  employment  of  the  broker  by  the 
other  side  in  a  similar  capacity,  or 
in  one  where  by  possibility  his  duty 
and  his  interest  might  clash,  would 
avoid  all  his  right  to  compensation. 
The  whole  matter  depends  upon  the 
character  of  his  employment.  If  A 
is  employed  by  B  to  find  him  a  pur- 
chaser for  his  house  upon  terms  and 
conditions  to  be  determined  by  B 
when  he  meets  the  purchaser,  I  can 
see  nothing  improper  or  inconsistent 
with  any  duty  he  owes  B  for  A  to 
accept  an  employment  from  C  to  find 
one  who  will  sell  his  house  to  C  upon 
terms  which  they  may  agree  upon 
when  they  meet.  And  there  is  no 
violation  of  duty  in  such  case  in 
agreeing  for  commissions  from  each 
party  upon  a  bargain  being  struck, 
or  in  failing  to  notify  each  party  of 
his  employment  by  the  other." 


to  this  section. 

so  Clark    v.    Allen,   125    Cal.    276; 

Manders  v.  Craft,  3  Colo.  App.  236; 

Mullen  v.  Keetzleb,  7  Bush  (Ky.), 
253;  Rupp  v.  Sampson,  16  Gray 

(Mass.),  398,  77  Am.  Dec.  416;  Quinn 
v.  Burton,  195  Mass.  277;  Ranney  v. 
Donovan,  78  Mich.  318;  Montross  v. 
Eddy,  94  Mich.  100,  34  Am.  St.  Rep. 
323;  Friar  v.  Smith,  120  Mich.  411, 
46  L.  R.  A.  229;  Flattery  v.  Cunning- 
ham, 125  Mich.  467;  Childs  v.  Ptomey, 
17  Mont.  502;  Shepherd  v.  Hedden, 
29  N.  J.  L.  334  (price  fixed);  Ross  v. 
Carr,  15  N.  Mex.  17;  Knauss  v. 
Krueger  Brewing  Co.,  142  N.  Y.  70; 
Jarvis  v.  Schaefer,  105  N.  Y.  289; 
Siegel  v.  Gould,  7  Lans.  (N.  Y.)  177; 
Norton  v.  Genessee  Nat.  Sav.  Ass'n, 
57  N.  Y.  App.  Div.  520;  Grasinger  v. 
Lucas,  24  S.  Dak.  42;  Herman  v.* 
Martineau,  1  Wis.  151,  60  Am.  Dec. 
368;  Stewart  v.  Mather,  32  Wis.  344 
(price  fixed);  Barry  v.  Schmidt,  57  . 
Wis.  172,  46  Am.  Rep.  35;  Orton  v. 
Scofield,  61  Wis.  382;  McClure  v. 
Luke,  84  C.  C.  A.  1,  154  Fed.  647,  24 
L.  R.  A.  (N.  S.)  659. 

•  A  broker  who  renounces  his  em- 
ployment of  the  seller,  and  enters 
the  service  of  the  buyer,  may  recover 
of  the  latter.  This  is  held  not  to  be 


-A' 


1979 


§  2414] 


THE  LAW   OF  AGENCY 


[BOOK  v 


distinction  is  not  sound  in  principle  and  that  the  same  temptation, 
which 'the  law  seeks  to  avoid,  exists  in  this  case,  to  lead  the  broker  to 
bring  together  those  only  who  employ  him,  to  the  exclusion  of  others 
who  might  make  better  terms.82 

§  2414.  Duty  to  obey  instructions. — It  is  the  duty  of  the  broker 
to  obey  the  instructions  of  his  principal  in  all  matters  which  the  prin- 


sz  "Even  if  he  had  no  authority  to 
bind  his  principal,  and  was  intrusted 
with  no  discretion  in  fixing  the  terms 
of  the  exchange,  and  his  only  service 
was  to  bring  the  parties  together,  he 
was  bound  to  perform  that  service  in 
the  interest  of  the  party  who  em- 
ployed him.  Such  employment  is 
not  like  the  offer  of  a  reward  for  the 
performance  of  some  act  which  an- 
other may  undertake  or  forego  as  he 
shall  please.  Employment  implies 
acceptance  of  the  service.  A  broker 
thus  employed  does  not  act  in  good 
faith  if  he  turn  aside  all  proposals 
that  are  not  accompanied  with  an  ad- 
ditional retainer  or  commission.  Yet 
such  is  the  temptation  upon  him,  if 
he  may  levy  a  fee  from  both  parties. 
When  he  has  secured  the  retainer  of 
the  other  party  he  is  interested,  in 
order  to  win  his  double  commission, 
to  bring  together  these  two  to  the 
exclusion  of  all  others.  The  interests 
of  his  principal  are  in  danger  of 
prejudice  from  this  counter  interest 
in  the  agent.  And  besides,  the 
broker  is  ordinarily  and  almost  in- 
evitably intrusted,  to  a  greater  or 
less  ext'ent,  with  the  confidence  of  his 
principal,  and  a  knowledge  of  his 
views  and  purposes.  This  is  incom- 
patible with  like  relations  to  the 
other  party.  From  the  very  nature 
and  necessities  of  the  case,  such  two- 
fold interests  and  relations  of  the 
broker  are  inconsistent  with  the  in- 
terests of  the  principal,  and  should 
not  be  maintained  without  his  knowl- 
edge and  consent."  Wells,  J.,  in 
Walker  v.  Osgood,  98  Mass.  348,  93 
Am.  Dec.  168.  And,  speaking  of 
Rupp  v.  Sampson,  supra,  the  same 
judge  continues:  "The  verdict  for 

1980 


the  plaintiff  was  sustained  in  that 
case;  but  it  was  upon  the  distinct 
ground  that,  under  the  instructions 
given  to  the  jury,  they  must  be  held 
to  have  found  that  the  defendants' 
promise  to  pay  was  given,  not  for 
services  in  their  employ  as  a  broker, 
but  for  the  performance  of  a  certain 
specific  act,  namely,  the  introduction 
of  Clew  (the  other  party)  to  them. 
The  court  considered  that,  so  far  as 
the  mere  performance  of  such  an  act 
was  concerned,  it  could  make  no  dif- 
ference to  the  defendants,  whether 
the  plaintiff  was  in  the  employ  and 
pay  of  the  other  party  or  not;  and  it 
was  not  such  a  fraud  upon  the  other 
party,  though  concealed  from  him, 
as  to  render  his  contract  with  the 
defendants  void  for  illegality.  How 
far  the  plaintiff's  dealings  with  the 
defendants  were  inconsistent  (short 
of  such  illegality)  with  his  obliga- 
tions to  Clew,  was  not  for  determina- 
tion in  that  suit." 

"The  opinion  has  been  expressed," 
says  Mr.  Justice  Graves,  in  Scribner 
v.  Collar,  40  Mich.  375,  29  Am.  Rep. 
541,  "that  where  the  person  is  em- 
ployed merely  as  a  middleman  to 
bring  persons  together,  and  has  no 
duty  in  negotiation,  and  has  not  en- 
gaged his  skill,  his  knowledge,  or  his 
influence,  he  may  lawfully  claim  pay 
from  both  parties.  Rupp  v.  Sampson, 
16  Gray,  398;  Siegel  v.  Gould,  7  Lans. 
177.  No  doubt  such  cases  may  oc- 
cur, but  their  exceptional  character 
should  appear  clearly,  before  they 
should  be  exempted  from  the  general 
principle." 

In  Michigan,  compare  Friar  v. 
Smith,  120  Mich.  411,  46  L.  R.  A.  229. 


CHAP.    Ill]  OF  BROKERS  [§    2415 

cipal  has  the  right  to  control.  If  instructed  to  buy  or  sell,  he  should 
carefully  observe  the  limits  fixed  by  the  principal  as  to  the  property, 
amount,  time,  place,  price  and  other  terms  and  conditions  of  the  trans- 
action, and  if  he  fails  to  do  so,  without  reasonable  excuse,  he  will  be 
liable  to  the  principal  for  the  loss  that  may  occur.88  If  the  principal's 
instructions  be  ambiguous  and  capable  of  two  constructions,  and  the 
broker,  acting  with  good  faith  and  reasonable  prudence,  pursues  one  of 
them,  he  can  not  be  held  liable  because  the  principal  may  have  intended 
the  other.84  So  if  an  unexpected  emergency  arises,  without  the  brok- 
er's fault,  rendering  a  strict  compliance  with  his  instructions  impossi- 
ble,— but  still  under  such  circumstances  that  he  must  act  without  be- 
ing able  to  communicate  with  the  principal, — and  he  adopts  the  course 
dictated  by  reasonable  prudence  and  foresight,  he  will  not  be  liable.85 
But  in  other  cases,  the  broker  disregards  his  principal's  instructions  at 
the  risk  of  being  compelled  to  make  good  a  loss  which  may  ensue  there- 
from, unless  the  principal  has  ratified  the  act.88 

§  2415.  Illustrations. — Thus,   if  the  broker  is  instructed 

to  effect  insurance,  and  he  wholly  omits  to  do  so,  or  so  negligently  per- 
forms that  the  insurance  is  valueless,  or,  in  case  of  inability  to  effect 
the  insurance,  fails  to  give  his  principal  timely  notice  of  that  fact,  the 
risk  is  his  own ; 8T  if  he  is  directed  to  sell  property  at  a  certain  time, 

ss  Pulsifer  v.  Shepard,  36  111.  513;  preting    the    instructions,    and    the 

Jones  v.  Marks,  40  111.  313;    Parsons  principal    does    nothing    to    correct 

v.  Martin,   77  Mass.    (11  Gray)    111;  him.    Coquard  v.  Weinstein,  16  Mont. 

Hoogewerff   v.    Flack,    101    Md.    371;  312;    Vianna  v.  Barclay,  3  Cow.    (N. 

King  v.   Zell,   105   Md.   435;    Farwell  Y.)   281. 

v.  Price,  30  Mo.  587;  Taussig  v.  Hart,  See  also,  Davis  v.  Gwynne,  4  Daly 

58  N.  Y.  425;   Knowlton  v.  Fitch,  52  (N.  Y.),  218. 

N.  Y.  288;    White  v.  Smith,  54  N.  Y.  In   Matthews  v.   Fuller,   123    Mass. 

522;    Scott  v.  Rogers,  31  N.  Y.  676;  446,  the  broker  advised  the  customer 

Baker  v.  Drake,  53  N.  Y.  211,  13  Am.  to    sell    certain    unregistered    bonds 

Rep.  507;   s.  c.  66  N.  Y.  518,  23  Am.  and  invest  in  registered  bonds.    The 

Rep.  80;   Speyer  v.  Colgate,  67  Barb,  customer     directed     the     broker     to 

(N.  Y.)   192;   Allen  v.  McConihe,  124  make    the    purchase    and    sale    sug- 

N.  Y.  342;    Quinlan   v.  Holbrook,   89  gested,    saying,    "I    shall    feel    under 

C.  C.  A.  252,  162  Fed.  272;   Galigher  many  obligations  if  you  will  kindly 

v.  Jones,  129  U.  S.  193,  32  L.  Ed.  658.  make    such    sale    and    purchase    of 

It  is  no  defense  to  the  broker  in  bonds  as  your  good  sense  dictates." 

these  cases  that  the  failure  results  Held,  if  the  broker  acted   bona  fide 

from  the  default  of  the  broker's  cor-  he  had  authority  to  buy  unregistered 

respondent  or  sub-agent  without  ac-  bonds. 

tual     fault     on     the     broker's     part.  »•">  See    ante,    §  .  1262 ;     Bernard    v. 

Greene  v.  Corey,  210  Mass.  536.  Maury,  20  Gratt.   (Va.)   434. 

a*  See  ante,  §  1266;  Minnesota  Lin-  se  See  ante,  §  1245;   Lunn  v.  Guth- 

seed  Oil  Co.  v.  Montague,  65  Iowa,  67.  rie,  115  Iowa,  501. 

A    fortiori    where    the    broker  ad-  87  Park  v.  Hamond,   4  Camp.  344; 

vises  the  principal  how  he  is  inter-  Perkins    v.    Washington    Ins.    Co.,    4 

1981 


THE    LAW    OF   AGENCY 


[BOOK    V 


or  when  it  reaches  a  certain  price,  and  fails  to  do  so,  he  must  make 
good  a  deficiency  occasioned  by  a  depreciation  in  the  value  within  a  rea- 
sonable time  after  the  time  fixed ; 88  if  he  is  instructed  to  buy  upon  a 
given  day,  or  when  the  property  reaches  a  certain  price,  and  omits  to 
do  so,  he  will  be  liable  for  profits  lost  if,  within  a  reasonable  time,  the 
property  increases  in  value ; 88  if  he  is  directed  to  make  a  certain  dispo- 


Cow.  (N.  Y.)  645;  Thome  v.  Deas,  4 
Johns.  (N.  Y.)  84;  Gray  v.  Murray, 
3  Johns.  (N.  Y.)  Ch.  167;  DeTastett 
v.  Crousillat,  2  Wash.  (U.  S.  C.  C.) 
132,  Fed.  Cas.  No.  3,828;  Callander  v. 
Oelrichs,  5  Bing.  N.  C.  58;  Shoenfeld 
v.  Fleisher,  73  111.  404. 

The  fact  that  the  margins  have 
been  exhausted  does  not  relieve  the 
broker  of  the"  duty  to  sell  when  in- 
structed. Zimmerman  v.  Heil,  86 
Hun  (N.  Y.),  114,  156  N.  Y.  703. 

ss  In  Galigher  v.  Jones,  129  U.  S. 
193,  32  L.  Ed.  658,  the  owner  of  stock 
by  telegram  instructed  the  broker  to 
sell  certain  stocks  and  invest  the  pro- 
ceeds in  certain  other  stock.  The 
broker  did  not  comply  but  notified 
by  letter  his  refusal,  which  was  not 
received  until  two  days  later,  when 
the  stock  to  be  sold  had  declined  and 
continued  to  decline,  and  the  stock 
to  be  bought  had  and  continued  to 
advance.  The  court  said  that  dam- 
ages were  recoverable  both  for  the 
loss  occasioned  by  the  failure  to  sell 
and  the  failure  to  buy;  that  the  high- 
est market  value  between  the  date 
when  the  instruction  should  have 
been  carried  out  and  a  reasonable 
time  after  the  owner  learned  of  the 
refusal,  was  the  correct  measure. 
But  it  was  held  that  "the  want  of  a 
sufficient  finding  of  facts  necessitates 
a  new  trial." 

In  Allen  v.  McConihe,  124  N.  Y.  342, 
it  was  held  that  the  measure  of  dam- 
ages for  refusal  to  obey  an  instruc- 
tion to  sell  was  the  difference  in  the 
market  value  at  the  time  of  the  in- 
struction and  at  the  time  when  the 
broker  subsequently  sold;  that  the 
customer,  not  having  the  title  could 
not  himself  sell,  nor  was  he  under 

I 


any  duty  to  pay  the  purchase  price 
in  order  to  obtain  the  certificates  to 
sell  so  as  to  mitigate  the  loss. 

A  refusal  to  sell  stock  ordered  to 
be  sold  does  not  release  the  owner 
from  liability  incurred  to  the  broker 
in  buying  and  carrying  the  stock 
previous  to  the  order  to  sell,  but 
gives  a  right  only  to  recover  for  the 
actual  loss  occasioned  by  the  refusal 
to  obey  the  instruction.  King  v.  Tell, 
105  Md.  435. 

Refusal  by  the  broker  to  obey  a  di- 
rection to  sell  does  not  give  the  right 
to  rescind  the  contract  and  recover 
back  the  margins  advanced  where  the 
margins  have  been  used  up,  but  only 
an  action  for  breach  of  contract. 
Quinlan  v.  Holbrook,  89  C.  C.  A.  252, 
162  Fed.  272.  But  where  there  has 
not  been  a  decline  in  the  property  or- 
dered sold  the  margins  may  be  recov- 
ered. Jones  v.  Marks,  40  111.  313.  So 
the  margins  may  be  recovered  where 
there  has  been  no  actual  purchase  by 
the  broker,  but  a  fictitious  report. 
Hoogewerff  v.  Flack,  101  Md.  371. 

se  Thus  in  Galigher  v.  Jones,  supra, 
where  the  broker  was  instructed  to 
buy,  it  was  held  that  the  measure  of 
damages  was  the  difference  in  market 
value  at  the  time  the  sale  should  have 
been  made  and  the  highest  market 
price  reached  within  a  reasonable 
time  after  the  customer  learned  of 
the  broker's  refusal. 

Where  a  broker,  who  has  induced 
his  customer  to  hold  on  and  promised 
to  protect  him,  has  "sold  him  short" 
and  then  buys  in  and  covers  the 
transaction  before  he  is  ordered  so  to 
do,  while  the  margin  is  still  sufficient 
and  without  notice,  he  is  liable  for 
the  difference  in  the  market  value  at 
982 


CHAP.    Ill] 


OF  BROKERS 


[§    2415 


sition  of  stocks,  or  other  property  in  his  possession,  and  makes  a  differ- 
ent disposition,  he  may  be  held  liable,  as  for  a  conversion ; 90  or  if  he  is 
instructed  to  buy  at  a  given  price  and  buys  at  a  greater,  or  to  sell  at 
a  given  price,  and  sells  at  a  less  price,  he  will  be  liable  for  the  resulting 
loss.91 


the  time  he  bought  In  and  at  the  time 
when  the  customer  subsequently  or- 
ders the  transaction  closed.  Rogers 
v.  Wiley,  131  N.  Y.  527.  See  also, 
Campbell  v.  Wright,  118  N.  Y.  594; 
White  v.  Smith,  54  N.  Y.  522. 

so  Thus  in  Laverty  v.  Snethen,68  N. 
Y.  522,  23  Am.  Rep..  184,  the  court 
says:  "The  result  of  the  authorities  is 
that  if  the  agent  parts  with  the  prop- 
erty, in  a  way  or  for  a  purpose  not 
authorized,  he  is  liable  for  a  conver- 
sion, but  if  he  parts  with  it  in  accord- 
ance with  his  authority,  although  at 
less  price,  or  if  he  misapplies  the 
avails,  or  takes  inadequate  for  suffi- 
cient security,  he  is  not  liable  for  a 
conversion  of  the  property,  but  only 
in  an  action  on  the  case  for  miscon- 
duct." 

A  broker  who  will  neither  sell  as 
directed  nor  return  the  property  on 
demand  is  guilty  of  conversion.  Jones 
v.  Ortel,  114  Md.  205. 

Selling  the  principal  out  without 
notice  or  authority  is  a  conversion. 
Baker  v.  Drake,  66  N.  Y.  518,  23  Am. 
Rep.  80;  Keller  v.  Halsey,  202  N.  Y. 
588;  Denton  v.  Jackson,  106  111.  433. 

The  measure  of  damages  for  the 
conversion  of  stock  and  other  similar 
property,  after  much  controversy  in 
New  York,  has  been  held  to  be  the 
cost  of  replacing  within  a  reasonable 
period  after  notice  of  the  conversion 
and  not  the  highest  value  reached 
down  to  the  time  of  trial.  See  Baker 
v.  Drake,  53  N.  Y.  211,  13  Am.  Rep. 
507,  s.  c.,  66  N.  Y.  518,  23  Am.  Rep. 
80;  Scott  v.  Rogers,  31  N.  Y.  676;  Gru- 
man  v.  Smith,  81  N.  Y.  25:  Colt  V. 
Owens,  90  N.  Y.  368;  Wright  v.  Bank 
of  Metropolis,  110  N.  Y.  237,  6  Am. 
St.  Rep.  356,  1  L.  R.  A.  289;  Rosen- 
baum  v.  Sttebel,  137  N.  Y.  App.  Div. 

1983 


912.  (Many  of  these  cases  discuss 
the  question  of  how  this  reasonable 
time  is  to  be  determined.) 

Because  "more  transactions  of 
this  kind  arise  in  the  state  of  New 
York  than  in  all  other  parts  of  the 
country,"  the  New  York  rule  of 
highest  intermediate  value  within  a 
reasonable  time  was  adopted  by  the 
Supreme  Court  of  the  United  States: 
Galigher  v.  Jones,  129  U.  S.  193,  «J2  L. 
Ed.  658. 

So  in  New  Jersey:  Dimock  v. 
United  States  Bank,  55  N.  J.  L.  296,  39 
Am.  St.  Rep.  643;  Virginia,  Miller  v. 
Lyons,  113  Va.  275. 

In  Pennsylvania,  the  measure  of 
damages  is  said  to  be  "the  highest 
price  of  the  stock  between  the  date 
of  the  conversion  and  that  of  the 
trial  of  a  suit  brought  by  the  cus- 
tomer for  the  unlawful  conversion." 
Sproul  v.  Sloan,  241  Pa.  284;  Learock 
v.  Paxson,  208  Pa.  602. 

Where  the  stock  declines  in  value, 
the  principal  may  recover  the  value 
at  the  time  of  the  conversion  and  can- 
not be  compelled  to  take  a  lower 
price  though  reached  within  a  reason- 
able time.  Mclntyre  v.  Whitney,  139 
N.  Y.  App.  Div.  557,  Aff'd,  no  opinion, 
201  N.  Y.  526. 

Broker  may  have  counter  claim  to 
the  extent  of  his  advances  for  which 
he  was  entitled  to  a  lien.  Barber  v. 
Ellingwood,  137  N.  Y.  App.  Div.  704. 

81  As  pointed  out  in  Laverty  v. 
Snethen,  supra,  mere  variations  from 
the  price  fixed  will  not  constitute  a 
conversion  but  will  merely  give  rise 
to  an  action  for  damages.  See  Du- 
fresne  v.  Hutchinson,  3  Taunt.  117; 
Sargeant  v.  Blunt,  16  Johns.  (N.  Y.) 
74. 


§§  2416,2417] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2416.  Imperiling  broker's  security. — As  indicated  in  an 

earlier  section,  however,  a  broker  cannot  be  required  to  obey  instruc- 
tions not  to  sell  where  to  do  so  would  imperil  his  right  to  avail  himself 
of  the  goods  as  a  security  for  advances,  unless  the  principal  upon  rea- 
sonable request  reimburses  or  indemnifies  him.92  On  the  other  hand, 
it  has  been  held  that  he  must  obey  instructions  to  sell  even  though  the 
principal's  margins  wrere  exhausted.93 

§  2417.  Duty  to  keep  and  render  accounts,  and  to  pay  proceeds 
and  deliver  property. — It  is  the  duty  of  the  broker  to  keep  and  pre- 
serve true  and  accurate  accounts  and  records  of  all  of  his  proceedings 
and  transactions  on  account  of  his  principal ;  to  open  them  for  inspec- 
tion at  all  reasonable  times,  and  to  render  such  accounts  to  the  prin- 
cipal upon  reasonable  request  or  within  a  reasonable  time.94  It  is  also 


92  See  ante,  §  2386,  note. 

In  Cameron  v.  Durkheim,  55  N.  Y. 
425,  on  a  call  for  margins  the  cus- 
tomer replied  that  he  could  furnish 
no  more  and  that  the  brokers  "must 
take  care  of"  themselves.  Held:  The 
brokers  were  justified  in  closing  out 
the  account  and  to  do  it  in  any  proper 
and  judicious  manner. 

93  in  Zimmerman  v.  Hell,  86  Hun 
(N.  Y.),  114,  affirmed  on  opinion  be- 
low, 156  N.  Y.  703,  the  customer,  for 
whom  the  brokers  had  bought  silver 
certificate  on  margin,  arid  after  the 
margins  had  been  exhausted  on  a  de- 
cline  in   the  market,   instructed  the 
brokers  to  sell  the  certificates,  saying 
that    if    they    held    the    certificates 
longer  they  would  do  so  at  their  own 
risk.    The  brokers  refused  to  comply, 
but  sold  them  over  a  year  later,  when 
they  had  declined  still  more.     In  an 
action  by  the  brokers  against  the  cus- 
tomer to  recover  for  the  loss,  the  con- 
tention was  that  the  customer  could 
not  demand  a  sale  after  the  margin 
was    exhausted    without    putting    up 
more  margin,  but  it  was  held  that  the 
broker  has  no  right  to  refuse  to  obey 
the    principal's    instructions    to    sell 
and  thus  end  the  transaction,  regard- 
less of  the  state  of  the  margin.    While 
it     is     true     that    the     relation     of 
pledgor  and   pledgee   exists   between 
them,  the  original  relation  of  princi- 
pal and  agent  had  not  ended. 


On  the  other  hand  in  the  case  of 
the  factor  who  has  made  advances  it 
is  held,  as  will  appear  in  the  follow- 
ing chapter,  that  he  is  not  obliged  to 
sell  upon  the  principal's  Instructions 
where  he  has  made  advances  upon  the 
goods  and  he  holds  them  in  good 
faith  for  a  reasonable  period  and  in 
a  reasonable  expectation  of  such  an 
advance  in  price  as  will  reimburse 
him  for  his  advances.  See  post,  §  2527. 

Feild  v.  Farrington,  77  U.  S.  (10 
Wall.)  141,  19  L.  Ed.  923;  Blair  v. 
Childs,  57  Tenn.  (10  Heisk.)  199; 
Weed  v.  Adams,  37  Conn.  378;  Butter- 
field  v.  Stephens,  59  Iowa,  596. 

Where  the  broker  wrote  to  his  prin- 
cipal asking  for  more  margin  and 
saying  that  if  it  was  not  furnished 
he  could  not  continue  to  carry  the 
stock,  to  which  principal  made  no 
reply.  Held,  not  equivalent  to  an  or- 
der by  principal  to  sell  or  an  assur- 
ance by  broker  that  he  would  sell,  so 
as  to  release  principal  from  liability 
for  further  decline  in  value.  Esser  v. 
Linderman,  71  Pa.  76. 

»*  "The  duty  of  a  broker  or  agent 
to  keep  accounts  showing  names  of 
persons  with  whom  he  deals  for  his 
principal  is  plain  to  the  last  degree." 
Prout  v.  Chisolm,  89  Hun  (N.  Y.), 
108. 

In  Duff  v.  Hutchinson,  19  N.  Y. 
Weekly  Dig.  20,  the  court  said  "that, 
inasmuch  as  the  relations  of  defend- 


1984 


CHAP.    Ill]  OF  BROKERS  [§    2418 

his  duty  to  pay  to  his  principal,  after  deducting  his  own  charges  and 
commissions,  where  such  may  lawfully  be  charged,  all  money  and  prop- 
erty which  may  come  into  his  hands  for  his  principal's  account.95  As 
in  other  cases,  all  profits  and  advantage  made  by  the  broker,  while  en- 
gaged in  the  performance  of  his  undertaking  and  which  are  the  fruit 
of  the  agency,  whether  resulting  from  the  performance  or  violation  of 
his  duty  to  his  principal,  belong  tp  the  principal,  and  the  broker  must 
account  to  the  latter  for  them.96 

Where  the  principal  demands  an  accounting  of  property  or  funds  in 
the  broker's  hands,  the  latter  cannot  escape  liability  by  showing  that  he 
had  been  ordered  to  make  certain  investments  and  that  if  he  had  made 
them  as  directed  the  money  would  have  been  lost,  if  he  did  not  in  fact 
make  them.  The  principal's  losses  are  to  be  determined  by  the  actual 
transactions  and  not  by  fictitious  or  purely  formal  ones.97 

,)A  oi  bstor.iJno:)  ejsrl  bns"  ,^d  b^olqma  n^ad 
f  3ff  ,3Dir3btn<^  t>u          v,       •  o  orfj  ni  f>fic  rUi 

w  *\iQtesii  B  o'A  'I    TI.iwiwo  orfi  f>d 

DUTIES  AND  LIABILITIES  TO  THIRD  PERSONS. 

§  2418.  Not  liable  when  he  contracts  for  a  principal  disclosed.— 

The  broker,  as  has  been  seen,  is  ordinarily  a  negotiator  for  others.    He 

ants   to   plaintiff   were   those   of   an  after  selling  the  property.     Haas  v. 

agency   in   which   the  course  of  the  Damon,    9    Iowa,    589.      Must    keep 

business   rendered    it   their   duty   to '  proper  accounts  and  these  apparently 

keep  accounts  of  the  transactions  of  should   show   the  names  of  vendors 

the  agency,  such  accounts  were  not  and  vendees.     It  is,  at  most,  a  ques- 

exclusively  those  of  the  agents  them-  tion  for  the  jury  in  a  particular  case; 

selves,  but  the  principal  was  entitled,  the  court  will  not  say  that  such  rec- 

whenever  an  occasion  might  arise,  to  ords  need  not  be  kept.    Prout  v.  Chis- 

appeal  to  and  consult  the  books  and  olm,  21  N.  Y.  App.  Div.  54. 

papers  of  the  agents  for  his  informa-  95  See  ante,  §  1327,  et  seq.     ' 

tion,  and  to  settle  any  differences  or  Duty  to  deliver  property  purchased 

misunderstanding."  for  or  received  from  principal,  when 

To  same  effect:  Miller  v.  Kent,  59  the  latter  is  entitled  to  it.     Chew  v. 

How.  Pr.  (N.  Y.)  321,  23  Hun  (N.  Y.),  Louchheim,  25  C.  C.  A.  596,  80  Fed. 

G57;  Talbot  v.  Doran,  16  Daly  (N.  Y.),  500. 

174J   Drake  v.  Weinman,  12   (N.  Y.)  »«  See  ante,  §  1224  et  seq.    See  also, 

Misc.  65.       .$08  Payne    v.    Waterstown,    16    La.    Ann. 

"In  case  of  an  agent  failing  to  keep  239;  Borst  v.  Lynch,  133  Iowa,  567; 
or  produce  accounts,  all  presumptions  Haight  v.  Haight,  112  N.  Y.  App.  Div. 
of  value  are  against  him."  Bate  v.  475;  Bay  State  Gas  Co.,  etc.,  v.  Law- 
McDowell,  17  J.  &  S.  (N.  Y.)  106.  '  son,  188  Mass.  502;  Stearns  v.  Hoch- 

Must    not    mingle    principal's    ac-  brunn,  24  Wash.  206;  Lovejoy  v.  Kauf- 

counts    with   his    own.     Williams   v.  man,  16  Tex.  Civ.  App.  377. 

White,  70  Me.  138.    See  also,  Evans  v.  "  Des  Jardins  v.  Hotchkin,  142  N. 

Wain,  71  Pa.  69.    Must  render  an  ac-  Y.  App.  Div.  845;    Haight  v.  Haight, 

count  to  the  principal  in  due  season  supra. 

and    at   least   in   a   reasonable    time  Principal   not   bound   by   fictitious 
125                                             1985 


§  2419] 


THE  LAW  OF  AGENCY 


[BOOK  v 


usually  does  not  have  possession  of  the  property  he  sells.  It  is  ex- 
pected ordinarily  that  he  will  deal  in  his  principal's  name  and  not  in 
his  own;  and  it  is  well  settled  as  a  general  rule  that  a  broker,  like 
other  agents,98  who  contracts  for  and  in  the  name  of  a  disclosed  prin- 
cipal, cannot  be  held  personally  liable  upon  such  contract,  if  it  be  one 
which  he  was  authorized  to  make." 

He  may,  of  course,  expressly  bind  himself  in  such  a  case,  as  will  be 
seen  in  a  following  section ; x  and  a  well  understood  custom,  it  is  held, 
may  also  impose  such  a  liability.2 

§  2419.  Liability  when  principal  concealed. — But  where  the 
broker  conceals  the  fact  of  his  agency,  and  contracts  in  his  own  name, 
he  will  be  held  personally  liable,3  although  the  principal  may  be  liable 
also  when  discovered.4 

So,  though  he  discloses  that  he  is  but  an  agent,  if  he  conceals  the 
name  and  identity  of  his  principal  and  deals  in  his  own  name  as  the 
contracting  party,  he  will  be  personally  liable,5  although  here  also  the 
principal  may  usually  be  held  when  discovered.6 


accounts  though  he  had  accepted 
them  as  correct  until  he  discovered 
the  fraud.  Haight  v.  Haight,  supra. 

ss  See  ante.  §  1357  et  seq. 

»»  Morehouse  v.  Winter,  159  111.  App. 
296;  Bailey  v.  Galbreath,  100  Tenn. 
599;  Walker  v.  Cross,  87  C.  C.  A.  324, 
160  Fed.  372.  In  Gadd  v.  Hough- 
ton,  L.  R.  1  Ex.  Div.  357,  the  con- 
tract stated  that  the  goods  were 
sold  "on  account  of"  the  principal, 
but  signed  with  the  name  of  the 
broker.  Held:  Not  necessary  that  the 
broker  add  after  his  name  that  he  is 
agent  of  the  principal,  if  from  the 
whole  contract  it  appears  who  the 
principal  is  and  that  the  contract  was 
made  for  him. 

1  Post,  §  2420. 

2  In  Universo  Ins.  Co.  v.  Merchants 
Marine   Ins.  Co.,    [1897]    2   Q.   B.  93, 
there  is  said  to  be  a  well  established 
custom  that  the  broker  is  liable  for 
the  premiums  on  marine  policies,  and 
It  is  held  that  the  custom  is  not  con- 
fined to  the  ordinary  Lloyd's  policy. 

sCobb  v.  Knapp,  71  N.  Y.  348,  27 
Am.  Rep.  51;  Knapp  v.  Simon,  96  N. 
Y.  284;  Drake  v.  Pope,  78  Ark.  327; 
Pugh  v.  Moore,  44  La.  Ann.  209;  Bas- 


sett  v.  Perkins,  65  N.  Y.  Misc.  103; 
Waring  v.  Mason,  18  Wend.  (N.  Y.) 
425. 

In  Hutcheson  v.  Eaton,  13  Q.  B. 
Div.  861  where  brokers  acting  for  an 
undisclosed  principal  made  a  contract 
reading  "We  have  this  day  sold  to 
you,"  etc.,  and  signed  it  in  their  own 
names  with  the  word  "brokers"  add- 
ed, they  were  held  personally  liable. 
No  principal  was  disclosed,  the  con- 
tract was  in  terms  their  own,  and  the 
word  "brokers"  added  was  only  de- 
scriptio  personarum. 

The  liability  extends  not  only  to 
the  principal  contract  itself  but  also 
to  the  collateral  obligations  out  of  it, 
as,  for  example,  to  implied  warran- 
ties of  title  or  genuineness.  Pugh  v. 
Moore,  supra. 

*  See  ante,  §  1731  et  seq. 

o  Lincoln  v.  Levi  Cotton  Mills  Co., 
63  C.  C.  A.  333,  128  Fed.  865  (here 
it  was  known  that  the  broker  was 
acting  merely  as  such  but  it  was  not 
disclosed  for  whom  he  acted). 

Bassett  v.  Perkins,  65  Misc.  (N.  Y.) 
103;  Baxter  v.  Duren,  29  Me.  434,  50 
Am.  Dec.  602. 

e  See  ante,  §  1732. 


1986 


CHAP.    Ill] 


OF  BROKERS 


[§    2419 


On  the  other  hand,  though  he  conceals  the  name  and  identity  of  his 
principal,  if  he  makes  the  contract  only  for  or  on  account  of  that  un- 
disclosed principal,  as  he  may,  he  will  not  be  liable  on  the  contract,  in 
the  absence  of  some  valid  custom  to  that  effect,7  even  though  the  other 
party  should  never  be  able  to  discover  and  hold  the  principal.8 

As  intimated  above,  however,  it  has  been  held  in  several  cases  that, 
although  the  form  of  the  contract  was  sufficient  to  exclude  the  brok- 
er's responsibility,  he  may  nevertheless  be  personally  liable  by  the  cus- 
tom of  the  trade  in  which  he  deals.9 


7  As  to  which  see  cases  in  second 
note  following. 

s  In  Lyon  v.  Williams,  71  Mass.  (5 
Gray)  557,  an  action  was  brought 
against  an  agent  of  a  railroad  com- 
pany for  goods  lost.  The  receipt 
stated  that  "the  several  railroad 
companies,"  which  were  unknown 
to  plaintiff,  agree  to  carry,  etc., 
signed  "G.  Williams,  Jr.  for  the 
corporations."  The  court  said: 
"But  it  is  said  that  the  names 
of  the  corporations  are  not  stated. 
This  is  true;  but  they  are  capable  of 
being  made  certain  by  proper  in- 
quiry, and  the  plaintiff  was  content 
to  take  a  contract  thus  generally  des- 
ignating the  parties  with  whom  the 
liability  was  to  rest  for  the  safe  and 
proper  conveyance  of  the  goods."  So, 
where  the  contract  was:  "Sold  for 
you  to  my  principals."  Southwell  v. 
Bowditch,  1  C.  P.  Div.  374. 

So  in  Fleet  v.  Murton,  L.  R.  7  Q.  B. 
126,  where  the  broker's  note  read: 
"We  have  sold  for  your  account  to 
our  principal,"  but  didn't  state  who 
the  principal  was,  it  was  agreed  that 
but  for  a  custom  referred  to  in  the 
case  the  broker  would  not  be  liable. 

To  same  effect:  Dale  v.  Humfrey, 
El.  Bl.  &  El.  1004;  Pike  v.  Ongley,  18 
Q.  B.  D.  708. 

In  Southwell  v.  Bowditch,  supra,  it 
is  said  that  there  is  a  clear  difference 
between  "Sold  for  you  to  my  princi- 
pals" and  "Bought  of  you  for  my 
principals."  In  the  latter  case  the 
broker  is  liable;  in  the  former,  he  is 
not  liable. 


» In  Pike  v.  Ongley,  L.  R.  18  Q.  B. 
D.  708,  the  defendants,  hop  brokers, 
gave  to  plaintiffs  the  following  sold- 
note:  "Sold  by  Ongley  &  Thornton 
(defendants)  to  Messrs.  Pike,  Sons  & 
Co.,  for  on  account  of  owner,  100  bales 
.  .  .  hops  .  .  .  (Signed)  for 
Ongley  &  Thornton,  S.  T."  In  an  ac- 
tion for  non-delivery  of  hops  accord- 
ing to  sample,  the  plaintiffs  sought  to 
make  the  defendants  personally  liable 
on  the  above  contract,  and  tendered 
evidence  to  show  that  by  the  custom 
of  the  hop  trade  brokers  who  do  not 
disclose  the  names  of  their  principals 
at  the  time  of  making  the  contract 
are  personally  liable  upon  it  as  prin- 
cipals, although  they  contracted  as 
brokers  for  a  principal.  Plaintiffs 
did  not  ask  a  disclosure  of  the  princi- 
pals. Held,:  that  the  custom  gave  a 
remedy  against  the  brokers  as  well 
as  against  the  principals,  that  it  was 
not  in  contradiction  of  the  written 
contract,  and  that  evidence  'of  the 
custom  was  porperly  admitted. 

In  Fleet  v.  Murton,  L.  R.  7  Q.  B. 
126,  the  defendants,  fruit  brokers,  be- 
ing employed  by  plaintiffs  to  sell, 
gave  the  following  note  addressed  to 
plaintiffs:  "We  have  this  day  sold  for 
your  account  to  our  principal"  so 
many  tons  of  raisins.  (Signed)  "M. 
&  W.,  brokers."  Plaintiff  sought  to 
hold  defendants  personally  liable,  and 
evidence  was  offered  to  show  that  by 
a  custom  in  the  fruit  trade  in  London 
and  also  in  the  London  colonial  mar- 
ket, if  the  brokers  did  not  disclose 
their  principles  at  the  time,  they  are 


1987 


§    2420] 


"•IO 
THE   LAW  OF  AGENCY 


[BOOK    V 


4n  'determining  whether  the  broker  has  disclosed  or  concealed  his 
principal  within  the  meaning  of  this  and  the  following  section,  it  must 
be  borne  in  mind  that  it  is  incumbent  upon  a  broker  who  would  escape 
personal  responsibility  to  disclose  his  principal  and  not  merely  upon 
the  other  party  to  discover  him.  Information  to  the  latter  sufficient  to 
create  an  inference  or  to  put  him  upon  inquiry  has  been  held  not  to  be 
enough.10 

§  2420.  Liable  when  he  expressly  charges  himself. — And  so, 
though  the  principal  be  known,  it  is  competent  for  the  broker,  if  he  so 
elect,  to  charge  his  own  individual  credit  in  addition  to  that  of  his 
principal,  and  where  he  has  done  so,  he  is,  of  course,  personally  re- 
sponsible,11 although  the  principal  may  be  liable  also.  It  is  also  corn- 


personally  liable  although  they  con- 
tracted as  brokers.  Held:  evidence  of 
a  custom  in  the  same  trade  is  admis- 
sible and  not  inconsistent  with  the 
written  contract,  on  the  authority  of 
Humfrey  v.  Dale,  (7  E.  &  B.  266;  E. 
B.  &  E.  1004);  and  that  the  evidence 
of  a  similar  custom  in  the  colonial 
market  was  admissible,  being  evi- 
dence of  a  custom  in  a  similar  trade 
and  corroborative  of  the  custom  in 
the  particular  trade. 

In  Humfrey  v.  Dale,  E.  B.  &  E. 
1004,  the  form  of  the  note  was: 
"Sold  this  day,  for  Messrs.  Thomas  & 
Moor  to  our  principal.  .  .  ."  (Sign- 
ed) "Dale,  Morgan  &  Co.,  brokers." 

In  Barrow  v.  Dyster,  L.  R.  13  Q.  B. 
D.  635,  where  the  contract  contained 
a  provision  that  in  case  of  dispute  the 
brokers  should  act  as  arbitrators. 
Held,  that  evidence  of 'a  custom  that 
brokers  who  do  not  disclose  their 
principal  are  personally  liable  is  inad- 
missible, being  inconsistent  with  the 
arbitration  clause,  which  would  make 
the  brokers  judges  in  their  own 
cause. 

ioCobb  v.  Knapp,  71  N.  Y.  348,  27 
Am.  Rep.  51;  Raymond  v.  Crown,  etc., 
Mills,  2  Mete.  319;  Wilder  v.  Cowles, 
100  Mass.  487;  Fritz  v.  Kennedy,  119 
Iowa,  628. 

Contra:  "If  he  had  sufficient  knowl- 
edge to  create  an  inference."  Drake 
v.  Pope,  78  Ark.  327;  Johnson  v.  Arm- 
strong, 83  Tex.  325,  29  Am.  St.  Rep. 
648  (temblc). 

I 


In  Worthington  v.  Cowles,  112 
Mass.  30,  is  is  said  that  the  agent 
is  bound  unless  from  his  disclosures 
the  other  party  understood  or  ought 
as  a  reasonable  man  to  have  under- 
stood that  he  was  dealing  with  the 
principal. 

The  rule  respecting  set-off,  often 
confused  with  this  one,  is  different. 

11  See  ante,  §  1499  et  seg. 

This  undertaking  of  the  broker 
may  be  either  collateral  to  the  prin- 
cipal's undertaking,  or  It  may  be 
identical  with  the  principal's  under- 
taking. 

1.  Collateral  undertakings.  Thus 
a  broker  in  selling  a  note  for  a  dis- 
closed principal  may  give  a  personal 
warranty  of  its  genuineness.  Wilder 
v.  Cowles,  100  Mass.  487. 

An  agent  in  selling  goods  for  a 
known  principal  may  add  his  person- 
al warranty  of  quality.  Shordan  v. 
Kyler,  87  Ind.  38;  Rondquist  v.  Hig- 
ham,  33  Minn.  490;  Dahlstrom  v.  Ge- 
munder,  198  N.  Y.  449,  19  Ann.  Cas. 
771. 

See  also,  Bassett  v.  Perkins,  65  N. 
Y.  Misc.  103;  Argersinger  v.  Mac- 
Naughton,  114  N.  Y.  535,  11  Am,,  St. 
Rep.  687.  (In  these  last  two  cases, 
however,  the  principal's  name  was 
not  disclosed.)  Clarkson  Home  v. 
Chesapeake,  etc.,  R.  Co.,  92  N.  Y,  App. 
Div.  491. 

Broker  who,  on  selling  stock,  guar- 
antees the  genuineness  of  the  en- 
dorsement of  transfer  is  liable  if  it 


V   3Ti 


•  A    HO   V/AJ 


CHAP.    Ill]  OF  BROKERS  [§ 

si  Jl     .albs  9f!  '{mqoiq  srlj    .  -iszoq  ovr.rf  Jon  asob    ' 

('  petent  fdr  the  agent  to  pledge  his  own  responsibility  to  tfi'e  exclusion  of 
'that  of  his  principal.  Whether  he  has  done  so  or  not,  is  a  question  of 
'fact  to  be  determined  from  all  the  circumstances  of  the  case,  unless  the 
contract  be  in  writing,  couched  in  unmistakable  terms.12  Where  the 
principal  is  known,  the  presumption  is  that  the  broker,  acting  as  such, 
intended  to  charge  his  principal  rather  than  himself,  and,  therefore, 
the  burden  of  proving  a  personal  undertaking  upon  the  part  of  the 
broker,  rests  upon  the  party  who  alleges  it.13  If,  knowing  both  the 
principal  and  the  broker,  and  having  the  opportunity  to  choose  between 
them,  the  other  party  sees  fit  to  give  exclusive  credit  to  the  broker,  he- 
can  not  hold  the  principal  also.14 

§  2421.  Liable  when  he  acts  without  authority. — A  broker,  like 
any  other  agent,  may  also  render  himself  liable  to  third  parties  with 
whom  he  deals,  for  injuries  which  they  may  sustain  by  reason  of  his 
assuming  to  have  and  exercise  an  authority  which  he  did  not  in  fact 


proves  to  be  a  forgery.  Bassett  v. 
Perkins,  65  N.  Y.  Misc.  103.  Same, 
where  on  selling  live  stock  he  person- 
ally agreed  to  furnish  certificate  of 
registration.  Yamaoka  v.  Kloeber,  71 
Wash.  598. 

2.  Identical  undertakings.  In  Cal- 
der  v.  Dobell,  L.  R.  6  C.  P.  486,  the 
defendants  authorized  one  Cherry,  a 
broker,  to  buy  cotton  for  him,  but  di- 
rected that  his  name  be  not  disclosed. 
Cherry  did,  however,  disclose  the  de- 
fendant at  the  time  of  making  the 
contract,  but  the  memorandum  was: 
"Mr.  P.  Cherry.  We  have  this  day 
sold  to  you  100  bales  cotton,"  etc.  It 
was  held  that  defendant  was  liable 
on  the  contract  the  court  saying: 
"When  it  is  borne  in  mind  that  there 
is  no  difference,  except  when  intro- 
duced by  Act  of  Parliament,  between 
a  contract  by  word  of  mouth  and  a 
contract  in  writing  not  under  seal, 
the  whole  argument  must  fail.  The 
contention  on  the  part  of  the  defend- 
ant is  founded  upon  the  fact  of  there 
being  a  contract  in  writing,  and  on 
that  part  of  it  which  contains  the 
name  of  the  agent.  Consider  how  the 
matter  would  have  stood  if  what 
passed  between  the  plaintiffs  and 
Cherry  had  been  all  without  writing. 
It  would  have  stood  thus, — Dobell  au- 


thorized Cherry  to  buy  cotton  for 
him.  Cherry  proposes  to  buy  cotton 
of  the  plaintiffs;  but,  being  told  that 
the  sellers  do  not  choose  to  rely  on 
his  credit,  he  named  Dobell  as  his 
principal.  The  plaintiffs  thereupon 
sell  to  Dobell  through  Cherry  as  his 
agent.  Upon  that  state  of  things,  Do- 
bell would  alone  have  been  liable, 
and  not  the  agent.  Super-add  to  this 
that,  at  the  time  of  entering  into  the 
contract,  the  sellers  had  said  to 
Cherry,  'We  insist  upon  having  the 
liability  of  you,  Cherry,  just  as  if 
you  were  dealing  with  us  without  dis- 
closing the  name  of  your  principal;' 
and  suppose  Cherry  had  assented  to 
that.  In  that  case,  Dobell  would  have 
been  liable  to  the  plaintiffs  as  the 
principal  buyer,  and  Cherry  would 
also  have  been  liable  because  he  had 
agreed  that  he  should  stand  in  the 
same  situation  as  if  he  had  bought 
as  broker  for  an  undisclosed  princi- 
pal. The  result  would  have  been 
that  the  sellers  would  have  had  the 
right  to  elect  to  sue  either  the  agent 
or  the  principal." 

12  See  ante,  §  1422. 

13  See  ante,  §§  1422,  1423;  Ferris  v. 
Kilmer,  48  N.  Y.  300. 

i*  See  ante,  §  1424. 


1989 


§§  2422,2423] 


THE  LAW  OF  AGENCY 


[BOOK  v 


possess,  whether  the  defoct  was  owing  to  a  total  absence  of  any  author- 
ity, or  to  the  fact  that  the  authority  he  really  possessed  was  insufficient 
for  the  purpose.15 

§  2422.  Liability  for  money  received. — The  liability  of  the  broker 
to  third  persons  for  money  received,  either  from  them,  but  unlawfully, 
on  the  principal's  account,  or  from  the  principal  for  them,  depends 
upon  the  same  considerations  which  determine  the  liability  of  other 
agents  under  like  circumstances; — a  subject  which  has  already  been 
discussed.19 

§  2423.  When  guilty  of  a  conversion. — A  broker  acting  merely 
as  such,  not  having  possession  of  the  goods,  and  contracting  only  for 
and  in  behalf  of  his  principal,  is  not  liable  to  the  true  owner  as  for  a 
conversion  where  it  appears  that  in  the  regular  course  of  trade  he  has 
been  employed  by,  and  has  contracted  to  sell  goods  for,  one  who,  in 
good  faith  and  in  the  exercise  of  reasonable  prudence,  he  believed  to 
be  the  owner.17  But  a  broker,  like  a  factor,18  would,  by  the  weight  of 
authority,  be  liable  for  a  conversion  where,  though  in  good  faith  and 
the  ordinary  course  of  business,  he  receives  and  sells  the  goods  of  one 
who  has  not  authorized  such  receipt  and  sale.19  The  question  most  fre- 


trustee,  who  is  really  violating  his 
trust,  is  not  liable  for  the  breach  of 
trust  where  the  broker  acts  in  good 
faith,  in  ignorance  of  the  breach  of 
trust,  and  has  fully  accounted  for  the 
proceeds.  Leake  v.  Watson,  58  Conn. 
332,  18  Am.  St.  Rep.  270,  8  L.  R.  A. 
666. 

Remedy  at  law  and  not  in  equity. 
Machinists'  Nat.  Bank  v.  Field,  126 
Mass.  345. 

Where  a  broker  buys  goods  from 
one  without  authority  to  sell  and 
ships  to  his  principal,  he  is  liable  for 
conversion.  Williams  v.  Merle,  11 
Wend.  80,  25  Am.  Dec.  604. 

But  a  broker,  like  any  one  else, 
would  be  protected  where  he  buys  or 
advances  money  upon  stock  of  which 
his  transferor  has  been  clothed  with 
the  ordinary  indicia  of  ownership  un- 
der McNeil  v.  Tenth  National  Bank, 
46  N.  Y.  325,  7  Am.  Rep.  341.  See  Zu- 
lick  v.  Markham,  6  Daly  (N.  Y.),  129. 

The  owner  delivered  certificates  of 
stock  assigned  in  blank  to  P  to  be 
used  by  P  as  collateral  in  P's  indi- 


,v  sj-flU     .vn-??:<r»ii  wi 

15  See  ante,  §§  1359—1404.  Fir- 
bank  v.  Humphreys,  18  Q.  B.  Div.  54; 
Simmons  v.  More,  100  N.  Y.  140. 

is  See  ante,  §  1430  et  seq. 

IT  See  (no  conversion  when  de- 
fendant not  in  possession)  Thorp  v. 
Rob-bins,  68  Vt.  53;  Tray  lor  v.  Hor- 
rall,  4  Blackf.  (Ind.)  317;  Smith  v. 
White,  18  N.  Brunsw.  443.  Compare 
Webber  v.  Davis,  44  Me.  147,  69  Am. 
Dec.  87. 

is  For  the  authorities  in  the  case 
of  Factors,  see  the  following  Chap- 
ter. 

18  Stockbroker  is  liable  for  conver- 
sion where  he  sells  and  pays  proceeds 
to  a  thief.  Swim  v.  Wilson,  90  Cal. 
126,  25  Am.  St.  Rep.  110,  13  L.  R.  A. 
605;  Bercich  v.  Marye,  9  Nev.  312. 

But  a  broker  who  acts  honestly  and 
in  good  faith  is  held  not  liable  for 
money,  paid  him  by  a  customer  who 
had  stolen  it,  to  carry  on  transac- 
tions. First  National  Bank  v.  Gibert, 
123  La.  845,  25  L.  R.  A.  (N.  S.)  631. 
And  a  broker  who  receives  from  and 
sells  stock  by  the  direction  of  the 


1990 


CHAP.    Ill]  OF  BROKERS  [§    2424 

quently  arises  in  the  case  of  stock-brokers  because  they  most  frequently 
are  entrusted  with  possession  of  the  property  sold ;  but  the  rule  is  not 
confined  to  them.  So  a  broker  who,  however  innocently,  obtains  pos- 
session of  the  goods  of  a  person  who  has  been  fraudulently  deprived 
of  them,  and  disposes  of  them  as  being  himself  the  principal  or  owner 
of  them,  is  liable  to  the  owner  as  for  a  conversion.2* 

Thus  where  B  had  fraudulently  obtained  cotton  from  F,  and  H, 
whose  ordinary  business  was  that  of  a  cotton  broker,  and  who  was  ut- 
terly ignorant  of  the  fraud  of  B,  purchased  the  cotton  from  B,  in  the 
belief  and  expectation  that  M,  one  of  his  ordinary  clients,  would  ac- 
cept it,  and  M  did  afterwards  accept  it,  though  H  received  from  M  a 
broker's  commission  only  and  not  a  trade  profit  on  the  sale,  it  was  held 
that  in  this  instance  H  had  made  himself  a  principal,  and  by  transferr- 
ing the  cotton  to  M  had  committed  an  act  of  conversion,  which  made 
him  liable  in  trover  to  F,  the  true  owner  of  the  cotton.21 


)bnu  9VBd  o)  oBffl  sli^Ro^n^i  £  as      lo  Ytnorl.t.r/R  9rfj  no  .)">BiJnoo  nMJitw 

t    IJLJ;  .  :        ,'i    :i?l)£    .51  &   .M    ?  I    ,•:>,'.  CI    .v 

RIGHTS  OF  BROKER  AGAINST  PRINCIPAL. 

I.  Right  to  Compensation. 

§  2424.  Entitled    to    compensation. — A    broker,    like    any    other 
agent,  who  performs  his  undertaking  is  entitled  to  compensation  for 

vidual  stock  transaction.     This  was  stolen     from     plaintiff,     as    margin, 

known   to   defendants,  brokers,   who  Held:  Since  defendants  relied  on  the 

took  the  certificates  as  security  for  individual  promise   of  the  customer 

margin  on  P's  transactions.     P  dealt  and    made    the    contract   before    the 

with  defendants  through  S,  an  agent,  bonds  were  received   they  were  not 

who  ordered  defendants  to  sell  the  Itona  fide  purchasers  and  are  liable  to 

stock.     Held:  defendants  knew  that  conversion  for  a  sale  of  the  security; 

P,   or    S,    had    authority   to   use  the  that  if  any '  purchases  were  made  af- 

the  stock  only  as  security  and  had  no  ter  receipt  of  the  bonds  the  defend- 

authority  to  sell  it,  and  they  are  li-  ants   had    a   valid    lien    as    to    that, 

able  for  selling  without  giving  notice  Taft  v.  Chapman,  50  N.  Y.  445.     See 

to     the    pledgor,     required     of    any  also,  s.  c.  on  rehearing,  63  N.  Y.  625. 

pledgee.     Porter  v.  Parks,  49  N.  Y.  But  cf.  Leask  v.  Scott,  2  Q.  B.  Div. 

564.  348. 

The   defendants,   brokers,   received          20  Hollins  v.  Fowler,  L.  R.  7  H.  L. 

an   order   from   a   customer  to   buy  757. 

stock,  he  agreeing  to  send  margin  for,          21  Hollins  v.   Fowler,  supra.     This 

their  security.    After  the  defendants  case  which  occasioned  much  division 

had  entered  into  a  contract  to  buy,  of  opinion  among  the  judges  of  the 

but  before  delivery  or  payment,  they  various   courts,   contains   interesting 

received    from    the    customer    bonds  discussions  of  the  broker's  duties  and 

payable   to   bearer   which   had   been  liabilities. 

1991 


§    2425] 


THE   LAW    OF   AGENCY 


[BOOK   V 


his  services.  This  compensation  is  usually  a  commission  upon  the  price 
or  value  of  the  thing  bought,  sold  or  exchanged  by  means  of  his  en- 
deavors. 

§  2425.  How  amount  determined. — It  is  entirely  competent  for 
the  parties  to  agree  upon  the  amount  of  compensation  to  be  paid,  and 
the  terms  and  conditions  of  its  payment,  and  such  agreements,  when 
fairly  made,  will  be  enforced  and  will  exclude  all  other  claims  to  com- 
pensation.22 Where  no  rate  of  compensation  is  agreed  upon,  it  may  be 
determined  by  reference  to  the  usage,  if  any,  prevailing  at  the  same 
time  and  place  in  like  cases ; 23  but  usage  will  not  be  permitted  to  con- 


22  AS  is  pointed  out  in  many  cases, 
the  existence  of  an  express  agreement 
upon  the  subject  forecloses  any  re- 
sort to  other  methods  of  determina- 
tion. If  the  broker*  has  performed 
the  contract,  he  is  entitled  to  the 
agreed  compensation — neither  more 
nor  less.  If  he  has  not  performed  the 
contract  according  to  its  terms,  he 
cannot,  unless  performance  has  been 
waived  or  unless  he  can  bring  him- 
self within  the  doctrine  of  Britton  v. 
Turner,  6  N.  H.  481,  26  Am.  Dec.  713, 
recover  either  the  stipulated  sum  or 
any  other  sum. 

McDonald  v.  Ortman,  98  Mich.  40; 
McKennon  v.  Gates,  102  Mich.  618; 
Beatty  v.  Russell,  41  Neb.  321;  Ames 
v.  Lamont,  107  Wis.  531;  Tuffree  v. 
Binford,  130  Iowa,  532;  Gilbert  v. 
Judson,  85  Cal.  105. 


23  Groscup  v.  Downey,  105  Md.  273; 
Baker  v.  Barker,  118  Minn.  419;  Mor- 
gan v.  Mason,  4  B.  D.  Smith  (N.  Y.), 
636;  Steinmetz  v.  Pancoast,  17  Phila. 
185;  Toland  v.  Williams,  —  Tex.  Civ. 
App.  — ,  129  S.  W.  392. 

"It  is  almost  needless  to  say"  re- 
marks Mr.  Justice  Paxson,  in  Potts  v. 
Aechternacht,  93  Pa.  138,  141,  "that 
to  establish  such  a  custom,  it  must  be 
reasonable,  certain,  uniform,  contin- 
ued, and  moreover  generally  under- 
stood and  acquiesced  in  by  persons 
engaged  in  buying  and  selling.  .  .  . 
Where  a  custom  exists,  parties  are 
presumed  to  deal  in  view  of  it,  and 
where  no  agreement  is  made  as  to 
commissions,  that  they  agree  to  pay 
the  customary  rate.  In  the  absence 
of  such  custom,  and  of  any  agreement 
as  to  rate,  the  measure  of  compensa- 


It   is,   of   course,   possible   for   the      tion  would  be  the  value  of  the  services 


plaintiff,  though  he  relies  upon  prov- 
ing an  express  contract,  to  recover 
upon  an  implied  one  if  the  facts  jus- 
tify it,  where  he  fails  to  prove  an  ex- 
press contract.  And  where  he  shows 
an  employment  he  may  rely  success- 
ively upon  an  express  contract  as  to 
amount;  failing  to  prove  that,  upon  a 
customary  rate;  and  failing  to  prove 
that,  to  recover  the  reasonable  value. 
If  a  broker  is  employed  merely  to 
procure  an  option  to  purchase  real 
estate  and  the  principal  does  not 
elect  to  exercise  the  option,  the 
broker  is  not  entitled  to  com- 
mission on  the  price  of  the  land  but 
only  on  the  price  paid  for  the  option. 
Boardman  v.  Hanks,  185  Mass.  555. 


rendered.  This  is  always  a  safe  stan- 
dard and  should  never  be  set  aside 
for  a  custom  unless  the  latter  is 
proved  to  be  so  well  known  and  so 
long  persisted  in  that  the  parties 
must  be  presumed  to  have  known  of 
It.1'  A  usage  which  is  to  govern  a 
question  of  right,  should  be  so  cer- 
tain, uniform  and  notorious  as  prob- 
ably to  be  known  to  and  understood 
by  the  parties  as  entering  'Into  their 
contract.  United  States  v.  Duval, 
Gilp.  356,  Fed.  Cas.  No.  15,015.  And 
it  cannot  be  proved  by  isolated  in- 
stances. Dean  v.  Swoop,  2  Binn.  72; 
Cope  v.  Dodd,  1  Harris,  33." 


1992 


CHAP.    Ill] 


OF  BROKERS 


I-  * 

[§    2426 


•/tub    oriF  :B   ant   }n,: 

travene  the  express  agreement  of  the  parties.24    Where  no  agreement 

was  made  and  no  usage  prevails,  the  broker  will  be  entitled  to  a  reason- 
able compensation.25 

§  2426.  Broker  must  show  employment — Volunteer — Ratifica- 
tion.— To  entitle  the  broker  to  commissions  for  his  services,  he 
must  make  it  appear  that  the  services  were  rendered  under  an  employ- 
ment and  retainer  by  the  principal,26  or  that  the  latter  accepted  his 

24  Ware  v.  Hayward  Rubber  Co.,  3 
Allen    (Mass.),    84;    Illingsworth    v. 
Slosson,  19  111.  App.  612;   Sanford  v. 
Rawlings,  43  111.  92.         ro  fjK 

25  Potts    v.    Aechternacht,    93    Pa. 
138;  Hollis  v.  Weston,  156  Mass.  357; 
Montross  v.   Eddy,   94  -Mich.   100,  34 
Am.  St.  Rep.  323;   Burdon  v.  Brique- 
let,  125  Wis.  341;    Scully  v.  William- 
son, 26  Okla.  19,  Ann.  Gas.  1912,  A. 
1265,  27  L.  R.  A.   (N.  S.)   1089. 

The  price  generally  paid  in  that  vi- 
cinity for  such  services  is  competent 
evidence  of  what  the  services  were 
worth.  Hollis  v.  Weston,  supra; 
Hurt  v.  Jones,  105  Mo.  App.  106. 

The  value,  upon  all  the  evidence,  is 
usually  a  question  of  fact  for  the 
jury.  Burdon  v.  Briquelet,  supra. 

Where  there  is  an  issue  as  to 
whether  a  certain  commission  was 
agreed  to  be  paid  for  making  a  sale 
or  only  a  reasonable  one,  evidence 
offered  by  the  defendant  of  the  profit 
made  by  him  on  the  transaction  is 
admissible  "as  bearing  upon  the  prob- 
abilities of  the  alleged  contract." 
Wheeler  v.  Buck,  23  Wash.  679,  cit- 
ing Allison  v.  Horning,  22  Ohio  St. 
138. 

Secret  commissions. — The  broker 
has  no  right  to  charge  a  secret  com- 
mission, concealed  in  general  charges 
or  under  general  names,  and,  if  paid 
without  knowledge,  the  principal  may 
recover  it.  Stubbs  v.  Slater,  .[19101 
1  Ch.'l95. 

26  Castner  v.  Richardson,  18  Colo. 
496;    Rees  v.   Spruance,   45   111.   308; 
Woods  v.  Lowe,  207  Mass.  1;  Coffin  v. 
Linxweiler,  34  Minn.   320;    Hinds  v. 
Henry,  36  N.  J.  L.  328;  Keys  v.  John- 
son, 68  Pa.  42;  Twelfth  Street  Market 


Co.  v.  Jackson,  102  Pa.  269;  Kane  v. 
Sherman,  21  N.  Dak.  249;  Johnson  v. 
Whalen,  13  Okla.  320;  Uniontown 
Grocery  Co.  v.  Dawson,  68  W.  <  Va. 
332;  Hand  v.  Conger,  71  Wis.  292. 

The  employment  may  be  condition- 
al, (e.  g.,  that  the  principal  shall  ap- 
prove the  sale)  and  if  so  the  broker 
must  show  compliance  with  the  con- 
dition. Stewart  v.  Pickering,  73 
Iowa,  652.  So  where  the  offer  was  to 
pay  a  commission  for  producing  a 
customer  to  whom  the  principal  "may 
see  fit  and  proper"  to  sell.  Walker  v. 
Tirrell,  101  Mass.  257,  3  Am.  Rep. 
352.  Or  to  pay  a  commission  "on  the 
price  I  may  accept."  Condict  v.'  Cow- 
drey,  139  N.  Y.  273;  Hungerford  v. 
Hicks,  39  Conn.  259.  So  also,  Gallo- 
way v.  Stobart,  14  Manitoba,  650.  In 
Castner  v.  Richardson,  18  Colo.  4'96, 
the  broker  secured  his  retainer  and 
employment  only  after  he  had  inter- 
ested the  customer  who  ultimately 
bought,  but  before  he  completed  the 
negotiations  with  that  customer,  and 
it  was  held  that  this  was  a  sufficient 
showing  of  employment. 

In  Holden  v.  Starks,  159  Mass.  503, 
38  Am.  St.  Rep.  451,  two  or  three 
years  before  the  sale  plaintiff,  a 
broker,  was  employed  to  sell,  but  was 
unsuccessful.  About  a  year  before 
the  sale  defendant  wrote  a  letter  to 
plaintiff  fixing  a  price  and  offering  a 
certain  sum  as  commission.  Just  be- 
fore the  sale  plaintiff  telegraphed  de- 
fendant asking  if  he  would  take  a 
certain  price;  defendant  answered 
that  the  price  fixed  In  the  letter  was 
the  least  he  would  take,  whereupon 
plaintiff  sold.  Held:  that  the  jury 
were  justified  In  finding  that  plaintiff 


1993 


§  2426] 


THE  LAW  OF  AGENCY 


[BOOK  v 


agency  and  adopted  his  acts,  under  circumstances  reasonably  indicat- 
ing- that  the  principal  knew  that  the  services  had  been  rendered  on  his 

account  and  in  reliance  upon  his  obligation  to  pay  for  them.27    If  tha 

j  rtirhhttrsMsbtem 


was  acting  as  defendant's  broker  and 
was  entitled  to  the  commission  prom- 
ised. 

The  employment  may  be  implied 
from  conduct.  Holmes  v.  Neafie,  151 
Pa.  392. 

See  Tolans  v.  Williams,  —  Tex.  Civ. 
App.  — ,  129  S.  W.  392,  in  which  upon 
very  slight  evidence  the  court  thought 
there  was.  an  employment  implying 
an  obligation  to  make  reasonable 
compensation. 

27  Keys  v.  Johnson,  supra;  Twelfth 
Street  Market  Co.  v.  Jackson,  supra; 
Atwater  v.  Lockwood,  39  Conn.  45; 
Hinds  v.  Henry,  supra;  Sibbald  v. 
Bethlehem  Iron  Works,  83  N.  Y.  378, 
38  Am.  Rep.  441;  Rait  v.  Carpenter, 
78  N.  Y.  Misc.  385;  Kinder  v.  Pope, 
106  Mo.  App.  536;  Hurt  v.  Jones,  105 
Mo.  App.  106;  Viley  v.  Pettit,  96  Ky. 
576;  Goss  v.  Stevens,  32  Minn.  472. 

In  Weinhouse  v.  Cronin,  68  Conn. 
250,  it  was  said:  "There  are  two  con- 
djtions,  upon  either  of  which,  if 
shown  to  exist,  the  law  would  imply 
a  contract  by  the  defendant  [the  prin- 
cipal] to  pay  a  commission  to  the 
plaintiff.  If  the  defendant  has  so 
conducted  that  the  plaintiff,  acting 
fairly,  had  the  honest  belief  that  a 
lawful  request  had  been  made  to  him 
by  the  defendant  to  render  services 
as  a  broker  in  the  sale  of  the  defend- 
ant's said  real  estate,  and  if  the 
plaintiff  acting  on  such  request  ren- 
dered such  services,  then  the  law 
would  imply  a  promise  by  the  defend- 
ant to  pay  to  the  plaintiff  what  the 
services  were  reasonably  worth.  Or, 
if  the  plaintiff  without  having  been 
requested  so  to  do,  rendered  services 
as  a  broker  in  the  sale  of  the  defend- 
ant's real  estate,  under  circumstances 
indicating  tnat  he  expected  to  be  paid 
therefor,  and  the  defendant  knowing 
such  circumstances  availed  himself 
of  the  benefit  of  those  services,  then 


the  law  would  imply  a  promise  by  the 
defendant  to  pay  to  the  plaintiff  what 
those  services  were  reasonably 
worth." 

Where  services  have  been  rendered 
by  a  broker  for  a  person  without  his 
previous  request,  and  under  circum- 
stances which  might  indicate  some 
other  principal,  it  should  appear,  in 
order  to  show  ratification,  that  the 
defendant  permitted  the  broker  to 
render  the  services  without  objection 
and  with  knowledge  or  reasonable 
ground  to  believe  that  the  broker  re- 
lied on  him  for  compensation.  Holmes 
v.  Board  of  Trade,  etc.,  81  Mo.  137. 

The  owner  is  not  liable  to  a  broker 
for  commissions  on  the  ground  of 
ratification  where,  at  the  time  of 
closing  the  sale  he  did  not  know  that 
the  broker  had  been  working  in  his 
behalf  and  the  circumstances  indi- 
cated the  contrary.  Downing  v. 
Buck,  135  Mich.  636.  See  also,  Mer- 
rill v.  Lathan,  8  Cal.  App.  263;  Myers 
V.  Coleman,  93  Miss.  226. 

In  Atwater  v.  Lockwood,  39  Conn. 
45,  the  sale  was  brought  about  by 
the  broker  and  but  for  him  the  par- 
ties would  not  have  been  brought  to- 
gether, but  during  the  negotiations 
the  broker  spoke  disparagingly  of 
the  property,  suggested  that  the  price 
was  .  too  high,  and  the  defendant 
thought  he  was  acting  for  the  other 
party.  Held,  that  the  defendant  was 
not  liable  to  the  broker. 

Defendant  had  previously  em- 
ployed a  broker  to  sell  tobacco,  and 
paid  him  for  it.  The  next  year  the 
broker  asked  him  whether  he  would 
sell  certain  other  tobacco,  and  he 
said  he  would.  Held,  that  this  did 
not  of  itself  bind  him  to  pay  com- 
mission on  this  last  sale.  He  was 
as  much  justified  in  assuming  that 
the  broker  was  in  the  second  case 
acting  for  the  buyer  as  that  he  was 


1994 


CHAP.    Ill] 


OF   BROKERS 


[§    2426 


broker  rendered  the  services  as  a  mere  volunteer,  without  any  employ- 
ment, express  or  implied,  he  cannot  recover  commissions,  even  though 
he  brought  the  parties  together  and  was  the  efficient  means  of  procur- 
ing the  consummation  of  the  bargain.28 


acting  for  defendant  Mayer  v. 
Rhoads,  135  Pa.  601,  approved  in 
Samuels  v.  Luckenbach,  205  Pa.  428. 

See  also,  Dunn  v.  Price,  87  Texas, 
318. 

In  Denton  v.  Abrams,  120  N.  Y. 
App.  Div.  593,  a  broker  who  in  fact 
had  a  customer,  went  to  owner  of 
land  and  asked  upon  what  terms  the 
owner  would  sell,  and  said  that  he 
thought  he  had  a  customer.  The 
owner  gave  his  terms  and  said,  "Go 
ahead."  It  was  held  by  the  major- 
ity of  the  court  that  the  broker  could 
have  no  commission,  because  there 
was  nothing  to  imply  an  agreement 
for  commission  and  he  was,  in  fact, 
buying  for  another  man.  One  judge 
dissented,  however,  on  the  ground 
that  the  owner's  words,  "Go  ahead," 
implied  an  adoption  and  authoriza- 
tion of  the  broker's  services  for  him. 

See  also,  Castner  v.  Richardson,  18 
Colo.  496,  in  which  the  court  said 
that  evidence  merely  that  the  broker 
asked  and  obtained  the  terms  upou 
which  the  owner  was  willing  to  sell, 
was  not  enough  to  sustain  a  finding 
of  employment. 

In  Steidl  v.  McClymonds,  90  Minn. 
205,  the  broker  was  held  entitled  to 
his  commission  and  the  court  said: 
"It  (the  evidence)  justifies  the  infer- 
ence that  he  was  encouraged  to  act 
in  the  sale  of  the  land  for  the  defend- 
ant under  justifiable  expectation, 
that  if  the  defendant  was  benefited 
by  his  efforts  to  secure  a  purchaser, 
he  should  be  paid  for  his  services." 

See  also,  Ballentine  v.  Mercer,  130 
Mo.  App.  605,  where  the  court 
thought  that  the  facts  sustained  and 
justified  the  application  of  the  rule. 

28  Samuels  v.  Luckenbach,  205  Pa. 
428;  Geier  v.  Howells,  47  Colo.  345, 
20  L.  R.  A.  (N.  S.)  786;  Walton  v. 
Clark,  54  Minn.  341;  Summa  v.  De- 


reskiawicz,  82  Conn.  547;  Wilcox  v. 
Andrews,  150  111.  App.  27;  Kane  v. 
Sherman,  21  N.  Dak.  249;  Hinds  v. 
Henry,  supra;  Cook  v.  Welch,  9 
Allen  (Mass.),  350;  Ballentine  v. 
Mercer,  130  Mo.  App.  605. 

Thus  where  a  broker  whom  the 
principal  had  refused  to  employ,  hav- 
ing learned  the  price  sent  a  person  to 
him  who  bought  the  property,  it  was 
held  that  he  was  not  entitled  to  a 
commission.  Pierce  v.  Thomas,  4  E. 
D.  Smith  (N.  Y.),  354.  Approved  and 
followed  in  Benedict  v.  Pell,  70  N.  Y. 
App.  Div.  40;  and  McVickar  v. 
Roche,  74  N.  Y.  App.  Div.  397,  where, 
though  the  broker  introduced  the 
party  who  ultimately  took  the  prop- 
erty the  owner  persistently  refused 
to  recognize  the  broker  as  taking  any 
part  in  the  transaction. 

In  Addison  v.  Wanamaker,  185  Pa. 
536,  the  plaintiff  had  solicited  the 
right  to  sell  defendant's  property  as 
defendant's  agent,  and  defendant  had 
told  him  that  he  had  not  decided  to 
sell  but  might  entertain  a  good  offer. 
Finally  defendant  accepted  an  offer 
made  by  a  man  presented  by  plain- 
tiff, but  the  court  refused  to  hold  him 
liable  for  commission  at  the  ordinary 
rate,  on  the  ground  that  there  was 
no  express  agreement,  and  that  de- 
fendant had  done  nothing  to  raise 
implications  that  plaintiff  was  to  be 
his  agent  rather  than  agent  of  pur- 
chaser. 

See  also,  Clammer  v.  Eddy,  41  Cal. 
235  (where  the  defendant  owner  gave 
his  price  when  he  was  approached-  by 
plaintiff  dealer,  but  was  not  held  to 
commission  on  sale  to  a  man  intro- 
duced by  the  plaintiff).  Harris  v. 
Reynolds,  17  N.  Dak.  16;  White  v. 
Templeton,  79  Tex.  454. 

The  mere  fact  that  a  broker  asks 
an  owner  for  the  price  upon  a  piece 


1995 


THE  LAW  OF  AGENCY  [BOOK    V 

Vj-^    $]  £3!?JXOflff  TO  '[Ht    .TAHT» 

He  must  also  show  that  he  was  employed  by  the  party  from  whom 
he  seeks  to-recover.  li  he  was  really  acting  as'  agent  for  -the  seller,  he 
can  not  recover  from  the  buyer,  (except  in  the  cases  in  which  such  a 
double  agency  is  permissible  and  was  assented  to  by  both  parties)  ;  and 
the  same  is  equally  true  where  the  position  of  the  parties  is  reversed.^. 

A  subsequent  promise  to  pay  a  mere  volunteer  for  his  past  service  is 
held  to,  be  without  consideration.80 

§  2427.  Broker  must  have  performed  undertaking. — The  broker 
must  also  show  that  he  has  completed  his  undertaking  according  to  its, 
terms,,  or  that  its  completion  was  prevented  without  his  fault,  by  his 
principal  at  a  time  or  under  circumstances  when  the  latter  had  no  right- 
to  interfere.  As  has  been  pointed  out  in  earlier  sections,31  commissions 
are  ordinarily  payable  only  for  results,  and  are  not  earned  by  efforts 
or  attempts,  however  great  or  praiseworthy,  if  they  were  not  the  effi- 
cient cause  of  the  result  contemplated.32  For  the  same  reason,  no  re- 
covery can  ordinarily  be  'had  for  part  performance  or  upon  a  quantum 
merult  for  work  done  but  less  than  full  performance.33 

What  constitutes  completion  is,  however,  a  question  of  no  little  dif- 
ficulty in  many  cases,  depending,  as  it  does,  upon  vague  and  indefinite 
agreements  between  the  parties.  The  parties  are  at  liberty  to  make  the 
payment  of  commissions  dependent  upon  such  lawful  conditions  and 
contingencies  as  please  them,  and,  .where  no  improper  advantage  is 
taken,  their  express  stipulations  must  prevail,  although  the  result  be 

that  the  broker  finds  that  he  has  risked  his  labor  and  expenses  upon  the 

. 

of  land  and  afterwards  writes  letters  cover   the   surrendered   commissions, 

to  possible  purchasers  or  writes  fur-  but  an  action  for  the  breach  of  the 

ther  to  the  owner  about  selling,  does  contract  to  give  him  the  other  em- 

not  show  an  employment  of  him, as  ployment. 

a  broker  or  an  undertaking  to  pay  20  Minto  v.  Moore,  1  Ala.  App.  556 
him  a  commission.  "It  takes  two  to  (where  a  broker  held  to  be  acting  for 
make  a  contract  of  that  kind,  and  an  the  seller,  if  employed  at  all,  was 
owner  is  under  no  obligation  to  re-  seeking  to  recover  from  the  buyer).  » 
spond  to  every  letter  he  may  receive  Wilcox  v.  Andrews,  150  111.  App.  27. 
from  a  real  estate  broker  whom  he  3°  Sharp  v.  Hoopes,  74  N.  J.  L.  191. 
has  not  employed."  Morton  v.  Bar-  si  See  ante,  §§  1532-1534. 
ney,  140  111.  App.  333,  Wilcox  v.  An-  «2  See  Zeimer  v.  Antisell,  75  Gal. 
drews,  150  111.  App.  27.  509;  Shanklin  v.  Hall,  100  Cal.  26; 
In  Uudt  v.  S<:hliU  Brew.  Co.,  113  Ayres  v.  Thomas,  116  Cal.  140;  Sib- 
Iowa,.  200,  where  the  broker  claimed  bald  v.  Bethlehem  Iron  Co.,  83  N.  Y. 
that  he  was  induced  to  serve  gratui-  382,  38  Am.  Rep.  441;  Cadigan  v. 
tously  in  a  certain  case  in  reliance  Crabtree,  179  Mass.  474,  88  Am.  St. 
upon  a  promise  of  other  future  em-  Rep.  397,  55  L.  R.  A.  77;  Barrett  v. 
ployment  which  was  never  given  to  Johnson,  64  Pa.  223. 
him,  it  was  held  that  his  remedy  33  Cadigan  v.  Crabtree,  supra.  See 
would  not  now  be  an  action  to  re-  also,  post,  §  2461. 

1990 


CHAP.    Ill]  OF   BROKERS  [§    2428 

• 

mere  caprice  of  his  employer,  as  when  he  undertakes  to  find  a  purchaser 
of  property  upon  terms  satisfactory  to  the  seller.  For  many  cases  no 
more  satisfactory  general  rule  can  be  laid  down  than  to  ascertain,  I. 
What  did  the  broker  undertake  to  do?  2.  Has  he  completed  that  un- 
dertaking within  the  time  and  upon  the  terms  stipulated?  and  3.  If 
not,  is  the  default  attributable  to  his  own  act  or  to  the  interference  of 
the  principal  ?  If  upon  such  an  inquiry  it  be  determined  that  the  broker 
has  performed  within  the  time,  and  upon  the  terms,  agreed  upon,  he 
is  entitled  to  his  commissions ;  if  he  has  not,  he  is  not  so  entitled,  unless 
the  performance  was  prevented  by  the  principal  under  circumstances 
which  gave  him  no  right  then  and  so  to  prevent  it.  It  will  be  seen  from 
this  rule  that  where  the  time  is  limited,,  the  performance  must  be  within 
that  time;  and  the  broker  will  not  be  entitled  to  commissions -because 
efforts  begun  within  that  time  bear  fruit  after  its  expiration.  So,  if 
particular  terms  or  conditions  are  stipulated  for,  the  performance  must 
be  in  accordance  with  those  terms;  and  no  performance  upon  other 
terms  will  suffice,  unless  accepted  by  the  principal,  although  the  other 
terms  may  be  considered  more  favorable  than  those  specified. 

§  2428.  Real  estate  broker — Nature  of  his  undertaking. — These 
principles  have  ibeen  most  frequently  applied  in  the  case  of  brokers  em- 
ployed to  sell  real  estate,  and  a  consideration  of  their  application  here 
will  throw  light  upon  the  whole  subject. 

In  dealing  with  the  question  of  the  right  of  a  real  estate  broker  to 

commissions  for  selling  or  buying  land,  and  the  conditions  under  which 

*i       \£      ( f ' » f  ri  v/    5  o  •  "  -^ 

they  become  payable,  it  is  essential  at  the  outset  to  get  a  clear  concep- 
tion of  the  nature  of  his  undertaking  as  he  is  ordinarily  employed.  A 
broker  employed  to  sell  real  estate  may  be  authorized  and  required  by 
the  terms  of  his  undertaking,  not  only  to  find  a  purchaser,  but  even  to 
conclude  an  actual  transfer,  or  at  least  to  procure  from  the  purchaser  a 
valid  written  agreement  binding  him  to  purchase  upon  the  terms  spec- 
ified; and  where  this  is  his  undertaking  the  broker  has  not  earned  his 
commission  until  he  has  performed  it  or  the  principal  has  accepted  .a:^ 
less  complete  performance.3* 

s*  Thus  In  Rutenberg  v.  Main,  47  that  It  was  the  intention  that  the 
Cal.  213  [distinguishing  Duffy  v.  agent  "should  do  more  than  dis- 
Hohson  (40  Cal.  243,  6  Am.  Rep.  617),  charge  the  functions  of  a  broker." 
cited  in  a  later  note  and  distin-  See  also,  Hyams  v.  Miller,  71  Ga. 
guished  in  Armstrong  v.  Lowe  (78  608;  Parker  v.  Walker,  86  Tenn.  566; 
Cal.  616),  also  cited  in  a  following  Gilchrist  v.  Clarke,  86  Tenn.  583; 
note],  it  was  held  that  the  broker  Wiggins  v.  Wilson,  55  Fla.  346;  Hen- 
was  clearly  relied  upon  to  complete  schell  v.  Gates  Land  Co.,  146  Wis. 
a  binding  contract.  It  was  manifest  140;  Leschzener  v.  Bauman,  83  N.  J. 
from  the  evidence,  said  the  court,  L.  743;  Burnett  v.  Potts,  143  111.  App. 

1997 


§  2429] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2429.  But   the   authority  and   duty   of   the   real   estate 

broker,  as  ordinarily  employed,  do  not  go  so  far.  He  has  usually  very 
few  of  the  characteristics  of  an  ordinary  agent,  but  stands  rather  in  the 
attitude  of  one  to  whom  the  offer  of  a  unilateral  contract  has  been 
made.  That  is  to  say,  the  owner  offers  to  pay  a  commission  if  the 
broker  will  perform  a  certain  act,  namely,  to  find  a  purchaser  for  the 
property  upon  certain  terms.  The  broker,  on  the  other  hand,  ordinarily 
makes  no  present  promise.  He  does  not  agree  that  he  will  find  a  pur- 
chaser. He  may,  however,  accept  the  owner's  offer,  and  thus  change  it 
into  a  binding  contract,  by  the  performance  of  the  act  stipulated. 


160.  Compare  also,  Kerfoot  v.  Steele, 
113  Til.  610  (a  broker  to  purchase 
property) 

In  Pfanz  v.  Humburg,  82  Ohio,  1, 
29  L.  R.  A.  (N.  S.)  533,  the  court 
recognized  the  general  rule  that  a 
broker  who  has  secured  a  purchaser 
ready,  willing  and  able  to  buy  has 
earned  his  commission,  but  held  that 
under  a  written  contract  of  employ- 
ment to  "pay  for  services  when  the 
property  is  sold,"  the  broker  earned 
no  commission  unless  he  secured  a 
written  contract  binding  the  pur- 
chaser to  buy. 

In  Barber  v.  Miller,  41  Pa.  Super. 
Ct.  442,  the  court,  in  reversing  a 
Judgment  of  the  county  court,  said 
that  good  defense  had  been  made  If 
defense  showed  that  contract  of  em- 
ployment of  plaintiff  agent  was  that 
he  should  secure  a  lessee  to  sign  the 
lease  and  to  make  a  down  payment 
thereon,  that  the  plaintiff  did  secure 
an  acceptable  offer  from  people  with 
whom  defendant  had  been  negotiat- 
ing before  he  employed  plaintiff,  but 
that  plaintiff  failed  and  could  not  se- 
cure the  tenant's  signature  to  the 
lease,  nor  any  down  payment,  and 
that  such  signature  and  payment 
were  secured  only  after  subsequent 
independent  efforts  of  other  brokers. 

In  Chaffee  v.  Widman,  48  Colo.  34, 
139  Am.  St.  Rep.  220,  the  plaintiff 
had  been  employed  by  defendant, 
who  agreed  to  pay  commission  If 
plaintiff  should  "procure  a  purchaser 


who  shall  on  or  before  March  1,  1904, 
pay  or  secure  to  parties  of  first  part 
(defendants)  the  sum  of  $16,000." 
Before  March  1  the  plaintiff  found  a 
person  with  whom  the  defendants  en- 
tered into  contract  binding  him  to 
buy  for  $16,000,  to  pay  some  cash  and 
to  give  security  for  residue  on  or 
before  March  1,  1904.  Inasmuch  as 
the  payment  was  not  made  and  the 
security  was  not  given  and  the  con- 
tract was  abandoned  by  the  parties 
to  it,  the  plaintiff  was  held  not  to 
have  earned  his  commission. 

In  Beale  v.  Bond,  84  Law  T.  313,  a 
broker  to  sell  two  leaseholds  was 
told  that  the  principal  wanted  £1,150 
net,  and  that  he  might  have  whatever 
over  that  amount  he  could  get,  and 
the  court  thought  that  the  contract 
was  special  by  which  the  broker  was 
entitled  to  no  commission  until  the 
money  was  actually  paid.  The  cus- 
tomer, with  whom  the  principal  made 
a  good  contract,  refused  to  perform 
and  the  broker  was  allowed  no  com- 
missions. 

In  Holton  v.  Job  Iron  Co.,  123  C. 
C.  A.  269,  204  Fed.  947,  there  was  to  be 
no  commission  until  the  business  was 
"put  through,"  i.  e.,  until  the  trans- 
action was  accomplished.  In  Lesch- 
ziner.  v.  Bauman,  83  N.  J.  L.  743,  the 
commission  was  to  be  paid  "on  the 
day  of  passing  title."  See  also,  Ham- 
mond v.  Crawford,  14  C.  C.  A.  109,  66 
Fed.  425;  Lawler  v.  Armstrong,  53 
Wash.  664. 
1998 


CHAP.    Ill] 


OF   BROKERS 


[§    2430 


§  2430.  Usually  need  not  conclude  a  binding  sale — Find  pur- 
chaser ready,  willing  and  able  to  buy. — Inasmuch  as  the  broker  in 
the  ordinary  case  is  employed  without  writing,  and  inasmuch  as  in  sev- 
eral states  an  agent  for  the  sale  of  land  must  be  authorized  by  writing, 
the  broker,  as  ordinarily  employed,  in  such  states  would  not  be  properly 
authorized  to  make  a  binding  contract  of  sale.35  A  fortiori,  he  would 
not  be  authorized  to  execute  a  deed  of  conveyance.36  Moreover,  even 
if  no  question  of  written  authority  were  involved,  it  is  doubtless  true 
that  the  general  employment  of  an  ordinary  broker  to  "sell"  land  does 
not  contemplate  that  he  is  to  close  the  bargain ;  and,  unless  something 
more  is  expressly  stipulated  for,  the  broker  will  have  neither  the  au- 
thority nor  the  duty  to  complete  a  binding  contract  between  the  pur- 
chaser and  the  seller.37  His  duty  is  ordinarily  performed  when  he  has 


35  Nelson  v.  Western  Un.  Tel.  Co., 

Iowa, ,  143  N.  W.  833;  Lawson 

v.  King,  56  Wash.  15;  Shillinglaw  v. 
Sims,  86  S.  Car.  76.  Cases  going 
upon  the  ground  that  written  author- 
ity was  essential.  Ballou  v.  Berg- 
vendsen,  9  N.  Dak.  285;  Halsell  v. 
Renfrew,  14  Okla.  674;  Purkey  V. 
Harding,  23  S.  Dak.  69. 

B«  White  v.  Lee,  97  Miss.  493. 

37  Duffy  v.  Hobson,  40  Cal.  240,  6 
Am.  Rep.  617,  is  one  of  the  leading 
cases  upon  the  subject.  It  was 
agreed  that  written  authority  was 
not  necessary,  and  the  case  turned 
upon  the  proper  construction  of  an 
authority  to  a  broker  to  sell.  The 
court  said  that  a  sale  of  land  involved 
so  many  questions  concerning  which 
the  seller  presumptively  would  wish 
to  decide  for  himself — such  as  the 
adjustment  of  the  terms,  the  kind 
and  form  of  the  conveyance,  the  state 
of  the  title,  the  surrender  of  posses- 
sion, the  personality  of  the  purchaser, 
and  the  like — that  "a  mere  authority 
'to  sell'  can  hardly  confer  power 
upon  the  agent  to  determine  all 
these  matters  for  his  principal, 
so  as  to  bind  him  by  his  deter- 
mination." "To  give  to  the  mere 
words  'to  sell'  such  a  broad  sig- 
nification as  that  would  be  to  in- 
vest the  agent  with  powers  of  that 
ample  and  discretionary  character 


usually  only  conferred  with  caution 
and  by  means  of  a  general  letter  of 
attorney  where  the  terms  are  dis- 
tinctly expressed."  Followed  in  Arm- 
strong v.  Lowe,  76  Cal.  616  (distin- 
guishing Rutenberg  v.  Main,  47  Cal. 
219,  cited  in  a  preceding  note)^ 
Bacon  v.  Davis,  9  Cal.  App.  83. 

Duffy  v.  Hobson  is  expressly  ap- 
proved and  followed  in  Ryon  v.  Mc- 
Gee,  2  Mack.  (D.  C.)  17;  Mannix  v. 
Hildreth,  2  App.  Cas.  D.  C.  259;  Jones 
v.  Halloday,  2  App.  Cas.  D.  C.  279;  Car- 
stens  v.  McReavy,  1  Wash.  359  (fol- 
lowed in  Barnes  v.  German  Sav.  So- 
ciety, 21  Wash.  448;  Armstrong  v. 
Oakley,  23  Wash.  122);  McCullough  v. 
Hitchcock,  71  Conn.  401  (a  written 
request  to  a  broker  to  find  a  pur- 
chaser does  not  confer  upon  him  im- 
plied power  to  sign  a  contract  of  sale 
binding  upon  his  principal);  Camp- 
bell v.  Galloway,  148  Ind.  440  (same); 
Donnan  v.  Adams,  30  Tex.  Civ.  App. 
615;  Halsey  v.  Monteiro,  92  Va.  581; 
Ballou  v.  Bergvendsen,  9  N.  Dak.  285 
(though  here  written  authority  was 
held  essential) ;  Shillinglaw  v.  Sims, 
86  S.  Car.  76;  Robertson  v.  Allen,  107 
C.  C.  A.  254,  184  Fed.  372. 

To  same  effect:  Buckingham  v. 
Harris,  10  Colo.  455;  Balkema  v. 
Searle,  116  Iowa,  374;  Chick  v. 
Bridges,  56  Ore.  1;  Boyle  v.  Grassick, 
2  W.  L.  R.  284. 


1999 


.•! 
[BOOK  v 


TO 
§    2430]  THE  LAW  OF  AGENCY 

:e>  Y.HH  Juortoiw  .1  •)?>  of[J  fv. 

found  a  purchaser  who  is  ready,  willing  and  able  to  purchase  upon  the 
^terms  specified,38  or,  if  no  particular  terms  were  prescribed,  then  upon 


In  Lindley  v.  Keim,  54  N.  J.  Eq. 
418,  the  court  affirmed  a  declaration 
of  the  court  below  that  "The  mere 
employment  of  an  ordinary  real  es- 
tate broker  to  effect  a  sale  of  a  par- 
cel of  land,  even  though  the  price 
and  terms  be  prescribed,  does  not 
amount  to  giving  present  authority 
to  such  broker  to  conclude  a  binding 
contract  for  the  same.  Moreover, 
such  authority  ig  not  usually  to  be 
inferred  from  the  use  by  the  princi- 
pal and  broker  in  that  connection  of 
the  terms  'for  sale'  or  'to  sell'  and 
the  like.  Those  words  in  that  con- 
nection usually  mean  no  more  than 
to  negotiate  a  sale  by  finding  a  pur- 
chaser upon  satisfactory  terms."  See 
also,  Milne  v.  Kleb,  44  N.  J.  Eq.  378; 
Dickinson  v.  Updike  (N.  J.),  49  Atl. 
712. 

Contra:  Haydock  v.  Stow,  40  N.  Y. 
363. 

-   3s  (This  list  does  not  purport  to  be 
complete.) 

United  States:  McGavock  v.  Wood- 
lief,  20  How.  (U.  S.)  221,  15  L.  Ed. 
884;  Watson  v.  Brooks,  S  .Sawy.  (U. 
S.  C.  C.)  316;  Kock  v.  Emmerling,  22 
How.  (U.  S.)  69,  16  L.  Ed.  292;  Auer- 
bach  v.  Internationale  GeselJsrhaft, 

177  Fed.  458;   Payseno    v.    Swenson, 

178  Fed.  999. 

Alabama:  Cook  v.  Forst,  116  Ala. 
395;  Hutto  v.  Stough,  157  Ala.  566; 
Richardson  v.  Olathe  Milling  &  Ele- 
vator Co.,  167  Ala.  73. 

Arkansas:  Poston  v.  Hall,  97  Ark. 
23. 

California:  Oullahan  v.  Baldwin, 
100  Cal.  648;  Gunn  v.  Bank  of  Cali- 
fornia, 99  Cal.  349;  Mattingly  v.  Pen- 
nle,  105  Cal.  514,  45  Am.  St.  Rep.  87; 
Donlan  v.  Scanlan,  57  Cal.  261;  Neil- 
son  v.  Lee,  60  Cal.  555;  Phelan  v. 
Gardner,  43  Cal.  306;  Mott  v.  Minor, 
11  Cal.  App.  774. 

Colorado:   Wray   v.   Carpenter,   16 


Colo.  271,  25  Am.  St.  Rop.  265;  Chaf- 
fee  v.  Widman,  48  Colo.  34,  39  Am. 
St.  Rep.  220. 

Connecticut:  Home  Banking  Co.  v. 
Baum,  85  Conn.  383;  Abbott  v.  Lee, 

-  Conn.  ,  85  Atl.  526;  Notkins  v. 

Pashalinsky,  83  Conn.  458,  20  Ann. 
Cas.  1023. 

Florida:  Carter  v.  Owens,  58  Fla. 
204,  25  L.  R.  A.  (N.  S.)  736. 

Indiana:  Fischer  v.  Bell,  91  Ind. 
243;  McFarland  v.  Lillard,  2  Ind. 
App.  160,  50  Am.  St.  Rep.  234;  Stauf- 
fer  v.  Linenthal,  29  Ind.  App.  305. 

Iowa:  Bird  v.  Phillips,  115  Iowa, 
703;  Flynn  v.  Jordall,  123  Iowa,  457. 

Kansas:  Manker  v.  Tough,  79  Kan. 
46,  17  Ann.  Cas.  208,  19  L.  R.  A.  (N. 
S.)  675;  Beougher  v.  Clark,  81  Kan. 
250,  27  L.  R.  A.  (N.  S.)  198. 

Kentucky:  Coleman  v.  Meade,  13 
Bush  (Ky.),  358;  Mitchell  v.  Wed- 
dington  (Ky.),  122  S.  W.  802  (but  see 
Greene  v.  Owings,  19  Ky.  L.  Rep.  580, 
41  S.  W.  264). 

Maine:  Veazie  v.  Parker,  72  Me. 
443;  Smith  v.  Lawrence,  98  Me.  92. 

Maryland:  Jones  v.  Alder,  34  Md. 
440;  Livezy  v.  Miller,  61  Md.  336. 

MassacJiusetts:  Desmond  v.  Steb- 
bins,  140  Mass.  339,  5  N.  E.  150;  Wil- 
lard  v.  Wright,  203  Mass.  406;  Good- 
nough  v.  Kinney,  205  Mass.  203. 

Michigan:  McCreery  v.  Green,  38 
Mich.  172;  Fox  v.  Rouse,  47  Mich. 
558;  Wright  v.  Beach,  82  Mich.  469; 
Wood  v.  Smith,  162  Mich.  334. 

Minnesota:  Goss  v.  Stevens,  32 
Minn.  472;  Cullen  v.  Bell,  43  Minn. 
226;  Fairchild  v.  Cunningham,  84 
Minn.  521;  Hubachek  v.  Hazzard,  83 
Minn.  437. 

Missouri:  Tlmberman  v.  Craddock, 
70  Mo.  638;  Gaty  v.  Foster,  18  Mo. 
App.  639;  Gelatt  v.  Ridge,  117  Mo. 
553,  38  Am.  St.  Rep.  683;  Bell  v. 
Kaiser,  50  Mo.  150;  Tyler  v.  Parr, 
52  Mo.  249;  Slayback  v.  Wetzel,  146 


2000 


f1 

CHAP.    Ill]  OF   BROKERS  [§    243! 

>  yrts  ni  ' 
terms  acceptable  to  the  principal.89 

§  2431.  When  is  such  a  purchaser  "found?" — When  a  purchaser 
is  to  be  deemed  to  be  "found"  or  "produced"  within  the  meaning  of  this 
rule,  is  a  question  upon  which  there  is  some  difference  of  opinion.  It 
may  arise  under  either  of  two  different  sets  of  circumstances  :  I.  Where 

^ 


Mo.  App.  171;  Simmons  v.  Oneth,  140 
Mo.  App.  269;  Watkins  v.  Thomas, 
141  Mo.  App.  263. 

Nebraska:  Stewart  v.  Smith,  50 
Neb.  631;  Jones  v.  Stevens,  36  Neb. 
849;  Hallstead  v.  Perrigo,  87  Neb. 
128. 

New  Hampshire:  Parker  v.  Easta- 
brook,  68  N.  H.  349. 

New  Jersey:  Hinds  v.  Henry,  36  N. 
J.  L.  328. 

New  York:  McClane  v.  Paine,  49 
N.  Y.  561,  10  Am.  Rep.  431;  Duclos 
v.  Cunningham,  102  N.  Y.  678;  Frazer 
v.  Wyckoff,  63  N.  Y.  445;  Burling  v.. 
Gunther,  12  Daly  (N.  Y.),  6;  Higgins 
v.  Moore,  34  N.  Y.  417;  Barnard  v. 
Monnot,  34  Barb.  (N.  Y.)  90;  Bacher 
v.  Ratkowsky,  137  App.  Div.  (N.  Y.) 
559;  Phillirg  v.  Kraft,  136  App.  Div.' 
(N.  Y.)  859. 

North  Carolina:  Mallonee  v.  Young, 
119  N.  C.  549. 

North  Dakota:  "Ward  v.  McQueen, 

13  N.  Dak.  153. 

Oklahoma:  Yoder  v.  Randol,  16 
Okla.  308,  3  L.  R.  A.  (N.  S.)  576; 
Scully  v.  Williamson,  26  Okla.  19. 
But  see  Gilliland  v.  Jaynes,  36  Okla. 
563. 

Pennsylvania:  Pratt  v.  Patterson's 
Ex'rs,  112  Pa.  475;  Turner  v.  Baker, 
225  Pa.  359. 

Rhode  Island:  Butler  v.  Baker,  17 
R.  I.  582,  33  Am.  St.  Rep.  897. 

South   Dakota:  Howie   v.    Bratrud, 

14  S.  Dak.  648,  86  N.  W.  747;   Minder 
&  Jorgenson   Land   Co.   v.   Brustuen, 
24  S.  Dak.  537. 

Tennessee:  Cheatham  v.  Yarbrough, 
90  Tenn.  77;  Woodall  v.  Foster,  91 
Tenn.  195. 

Texas:  Gibson  v.  Gray,  17  Tex.  Civ. 
App.  646;  O'Brien  v.  Gilliland,  4  Tex. 
Civ.  App.  40. 


Washington:  Hege,  Hackez  &  Phil- 
lips Co.  v.  Hessel,  57  Wash.  499. 

West  Virginia:  Hugill  v.  Weekley, 
64  W.  Va.  210,  15  L.  R.  A.  (N.  S.) 
1262. 

Wisconsin:  McArthur  v.  Slauson, 
53  Wis.  41;  Barthell  v.  Peter,  88  Wis. 
316,  43  Am.  St.  Rep.  906;  Ames  v. 
Lament,  107  Wis.  531;  McCabe  v. 
Jones,  141  Wis.  540. 

39  When  no  terms  are  specified,  the 
purchaser  produced  must  ordinarily 
be  one  ready,  willing  and  able  to  buy 
upon  terms  satisfactory  to  the  seller. 
See  Cadigan  v.  Crabtree,  179  Mass. 
474,  88  Am.  St.  Rep.  397,  55  L.  R.  A. 
77;  Walker  v.  Tirrell,  101  Mass.  257, 
3  Am.  Rep.  352;  Scabury  v.  Fidelity 
Ins.  Co.,  205  Pa.  234. 

As  has  been  seen  in  an  earlier  sec- 
tion, the  principal  may  expressly 
keep  the  matter  wholly  within  his 
own  control,  as  by  stipulating  that 
he  will  pay  commissions  only  if  he 
approves  the  sale,  or  if  he  then  sees 
fit  to  sell,  or  if  he  accepts  the  pur- 
chaser. 

See  Stewart  v.  Pickering,  73  Iowa, 
652;  Walker  v.  Tirrell,  101  Mass.  257, 
3  Am.  Rep.  352;  Condict  v.  Cowdrey, 
139  N.  Y.  273;  Hungerford  v.  Hicks, 
39  Conn.  259. 

That  the  terms  are  satisfactory  to 
the  seller  may  ordinarily  be  shown 
either  (1)  by  the  fact  that  the  sale 
was  actually  consummated,  or  (2)  by 
the  fact  that  the  seller  actually  ac- 
cepted the  buyer  as  a  satisfactory 
one,  even  though  for  some  reason 
(not  the  fault  of  the  broker)  the 
seller  afterwards  permits  the  sale  to 
fail. 

(1.)  That  the  sale  was  actually 
consummated.  Conkling  v.  Krakauer, 
70  Tex.  735;  Hanna  v.  Collins,  69 


126 


2001 


§  2431] 


THE  LAW  OF  AGENCY 


[BOOK 


there  was  a  buyer  involved  with  whom  it  is  contended  that  the  prin- 
cipal should  have  dealt,  though  he  did  not  do  so.  II.  Where  there  has 
actually  been  a  sale,  and  the  broker  contends  that  he  "found"  the  pur- 


Iowa,  51;  Cassaday  v.  Seeley,  69  Iowa, 
509;  Iselin  v.  Griffith,  62  Iowa,  668; 
Cook  v.  Fiske,  12  Gray  (Mass.),  491; 
Keys  v.  Johnson,  68  Pa.  42;  Glenth- 
worth  v.  Luther,  .21  Barb.  (N.  Y.) 
145;  Coleman  v.  Meade,  13  Bush 
(Ky.),  358;  Hugill  v.  Weekley,  64  W. 
Va.  210,  15  L.  R.  A.  (N.  S.)  1262. 

A  "sale"  Is  effected  within  this  rule 
not  only  when  an  actual  conveyance 
has  been  made,  but  also  where,  upon 
the  production  of  a  satisfactory 
buyer,  a  binding  contract  between 
the  seller  and  buyer  is  entered  into, 
even  though  the  sale  afterwards  fails, 
through  no  fault  in  the  broker's  per- 
formance. Rice  v.  Mayo,  107  Mass. 
550;  Veazie  v.  Parker,  72  Me.  443; 
Cook  v.  Fiske,  78  Mass.  (12  Gray) 
491;  Ward  v.  Cobb,  148  Mass.  518,  12 
Am.  St.  Rep.  581;  Roche  v.  Smith, 
176  Mass.  595,  79  Am.  St.  Rep.  345, 
51  L.  R.  A.  510;  Carnes  v.  Howard, 
180  Mass.  569;  Pearson  v.  Mason,  120 
Mass.  53;  Francis  v.  Baker,  45  Minn. 
83;  Coleman  v.  Meade,  13  Bush 
(Ky.),  358;  Keys  v.  Johnson,  68  Pa. 
42;  Love  v.  Miller,  53  Ind.  294,  21 
Am.  Rep.  192;  Fox  v.  Ryan,  240  111. 
391;  Hugill  v.  Weekley,  64  W.  Va. 
210,  15  L.  R.  A.  (N.  S.)  1262;  Wenks 
v.  Hazard,  149  Iowa,  16. 

In  Cook  v.  Fiske,  where  the  under- 
taking of  the  broker  was  to  find  a 
hirer  for  a  ship,  it  was  held  that  he 
had  performed  when  he  had  brought 
the  parties  together  and  a  valid  oral 
contract  bad  been  made,  even  though 
no  charter  party  was  ever  executed 
and  the  transaction  therefore  fell 
through. 

(2.)  The  principal  may  also,  by 
words  or  conduct,  accept  the  buyer 
produced  by  the  broker  as  one  satis- 
factory to  him,  and  if  he  does  so  the 
broker  has  earned  his  commission,  al- 
though the  later  negotiations  between 
the  parties  never  even  ripen  into  a 
binding  contract  to  say  nothing  of  an 


actual  conveyance.  Thus  Davis  v. 
Morgan,  96  Ga.  518  (where  the  prin- 
cipal "accepted  the  proposed  pur- 
chaser without  objection,  recognizing 
him  as  answering  all  the  require- 
ments"); Sayre  v.  Wilson,  86  Ala. 
151  (where  it  is  said  that  if  the  prin- 
cipal accepts  a  married  woman  as 
the  proposed  purchaser,  he  waives 
any  objection  upon  that  ground); 
Krahner  v.  Hellman,  16  Daly  (N.  ¥.)„ 
132  (where  the  principal  "accepted 
the  purchaser,  but  afterwards  de- 
clined to  enter  into  a  contract  with 
her").  See  also,  Blodgett  v.  Sioux 
City,  etc.,  R.  Co.,  63  Iowa,  606;  Payne 
v.  Ponder,  139  Ga.  283;  Home  Bank- 
ing &  Realty  Co.  v.  Baum,  85  Conn. 
383. 

un  the  other  hand,  it  may  be  en- 
tirely possible  that  a  preliminary, 
tentative  or  provisional  contract  may 
have  been  entered  into  between  the 
principal  and  the  proposed  purchaser 
without  finally  accepting  him  as  sat- 
isfactory— merely  for  the  purpose  of 
holding  the  matter  until  further  in- 
quiries can  be  made.  This  would  not 
preclude  the  principal  from  after- 
wards rejecting  him,  so  far  as  the 
broker  is  concerned.  See  Burnham 
v.  Upton,  174  Mass.  408;  Butler  v. 
Baker,  17  R.  I.  582,  33  Am.  St.  Rep. 
897;  Crombie  v.  Waldo,  137  N.  Y. 
129;  Montgomery  v.  Knickerbocker, 
27  N.  Y.  App.  Div.  117;  Murray  v. 
East  End  Imp.  Co.  (Ky.),  60  S.  W. 
648. 

Especially  is  this  true  where  the 
acceptance,  if  any,  was  made  upon 
the  strength  of  the  broker's  repre- 
sentations and  not  upon  any  inde- 
pendent knowledge  on  the  part  of  the 
principal.  Butler  v.  Baker,  supra: 
Crombie  v.  Waldo,  supra. 

Again,  the  contract  may  be  one 
which  gave  the  buyer  the  option  to 
withdraw,  and  if  he  does  so  there 
may  be  no  sale.  See  post,  §  2442;  Fox 


2OO2 


CHAP.    Ill]  OF   BROKERS  [§    243! 

HT 

chaser.  The  distinction  between  these  cases  may  often  be  of  much 
importance  since  what  may  have  been  more  or  less  conjectural  in  the 
first  case  may  be  matter  of  reality  in  the  second  one.  Like  the  tradi- 
tional "bird  in  the  hand"  as  compared  with  those  "in  the  bush,"  a  buyer 
who  buys  may  be  of  much  greater  value  both  to  the  broker  and  his 
principal  than  one  merely  to  whom  the  broker  contends  the  principal 
might  and  ought  to  have  sold  but  to  whom  no  sale  was  ever  made. 
With  reference  to  these  questions,  it  may  be  said:  (i)  If  the  broker 
has  obtained  from  a  proper  person  and  delivered  to  his  principal  a  writ- 
ten contract  to  purchase,  or — since  he  may  not  be  authorized  to  sign 
a  written  contract — a  written  offer  to  purchase  which  the  principal  can 
immediately  turn  into  a  written  contract  by  accepting  it,  he  would  or- 
dinarily be  deemed  to  have  performed  his  undertaking.40  (2)  When 
the  broker  has  brought  forward,  or  designated  and  put  the  principal 
into  communication  with,  a  suitable  person  to  whom  the  principal  may 
sell  in  the  ordinary  course  of  business,  he  has,  by  the  weight  of  author- 


v.  Land  Co.,  .37  Colo.  253;  Aigler  v. 
Land  Co.,  51  Kan.  718;  Lawrence  Y. 
Rhodes,  188  111.  96;  Lawrence  v. 
Pederson,  34  Wash.  1,  and  other  cases 
cited  in  the  section  referred  to. 

In  Scottish-American  Mortgage  Co. 
v.  Davis,  96  Tex.  504,  97  Am.  St.  Rep. 
932,  the  broker  had  produced  a  man 
with  whom  the  owners  negotiated. 
After  offer  and  counter  offer,  the  de- 
fendants sent  him,  through  the  plain- 
tiff's hands,  an  offer.  To  this  offer 
he  mailed  an  acceptance,  but  he 
changed  his  mind,  by  telegram  to  the 
postmaster  succeeded  in  recalling  his 
letter,  and  notified  the  defendants, 
the  owners,  of  his  entire  unwilling- 
ness to  take  the  land.  The  owners 
knew  nothing  of  the  first  letter  until 
the  broker  sued  for  commission.  The 
court  held  that  inasmuch  as  the  de- 
fendants' offer  had  not  been  by  mail, 
no  mailed  acceptance  was  binding 
until  received;  that  therefore  there 
was  no  contract,  and  that  since  at  no 
other  time  and  in  no  other  way  had 
the  customer  been  presented  ready, 
able  and  willing  to  deal  upon  defend- 


ants' terms,  the  broker  had  earned 
no  commission. 

40  in  Flynn  v.  Jordal,  124  Iowa,  457, 
the  court  said:  "In  Johnson  Bros.  v. 
Wright,  124  Iowa,  61,  we  held  that, 
to  earn  his  commission  for  services 
rendered  in  finding  a  purchaser  of 
land,  where  no  sale  is  actually  con- 
summated, the  agent  must  either  pro- 
cure a  valid  obligation  to  buy,  and 
tender  it  to  the  vendor,  or  bring  the 
proposed  purchaser  and  the  vendor 
together,  so  that  a  contract  of  sale 
may  be  entered  into  if  the  latter  so 
elects."  Grindstaff  v.  Merchants'  Inv. 
&  Trust  Co.,  61  Ore.  310;  Walters  v. 
Dancey,  23  S.  Dak.  481,  are  to  same 
effect. 

See  also,  Young  v.  Ruhwedel,  119 
Mo.  App.  231;  Games  v.  Howard,  180 
Mass.  569;  Thain  v.  Philbrick,  36  N. 
Y.  Misc.  829. 

The  broker  who  produces  a  written 
offer,  which  the  principal,  by  sign- 
ing, may  at  once  turn  into  a  contract, 
has  produced  a  purchaser.  Ryer  v. 
Turkel,  75  N.  J.  L.  677;  Flynn  v.  Jor- 
dal, supra. 


2003 


§  2431] 


THE  LAW  OF  AGENCY 


[BOOK  v 


ity,  performed  his  undertaking,  even  if,  through  no  fault  of  the  brok- 
er's/the  buyer  is  not  accepted;*1  although  there  are  cases  .which  hold 


Ditto;)    OVJUJ    ,Dr 

*hln  Gunn  v.  Bank  of  California, 
99  Cal.  349,  the  court  said:  "But  the 
question  here  is:  What  is  'finding'  or 
'producing'  a  purchaser  within  the 
meaning  of  the  rule  of  law  declared 
in  this  and  the  other  cases  cited?  Is 
it  sufficient  for  a  broker  to  merely  • 
find  a  person  financially  able,  and 
who  verbally  agrees  with  him  to  pur- 
chase upon  the  terms  of  the  vendor, 
and  makes  a  deposit,  but  who  neither 
signs  a  binding  agreement  to  pur- 
chase upon  such  terms,  nor  is  pro- 
duced before  the  vendor  as  a  person 
ready  and  willing  to  enter  into  such 
a  contract?  It  seems  to  us  very  clear 
that  this  question  must  be  answered 
in  the  negative.  The  contract  of  the 
broker  is  to  negotiate  a  sale;  tliat  is, 
to  procure  a  valid  contract  to  pur- 
chase, which  can  be  enforced  by  the  . 
vendor  if  his  title  is  perfect;  or  if 
he  does  not  procure  such  contract,  to 
bring  the  vendor  and  the  proposed 
purchaser  together,  that  the  vendor 
may  secure  such  a  contract,  unless 
he  is  willing  to  trust  to  an  oral 
agreement."  Followed  in  Shepherd- 
Teague  Co.  v.  Hermann,  12  Cal.  App. 
394;  Mott  v.  Minor,  11  Cal.  App.  77.4; 
Massie  v.  Chatom,  163  Cal.  772. 

In  Baars  v.  Hyland,  65  Minn.  150, 
it  was  said:  "The  next  question  is: 
When,  under  such  a  contract,  has  the 
agent  earned  his  commissions  by 
finding  a  purchaser?  Is  it  when  the 
agent  himself  has  found  the  pur- 
chaser, or  when  the  principal  has 
found  him,  through  the  agent?  Is 
it  sufficient  that  the  agent  has  him- 
self found  a  person  ready  and  willing 
to  buy,  or  must  he  produce  that  per- 
son to  his  principal?  Must  he  bring 
the  parties  together,  so  that  the  prin- 
cipal has  also  found  the  purchaser? 
We  are  clearly  of  the  opinion  that  he 
must.  He.  must  at  least  put  the  prin- 
cipal in  communication  with  the  pro- 


posed purchaser.  The  principal  must 
have  an  opportunity  to  make  a  bind- 
ing contract  with  the  proposed  pur- 
chaser before  the  agent  has  earned 
his  commission." 

In  Platt  v.  Johr,  9  Ind.  App.  58,  it 
was  said:  "Whether  a  broker  is  to 
'introduce'  a  purchaser,  or  to  'find' 
or  'procure'  one,  or  whether  he  is  to 
do  all  these  things  combined,  his  du- 
ties remain  practically  the  same.  The 
words  'find,'  'procure,'  'introduce,' 
are  generally  used  synonymously  in 
the  making  of  such  contracts,  and, 
whether  used  conjunctively  or  dis- 
junctively, the  essential  thing  they 
require  the  broker  to  do  is  to  secure 
a  customer  who  is  or  will  become  a 
purchaser." 

In  Hayden  v.  Grille,  35  Mo.  App. 
647,  the  court  said:  "Now,  what  does 
a  real  estate  broker  contract  to  do? 
He  agrees  to  effect  a  valid  sale  of  the 
property  for  a  stipulated  price,  and, 
in  consideration  of  this,  the  owner 
agrees  to  pay  him  a  certain  per  cent. 
cf  the  purchase  money  as  commis- 
sions for  his  trouble.  This  contract, 
on  the  part  of  the  broker,  is  com- 
plete when  he  delivers  or  tenders  to 
the  owner  a  valid  written  contract, 
containing  the  terms  of  sale  agreed 
on,  signed  by  a  party  able  to  comply 
therewith,  or  to  answer  in  damages 
if  he  should  fail  to  perform.  This 
is  all  the  agent  can  do,  and  when  it 
is  done  he  is  entitled  to  his  commis- 
sions. But  the  necessity  of  a  writ- 
ten contract  of  sale  may  be  rendered 
unnecessary  if-  the  agent  bring  the 
vendor  and  vendee  together,  and  the 
latter  is  able  and  willing  and  offers 
to  complete  the  contract,  provided 
the  vendor  will  make  the  conveyance. 
In  such  a  case  the  agent  has  done  all 
that  he  can  do,  and  if  the  vendor  un- 
der such  circumstances  refused  to 
complete  the  sale,  he,  nevertheless, 


2004 


CHAP.    Ill] 


OF   BROKERS 


[§    2431 


that  a  written  contract  between  the  buyer  and  the  seller,  or  at  least  a 
written  offer  from  the  buyer  which  the  seller  may  turn  into. -a  written 

•     [  .        vfiri  ii'iuo 

will  be  compelled  to  pay  the   agent       Mass.   477;    Middleton   v.   Thompson, 
his  commissions."     See  also,  McCray,       163  Pa.  112;  Mattingly  v.  Pennie,  105 


v.  Pfost,  118  Mo.  App.  672. 

In  Gelatt  v.  Ridge,  117  Mo.  553,  38 
Am.  St.  Rep.  683,  it  was  said:  "It  is 
well  settled  in  this  state  that  a  real 
estate  broker  performs  his  duty  and 
is  entitled  to  his  commission  when 
a  purchaser  is  introduced  who  is 
ready,  willing  and  able  to  buy  on  the 
terms  authorized  by  the  principal. 
The  completion  of  a  valid  and  bind- 
ing written  contract  is  not  required 
in  case  the  principal  is  in  a  situation 
to  execute  it  himself.  It  may,  and 
doubtless  often  does,  happen  that  the 
purchaser  would  prefer  dealing  with 
the  owner.  So  it  is  held  that  the 
agent  is  entitled  to  his  commission  if 
he  is  the  procuring  cause  of  negotia- 
tions which  result  in  the  sale,  even 
though  the  negotiations  are  con- 
ducted and  concluded  by  the  princi- 
pal in  person." 

In  McDonald  v.  Smith.  99  Minn. 
42,  it  is  said:  "A  real  estate  broker 
in  order  to  earn  a  commission  for 
finding  a  purchaser  must  either  ob- 
tain a  contract  from  a  proposed  pur- 
chaser able  to  buy  whereby  he  is 
legally  bound  to  buy  on  the  author- 
ized terms,  or  he  must  produce  to 
his  principal  a  proposed  purchaser 
who  is  able,  willing  and  ready  to  buy 
upon  the  terms  authorized.  It  is  not 
necessary  that  the  principal  and  the 
purchaser  actually  be  brought  face  to 
face,  but  the  principal  must  be  noti- 
fied that  such  purchaser  has  been 
found  and  afforded  a  full  opportunity 
to  make  a  binding  contract  for  the 
sale  of  the  land  on  the  authorized 
terms.  If  the  broker  complies  with 
either  of  the  conditions  stated  he  is 
entitled,  unless  he  has  stipulated  to 
the  contrary,  to  his  commission,  al- 
though no  sale  is  finally  consum- 
mated." 

See  also,  Fitzpatrick  v.  Gilson,  176 


Cal.  514;  Buckingham  v.  Harris,  10 
Colo.  455;  Merriman  v.  Wickersham, 
141  Cal.  567;  Hildenbrand  v.  Lillis, 
10  Colo.  App.  522;  Wiggins  v.  Wil- 
son, 55  Fla.  346;  Vaughan  v.  McCar- 
thy, 59  Minn.  199;  Duclos  v.  Cunning- 
ham, 102  N.  Y.  678;  Mooney  v.  Elder, 
56  N.  Y.  238;  Cheatham  v.  Yarbrough, 
90  Tenn.  77;  Barnes  v.  German,  etc., 
Society,  21  Wash.  448;  Magill  v.  Stod- 
dard,  70  Wis.  75;  Gilder  v.  Davis,  137 
N.  Y.  504,  20  L.  R.  A.  398. 

Statute  of  frauds. — The  fact  that 
the  purchaser  produced,  who  is  ready, 
willing  and  able  to  buy,  might  be  able 
to  avoid  the  contract  under  the  stat- 
ute of  frauds,  will  not  defeat  the 
broker's  right  to  commissions,  where 
the  buyer  has  not  shown  any  inten- 
tion to  take  advantage  of  the  statute. 
Sayre  v.  Wilson,  86  Ala.  151;  Vaughan 
v.  McCarthy,  58  Minn.  199. 

Satisfactory  purchaser. — Where  the 
terms  are  not  fixed,  but 'the  price,  the 
conditions  or  the  purchaser  are  to  be 
"satisfactory,"  this  means,  ordinarily, 
satisfactory  to  the  principal,  and  the 
broker  ordinarily  takes  his  chances 
of  being  able  to  satisfy  the  principal 
in  the  matter.  See  Forrester  v. 
Price,  6  N;  Y.  Misc.  308. 

The  case  is  stronger  where  the 
stipulation  is  to  pay  commission  "in 
case  of  a  sale  at  figures  satisfactory 
to  us"  (the  principals).  Weibler  v. 
Cook,  77  N.  Y.  App.  Div.  637: 

Where  real  estate  brokers,  who  for 
fixed  consideration,  undertook  to  se- 
cure a  purchaser  satisfactory  to  the 
owner,  "he  (the  latter)  alone  had  the 
right  to  determine  the  consideration 
for- which  he  would  sell  the  same, 
and  also  the  details  governing  the 
payment  therefor,"  50  C.  C.  A.  454, 
112  Fed.  565. 

But  in  Mullally  v.  Greenwood,  127 
Mo.  138,  29  S.  W.  1001,  where  the 


xo'i  ; 


200*1 


oa 


§  243*1 


THE  LAW  OF  AGENCY 


[BOOK  v 


contract,  is  essential  in  any  event,42  and  there  may  easily  in  any  case  be 
such  forms  of  undertaking  or  such  special  circumstances  as  to  require 
a  written  contract  or  even  a  completed  sale."  (3)  When  the  broker  has, 


agreement  was  to  pay  commissions 
for  negotiating  a  "satisfactory  lease," 
the  court  said:  -"We  do  not  think 
that  the  defendants  (principals)  had 
the  right  to  say,  arbitrarily  and  with- 
out cause,  that  the  lease  contracted 
for  by  plaintiff  for  them  was  not  sat- 
isfactory to  them.  It  was  their  duty 
to  act  fairly  and  honestly  and  in  ac- 
cordance with  the  reasonable  expec- 
tations of  the  plaintiff,  as  implied 
from  the  contract,  its  subject-matter, 
and  the  facts  and  circumstances  sur- 
rounding its  execution,  its  nature, 
object  and  purpose." 

«  "The  true  rule  is  that  the  broker 
is  entitled  to  his  commissions  if  the 
purchaser  presented  by  him  and  the 
vendor,  his  principal,  enter  into  a 
valid,  binding  and  enforceable  con- 
tract." Wilson  v.  Mason,  158  111.  304, 
49  Am.  St.  Rep.  162.  Same:  Fox  v. 
Ryan,  240  111.  391. 

(But  compare  Monroe  v.  Snow,  131 
111.  126;  Fox  v.  Starr,  106  111.  App. 
273;  Hersher  v.  Wells,  103  111.  App. 
418,  in  which  last  case  it  is  said  that 
in  Wilson  v.  Mason  there  was  no  in- 
tention to  change  the  well-settled 
rule  upon  the  subject.) 

See  also,  Jenkins  v.  Hollingsworth, 
83  111.  App.  139. 

In  Ohio,  the  broker  must  either 
make  a  sale  or  produce  from  his 
buyer  a  binding  undertaking  to  buy. 
Pfanz  v.  Humburg,  82  Ohio,  1,  29 
L.  R.  A.  (N.  S.)  533.  In  Oklahoma, 
substantially  the  same  rule  is 
adopted.  Gilliland  y.  Jaynes,  36  Okla. 
563.  Dicta  to  the  same  effect:  Bolton 
v.  Coburn,  78  Neb.  731. 

So,  apparently,  in  Manitoba.  Mc- 
Cuish  v.  Cook,  10  Western  L.  R.  349, 
citing  McKenzie  v.  Champion,  12  Can. 
Sup.  Ct.  649,  though  that  case  is  dis- 
tinguishable. See  also,  Rogers  v. 
Braun,  16  Manitoba,  580. 

*3  See  Hale  v.  Kumler,  29  C.  C.  A. 


67,  85  Fed.  161;  Hyams  v.  Miller,  71 
Ga.  608;  Gilchrist  v.  Clarke,  86  Tenn. 
583;  Parker  v.  Walker,  86  Tenn.  566; 
Tombs  v.  Alexander,  101  Mass.  255, 
3  Am.  Rep.  349;  Kerfoot  v.  Steele, 
113  111.  610  (broker  to  purchase) ; 
Condict  v.  Cowdrey,  139  X.  Y.  273; 
Ford  v.  Brown,  120  Cal.  551;  Kost  v. 
Reilly,  62  Conn.  57;  Boyd  v.  Watson, 
101  Iowa,  214;  Stewart  v.  Fowler,  37 
Kan.  677,  53  Kan.  537. 

Actual  sale  required. — In  Hyams  v. 
Miller,  supra,  the  court  said:  "The 
contract  between  these  parties  was, 
that  the  plaintiff  was  not  only  to 
find  a  purchaser  for  defendant's  prop- 
erty, but  he  was  to  make  actual  sale 
of  the  same  upon  the  terms  proposed 
by  defendant."  In  Hale  v.  Kumler, 
supra,  which  involved  the  consolida- 
tion of  certain  street  railway  proper- 
ties, the  agreement  was  express  that 
commission  should  be  paid  only  if 
and  when  consolidation  actually  took 
place.  In  Condict  v.  Cowdrey,  supra, 
the  commission  was  to  be  "on  the 
price  I  may  accept."  In  Ford  v. 
Brown,  supra,  the  contract  contem- 
plated an  actual  receipt  of  the  price, 
the  broker  being  authorized  to  retain 
all  above  a  certain  sum  as  his  com- 
mission. To  same  effect:  Crockett  v. 
Grayson,  98  Va.  354;  Munroe  v.  Tay- 
lor, 191  Mass.  483. 

In  Flower  v.  Davidson,  44  Minn. 
46,  the  contract  was  to  pay  commis- 
sions "on  the  completion  of  the  trans- 
fer of  said  property."  See  also, 
Cremer  v.  Miller,  56  Minn.  52;  Good- 
win v.  Siemen,  106  Minn.  368;  Lind- 
ley  v.  Fay,  119  Cal.  239  (contract  to 
pay  "out  of  the  first  money  re- 
ceived"); Robinson  v.  Reynolds,  22 
O.  W.  R.  124. 

In  Ormsby  v.  Graham,  123  Iowa, 
202,  the  broker  was,  by  the  contract, 
required  to  draw  all  necessary  papers, 
collect  the  cash  payment,  and  do 


2006 


CHAP.    Ill] 


OF   BROKERS 


[§    2432 


by  whatever  method  found,  and  induced  the  purchase  by,  a  buyer  whom 
the  principal  accepted  and  to  whom  he  has  in  fact  sold,  there  could 
seem  to  be  no  doubt  that  the  broker  has  performed  his  undertaking,  un- 
der any  rule.4* 

In  a  few  states  the  matter  is  regulated  by  statute.45 

§  2432. Tt  was  thought  at  one  time,  and  still  seems  to  be  held 

in  some  states,  that  a  purchaser  had  not  been  "produced"  within  the 
meaning  of  the  second  rule  until  he  had  been  brought  face  to  face  with 
the  seller ;  but  this  seems  not  to  be  indispensable  if  there  be  other  sub- 
stantial and  satisfactory  evidence  of  his  existence  and  his  readiness  and 
ability  to  purchase.40 

Nevertheless,  it  is  not  enough  for  the  broker  merely  to  assert  that 
there  is  somewhere  somebody  who  is  ready  to  purchase,  but  without 
either  producing  such  purchaser  to  show  for  himself,  or  defimcely  des- 
ignating him  or  producing  some  other  substantial  evidence  of  his  ex- 
istence and  readiness  to  purchase.47 

A  broker  who  would  recover  for  producing  a  purchaser,  notwith- 
standing an  attempted  repudiation  of  the  offer  by  the  principal,  must 
show  that  he  had  in  fact  substantially  performed  before  such  repudia- 
tion.48 


many  other  things  which  could  only 
be  done  when  the  transfer  was  actu- 
ally consummated.  See  also,  Felts  v. 
Butcher,  93  Iowa,  414. 

In  Murray  v.  Rickard,  103  Va.  132, 
the  contract  contemplated  that  the 
broker  was  to  be  paid  out  of  the  pay- 
ments as  made  by  the  purchaser  upon 
the  purchase  price.  After  making 
two  payments  (out  of  which  the 
broker  received  his  pro  rata  commis- 
sion), the  contract  with  the  pur- 
chaser was  canceled  in  pursuance  of 
one  of  its  provisions  giving  that 
right.  Held,  that  the  broker  was  not 
entitled  to  any  further  commissions. 

Where  the  agreement  is  to  pay  the 
commission  when  the  buyer  has  'paid 
a  certain  amount  and  executed  notes 
and  mortgage  for  the  residue,  no  re- 
covery can  be  had  by  the  broker  un- 
til these  acts  are  done.  McPhail  v. 
Buell,  87  Cal.  115. 

Where  the  agreement  was  to  pay, 
the  broker  for  "disposing  of"  certain 
property,  an  exchange  which  failed 
because  the  party  produced  by  the 


broker  could  not  make  a  clear  title 
to  the  land  he  proposed  to  convey 
was  held  not  to  satisfy  the  require- 
ment. Greusel  v.  Dean,  98  Iowa,  405. 
«  See  Desmond  v.  Stebbins,  140 
Mass.  339. 

45  Thus  see  §  3587  of  the  Georgia 
Code,  in  Appendix,  post. 

46  See     McDonald     v.     Smith,     99 
Minn.  42,  supra.     (Compare  Gunn  v. 
Bank    of    California,    99    Cal.     349, 
supra.) 

it  As  said  in  a  Missouri  case  (Hug- 
gins  v.  Hearne,  74  Mo.  App.  8G) 
where  the  broker  contended  that  he 
found  a  purchaser  in  Iowa:  "Is 
plaintiff  to  be  allowed  to  recover  on 
the  mere  supposition  that  he  might 
get  the  purchaser  to  come  down  from 
Iowa?  Suppose  he  had  written  him 
to  come;  there  is  not  a  particle  of 
evidence  to  suggest  that  he  would 
have  complied." 

48  in  Mattingly  v.  Pennie,  105  Cal. 
514,  45  Am.  St.  Rep.  87,  the  broker 
had  not  "found"  a  purchaser  within 
the  requirements  of  the  California 


2007 


§§ 


THE  LAW  OF  AGENCY 


[ill    .'I . 

[BOOK  v 


§2433.  Contract  in  particular  cases  may  require  less.— It  is,  of 
course,  entirely  possible  that  the  agreement  between  the  broker  and 
the  principal  may  not  require  that  the  broker  shall  bring  about  a  "sale" 
in  any  sense.  Thus  the  offer  of  the  principal  may  be  that  he  will  com- 
pensate the  broker  if  the  latter  will  "assist"  him  in  finding  a  pur- 
chaser ; 49  or  if  he  shall  be  "in  any  manner  instrumental"  in  finding  a 
purchaser ; 50  or  if  the  broker  will  "urge"  someone  to  buy,61  etc. ;  and 
in  all  of  these  cases  the  broker,  having  done  what  he  agreed  to  do,  may 
recover  compensation. 

§  2434.  Contract  with  broker  need  not  be  in  writing. — These 
agreements  with  the  broker  to  pay  a  commission  for  finding  a  purchaser 
for  real  estate  are  not  within  the  statute  of  frauds,  and  hence  are  valid 
though  not  in  writing.52  In  some  states,  however,  special  statutes  re- 
quire writing.53 


so  Myers  v.  Moore,  85  Neb.  715. 
5i  Tuffree  v.  Saint,  147  Iowa,  361. 

62  Waterman  Real  Estate  Exchange 
v.  Stephens,  71  Mich.  104;   Young  v. 
Ruhwedel,  119  Mo.  App.  231;    Fried- 
man v.    Suttle,   10   Ariz.   57,   85   Pac. 
726,  9  L.  R.  A.  (N.  S.)  933;  Lesley  v. 
Rosson,    39    Miss.    368,    77    Am.    Dec. 
679;    Baker    v.    Wainwright,    36   Md. 
336,  11    Am.    Rep.    495;    Callaway  v. 
Pettyman,    218    Pa.   293;    Monroe    v. 
Snow,  131  111.  126;  McCurry  v.  Haw- 
kins, 83  Ark.  202. 

63  In  a   few   states  by  statute  the 
broker    cannot   recover    commissions 
except  there  be  a  written  contract  of 
employment    between    him    and    the 
owner. 

California,  Civil  Code  (1906), 
§  1624,  subd.  6:  McGeary  v.  Satch- 
well,  129  Cal.  389,  62  Pac.  58;  Shank- 
lin  v.  Hall,  100  Cal.  26,  34  Pac.  636. 

Indiana,  §  7463,  Burns'  Ann.  Sts. 
(1908) :  Beahler  v.  Clark,  32  Ind.  App. 

222;  Miller  v.  Farr, Ind.  App. , 

98  N.  E.  805;  Morton  v.  Garfield,  

Ind.  App.  — ,  98  N.  E.  1007;  Salvage 
v.  Talbott,  175  Ind.  648. 

Montana,  Civ.  Code,  §  2185,  subsec. 
6;  Marshall  v.  Trerise,  33  Mont  28. 

Nebraska,  Comp.  Sts.  (1909),  § 
4829  (ch.  73,  sec.  74);  Blair  v.  Austin, 
71  Neb.  401;  Baker  v.  Gillan,  68  Neb. 
368. 


rule  which  demands  either  a  written 
contract  to  buy  or  an  actual  produc- 
tion of  the  buyer  to  the  principal. 
(See  Gunn  v.  Bank  of  California,  99 
Cal.  349,  quoted  from  in  a  preceding 
note.)  The  broker  attempted  to  ex- 
cuse himself  on  the  ground  that  the 
defendant  had  repudiated  the  con- 
tract, and  that  therefore  he  had  pre- 
vented him  from  performing.  The 
court  found  that  there  was,  in  fact, 
no  repudiation,  but  said  that  while 
the  rule  might  be  as  contended  in  the 
case  of  bilateral  contracts,  it  was.  not 
so  where,  as  here,  the  contract  was 
unilateral.  In  such  a  case  "the  party 
to  whom  the  promise  is  made  can 
not  recover  without  proof  of  perform- 
ance of  the  condition  upon  which  the 
promise  depends;  and  in  such  cases 
a  mere  refusal  by  the  promisor  to 
perform,  or  even  an  entire  repudia- 
tion by  him  of  the  contract,  does  not 
of  itself  amount  to  prevention." 

«  Terry  v.  Reynolds,  111  Wis.  122; 
Wyckoff  v.  Kerr,  24  S.  Dak.  241;  Bast 
v.  Hill,  62  111.  216. 

In  Hugill  v.  Weekley,  64  W.  Va. 
210,  15  L.  R.  A.  (N.  S.)  1262,  the  un- 
dertaking was  "to  make  all  the  effort 
possible  to  make  sale"  of  certain 
property.  In  Tracy  v.  Abney,  122 
Iowa,  306,  it  was  to  advertise  the 
property  and  try  to  find  a  purchaser. 


2008 


CHAP.    Ill] 


OF   BROKERS 


[§    2435 


§  2435.  Broker  must  be  procuring  cause — May  be  such  though 
not  present  at  sale — Directness  of  cause. — It  is  not  necessary  that 
the  broker  who  contends  that  he  found  the  purchaser  to  whom  the  prin- 
cipal has  sold,  should  personally  have  conducted  the  negotiations  be- 
tween his  principal  and  the  purchaser  which  have  resulted  in  the  sale,54 
or  that  he  should  have  been  present  when  the  bargain  was  completed,59 
or  even,  according  to  the  weight  of  authority,  that  the  principal  should, 
at  the  time,  have  known  that  the  purchaser  was  one  found  by  the 
broker.58 


New  Jersey,  2  Comp.  Stats.  1910,  p. 
2617;  Leimbach  v.  Regner,  70  N.  J. 
L.  608. 

Washington,  Rem.  &  Bal.  Code,  § 
5289. 

Nor  can  there  be  a  recovery  on 
quantum  meruit.  Beahler  v.  Clark, 
supra;  Blair  v.  Austin,  supra;  Leim- 
bach v.  Regner,  supra. 

A  statute  making  it  a  misdemeanor 
for  any  person  in  cities  of  first  and 
second  class  to  offer  for  sale  real 
property  withjout  written  authority  is 
unconstitutional,  and  a  broker  em- 
ployed orally  may  recover  commis- 
sions. Fisher  v.  Woods,  187  N.  Y.  90, 
12  L.  R.  A.  (N.  S.)  707. 

"Royster  v.  Mageveney,  77  Tenn. 
(9  Lea),  148;  Timberman  v.  Crad- 
dock,  70  Mo.  638;  Scott  v.  Patterson, 
53  Ark.  49;  Gelatt  v.  Ridge,  117  Mo. 
553,  38  Am.  St.  Rep.  683;  Lipscomb  v. 
Cole,  81  Mo.  App.  53;  Rigdon  v.  More, 
226  111.  382;  Henry  v.  Stewart,  185  111. 
448;  Pate  v.  Marsh,  65  111.  App.  482; 
Hill  v.  McCoy,  1  Cal.  App.  159;  Reis- 
hus-Remer  Land  Co.  v.  Benner,  91 
Minn.  401;  Dreisback  v.  Rollins,  39 
Kan.  268. 

SB  Handley  v.  Shaffer,  —  Ala.  — , 
59  So.  286;  Heimberger  v.  Rudd,  —  S. 
Dak.  — ,  138  N.  W.  374;  Royster  v. 
Mageveney,  supra;  Timberman  v. 
Craddock,  supra;  Sibbald  v.  Bethle- 
hem Iron  Works,  83  N.  Y.  378,  38  Am. 
Rep.  441;  Dreisback  v.  Rollins,  39 
Kan.  268;  Hill  v.  McCoy,  supra;  Scott 
v.  Clark,  3  S.  Dak.  486;  Burchell  v. 
Gowrie,  [1910]  App.  Cas.  614;  Graves 
v.  Woodward,  78  Tex.  92;  Bound  v. 
Simkins  (Tex.  Civ.  App.)  151  S.  W. 
572. 


saStiewal  v.  Lally,  89  Ark.  195; 
Bryan  v.  Abert,  3  App.  Cas.  D.  C.  180; 
Adams  v.  Decker,  34  111.  App.  17; 
Kelly  v.  Stone,  94  Iowa,  316;  Boyd  v. 
Watson,  101  Iowa,  214;  Rounds  v. 
Allee,  116  Iowa,  345;  Gilbert  v.  Mc- 
Cullough,  146  Iowa,  333;  Slagle  v. 
Russell,  114  Md.  418;  Goffe  v.  Gib- 
son, 18  Mo.  App.  1;  Millan  v.  Porter, 
31  Mo.  App.  563;  Hambleton  v.  Fort, 
58  Neb.  282;  Craig  v.  Wead,  58  Neb. 
782;  Laughlin  v.  Campbell,  78  N.  J. 
L.  541;  Sussdorff  v.  Schmidt,  55  N.  Y. 
320;  Wylie  v.  Marine  Nat.  Bank,  61 
N.  Y.  415;  Graves  v.  Woodward,  78 
Tex.  92;  Ross  v.  Moskowitz  (Tex. 
Civ.  App.),  95  S.  W.  86,  s.  c.  100  Tex. 
434;  Bound  v.  Simkins  (Tex.  Civ. 
App.),  151  S.  W.  572;  Grinnell  v. 
Simpson,  64  Wash.  564;  Stratton  v. 
Vachon,  44  Can.  Sup.  .395;  Rice  v. 
Galbraith,  26  Ont.  L.  R.  43.  The 
lower  Canadian  courts  had  been  some- 
what in  conflict.  See  Locators  v. 
Clough,  17  Manitoba,  659;  Robertson 
v.  Carstens,  18  Manitoba,  227;  Strat- 
ton v.  Vachon,  3  Sask.  L.  R.  286;  Sib- 
bitt  v.  Carson,  26  Ont.  L.  R.  585. 

In  Jungeblut  v.  Gindra,  134  N.  Y. 
App.  Div.  291,  it  was  held  that,  while 
generally  it  is  immaterial  that  the 
owner  was  ignorant  that  a  purchaser 
was  produced  by  the  broker,  yet 
where,  on  request  to  disclose  the  prob- 
able purchaser,  the  broker  gave  the 
name  of  another,  and  the  owner  sub- 
sequently sold  to  the  broker's  cus- 
tomer, in  good  faith  and  without 
knowledge,  and  deducted  a  broker's 


commissions     from     the    price,     the 
broker  cannot  recover. 

In    Boyd    v.     Improved    Property 
2009 


§  2435]  THE  LAW  OF  AGENCY  [BOOK  v 

l»Svlj  •  •    *u.  [ill    .qAfcp. 

It  is  indispensable,87  but  it  is  also  held  to  be  sufficient,  that  the  broker's 


Holding  Co.,  135  N.  Y.  App.  Div.  623, 
the  owner  offered  a  commission  in 
case  plaintiff  furnished  the  name  of 
one  to  whom  the  owner  made  a  lease. 
The  plaintiff  tried  to  interest  a  les- 
see, who  subsequently  leased  from 
the  owner,  but  the  plaintiff  did  not 
disclose  the  name  because  requested 
not  to  do  so.  The  court  said:  "He 
has  failed  to  perform  the  one  thing 
that  was  required  of  him,  and  that 
was  to  mention  the  proposed  tenant's 
name  to  the  owner." 

In  Quist  v.  Goodfellow,  99  Minn. 
509,  9  Ann.  Cas.  431,  8  L.  R.  A.  (N. 
S.)  153,  the  court  said:  "Some  of 
the  authorities  hold  that  a  real  estate 
broker  is  entitled  to  his  stipulated 
commission  where  his  efforts  were  in 
fact  the  procuring  cause  of  a  sale, 
though  made  by  the  owner  in  good 
faith  and  in  ignorance  of  his  efforts; 
but  such  is  not  the  law  of  this  state." 
Here  the  purchaser,  with  whom  the 
broker  was  negotiating  to  the  knowl- 
edge of  the  owner,  procured  a  third 
person  to  make  the  purchase  directly 
from  the  owner,  the  third  person 
stating  to  the  owner  that  the  pur- 
chase was  in  his  own  behalf,  and  in 
consideration  of  which  and  the  fact 
that  there  would  be  no  commissions 
to  pay,  the  owner  reduced  the  price. 
This,  the  court  says,  has  been  the 
law  in  Minnesota  since  Cathcart  v. 
Bacon,  47  Minn.  34.  See  comment  on 
these  cases  in  Slagle  v.  Russell,  114 
Md.  418. 

In  Gerding  v.  Haskin,  141  N.  Y. 
514,  the  broker  introduced  to  the 
owner  a  person  who  offered  to  buy 
on  the  owner's  terms  on  behalf  of  a 
newly-created  syndicate,  giving  the 
names  of  those  who  had  thus  far 
agreed  to  enter  the  syndicate,  but  be- 
fore the  syndicate  was  fully  formed 
the  owner  sold  the  land  to  other. 
Held,  that  the  owner  was  entitled  to 
know  who  the  purchasers  were,  and 
that,  as  all  had  not  been  disclosed  at 
the  time  of  the  sale,  no  commission 


could  be  recovered. 

07  No  matter  how  strenuous  the 
broker's  efforts  have  been,  he  is  not 
entitled  to  the  commission,  unless  he 
was  the  procuring  cause.  McCloskey 
v.  Thompson,  26  N.  Y.  Misc.  735; 
Thuner  v.  Kanter,  102  Mich.  59;  Dou- 
ville  v.  Comstock,  110  Mich.  693; 
Putnam  v.  How,  39  Minn.  363;  Burk- 
holder  v.  Fonner,  34  Neb.  1;  Auer- 
bach  v.  Internationale  Gesellschaft, 
177  Fed.  458;  Hartley  v.  Anderson, 
150  Pa.  St.  391;  Kifer  v.  Yoder,  198 
Pa.  308;  Root  v.  Barbour,  — Colo.  — , 
118  Pac.  968;  Woods  v.  Lowe,  207 
Mass.  1. 

See  Rice  v.  Omberg,  25  Ky.  Law 
R.  531,  76  S.  W.  15,  in  which  a  buyer 
who  knew  that  property  was  for  sale 
at  a  given  net  price  employed  the 
plaintiff  broker,  to  secure  a  purchase 
at  this  price,  with  a  stipulation  in 
the  contract  that  the  seller  pay  the 
current  taxes.  The  sale  went 
through,  but  only  upon  terms  which 
gave  the  current  taxes  to  the  buyer 
to  pay.  Upon  the  ground  that  the 
agent  failed  in  the  very  undertaking 
for  which  he  was  employed,  the  court 
refused  him  commissions. 

As  is  pointed  out  in  many  cases,  it 
is  not  enough  that  the  broker's  effort 
was  one  of  the  causes,  or  that  it  con- 
tributed to  some  extent,  or  was  of 
some  effect;  in  order  that  he  may  re- 
cover for  making  the  sale  or  finding 
the  purchaser,  he  must  have  done  it, 
he  must  be  the  procuring  cause,  the 
effective  cause.  See  White  v.  Sell- 
myer,  157  111.  App.  435;  Haase  v. 
Ullman,  148  N.  Y.  App.  Div.  40  ("He 
must  not  only  find  the  purchaser, 
but  the  sale  must  proceed  from  his 
efforts  acting  as  broker.  In  short,  it 
must  affirmatively  appear  that  the 
purchaser  was  induced  to  apply  to 
the  owner  through  the  means  em- 
ployed by  the  broker.")  Boyd  v. 
Improved  Property  Holding  Co.,  135 
N.  Y.  App.  Div.  623;  Russell  v.  Poor, 
133  Mo.  App.  723;  Bigham  v.  Linville, 


2010 


CHAP.    Ill] 


OF   BROKERS 


[§    2435 


efforts  were  the  efficient,  procuring  or  producing  cause  of  the  sale ; B8 
that  through  his  agency  the  purchaser  was  brought  into  communication 
with  the  seller  and  bought  of  him,  although  the  parties  then  negotiated 
in  person.59  His  efforts,  it  is  said,  may  have  been  slight,  but  if  they 
brought  about  the  desired  result,  no  more  could  be  asked;  and  their 


—  Mo.  App.  — ,  156  S.  W.  713;  But- 
terfleld  v.  Consol.  Fuel  Co.,  —  Utah, 
— ,  132  Pac.  559. 

"Merely  putting  a  prospective  pur- 
chaser on  the  track  of  property 
which  is  on  the  market,  will  not  suf- 
fice to  entitle  the  broker  to  the  com- 
mission." Cone  v.  Keil,  18  Cal.  App. 
675. 

Broker  producing  broker  who  pro- 
duces a  purchaser. — In  Peek  v.  Slifer, 
122  111.  App.  21,  the  court  quotes  with 
approval  the  following  statement: 
"A  broker  who  is  employed  to  procure 
a  purchaser  for  real  estate,  and  in- 
troduces another  broker  to  a  vendor 
as  a  purchaser,  but  negotiations  be- 
tween them  are  unsuccessful,  and  af- 
terwards the  vendor  in  good  faith 
employs  the  broker  so  introduced  to 
procure  a  purchaser,  and  he  there- 
after produces  a  purchaser  and  is  the 
procuring  cause  of  the  sale  of  the 
property,  the  second  broker  would 
be  entitled  to  commission  rather 
than  the  broker  who  was  originally 
employed."  To  same  effect,  see 
Baumgartl  v.  Hoyne,  54  111.  App. 
496;  Latshaw  v.  Moore,  53  Kan.  234. 

sa  Many  other  forms  of  expression 
are  found  in  the  cases,  apparently 
without  any  real  difference  in  mean- 
ing. Thus  it  is  said  he  must  be  the 
"procuring  cause."  Hill  v.  Jebb,  55 
Ark.  574;  Dolan  v.  Scanlan,  57  Cal. 
261;  Livezy  v.  Miller,  61  Md.  336; 
Leupold  v.  Weeks,  96  Md.  280; 
Frazer  v.  Wyckoff,  63  N.  Y.  445;  or 
the  "efficient  cause"  or  "agent; "  Hen- 
rlerson  v.  Vincent,  84  Ala.  99;  Lyon 
v.  Mitchell,  36  N.  Y.  235,  93  Am.  Dec. 
502;  or  "immediate  cause;"  Gleason 
v.  Nelson,  162  Mass.  245;  or  "the  effi- 
cient or  effective  cause  or  means  of 
bringing  about  the  actual  sale;" 
Whitcomb  v.  Bacon,  170  Mass.  479,  64 
Am.  St.  Rep.  317;  Bowling  v.  Morrill, 


165  Mass.  491;  or  "controlling 
cause;"  Brooks  v.  Leathers,  112 
Mich.  463;  or  "proximate  and  procur- 
ing." Latshaw  v.  Moore,  53  Kan.  234; 
or  "proximate  cause;"  Schmidt  v. 
Baumann,  .36  Minn.  189;  Timberman 
v.  Craddcok,  70  Mo.  638;  Adams  v. 
Decker,  34  111.  App.  17;  Millan  v. 
Porter,  31  Mo.  App.  563;  Burchell  v. 
Gowrie,  [1910]  App.  Cas.  614. 

In  Smith  v.  McGovern,  65  N.  Y.  574, 
it  is  said  that  being  the  "procuring 
cause"  means  "the  original  discovery 
of  a  purchaser  by  the  plaintiff,  and 
the  starting  of  a  negotiation  by  the 
plaintiff,  together  with  the  final  clos- 
ing by  or  in  behalf  of  the  defendant 
through  the  efforts  of  the  plaintiff." 
Approved  in  Langford  v.  Issenhuth, 
28  S.  Dak.  451. 

The  brokers'  efforts  may  be  casual, 
yet  if  they  start  the  negotiations 
which  result  in  the  sale,  it  is  enough. 
Langford  v.  Issenhuth,  supra.  The 
broker  may  be  the  procuring  cause 
though  the  person  he  dealt  with  was 
merely  the  agent  of  the  real  pur- 
chaser. Henry  v.  Stewart,  185  111. 
448. 

•r'»Hunton  v.  Marshall,  76  Ark.  375; 
Hafner  v.  Herron,  165  111.  242;  Shan- 
non v.  Potts,  117  111.  App.  80;  Gilbert 
v.  McCullough,  146  Iowa,  333;  Toffree 
v.  Saint,  147  Iowa,  361;  Corbel  v. 
Beard,  92  Iowa,  360;  Gouge  v.  Hoyt, 
127  Iowa,  340;  Plant  v.  Thompson,  42 
Kan.  664,  16  Am.  St.  Rep.  512;  Mar- 
latt  v.  Elliott,  69  Kan.  477;  Veazie  v. 
Parker,  72  Me.  443;  Attrell  v.  Patter- 
son, 58  Md.  226;  Whitcomb  v.  Bacon, 
170  Mass.  479,  64  Am.  St.  Rep.  317; 
Cohen  v.  Ames,  205  Mass.  186;  An- 
derson v.  Olson,  109  Minn.  432;  Hub- 
bard  v.  Leiter,  145  Mich.  387;  Wood 
v.  Wells,  103  Mich.  320;  Wood  v. 
Smith,  162  Mich.  334;  Timberman  v. 
Craddock,  70  Mo.  638;  Bell  v.  Kaiser, 


201 1 


§  2435] 


"iO 
THE  LAW  OF  AGENCY 


[BOOK  v 


operations  may  have  been  more  or  less  circuitous,  but  if  the.  purchase 
was  the  natural  and  proximate  result  of  his  endeavors,  it  is  sufficient.60 

260;  Hoadley  v.  Savings  Bank,  71 
Conn.  599,  44  L.  R.  A.  321;  Green  v. 
Bartlett,  14  C.  B.  (N.  S.)  681;  Shep- 
herd v.  Hedden,  29  N.  J.  L.  334;  Pope 
v.  Beals,  108  Mass.  561;  Gleason  v. 
Nelson,  162  Mass.  245;  Burke  v.  Cogs- 
well, 39  Minn.  344;  St.  Felix  v.  Green, 


50  Mo.  150;  Tyler  v.  Parr,  52  Mo. 
249;  McCormack  v.  Henderson,  100 
Mo.  App.  647;  Gerhart,  etc.,  Co.  v. 
Marjorie,  etc.,  Co.,  144  Mo.  App.  620; 
Lipscomb  v.  Mastin,  142  Mo.  App. 
228;  Crowley  Co.  v.  Myers,  69  N.  J. 
L.  245;  Somers  v.  Wescoat,  66  N.  J.  L. 
551;  Sussdorf  v.  Schmidt,  55  N.  Y. 
320;  Wyckoff  v.  Bliss,  12  Daly  (N. 
Y.),  324;  Royster  v.  Mageveny,  9  Lea 
(Tenn.),  148;  Bowser  v.  Field  (Tex.), 
17  S.  W.  45;  Bowe  v.  Gage,  127  Wis. 
245;  Stratton  v.  Vachon,  44  Can.  Sup. 
Ct.  395. 

In  Burchell  v.  Gowrie,  [1910]  App. 
Cas.  614  in  the  Privy  Council,  it  was 
said  by  Lord  Atkinson:  "If  an  agent 
such  as  Burchell  was  [an  agent  en- 
deavoring to  find  a  purchaser  for  a 
mine  which  the  owner  was  anxious  to 
sell  and  was  urging  the  agent  to  re- 
newed activity  to  find  a  purchaser 
for],  brings  a  person  into  relation 
with  his  principal  as  an  intending 
purchaser,  the  agent  has  done  the 
most  effective,  and,  possibly,  the 
most  laborious  and  expensive,  part  of 
his  work,  and  if  the  principal  takes 
advantage  of  that  work,  and  behind 
the  back  of  the  agent  and  unknown 
to  him,  sells  to  the  purchaser  thus 
brought  into  touch  with  him  on 
terms  which  the  agent  theretofore 
advised  the  principal  not  to  accept, 
the  agent's  act  may  still  well  be  the 
effective  cause  of  the  sale."  Followed 
in  Stratton  v.  Vachon,  44  Can.  Sup. 
395. 

In  the  Scotch  case,  Walker  v. 
Fraser,  [1910]  Scotch  Sess.  Cas.  222, 
it  is  said:  "Actual  introduction  of  the 
purchaser  to  the  seller  is  not  a  neces- 
sary element  in  a  case  of  this  sort; 
it  is  enough  if  the  agents  introduce 
the  purchaser  to  the  estate,  and  by 
their  efforts  contribute  in  a  substan- 
tial degree  to  the  sale." 

»o  Lincoln  v.  McClatchie,  36  Conn. 
136;  Schlegal  v.  Allerton,  65  Conn. 


34  Neb.  800;    Mattes  v.  Engel,  15  S. 
Dak.  330. 

In  Hoadley  v.  Savings  Bank,  supra, 
it  is  said:  "If  any  act  of  the  broker 
in  pursuance  of  his  authority  to  find 
a  purchaser  is  the  initiatory  step  that 
leads  to  the  sale  consummated,  the 
owner  must  pay  the  commission." 

In  Roberts  v.  Markham,  26  Okla. 
387,  the  court  quotes  with  approval 
this  statement  from  Tyler  v.  Parr,  52 
Mo.  249:  "If,  after  the  property  is 
placed  in  the  agent's  hands,  the  sale 
is  brought  about  or  procured  by  his 
advertisements  and  exertions,  he  will 
be  entitled  to  his  commissions;  or  if 
the  agent  introduces  the  purchaser, 
or  discloses  his  name,  to  the  seller, 
and  through  such  introduction  or  dis- 
closure negotiations  are  begun,  and 
the  sale  of  the  property  is  effected, 
the  agent  is  entitled  to  his  commis- 
sions, though  the  sale  may  be  made 
by  the  owner."  Same  effect:  Stinde 
v.  Blesch,  42  Mo.  App.  578;  Bass  v. 
Jacobs,  63  Mo.  App.  393;  Timberman 
v.  Craddock,  70  Mo.  638;  Gelatt  v. 
Ridge,  117  Mo.  553,  38  Am.  St.  Rep. 
683. 

Some  illustrations  of  what  has 
been  deemed  sufficient  in  such  cases 
may  be  of  use.  Thus  in  Lincoln  v. 
McClatchie,  36  Conn.  136,  the  defend- 
ant had  put  into  the  hands  of  the 
plaintiff,  a  real  estate  broker,  a  house 
on  a  certain  street  to  sell  for  $6,500, 
instructing  him  not  to  advertise  it, 
but  to  sell  by  private  sale.  After- 
wards the  plaintiff  advertised  in  gen- 
eral terms  that  he  had  houses  on  that 
street  to  sell.  One  G,  who  lived  on  the 
street,  who  had  been  looking  for  a 


2OI2 


• 

CHAP.    IIlJ  OF   BROKERS  [§    2435 

I 

The  law  prescribes  no  particular  method  of  procedure,  nor  has  it  any 
other  standard  by  which  to  measure  exertion,  in  such  a  case,  than  the 

natural  and  proximate  result  attained. 
^ 


house  on  the  same  street  for  his 
friend  B,  saw  the  advertisement  and 
went  to  plaintiff's  office,  where  he 
learned  that  defendant's  house  was 
for  sale.  Plaintiff,  by  mistake,  had 
entered  the  price  on  his  books  at 
$6,000  and  so  informed  G.  G  informed 
B  that  the  house  was  for  sale  at 
$6,000  and  advised  him  to  buy  it.  B 
then  examined  the  house  and  entered 
into  negotiations  with  defendant, 
which  resulted  in  B's  purchase  of  the 
house,  with  less  than  a  hundred  dol- 
lars' worth  of  personal  property  in- 
cluded, at  $6,500.  B  never  saw  plaint- 
iff in  the  transaction  and  was  never 
in  his  office,  and  G's  action  was 
purely  voluntary.  It  was  held,  how- 
ever, that  the  plaintiff's  efforts  were 
the  procuring  cause  and  that  he  was 
entitled  to  his  commission. 

The  same  result  was  reached  in  a. 
very  similar-  case  in  Nebraska.  A 
employed  broker  B  to  sell  his  farm. 
B  advertised  the  property  in  a  news- 
' paper.  Farmer  C  saw  the  advertise- 
ment and  told  his  neighbor  D  that  A's 
farm  was  for  sale.  D  went  to  A  and 
bought  the  farm.  Held,  that  B  was 
entitled  to  his  commissions.  Ander- 
son v.  Cox,  16  Neb.  10. 

So  in  Green  v.  Bartlett,  14  C.  B. 
(N.  S.)  681,  an  auctioneer  and  broker 
had  been  employed  to  sell  an  estate. 
Having  advertised  it  and  made  an 
unsuccessful  effort  to  sell  it  by  auc- 
tion, he  was  asked  by  a  person  who 
had  attended  the  sale  who  the  owner 
was,  and  he  directed  him  to  the  prin- 
cipal. Ultimately  this  person  pur- 
chased the  estate  of  the  principal, 
without  any  further  intervention  of 
the  broker,  but  the  court  held  that  he 
was  the  procuring  cause  of  the  sale 
and  entitled  to  his  commission. 

In  Ratts  v.  Shepherd,  37  Kan.  20, 
the  broker  advertised  the  property 
(a  farm)  in  a  newspaper,  called  it  to 


the  attention  of  the  purchaser,  offered 
to  take  him  to  see  it,  gave  him  a  copy 
of  the  paper  containing  the  advertise- 
ment, and  directed  him  to  the  house 
of  the  owner.  The  purchaser  bought 
of  the  owner  for  less  than  the  sum 
named  by  the  broker,  but  it  was  held 
that  the  broker  had  produced  the  pur- 
chaser. 

In  Carter  v.  Webster,  79  111.  435,  the 
plaintiff  broker,  being  employed  to 
find  a  purchaser  and  acting  in  pursu- 
ance of  a  local  custom  among  brokers, 
applied  to  another  broker,  and  the 
latter  to  a  third,  who  sent  a  buyer 
to  the  owner.  Held,  that  plaintiff 
had  earned  his  commission. 

So  in  Mansell  v.  Clements,  L.  R.  9 
C.  P.  139,  defendant  had  placed  a 
house  in  plaintiffs'  hands  to  sell.  A 
was  looking  for  a  house  in  that 
neighborhood,  and  seeing  a  notice 
(not  posted  by  nor  referring  to  the 
plaintiffs)  that  this  house  was  for 
sale,  made  some  inquiries  about  it, 
but  concluded  that  the  house  was  too 
large.  He  afterwards  called  upon 
plaintiffs  to  see  what  houses  they 
had,  and  received  from  them  cards  of 
admission  and  terms  for  several 
houses,  among  which  was  the  one  in 
question.  He  examined  the  house 
and  finally  purchased  it  through  an- 
other agent  of  the  defendant  for  a 
less  sum  than  that  named,  the  plaint- 
iffs having  nothing  to  do  with  the 
whole  transaction  other  than  giving 
A  the  card  and  terms.  A  stated  upon 
the  trial  that  he  thought  he  should 
not  have  purchased  the  house  if  he 
had  not  received  from  plaintiffs  the 
card  and  terms.  Held,  that  there  was 
evidence  from  which  the  jury  might 
find  that  plaintiffs  brought  about  the 
sale. 

In  Stratton  v.  Vachon,  44  Can.  Sup. 
395,  a  broker  employed  to  find  a  pur- 
chaser for  lands  negotiated  with  one 


2013 


§    2435]  THE  LAW  OF  AGENCY  [BOOK    V 

rfguoffcr-  rioaafciftof  ^BM>— »BWBO  ^ciurcoiq.  sd  Jeuitt  TO/fertH  .gE^s  § 
Whether  the  broker  was  the  procuring  cause  of  the  sale  is,  of  course, 


M  as  a  purchaser,  and  M  assured  the 
Iroker  that  he  would  either  take  the 
land  or  find  someoiie  who  would.  M 
formed  a  syndicate  to  buy  the  land 
and  they  conferred  directly  with  the, 
owner.  M  dropped  out  of  the  syndi- 
cate but  the  remaining  members 
bought  the  land,  on  somewhat  altered 
terms,  directly  of  the  owner.  Held, 
reversing  3  Sask.  L.  R.  286,  that 
these  facts  were  sufficient  to  uphold 
a  finding  that  the  broker  was  the 
causa  causans  of  the  sale  within 
Burchell  v.  Gowrie,  [1910]  App.  Cas. 
614,  cited  in  the  preceding  note. 

In  Benedict  v.  Dakin,  243  111.  384, 
where  the  property  to  be  sold  was 
owned  by  a  corporation,  it  was  held 
that  finding  a  purchaser  who  would 
buy  all  the  stock  of  the  corporation 
was  a  sufficient  compliance. 

In  Willard  v.  Wright,  203  Mass. 
406,  the  plaintiff  had  been  employed 
to  sell  defendant's  business,  a  com- 
bined trucking  and  ice  business. 
Plaintiff  heard  from  C,  who  was  do- 
ing other  business  with  plaintiff,  that 
C  knew  two  men  who  might  buy  this 
kind  of  business,  and  C,  at  plaintiff's 
request,  promised  to  speak  to  them. 
C,  at  a  second  request,  actually  did 
speak  to  the  wife  of  one  of  them;  she 
spoke  to  her  husband,  and  her  hus- 
band looked  into  the  matter.  He  ob- 
tained another  man  who  had  first 
been  interested  in  defendant's  busi- 
ness through  a  broker,  not  the  plain- 
tiff, but  had  abandoned  all  negotia- 
tions and  given  up  being  able  to  buy. 
The  husband  started  for  defendant's 
office;  on  the  way  he  was  met  by 
plaintiff  and  by  plaintiff  he  was  ac- 
tually introduced  to  defendant.  As 
a  result  of  negotiations  with  the  de- 
fendant directly  the  two  men  bought 
out  the  business,  and  the  plaintiff  in 
this  suit  for  commission  was  held 
the  procuring  cause  of  the  sale. 
Compare  Johnson  v.  Seidell,  150  Pa. 
396,  where  the  plaintiff  broker  work- 
ed upon  one  P  and  secured  him  to 
look  at  the  property.  P  finally  de- 


cided not  to  buy  himself,  but  upon 
P's  advice  P's  brother  J  bought  di- 
rectly of  the  owner.  The  plaintiff 
was  held  not  the  procuring  cause  of 
the  sale  to  J  and  the  court  was  up- 
held in  directing  a  verdict  for  the  de- 
fendant. 

But  the  law  regards  only  proxi- 
mate, and  not  remote,  causes;  hence, 
if,  after  the  broker's  services  have 
failed  to  accomplish  a  sale,  and  af- 
ter the  proposed  purchaser  has  de- 
cided not  to  buy,  other  persons  in- 
duce him  to  do  so,  the  broker  is  not 
entitled  to  commissions.  Earp  v.  Cum- 
mins, 54  Pa.  St.  394,  93  Am.  Dec.  718. 

In  Gleason  v.  Nelson,  162  Mass. 
245,  it  was  said:  "The  general  rule  of 
law  applicable  to  a  oase  like  this  is, 
that,  where  there  has  been  no  direct 
communication  between  the  broker 
and  the  purchaser,  It.  mn»t  be  shown 
affirmatively  that  the  latter  was  in- 
duced to  enter  into  the  negotiations 
which,  resulted  in  the  purchase 
through  the  means  employed  by  the 
broker  for  that  purpose.  If  the 
broker  employed  other  persons  to  aid 
him,  whether  under  pay  or  not,  or  if 
he  put  up  maps,  signs,  notices,  or 
otherwise  advertised  the  property,  by 
means  of  which  a  person  was  induced 
to  open  negotiations  with  the  owner 
which  resulted  in  his  buying  the 
property,  the  sale  may  be  said  to 
have  been  effected  through  the 
broker's  instrumentality.  But  it 
must  be  made  to  appear  that  what 
the  broker  did  was  the  immediate 
and  efficient  cause  of  such  negotia- 
tions. If  the  broker  merely  talked 
about  the  property  with  different, 
persons,  and  one  of  them,  of  his  own 
accord,  and  not  acting  in  behalf  of 
the  broker,  mentioned  to  another 
that  the  property  was  for  sale,  and: 
such  last  mentioned  person  thereup- 
on looked  into  the  matter  and  finally 
became  the  purchaser,  the  agency  of 
the  broker  in  inducing  the  sale  was 
not  sufficiently  direct  to  entitle  him 
to  a  commission." 


2014 


•CHAP.    Ill]  OF   BROKERS  [§    2435 

- 

ordinarily  a  question  of  fact  to  be  decided  in  view  of  all  of  the  facts 


In  Witherbee  v.  Walker,  42  Colo.  1, 
it  was  pointed  out  that  where  the 
buyer  refused  to  deal  with  a  broker, 
that  broker  cannot  be  said  to  be  a 
procuring  cause. 

In  Hollyday  v.  Southern  Agency, 
100  Md.  294,  a  broker  had  attempted 
to  sell  certain  land  to  H,  but  failed 
to  induce  him  to  pay  the  price.  Sev- 
eral months  later  A  bought  the  land 
and  immediately  resold  most  of  it  to 
H.  A  testified  that  when  he  bought 
he  had  no  arrangement  with  H  that 
the  latter  should  buy  it.  Held,  that 
the  broker  was  not  entitled  to  a  com- 
mission as  for  a  sale  to  A  or  H. 

In  Waters  v.  Rafalsky,  134  N.  Y. 
App.  Div.  870,  a  broker  had  called  the 
attention  of  T  to  the  property,  had 
given  him  the  price  and  terms  of  sale 
and  told  him  what  rent  the  property 
yielded.  He  did  nothing  more  than 
this,  but  T  went  to  the  owner  and  ne- 
gotiated a  sale  of  property  with  the 
owner,  who  had  employed  the  broker 
to  sell  the  property,  but  did  not  know 
that  there  had  been  any  relation  be- 
tween the  broker  and  T  until  after 
the  contract  was  complete.  The 
court  held  that  there  was  not  evi- 
dence to  go  to  a  jury  from  which  it 
could  find  that  plaintiff  broker  was 
the  procuring  cause  of  the  sale. 

In  Meyer  v.  Improved  Property 
Holding  Co.,  137  N.  Y.  App.  Div.  691, 
the  plaintiff  broker  had  been  given, 
at  his  request,  information  concern- 
ing rentals  of  stores  in  defendant's 
building,  that  he  might  perhaps  inter- 
est one  Seleznick  in  leasing  one  of 
them.  He  secured  an  offer  "from  Se- 
leznick which  defendant  would  not 
accept.  Later  £»3leznick  of  himself 
made  another  offer  to  defendant 
directly.  That  offer  was  not  accepted 
but  as  a  result  of  the  negotiations  Se- 
leznick formed  a  syndicate  and  was 
active  in  securing  leases  to  syndicate 
of  all  of  stores  in  building,  and  then 
he  himself  took  one  of  them  under 
syndicate  upon  terms  practically 
those  of  his  last  offer.  The  upper 


court  reversed  a  judgment  for  the 
plaintiff  broker  because  the  lower 
court  had  refused  to  instruct  the 
jury:  "If  plaintiff  introduced  Mr. 
Seleznick  to  defendant  as  a  prospec- 
tive tenant  for  one  store,  and  Mr.  Se- 
leznick afterwards  applied  to  defend- 
ant, either  on  his  own  behalf  or  for 
himself  and  others,  for  a  lease  for  a 
number  of  stores,  this  would  not  give 
the  plaintiff  any  claim  for  commis- 
sion," and  because  this  subsequent 
lease  was  not  in  accordance  with 
Seleznick's  "original  intention,  or  of 
the  same  nature,  or  in  consummation 
of  the  original  negotiations." 

In  Stone  v.  Ferry,  144  111.  App.  191, 
two  brokers  had  been  employed  by 
the  owner  of  land  to  effect  an  ex- 
change. The  salesman  of  the  plain- 
tiff real  estate  firm  had  dealt  with 
one  of  three  joint  owners  of  other 
land  to  be  exchanged,  had  interested 
him  in  the  property  of  the  defendant, 
taken  him  to  it  and  given  him  infor- 
mation and  facts  about  it,  that  he 
might  communicate  with  his  two  co- 
owners.  The  other  real  estate  firm 
in  the  meanwhile  went  to  work  upon 
the  same  man,  but  it  got  another  one 
of  the  joint  owners,  and  took  the  two 
men  to  see  defendant's  land,  and 
gave  them  information  and  sent  data 
to  the  third  joint  owner.  Then  the 
contract  of  exchange  was  made  ap- 
parently directly  between  the  two 
sets  of  owners.  The  Appellate  Court 
reversed  a  judgment  allowing  the 
plaintiff  a  commission,  and  said  that 
there  was  nothing  in  the  evidence  to 
show  that  plaintiff  was  the  cause  of 
the  interest  of  more  than  one  of  the 
joint  owners  with  whom  trade  was 
made;  to  cause  the  trade  it  was  nec- 
essary to  get  all  of  these  joint  own- 
ers. 

In  Goff  v.  Hurst,  135  Ky.  276,  122 
S.  W.  148,  a  real  estate  broker  author- 
ized to  sell  defendant's  land  ap- 
proached a  man  who  had  already  had 
negotiations  with  the  defendant, 
spoke  to  him  of  the  land,  told  him  of 


2015 


§  2435J 


THE  LAW  OF  AGENCY 


[BOOK  v 

and  circumstances  which  surround  the  case.    Like  other  questions  of 

the  agency,  and  of  the  terms  and 
price  demanded  for  sale,  and  asked 
him  to  take  the  matter  up  with  the 
owner.  This  man  did  go  on  with  the 
owner  and  made  the  deal  with  the 
owner.  The  court  reversed  a  judg- 
ment allowing  the  broker  a  commis- 
sion, and  said  that  the  lower  court 
should  have  charged  peremptorily  for 
defendant,  that  plaintiff  had  given 
the  purchaser  no  information  which 
he  did  not  already  possess  except  the 
fact  of  the  existence  of  the  agency, 
and  had  done  nothing  to  secure  the 
purchaser. 

/In  Auerbach  v.  Internationale 
Wolfram  Lampen  Aktien  Gesell- 
schaft,  177  Fed.  458,  an  agent  had 
been  employed  to  sell  foreign  inter- 
ests belonging  to  defendant  and  its 
grantors  in  American  -patents.  This 
agent,  the  plaintiff  in  this  case,  had 
suggested  a  purchaser  in  America 
had  conducted  considerable  negotia- 
tion, and  had  induced  the  American 
company  to  send  abroad  two  repre- 
sentatives to  confer  with  the  people 
in  Europe.  These  negotiations,  how- 
ever, failed,  and  then  plaintiff  sug- 
gested a  scheme  of  consolidation  of 
defendant's  interests  with  other  in- 
terests, such  that  they  might  force  the 
American  company  to  terms.  While 
plaintiff  was  so  working  upon  pro- 
posed consolidation  the  defendants 
themselves,  and  directly  with  the 
American  company,  opened  and  soon 
completed  fresh  negotiations.  The 
contract  with  plaintiff  had  provided 
that  he  should  have  his  commission 
"if  they  utilized  his  services  or  as- 
sistance at  the  sale  or  in  the  proceed- 
ing leading  up  to  the  sale."  But  the 
court  held  for  the  defendant  upon 
the  ground  that  although  the  pur- 
chaser may  have  been  first  interested 
by  the  plaintiff's  efforts,  and  although 
probably  the  final  sale  would  never 
have  occurred  but  for  plaintiff's 
efforts  in  the  first  negotiations,  still, 
when  the  final  sale  did  occur,  it  was 


the  result  of  independent  negotiation 
in  which  the  plaintiff  had  no  share 
and  was  of  no  assistance.  /' 

In  Karr  v.  Brooks  (Tex.  Civ.  App  ), 
129  S.  W.  160,  a  broker  authorized  to 
sell  defendant's  land  had  interested 
one  S  in  buying  it.  S  in  casual  con- 
versation told  his  neighbor  N  of  the 
land  that  he  was  considering,  and  the 
result  of  the  conversation  between  S 
and  N  was  that  N  was  to  look  at  de- 
fendant's land  and  if  he  liked  it  and 
could  get  It  he  would,  and  S  would 
buy  N's  place.  N  looked  at  the  land, 
liked  it,  and  got  defendant's  agree- 
ment to  sell  it  to  him  if  S  did  not 
take  it.  N  refused  to  deal  with  plain- 
tiff and  said  that  he  would  deal  di- 
rectly with  owner  if  at  all.  He  did 
do  so,  although  up  to  the  time  the 
sale  was  closed  the  owner  supposed 
that  N  was  sent  by  plaintiff.  When 
defendant  learned  that  N  and  the 
plaintiff  had  not  dealt  with  each 
other  he  refused  to  pay  any  commis- 
sion. The  upper  court  reversed  a 
judgment  for  plaintiff  on  the  reason- 
ing that  no  exertion  of  plaintiff's 
caused  N  to  buy,  that  it  was  his  own 
volition  which  made  N  wish  to  buy 
as  soon  as  he  heard  by  chance  and 
not  through  plaintiff's  efforts  that 
the  land  was  for  sale. 

In  Bidwell  v.  Haas,  121  N.  Y.  Suppl. 
211,  the  Supreme  Court,  Appellate 
Term,  reversed  a  judgment  of  a  mu- 
nicipal court  which  had  allowed  the 
plaintiff  a  commission.  There  was 
dispute  as  to  plaintiff's  employment, 
but  the  upper  court  assumed  that  the 
plaintiff  had  been  employed,  but 
thought  that  there  was  no  showing 
that  he  was  the  procuring  cause, 
when  the  evidence  showed  that  he 
had  suggested  to  defendant  owner 
that  one  Newberger  would  be  likely 
to  buy,  and  that  defendant  should  see 
him,  and  had  then  called  upon  New- 
berger and  told  him  that  defendant 
was  owner,  to  which  Newberger  said 
that  he  would  talk  with  the  owner, 


2Oi6 


CHAP.    Ill] 


OF   BROKERS 


[§    2435 


fact,  it  must,  where  the  facts  are  in  dispute,  or  where  more  than  one  in- 


and  as  result  of  the  meeting  of  New- 
berger  and  the  defendant  a  sale  to 
Newberger  was  made.  It  was 
thought  that  plaintiff  had  not  secured 
a  purchaser,  but  had  merely  advised 
defendant  where  he  might  find  one. 

In  Winthrop  Land  Co.  v.  Utley,  146 
Iowa,  310,  the  defendant  had  had 
some  talk  with  Blanchard,  who  fin- 
ally bought  the  land  before  he  em- 
ployed plaintiff  to  sell.  The  evidence 
showed  that  when  plaintiff  was  talk- 
ing to  Blanchard  about  another  farm 
he  spoke  to  Blanchard  of  defendant's 
place  and  urged  him  to  buy  it,  but 
Blanchard  said  that  he  had  already 
known  all  about  that  place  and  re- 
fused to  look  at  it.  The  plaintff  was 
not  allowed  to  put  in  evidence  that 
he  had  advertised  the  land,  because 
there  was  no  further  evidence  offered 
to  show  that  Blanchard  had  seen  or 
knew  anything  of  the  advertisement. 
The  lower  court  left  it  to  the  jury  to 
determine  whether  the  plaintiff  had 
placed  defendant  and  Blanchard  in 
communication  with  reference  to  sale 
of  defendant's  farm  and  the  upper 
court  affirmed  the  judgment  based  up- 
on verdict  for  the  defendant. 

In  Moore  v.  Brenninger,  134  App. 
D.  C.  86,  the  defendant  had  employed 
plaintiff  to  sell  his  house  and  plain- 
tiff approached  one  Sheppard.  A 
neighbor  had  already  called  Shep- 
pard's  attention  to  house  and  defend 
ant's  attention  to  Sheppard,  and  the 
neighbor  had  been  asked  by  defend- 
ant to  urge  Sheppard  to  buy.  When 
plaintiff  approached  Sheppard,  Shep- 
pard talked  trading  and  plaintiff 
thereupon  undertook  to  get  defend- 
ant's acquiescence  in  a  trade.  This 
he  failed  to  do,  and  returned  to  Shep- 
pard a  deposit  which  Sheppard  had 
made,  and  there  is  no  evidence  to 
show  any  further  activity  by  plaintiff 
toward  getting  Sheppard.  Sheppard, 
however,  did  finally  buy  for  cash  of 
defendant  who  did  not  know  who  was 
the  man  who  had  proposed  trade. 


The  upper  court,  in  affirming  the 
judgment  of  the  trial  court,  held,  that 
the  evidence  was  such  as  to  justify 
jury  in  finding  that  plaintiff  had  not 
been  the  procuring  cause  of  the  sale, 
and  therefore,  for  the  defendant. 

In  Chaffee  v.  Widman,  48  Colo.  34, 
39  Am.  St.  R.  220,  the  defendants  had 
made  a  contract  whereby  they  were 
to  pay  plaintiffs  a  commission  "if 
the  parties  of  the  second  part  (the 
plaintiffs)  procure  a  purchaser  for 
the  ranch  who  shall  on  or  before 
March  1,  1904,  pay  or  secure  to 
parties  of  the  first  part  (defendants) 
the  sum  of  $16,000."  On  the  same  day 
defendants  made  a  contract  of  sale 
with  a  purchaser  procured  by  plaint- 
iffs, under  which  the  final  security  for 
purchase  price  of  $16,000  was  to  be 
given  to  defendants  on  March  1, 
1904.  This  contract  was  never  com- 
pleted and  the  security  was  never 
given,  but  in  the  meanwhile  another 
agent  had  interested  another  man. 
This  man  carried  back  a  new  and  bet- 
ter offer  from  defendants  and  urged 
it  upon  the  man  who  had  failed  as 
first  purchaser.  As  a  result  of  the 
second  offer,  still  another  man  was 
interested,  and  he  joined  with  the 
purchaser  who  had  failed  under  first 
contract  and  they  bought  the  land  on 
March  18  from  the  defendants.  These 
last  negotiations  were  without  par- 
ticipation by  the  plaintiffs.  The  plain- 
tiffs declared  upon  this  contract  and 
the  upper  court  affirmed  a  judgment 
for  defendant  upon  the  double  ground 
that  they  had  failed  to  show  that  they 
had  procured  the  purchaser  to  give 
security  by  March  1  and  that  they  had 
failed  to  show  that  they  had  procured 
the  contract  which  was  really  worked 
upon  and  carried  through. 

In  Root  v.  Barbour,  51  Colo.  399, 
plaintiff,  a  broker,  was  taking  certain 
prospective  buyers  to  see  a  piece  of 
land  which  he  had  for  sale;  on  the 
way  they  fell  in  with  another  person 
who  referred  to  defendant's  land  and 


127 


2017 


§    2436]  THE  LAW  OF  AGENCY  [BOOK  V 

ference  may  reasonably  be  drawn,  be  a  question  for  the  jury  to  deter- 
mine.61 

§  2436.  It  must  be  conceded,  nevertheless,  that  this  rule 

which  permits  the  broker  to  recover  commissions  for  "finding"  a  pur- 
chaser whom  he  has  neither  actually  brought  forward,  identified,  nor 
claimed  as  his  own  until  after  the  sale  was  completed,  is  one  prolific 
of  litigation  and  trouble.  It  encourages  claims  difficult  to  meet.  It 
often  seems  to  lay  a  trap  for  a  perfectly  conscientious  principal  who 
has  dealt,  on  terms  or  conditions  which  he  would  not  have  been  willing 
to  make  if  he  had  known  that  he  must  pay  a  commission,  with  a  buyer 
whom  he  supposed,  in  good  faith,  he  had  found  by  his  own  efforts,  or 
who,  at  least,  was  not  one  whom  the  broker  had  found  or  induced  to 
purchase.62 

The  Iowa  court  makes  a  distinction  here  between  the  case  of  the 
broker  who  was  employed  to  find  a  purchaser  on  certain  prescribed 
terms,  and  the  broker  employed  to  find  a  purchaser  upon  terms  which 
might  prove  satisfactory  to  the  principal.  In  the  former  case,  it  is  said 
to  be  no  hardship  to  the  principal  if  he  be  compelled  to  pay  the  commis- 
sion for  a  purchaser  upon  the  terms  prescribed,  although  he  did  not 
know  that  the  purchaser  was  one  produced  by  the  broker's  efforts, 
since,  by  the  hypothesis,  he  has  obtained  the  very  price  and  terms  for 
which  he  had  agreed  to  pay  the  commission.  But  in  the  second  case  it 
may  be  a  hardship  to  compel  the  payment  of  the  commission,  where 
the  principal,  in  good  faith  and  with  nothing  to  indicate  that  he  was 
dealing  with  the  broker's  party,  has  presumptively  assented  to  the  price 
or  terms  realized  upon  the  basis  that  no  commission  was  demandable. 
In  such  a  case  the  broker  may  not  recover,  in  any  event,  where  he  has 
omitted  seasonably  to  notify  the  principal  that  he  was  negotiating  with 
the  buyer  in  question.68 

the  buyers  expressed  a  desire  to  see  toba,  659.  There  a  person,  who  had 

it.  Plaintiff  went  with  them  and  in-  in  fact  been  spoken  to  about  the 

troduced  them  to  defendant,  and  property  by  the  broker,  came  directly 

they  ultimately  bought  his  land  to  the  owner  and  not  only  did  not 

rather  than  that  which  plaintiff  was  disclose  that  he  had  been  approached 

seeking  to  sell  to  them.  Held,  that  by  the  broker  but  urged  as  a  reason 

plaintiff  could  not  be  regarded  as  the  for  getting  a  reduction  in  price  that 

procuring  cause  of  this  sale.  the  principal  could  safely  sell  to  him 

«i  Hoadley  v.  Danbury  Savings  at  that  price  because  a  sale  to  him 

Bank,  71  Conn.  599,  44  L.  R.  A.  321;  would  not  involve  the  payment  of  a 

Hanna  v.  Collins,  69  Iowa,  51;  Fenton  commission.  The  broker  was  held 

v.  Miller,  153  Iowa,  747;  Woods  v.  not  entitled  to  a  commission;  but  see 

Lowe,  207  Mass.  1;  Shea  Realty  Co.  Stratton  v.  Vachon,  44  Can.  Sup.  395. 

v.  Page,  111  Va.  490.  63  In  Seevers  v.  Cleveland  Coal  Co., 

«2  This  was  precisely  what  hap-  —  Iowa,  — ,  138  N.  W.  793,  where 

pened  in  Locators  v.  Clough,  17  Mani-  Seevers  was  seeking  to  recover  a  com- 

2018 


CHAP.    Ill] 


OF   BROKERS 


[§    2436 


The  court  in  Manitoba  has  distinguished  between  the  case  wherein 
the  principal  had  reasonable  ground  to  believe  that  he  was  dealing  with 


mission  for  selling  defendant's  land 
to  certain  Rock  Island  parties,  the 
trial  court  had  said  to  the  jury: 

"The  fact,  if  it  be  a  fact,  that  the 
defendant  or  its  president,  Traer,  did 
not  know  that  Scholz  and  the  Rock 
Island  people  had  been  corresponding 
with  Seevera  about  the  sale  of  the 
lands  is  not  controlling.  It  was  no 
part  of  the  contract.  All  he  would  be 
required  to  do,  if  you  find  that  he 
was  employed  to  find  a  purchaser  for 
the  lands,  was  to  find  some  one  who 
desired  to  purchase  it,  and  who  was 
ready,  able,  and  willing  to  buy,  or 
would  in  fact  buy,  and,  if  he  did,  the 
contract  was  fulfilled,  regardless  of 
defendant's  information  of  what  he 
had  done." 

As  to  this  the  supreme  court  said: 
"Under  the  acts  disclosed  and  prac- 
tically conceded  that  the  price  for  the 
land  was  not  fixed  and  that  plaintiff 
did  not  have  the  exclusive  right  of 
sale,  this  instruction  was  clearly  er- 
roneous. 

'"The  law  on  this  subject  is  an- 
nounced in  the  recent  case  of  Gilbert 
v.  McCullough,  146  Iowa,  333,  and  is 
as  follows:  'The  question  presented 
is  whether,  conceding  the  facts  to  be 
as  recited,  the  plaintiff  found  a  pur- 
chaser within  the  terms  of  his  em- 
ployment. In  Rounds  v.  Alee,  116 
Iowa,  345,  an  agent,  having  been  em- 
ployed to  find  a  purchaser  for  land  at 
a  specified  price,  was  held  to  be  en- 
titled to  his  commission  if  the  effi- 
cient cause  in  procuring  a  purchaser, 
at  the  price  named,  to  whom  the  prin- 
cipal sold,  even  though  the  principal 
knew  nothing  of  what  had  been  done; 
the  agent  not  having  had  an  opportu- 
nity of  informing  him.  And  this  rul- 
ing is  amply  sustained  by  authority. 
Lloyd  v.  Matthews,  51  N.  Y.  124; 
Craig  v.  Wead,  58  Neb.  782;  Hovey  v. 
Aaron,  133  Mo.  App.  573;  Graves  v. 
Bains,  78  Tex.  92;  19  Cyc.  264.  This 
case  is  to  be  distinguished  from 
Rounds  v.  Alee,  in  that  the  sale  was 


for  a  price  less  than  that  named  to 
the  agent,  and,  though  the  latter  had 
submitted  an  offer  equal  to  that  re- 
ceived by  the  owner,  he  had  withheld 
the  name  of  the  proposed  purchaser. 
Had  he  submitted  such  name,  there 
might  be  some  question  as  to  defend- 
ant's liability  for  the  agent's  commis- 
sion, for  the  circumstance  might  be 
such  that  the  owner  might  not  avoid 
such  liability  by  reducing  the  price 
to  the  customer  furnished.  Stewart 
v.  Mather,  32  Wis.  344.  By  withhold- 
ing the  name  of  the  purchaser  pro- 
posed the  agent  voluntarily  kept  from 
his  principal  the  knowledge  which 
would  have  enabled  the  latter  to  pro- 
tect himself  as  well  as  the  agent,  and 
therefore  the  latter,  rather  than  the 
principal,  was  at  fault.  Even  though 
the  defendant  may  have  agreed  to 
employ  no  other  agent,  he  retained 
the  right  himself  to  dispose  of  the 
property.  Ingold  v.  Symonds,  125 
Iowa,  82.  This  right  was  not  obvi- 
ated by  the  circumstance  that  an- 
other may  have  assisted  him  in  effect- 
ing the  sale,  providing  it  was  con- 
summated before  the  plaintiff  found  a 
purchaser,  for  the  agency  of  the 
plaintiff  was  thereby  revoked.  White 
v.  Benton,  121  Iowa,  354.  Possibly 
the  party  having  the  exclusive  agency 
might  have  a  cause  of  action  for  dam- 
ages flowing  from  the  breach  of  con- 
tract in  employing  another  agent,  but 
no  claim  of  that  kind  is  made.  The 
action  is  for  commission  earned,  and 
not  for  damages,  because  of  the  own- 
er's lapse  from  his  agreement  in 
other  respects.  The  sale  was  con- 
summated by  defendant  prior  to  as- 
certaining that  the  purchaser  was  the 
same  person  as  the  one  for  whom  the 
offer  had  been  submitted.  As  that 
offer  was  $75  less  than  the  price  at 
which  he  was  to  procure  a  purchaser, 
he  did  not  thereby  so  perform  as  to 
entitle  him  to  a  commission.  Ryan 
v.  Page,  134  Iowa,  60.  And  as  the 
sale  was  at  a  less  price  or  one  not 


2019 


§  2437]  THE  LAW  OF  AGENCY  [BOOK  v 

a  person  sent  by  the  broker,  and  the  case  wherein  he  had  no  such 
grounds.6*  In  the  latter  case,  he  would  not  be  liable  to  the  broker. 

On  the  other  hand,  it  is  doubtless  true  not  only  that  the  payment  of 
any  commission  in  many  cases  seems  most  unfair  to  the  principal, 
who  feels  that  the  broker's  services  were  slight  or  wholly  unnecessary, 
but  also  that  the  cases  are  numerous  wherein  a  dishonorable  or  disin- 
genuous principal,  aided  sometimes  by  the  connivance  of  the  buyer,  is 
altogether  too  ready  to  reap  the  fruits  of  the  broker's  efforts  while 
seeking  to  evade  paying  for  his  services. 

The  remedy  could  be  found  either  in  more  explicit  contracts  with 
the  broker,  or  in  a  more  inflexible  rule  that  the  purchaser  is  not  to  be 
deemed  to  be  found  until  the  broker  has,  in  some  unequivocal  way, 
brought  him  to  the  attention  of  the  principal  before  the  negotiations 
are  closed. 

§  2437.  Must  be  on  terms  required — i.  Where  terms  were  pre- 
scribed.— It  is  indispensable  that  the  purchaser  produced  by  the 
broker,  as  one  with  whom  the  principal  should  deal,  should  be  one 
ready,  willing  and  able  to  purchase  upon  the  terms  specified,  if  any 
were  fixed,  for  if  he  be  willing  to  buy  only  on  different  terms  or  at  a 
different  price  or  upon  other  conditions,  the  broker  will  not  be  entitled 

specified  in  the  agency  agreement,  a  sale  by  the  owner  to  a  prospective 
and  without  knowledge  that  the  pur-  purchaser  on  terms  different  from 
chaser  was  the  person  whose  offer  those  specified,  he  must  disclose  such 
had  been  submitted  by  plaintiff,  the  purchaser's  name  in  submitting  hifc 
defendant  did  not  become  liable  to  proposition.  Indeed,  there  is  an  ele- 
the  latter  for  a  commission.  In  Boyd  ment  of  bad  faith  in  withholding  this 
v.  Watson,  101  Iowa,  214,  the  price  of  information  from  the  principal,  with 
the  land  for  the  sale  of  which  the  whom  the  agent  is  required  to  deal 
agency  existed  was  not  specified,  and  with  candor  and  fairness,  and  it  must 
the  court  approved  of  an  instruction  not  be  understood  from  the  discus- 
that  in  these  circumstances  a  sale  to  sion  that  recovery  might  have  been 
a  customer  of  the  agent,  without  had,  had  the  sale  been  at  the  price 
knowledge  of  that  fact,  would  not  specified  in  the  employment  of  plain- 
render  the  principal  liable,  for  the  tiff  as  agent.'  See  also,  to  the  same 
commission  claimed  was  approved.  point,  Boyd  v.  Watson,  101  Iowa,  214: 
The  distinction  between  the  above  Blodgett  v.  Railroad  Co.,  63  Iowa, 
case  and  Rounds  v.  Alee  is  that,  in  606.  Also  the  following  from  Indi- 
the  latter,  the  price  was  named,  and  ana  which  seems  to  be  a  well-reason- 
the  sale  effected  at  such  price,  while  ed  opinion.  Mullen  v.  Bower,  22  Ind. 
in  Boyd  v.  Watson  the  consideration  App.  294." 

was   a   matter    of    negotiation.      See          «*  Compare  Locators  v.  Clough,  17 

also,  Blodgett  v.   Railway,   63   Iowa,  Manitoba,  659  and  Robertson  v.  Cars- 

606.     Power  to  fix  the  price  is  inci-  tens,    18   Manitoba,    227;    Hughes   v. 

dent   to    the    right   retained    by    the  Houghton   &   Co.,   18    Manitoba,    686. 

owner  to  sell,  and  an  agent  necessa-  But  the  rule  in  Stratton  v.  Vachon, 

rily  must  take  this  into  account,  and,  44  Can.  Sup.  395,  of  course,  controls, 
unless  he  cares  to  assume  the  risk  of 

2020 


CHAP.    Ill] 


OF   BROKERS 


[§    2437 


to  his  commission,65  unless  the  variance  be  waived  by  the  principal, 
or  the  contract  as  made  is  ratified  by  him.e6 


65Boysen  v.  Frink,  80  Ark.  254; 
McGavock  v.  Woodlief,  20  How.  (U. 
S.)  221,  15  L.  Ed.  884;  Bradford  v. 
Menard,  35  Minn.  197;  Crowley  Co.  v. 
Myers,  69  N.  J.  L.  245;  Nadler  v. 
Menschel  (N.  Y.  App.  Div.),  110  N.  Y. 
Suppl.  384;  Kurd  v.  Neilson,  100 
Iowa,  555;  Ryan  v.  Page,  134  Iowa, 
60;  Morris  v.  Francis,  75  Kan.  580; 
Gilbert  v.  McCullough,  146  Iowa,  333; 
Jordan  v.  Longhenry,  145  Iowa,  108; 
Payseno  v.  Swenson,  178  Fed.  999; 
Kane  v.  Dawson,  5  Wash.  411;  Childs 
v.  Ptomey,  17  Mont.  502;  Huffman  v. 
Ellis,  64  Neb.  623;  Hand  v.  Conger,  71 
Wis.  292;  Gilmore  v.  Bolio,  165  Mich. 
633,  34  L.  R.  A.  (N.  S.)  1050;  Clark  v. 
Davis,  88  Neb.  67;  Abbott  v.  Lee,  — 
Conn.  — ,  85  Atl.  526;  Ferguson  v. 
Willard,  116  C.  C.  A.  406,  196  Fed. 
370;  Burchell  v.  Gowrie,  [1910]  App. 
Gas.  614;  Bridgman  v.  Hepburn,  13 
Br.  Col.  R.  389,  8  West.  L.  R.  28. 

Where  the  principal  has  not  ac- 
cepted the  buyer  produced,  the  bur- 
den of  proving  that  he  was  such  an 
one  as  the  principal  ought  to  have 
accepted,  i.  e.,  that  he  was  ready, 
willing  and  able  to  buy  on  the  terms 
required,  is  upon  the  broker.  See 
cases,  supra;  Parker  v.  Stubbs,  139 
Ga.  46;  Payne  v.  Ponder,  139  Ga.  283. 

A  broker  does  not  earn  his  com- 
mission by  producing  a  customer 


willing  and  able  to  pay  the  required 
price  in  cash,  where  the  terms  fixed 
by  the  owner  were  part  cash  and  the 
balance  in  instalments  with  interest. 
Jepsen  v.  Marohn,  22  S.  Dak.  593,  21 
L.  R.  A.  (N.  S.)  935;  Taylor  v.  Read, 
51  Tex.  Civ.  App.  600. 

Broker,  authorized  to  sell  for  cer- 
tain sum,  cash,  cannot  recover  on 
finding  buyer  willing  to  pay  that 
sum,  but  on  different  terms.  Morrill 
v.  Davis,  27  Neb.  775. 

In  O'Brien  v.  Gilliland,  4  Tex.  Civ. 
App.  40,  it  was  held  that  a  broker 
employed  to  sell  for  cash  cannot  re- 
cover commissions  by  agreeing  to 
sell  the  property  to  another  broker, 
who  has  already  sold  at  a  slightly 
higher  price  to  third  parties  who 
have  agreed  to  pay  part  cash  and 
give  notes  for  the  balance,  it  being 
the  intention  to  negotiate  the  notes 
and  pay  the  owner  the  price  asked. 

Where  the  terms  are  cash,  a  pur- 
chaser who  will  raise  the  money  in 
thirty  days  is  not  sufficient.  Mullen- 
holff  v.  Gensler,  15  N.  Y.  Suppl.  673. 

Where  the  terms  are  $900  cash  and 
$1,000  payable  in  one  year,  a  pur- 
chaser who  offers  $100  cash,  $800  in 
thirty  days  and  $1,000  payable  in 
one  year  is  not  sufficient.  Harwood 
v.  Triplett,  34  Mo.  App.  273. 

Where  the  terms  were  $500  cash, 


86  See  cases  cited  in  following 
notes.  Variance  may  be  waived  by 
putting  objections  on  other  grounds. 
Donley  v.  Porter,  L19  Iowa,  542,  93  N. 
W.  574;  Smith  v.  Keeler,  151  111.  518; 
Duclos  v.  Cunningham,  102  N.  Y.  678; 
Fenn  v.  Ware,  100  Ga.  563; 
Rand  v.  Cronkhite,  64  111.  App.  208; 
Hotchkiss  v.  Kuchler,  86  App.  Div. 
265;  Wakins  v.  Thomas,  141  Mo.  App. 
263.  But  held,  that  there  can  be  no 
recovery  upon  contract,  for  a  per- 
formance contrary  to  its  terms,  even 
though  the  principal  did  not  base  his 
refusal  upon  that  particular  ground. 


Stearns  v.  Jennings,  128  Wis.  379. 
See  also,  Flynn  v.  Jordal,  124  Iowa, 
457. 

Ratification. — "If  he  [the  broker] 
negotiates  a  contract  different  from 
that  prescribed  by  his  employer,  and 
the  employer  subsequently  ratifies  it, 
and  thus  -a  contract  is  finally  made 
which  is  satisfactory  to  him,  the 
broker  has  earned  his  commission." 
Gilder  v.  Davis,  137  N.  Y.  504,  20  L. 
R.  A.  398  (citing  Nesbitt  v.  Helser,  49 
Mo.  383;  Coleman  v.  Meade,  13  Bush 
[Ky.],  358) ;  Wolf  v.  Tait,  4  Manitoba, 
59. 


2021 


§  2437] 


THE  LAW  OF  AGENCY 


[BOOK  v 


This  requirement  as  to  terms,  however,  is  subject  to  some  quali- 
fications where  a  sale  has  actually  been  made  to  a  buyer  produced  by 
the  broker.  Thus,  it  could  not  be  contended  that  the  principal  might, 
by  slightly  reducing  his  terms  for  the  purpose  of  avoiding  liability  to 


balance  In  Instalments,  a  purchaser 
who  offers  $25  cash,  balance  of  the 
$500  in  about  a  month,  also  requir- 
ing the  vendor  to  put  down  a  well, 
is  not  sufficient.  .  Smith  v.  Allen,  101 
Iowa,  608. 

Where  the  terms  are  part  cash, 
balance  in  instalments  with  interest, 
it  is  not  sufficient  to  produce  a  pur- 
chaser who  agrees  to  buy  on  those 
terms  •  except  that  he  may  pay  the 
instalments  on  or  before  the  dates 
on  which  they  become  due.  Oliver  v. 
Sattler,  233  111.  536.  To  same  effect: 
Monson  v.  Kill,  144  111.  248. 

See  also,  Elmendorf  v.  Steel,  70 
Wash.  38. 

In  Gough  v.  Coffin,  55  Tex.  Civ. 
App.  550,  where  the  broker  produced 
a  written  offer  on  the  terms  named 
by  the  principal,  namely,  part  cash, 
balance  in  instalments,  but  the  writ- 
ten offer  contained  a  term  that  the 
owner  was  to  have  one  month  to  pre- 
pare the  deed  and  the  purchaser  the 
same  time  in  which  to  make  the  cash 
payment,  it  was  held  not  sufficient. 
To  same  effect:  De  Sollav  v.  Hans- 
come,  158  U.  S.  216,  39  L.  Ed.  956. 

Cash,  not  exchange. — In  Payseno 
v.  Swenson,  178  Fed.  999,  it  was  held 
that  a  broker  employed  to  get  a  pur- 
chaser who  will  pay  upon  certain 
cash  terms  does  not  earn  his  commis- 
sion by  producing  and  introducing  a 
man  who  wants  to  trade,  even  al- 
though the  owner  does  trade  with 
him. 

Cash  sale. — Where  the  owner  states 
terms,  and  nothing  is  said  to  the 
contrary,  the  broker  must  produce  a 
purchaser  on  those  terms  for  cash. 
Rake  v.  Townsend  (Iowa),  102  N.  W. 
499;  Slayback  v.  Wetzel,  146  Mo.  App. 
171;  Turner  v.  Baker,  225  Pa.  359; 
Arnold  v.  Johnson,  —  Tex.  Civ.  App. 


— ,  128  S.  W.  1186;  Crompton  v. 
Echols,  31  Okla.  161. 

Cash  on  deposit. — Where  terms  are 
that  deed  will  be  delivered  at  a  cer- 
tain bank  at  a  stated  time,  and  that 
the  purchase  price  must  then  be  on 
deposit  there,  this  requirement  must 
be  complied  with  by  the  broker's  cus- 
tomer. Park  v.  Hogle,  124  Iowa,  98. 
Deposit  in  buyer's  own  name  only  not 
enough.  Reser  v.  Yates,  41  Can.  Sup. 
577. 

Where  terms  to  be  acceptable  to 
principal. — Where  no  terms  are  fixed 
except  such  as  may  be  acceptable  to 
the  seller,  the  broker  must  show  that 
fact,  either  by  showing  an  express 
acceptance,  an  actual  contract,  or 
some  other  satisfactory  evidence.  See 
ante,  §  2431  and  cases  cited.  Also, 
Wenks  v.  Hazard,  149  Iowa,  16,  127 
N.  W.  1099;  Jordan  v.  Longhenry,  145 
Iowa,  108. 

Where  buyer  meets  seller's  terms. 
— Slight  original  variations  will  not 
be  material  where  buyer  is  ready  and 
offers  to  meet  seller's  terms.  Putnam 
Inv.  Co.  v.  King,  82  Kan.  216. 

Form  of  conveyance. — Broker  is 
is  not  entitled  to  commissions  where 
the  buyer  produced  by  him  will  not 
accept  a  legal  and  sufficient  form  of 
conveyance,  i.  e.,  a  deed  with  cove- 
nants against  grantor's  own  acts,  but 
demands  a  full  covenant  warranty 
deed.  Garcelon  v.  Tibbetts,  84  Me. 
148.  But  suppose  the  latter  was  the 
usual  and  ordinary  form  where  noth- 
ing else  was  stipulated? 

Quantity  sold. — Where  the  under- 
taking was  to  sell  three  parcels  of 
land,  the  broker  does  not  perform  by 
finding  a  purchaser  for  two  of  them 
only.  Armstrong  v.  O'Brien,  83  Tex. 
635. 

Wrong  land. — Broker  must  sell  the 


2O  22 


CHAP.    Ill 


OF   BROKERS 


the  broker,  nevertheless  avail  himself  of  the  broker's  efforts  without 
being  liable  to  him  for  his  commission.67  So,  even  though  the  buyer 
produced  by  the  broker  is  not  willing  to  buy  upon  the  terms  first  fixed 
by  the  principal,  still  if  the  principal,  by  some  modification  of  his  terms 
and  ay  a  part  of  the  same  negotiation,  without  terminating  the  agency, 
actually  accepts  the  buyer  so  produced  and  sells  to  him,  the  fact  that 
he  was  not  a  buyer  upon  the  terms  originally  fixed  may  well  be  held 
not  to  defeat  the  broker's  right  to  his  commissions.68  And  under  the 


land  described.  Maze  v.  Gordon,  96 
CaL  61;  Reitz  v.  Bryant,  71  Wash.  53. 
or  Price.— Where  the  price  was  fixed 
a  purchaser  must  be  produced  ready, 
willing  and  able  to  buy  at  that  price, 
and  if  the  purchaser  offered  will  not 
buy  at  that  price,  but  only  at  a  lower, 
the  broker  will  not  be  entitled  to 
commissions,  unless  there  was  collu- 
sion between  the  principal  and  pur- 
chaser. Antisdel  v.  Canfield,  119 
Mich.  229;  Gilmore  v.  Bolio,  165  Mich. 
633,  34  L.  R.  A.  (N.  S.)  1050;  Frazer 
v.  Wyckoff,  63  N.  Y.  445;  Parker  v. 
Building  &  Loan  Ass'n,  55  W.  Va. 
134.  A  sale  to  such  a  person  is  not 
necessarily  a  waiver  of  the  terms 
fixed.  If  the  broker  has  failed,  if  the 
negotiations  begun  by  him  have  come 
to  nothing,  if  the  relation  has  been 
in  good  faith  terminated,  the  mere 
fact  that  the  principal  later  sells  to 
the  same  purchaser  at  a  reduced 
price  does  not  entitle  the  broker  to 
his  commissions.  He  was  not  the 
procuring  cause  of  the  sale,  though 
he  may  have  contributed  something 
to  it.  Ball  v.  Dolan,  21  S.  Dak.  619, 
15  L.  R.  A.  (N.  S.)  272;  Wiggins  v. 
Wilson,  55  Fla.  346;  Charlton  v. 
Wood,  58  Tenn.  (11  Heisk.)  19; 
Gamble  v.  Grether,  108  Mo.  App.  340; 
Bailey  v.  Smith,  103  Ala.  641;  Ames 
v.  Lament,  107  Wis.  531.  See  also, 
Armes  v.  Cameron,  19  D.  C.  435;  and 
other  cases  cited,  post,  §  2442.  The 
broker  would  be  entitled  to  com- 
missions, however,  if  the  principal, 
knowing  that  the  purchaser  produced 
was  ready,  willing  and  able  to  buy  at 
the  price  fixed,  voluntarily  sells  to  him 
at  a  less  price.  McArthur  v.  Slau- 


son,  53  Wis.  41  (compare  with  Stew- 
art v.  Mather,  32  Wis.  344);  Bowe  v. 
Gage,  132  Wis.  441,  12  L.  R.  A.  (N.  S.) 
265;  Oliver  v.  Katz,  131  Wis.  409; 
Ratts  v.  Shepherd,  37  Kan.  20;  Plant 
v.  Thompson,  42  Kan.  664,  16  Am.  St. 
R.  512;  Schlegal  v.  Allerton,  6"5  Conn. 
260;  Mullen  v.  Bower,  26  Ind.  App. 
253;  Bryan  v.  Abert,  3  App.  Cas.  D. 
C.  180  (same  if  the  owner  ought  to 
have  known  that  the  customer  was 
produced  by  the  broker) ;  Corbel  v. 
Beard,  92  Iowa,  360;  Ingold  V.  Sy- 
monds,  125  Iowa,  82;  Hutto  v.  Stough, 
157  Ala.  566;  Lipscomb  v.  Mastin,  142 
Mo.  App.  228;  Martin  v.  Silliman,  53 
N.  Y.  615. 

Burden  of  proof. — In  Anderson  v. 
Olson,  109  Minn.  432,  it  is  said  that 
where  it  is  conceded  that  the  broker 
brought  the  buyer  and  seller  together 
and  that  a  sale  resulted,  the  burden 
should  be  upon  the  principal  to  show 
wherein  the  sale  made  and  that  au- 
thorized were  different  in  their 
terms. 

But  in  Bridgman  v.  Hepburn,  13 
Brit.  Col.  R.  389,  8  Western  L.  Repr. 
28,  it  is  said:  "When  prima  facie,  as 
here,  the  agreement  was  to  pay  a 
commission  on  a  named  figure,  it  is 
for  the  agent  to  show  in  the  clearest 
way  that  the  real  intention  of  the 
parties  was  that  he  should  receive  a 
commission  on  any  figure  at  which 
the  sale  goes  through." 

es  in  Hubachek  v.  Hazzard,  83 
Minn.  437,  the  principal's  price,  as 
given  to  the  broker,  was  $8,250;  the 
broker  sent  to  the  principal  a  pro- 
posed buyer  who  induced  the  princi- 
pal to  sell  to  him  for  $8,000.  The 


2023 


§  2437] 


THE  LAW  OF  AGENCY 


[BOOK  v 


same  circumstances,  if,  though  the  seller  does  not  lower  his  price,  the 
buyer  raises  his  offer,  during  the  negotiations,  and  buys  at  the  seller's 
price,  which  is  more  than  the  broker  had  originally  induced  him  to 


principal  knew  at  the  time  that  the 
buyer  had  been  sent  by  the  broker, 
but  contended  that  because  the  sale 
was  not  at  the  price  fixed  he  was  not 
obliged  to  pay  commissions.  But  the 
court  said:  "It  is  immaterial  whether 
the  owner  sold  at  the  same  price  or 
at  a  lower  figure  than  given  to  the 
agent,  for  the  agent  might  still  re- 
main the  efficient  cause  of  bringing 
the  parties  together.  The  case  would 
present  an  entirely  different  aspect  if 
the  owner  had  refused  to  deal  with 
the  purchaser  at  the  time  in  question, 
had  dropped  all  proceedings  connect- 
ed with  it,  and  afterwards,  through 
some  other  source  or  from  some 
other  cause,  negotiations  were  opened 
anew.  In  such  case  the  agent  would 
not  be  the  procuring  cause  or  instru- 
mental in  bringing  the  parties  togeth- 
er." [As  to  cases  of  the  latter  sort, 
see  post,  §  2442.]  Followed  in  Annabil 
v.  Traverse  Land  Co.,  108  Minn.  37; 
Oliver  v.  Katz,  131  Wis.  409. 

In  Martin  v.  Silliman,  53  N.  Y.  615, 
it  is  held  that  where  a  broker  who  is 
employed  to  sell  property  at  a  given 
price  for  a  commission  has  opened 
negotiations  with  a  buyer,  and  the 
principal,  without  terminating  the 
agency  or  the  negotiations  so  com- 
menced, takes  it  into  his  own  hands 
and  concludes  a  sale  for  a  less  sum 
than  the  price  fixed,  the  broker  is 
entitled  at  least  to  a  ratable  propor- 
tion of  the  agreed  commission.  See 
also,  Wilkinson  v.  Martin,  8  Car.  & 
P.  1;  Stinde  v.  Blesch,  42  Mo.  App. 
578;  Cook  v.  Forst,  116  Ala.  395;  Mc- 
Govern  v.  Bennett,  146  Mich.  558; 
Delta,  etc.,  Land  Co.  v.  Wallace,  83 
Miss.  656;  Rees  v.  Spruancey,  45  111. 
308;  Morris  v.  Francis,  75  Kan.  580; 
Plant  v.  Thompson,  42  Kan.  664,  16 
Am.  St.  R.  512;  Keys  v.  Johnson,  68 
Pa.  42;  Ice  v.  Maxwell,  61  W.  Va.  9; 
Doonan  v.  Ives,  73  Ga.  295;  Oliver  v. 
Katz,  131  Wis.  409;  Geiger  v.  Kiser, 


47  Colo.  297;  Weeks  v.  Smith,  79  N. 
J.  L.  388;  Huntemer  v.  Arent,  16  S. 
D.  465;  Welch  v.  Young  (Iowa),  79 
N.  W.  59;  Traynor  v.  Morse,  55  Neb. 
595;  In  re  Breon  Lumber  Co.,  181 
Fed.  909;  Maxwell  v.  Rasitzky,  167 
Mo.  App.  573;  Shober  v.  Blackford,  46 
Mont.  194;  Paschall  v.  Gillis,  113 
Va.  643;  Wolf  v.  Tait,  4  Man.  L.  R. 
59. 

Same  is  true  of  other  terms  than 
mere  amount  of  the  price.  McFarland 
v.  Lillard,  2  Ind.  App.  160,  50  Am. 
St.  R.  234;  Shelton  v.  Lundin,  45  Ind. 
App.  172;  Woods  v.  Stephens,  46  Mo. 
555. 

In  Delta,  etc.,  Land  Co.  v.  Wallace, 
supra,  the  difference  was  in  the 
quantity  of  land  sold. 

The  principal  may  make  his  ac- 
ceptance of  other  terms  than  those 
fixed  conditional  upon  an  alteration 
or  reduction  in  the  broker's  commis- 
sions or  upon  the  broker's  undertak- 
ing something  not  previously  requir- 
ed, e.  g.,  where  the  principal  agrees 
to  take  part  payment  in  land  instead 
of  cash,  that  the  broker  shall  find  a 
buyer  for  the  land.  Crowley  Co.  v. 
Myers,  69  N.  J.  L.  245. 

Burchell  v.  Gowrie,  [1910]  App. 
Gas.  614,  80  L.  J.  Rep.  P.  C.  41,  sus- 
tains the  same  rule,  though  the  ac- 
tual theory  of  the  case  was  somewhat 
different. 

In  Quist  v.  Goodfellow,  99  Minn. 
509,  9  Ann.  Cas.  431,  8  L.  R.  A.  (N. 
S.)  153,  after  the  broker  had  appar- 
ently failed  to  get  his  buyer  up  to 
the  seller's  price,  another  person,  se- 
cretly representing  this  buyer,  went 
to  the  principal  and  bought  at  a  re- 
duced price.  The  seller  accepted  this 
price,  thinking  that  the  broker  had 
nothing  to  do  with  it  and  that  by 
making  the  sale  to  the  ostensible 
buyer  he  would  not  be  liable  to  any- 
one for  commissions.  Held,  not  lia- 
ble to  the  broker.  Compare  Junge- 


2024 


CHAP.    Ill] 


OF   BROKERS 


[§    2438 


offer,  the  broker  might  still  be  regarded  as  the  procuring  cause  of 
the  sale.69 

These  conclusions  may  be  based  upon  the  theory  that  the  possibility 
of  some  such  modifications  on  the  part  of  either  party  was  within  the 
original  contemplation  of  the  parties,  where  they  are  not  excluded  by 
the  express  terms  of  the  offer ;  or  upon  the  theory  that  slight  deficien- 
cies in  the  broker's  performance  have  been  waived  by  the  principal. 

Moreover,  it  must  constantly  be  borne  in  mind  that  not  every  price 
named  is  necessarily  a  minimum  price.  Owners  of  property  not  infre- 
quently at  the  outset  name  an  asking  price  which  they  have  no  serious 
expectation  of  being  able  to  realize;  and  while,  if  no  sale  takes  place, 
it  may  not  be  easy  to  decide  what  price  would  have  been  accepted,  yet, 
on  the  other  hand,  if  a  sale  does  take  place,  without  terminating  the 
broker's  employment  and  without  any  new  arrangement  with  him  but 
as  a  direct  result  of  his  efforts,  it  is  not  difficult  to  determine  that  rea- 
lizing the  original  price  was  never  really  regarded  as  a  condition  pre- 
cedent to  the  broker's  right  to  his  commission. 

§  2438.  2.  Where  no  terms  were  prescribed. — Where  no 

terms  were  prescribed  at  the  time  the  broker  was  employed,  the  pur- 


blut  v.  Gindra,  134  N.  Y.  App.  Div. 
291. 

Where  the  broker  was  to  have,  not 
a  commission,  but  the  excess  above  a 
certain  sum,  a  sale  to  a  person  pro- 
duced by  the  broker  will  not  entitle 
the  broker  to  anything  unless  such 
person  would  pay  more  than  the 
minimum  sum.  If  the  principal  de- 
'liberately  took  a  less  sum  than  the 
purchaser  was  ready  to  give,  he 
would  be  liable.  Holcomb  v.  Staf- 
ford, 102  Minn.  233. 

In  Wiggins  v.  Wilson,  55  Pla.  346, 
it  is  held  that  if  a  broker  who  has 
brought  forward  a  purchaser  knows 
that  the  purchaser  is  ready  to  pay 
the  principal's  price,  but  does  not  so 
inform  the  principal  and  allows  him 
to  sell  for  less  than  the  purchaser 
was  ready  to  pay,  he  forfeits  any 
right  to  compensation  for  such  sale. 

*»  This,  of  course,  presupposes,  as 
stated  in  the  text,  that  the  property 
is  purchased  during  the  negotiations 
induced  by  the  broker;  for  if  the 
broker  fails  to  find  a  buyer  who  will 
or  does,  as  the  result  of  his  efforts, 


pay  the  price,  and  later,  but  as  the 
result  of  some  new  force  or  influ- 
ence, e.  gr.,  another  broker's  efforts, 
the  same  person  is  induced  to  pay 
the  seller's  price,  or  the  seller  sells 
to  him  at  a  reduced  price,  the  first 
broker  is  held  not  to  be  the  procur- 
ing cause  and,  therefore,  not  entitled 
to  the  commission.  Wylie  v.  Marine 
National  Bank,  61  N.  Y.  415,  is  a 
rather  close  case  going  upon  this 
ground.  There  the  persons  produced 
by  the  first  broker,  but  who  had  at 
first  declined  to  pay  the  price  asked, 
hearing  that  other  persons  were  in- 
terested in  buying  the  property, 
bought  the  property  the  same  day, 
but  through  the  intervention  of  an- 
other broker.  Earp  v.  Cummins,  54 
Pa.  394,  93  Am.  Dec.  718,  goes  upon 
the  same  theory,  though  more  time 
intervened.  So  does  Antisdel  v.  Can- 
field,  119  Mich.  229,  where  a  year  had 
intervened.  See  also,  Miller  v.  Vin- 
ing,  112  N.  Y.  App.  Div.  304,  and 
other  cases  cited  in  a  following  sec- 
tion (§§  2442,  2459). 


2025 


§  2439] 


THE  LAW  OF  AGENCY 


[BOOK   V 


chaser  produced  must  usually  be  one  ready,  willing  and  able  to  purchase 
upon  the  terms  required  by  the  seller  at  the  time  of  his  production. 
Ordinarily  there  can  be  no  other  standard ;  though  there  may,  of 
course,  be  cases  in  which  an  established  method  of  dealing,  or  a  defi- 
nite custom  in  contemplation  of  which  the  employment  was  made,  may 
serve  to  fix  the  terms  with  the  requisite  certainty. 

Where  the  purchaser  is  to  be  a  "satisfactory"  one,  this  ordinarily 
means  satisfactory  to  the  seller,  and  the  broker  takes  the  risk  of  being 
able  to  produce  a  buyer  who  will  be  satisfactory  to  the  seller.70 

That  the  buyer  was  satisfactory  may  be  shown  in  several  ways,  as 
by  the  express  declarations  of  the  principal,  or,  more  unequivocally,  by 
the  fact  that  the  principal  actually  sold  or  entered  into  a  satisfactory 
contract  to  sell  to  the  buyer  so  produced.71 

§  2439.  Must  be  within  time  limited. — It  is  also  indispensable 
that  the  purchaser  should  be  found  within  the  time  limited,  for  if  the 
broker's  exertions  do  not  produce  the  buyer  until  after  that  time  has 
expired,  it  is  not  enough,  even  though  that  buyer  may  subsequently 
become  the  purchaser,72  unless  the  principal  has  caused  the  delay,78  or 


TO  See  ante,  §  2431;  Bingham  v. 
Davidson,  141  Ala.  551;  Forrester  v. 
Price,  6  N.  Y.  Misc.  308;  Weibler  v. 
Cook,  77  N.  Y.  App.  Div.  637;  Wenks 
v.  Hazard,  149  Iowa,  16;  Jordan  v. 
Ixmghenry,  145  Iowa,  108;  Ketcham 

v.    Axelson,    Iowa,  ,  142    N. 

W.  62. 

71  See  ante,  §§  2430.  2431;  Wenks  v. 
Hazard,  supra;  Jordan  v.  Longhenry, 
supra;  Ketcham  v.  Axelson,  supra; 
Bingham  v.  Davidson,  supra;  Alexan- 
der v.  Smith,  Ala.  ,  61  So.  68. 

72  Beauchamp   v.    Higgins,    20   Mo. 
App.   514;    Fultz  v.  Wimer,  34  Kan. 
576;   Watson  v.  Brooks,  11  Ore.  271; 
McCarthy   v.    Cavers,    66   Iowa,  342; 
Beadle    v.    Sage    Land    &    Improve- 
ment Co.,  140  Mich.  199;    Horton  v. 
Immen,    145    Mich.    438;    Decker  v. 
Klingman,  149   Mich.   96;    Loxley  V. 
Studebaker,  75  N.  J.  L.  599;  La  Force 
v.    Washington    University,    106    Mo. 
App.  517;    Donovan  v.  Weed,  182  N. 
Y.  43;  Brown  v.  Mason,  155  Cal.  155, 
21  L.   R.   A.    (N.   S.)    328;    Ropes  v. 


Rosenfeld,  145  Cal.  671;  Zeimer  v. 
Antisell,  75  Cal.  509;  Satterthwaite 
v.  Goodyear,  137  N.  Car.  302;  Fair- 
child  v.  Cunningham,  84  Minn.  521; 
Kane  v.  Dawson,  52  Wash.  411; 
Noyes  v.  Caperton,  68  W.  Va.  13; 
Hardesty  v.  Gavin  (Tex.  Civ.  App.), 
149  S.  W.  367. 

Where  a  broker  was  to  have  a  com- 
mission if  he  found  a  purchaser 
within  a  "short  time,"  It  was  held 
that  a  performance  within  two  weeks 
was  sufficient.  Smith  v.  Fairchild,  7 
Colo.  510.  Broker  has  not  performed 
who  on  last  day  produces  a  pur- 
chaser who  will  buy  if  he  has  time 
to  investigate  title.  Watson  v. 
Brooks,  supra. 

In  Beadle  v.  Sage  Land  &  Imp. 
Co.,  supra,  it  was  held  that  the  state- 
ment that  the  broker  was  to  have 
"the  privilege  of  booking  the  lands 
for  sixty  days"  meant  that  he  must 
produce  a  purchaser  within  that 
time. 

Where    the    owner    gave  a  broker 


73  Beauchamp    v.    Higgins,    supra;      Fultz   v.    Wimer,    supra;  Watson    v. 

Brooks, 
2O26 


CHAP.    Ill] 


OF   BROKERS 


[§    2439 


unless  he  waives  it.74  But  if  the  purchaser  is  found  within  the  time 
limited,  it  is  immaterial  that  the  actual  sale  was  not  fully  consummated 
until  afterwards.75 


the  right  to  sell  property  "subject  to 
prompt  reply,"  which  meant  that  the 
broker  had  all  of  the  following  day 
to  find  a  purchaser,  the  owner  is  not 
liable  for  commissions  on  a  sale  to 
the  purchaser  a  day  later.  Ropes  v. 
John  Rosenfeld's  Sons,  145  Cal.  671. 

In  Chapin  v.  Bridges,  116  Mass. 
105,  the  broker  was  to  receive  a  com- 
mission "if  it  is  sold  to  any  party 
within  a  year  from  this  date,  or  at 
any  time  thereafter,  before  I  have 
given  you  thirty  days'  notice."  Held, 
the  clause  relative  to  withdrawal  of 
the  property  only  applied  to  the  time 
after  the  expiration  of  the  year. 

Where  authority  to  sell  was  given 
by  letter,  "provided  the  matter  is 
closed  up  within  thirty  days,"  it  was 
held  that  the  thirty  days  ran  from 
the  time  of  mailing  the  letter.  Sat- 
terthwaite  v.  Goodyear,  137  N.  C.  302. 

Where  a  broker  was  hired  to  pro- 
cure a  purchaser  for  a  lease,  which 
contained  a  clause  allowing  assign- 
ment only  with  the  lessor's  consent, 
and  he  was  told  of  the  difficulty  of 
obtaining  the  lessor's  consent,  in 
such  a  way  as  to  make  that  task  a 
part  of  his  employment,  and  where 
the  time  for  his  performance  was 
limited,  he  was  held  not  to  have 
earned  the  commission  by  securing 
within  the  time  a  purchaser  who  was 
ready  to  take  the  lease,  but  only  get- 
ting the  lessor's  consent  after  the 
time  limit.  McCurry  v.  Hawkins,  83 
Ark.  202. 

In  Laux  v.  Hogl,  45  Mont.  445,  the 
owner  had  given  a  broker  an  excite 
sive  right  to  sell  for  thirty  days, 
stipulating  that  after  that  time  he 
should  be  free  to  sell  without  refer- 
ence to  the  broker.  Within  the 
thirty  days,  the  broker  found  a  man 
who  was  interested  in  the  purchase, 
but  no  sale  was  effected  within  the 
time.  About  three  months  later  the 
broker  asked  permission  to  renew 


the  negotiations,  and  the  owner  con- 
sented but  stated  that  he  also  then 
had  another  buyer  negotiating  with 
him.  Later  the  broker's  customer 
agreed  to  take  the  land,  if  on  going 
to  look  at  it — it  was  in  another  city — 
he  found  its  condition  satisfactory. 
Ten  days  later  he  went  to  the  town 
In  question  to  examine  the  land.  The 
broker  telephoned  the  owner  on  the 
night  before  that  his  buyer  would 
be  in  town  next  day,  and  next  day 
advised  him  of  his  arrival.  Before 
the  broker's  buyer  had  made  up  his 
mind,  and,  in  fact,  about  ten  min- 
utes after  the  first  telephone  message, 
the  owner  sold  to  another  person. 
Held,  that  the  broker  had  not  pro- 
duced his  buyer  in  time  and  could 
not  recover. 

Same,  where  on  the  last  day  of  his 
time  broker  notifies  principal  that 
he  has  sold  the  property  when  he  has 
only  found  some  one  who  will  buy 
if  on  later  examination  of  the  ab- 
stract, for  which  he  asks  time,  he  is 
satisfied  with  the  title.  Hardy  v. 
Sheedy,  58  Ore.  195. 

7*  If  the  principal,  without  objec- 
tion, then  deals  with  the  purchaser 
so  found,  he  ordinarily  waives  the 
delay.  See  Jaeger  v.  Glover,  89  Minn. 
490;  Ice  v.  Maxwell,  61  W.  Va.  9; 
Morgan  v.  Keller,  194  Mo.  663;  Leslie 
v.  Boyd,  124  Ind.  320. 

So  where  he  led  the  broker  reason- 
ably to  believe  that  the  time  had 
been  extended.  Hancock  v.  Stacy, 
103  Tex.  219;  Donovan  v.  Hyde,  3  E. 
L.  R.  302. 

So  where,  after  expiration  of  time, 
he  requests  or  encourages  the  broker 
to  keep  on  trying  to  find  the  buyer. 
Lawson  v.  Mining  Co.,  53  Wash.  614. 
See  also,  Stiewel  v.  Lally,  89  Ark. 
195;  Noyes  v.  Caperton,  68  W.  Va.  13. 

TS  Goffe  v.  Gibson,  18  Mo.  App.  1; 
Wilson  v.  Sturgis,  71  Cal.  226;  Gris 
wold  V.  Pierce,  86  111.  App.  406; 


2O27 


§  2440] 


THE  LAW  OF  AGENCY 


[BOOK  v 


Where  no  time  has  been  fixed,  performance  within  a  reasonable 
time  will  be  sufficient,  unless  the  offer  to  the  broker  has  been  earlier 
withdrawn.78  Conversely,  in  such  a  case,  performance  after  the  lapse 
of  a  reasonable  time  is  not  sufficient,  unless  the  defect  be  waived.77 

§  2440.  Readiness  and  willingness  of  purchaser. — In  accordance 
with  the  rules  already  laid  down,  it  is  incumbent  upon  the  broker  to 
produce  a  customer  ready  and  willing  to  buy,  so  that  the  principal  may 
deal  with  him,  if  the  principal  so  desires.78  If  an  actual  sale  is  consum- 


Jaeger  v.  Glover,  89  Minn.  490,  95  N. 
W.  311;  Cody  v.  Dempsey,  86  N.  Y. 
App.  Div.  335;  Crowley  Co.  v.  Myers, 
69  N.  J.  L.  245;  Shipman  v.  Wilke- 
son,  112  N.  Y.  Suppl.  895  (dictum.). 

But  this,  of  course,  means  actually 
finding  the  purchaser;  it  is  not 
enough  merely  that  "seeds  were 
sown"  which  afterwards  bore  fruit 
in  the  production  of  a  purchaser. 
Donovan  v.  Weed,  182  N.  Y.  43. 

If  buyer  was  actually  found  within 
the  time,  fact  that  he  was  not  re- 
ported to  the  principal  until  after- 
ward, held,  not  fatal,  there  being  no 
contract  to  that  effect,  and  no  preju- 
dice to  principal.  Schramm  v.  Wolff, 

Tex.  Civ.  App.  ,  126  S.  W. 

1185.  See  also,  Gibbons  v.  Sherwin, 
28  Neb.  146,  where  the  agent  was  held 
not  responsible  for  the  miscarriage 
of  a  notice  sent  within  the  time  lim- 
ited by  the  principal. 

76  Where  no  time  is  fixed,  a  sale 
made  within  a  reasonable  time  is  suf- 
ficient.    Morgan   v.   Keller,   194   Mo. 
663;   Salee  v.  McMurry,  113  Mo.  App. 
253;   Turner  v.  Snyder,  139  Mo.  App. 
656. 

In  Hartford  v.  McGillicuddy,  103 
Me.  224,  12  Ann.  Cas.  1083,  16  L.  R. 
A.  (N.  S.)  431,  it  was  held  that  a 
lapse  of  ten  years  did  not  necessarily 
terminate  the  broker's  authority,  that 
the  authority  continues  until  revoked, 
and  the  lapse  of  time  is  merely  one 
fact  to  be  considered  by  the  jury  in 
determining  whether  the  authority 
had  been  revoked. 

77  Dyer  v.  Duffy,  39  W.  Va.  148,  24 
L.    R.    A.    339;     Hurst    v.    Williams 


(Ky.),  102  S.  W.  1176;  Harris  Y. 
Moore,  134  Iowa,  704. 

78  in  Mattingly  v.  Pennie,  105  Cal. 
514,  45  Am.  St.  Rep.  87,  it  is  said: 
"The  readiness  and  willingness  of  a 
person  to  purchase  the  property  can 
be  shown  only  by  an  offer  on  his  part 
to  purchase;  and  unless  he  has  ac- 
tually entered  into  a  contract  bind- 
ing him  to  purchase,  or  has  offered 
to  the  vendor,  and  not  merely  to  the 
broker,  to  enter  into  such  contract, 
he  cannot  be  considered  a  purchaser." 
Same :  Massie  v.  Chatom,  163  Cal.  772. 

It  is  not  enough  that  the  buyer 
produced  shall  be  able  to  buy;  he 
must  be  ready  and  urilling.  Enyeart 
v.  Figard,  38  Pa.  Super.  Ct.  488. 

It  is  just  as  essential  that  the  buyer 
shall  be  willing  to  take  upon  the 
terms  proposed  by  the  principal  as 
that  he  shall  be  ready  or  willing  to 
buy  at  all.  Slayback  v.  Wetzel,  — 
Tex.  Civ.  App. ,  123  S.  W.  982. 

See  also,  Ball  v.  Dolan,  18  S.  Dak. 
558;  McGinn  v.  Garber,  125  Iowa, 
533;  Stewart  v.  Smith,  50  Neb.  631. 

Where  the  principal  was  ready  and 
willing  to  complete  the  sale,  but  the 
customer,  who  had  entered  into  no 
binding  written  contract,  broke  off 
the  negotiations  upon  a  slight 
"flimsy"  objection  to  title,  the  broker 
was  held  not  to  have  produced  a  pur- 
chaser ready  and  willing  and  not  en- 
titled to  his  commissions.  Gilchrist 
v.  Clarke,  86  Tenn.  583. 

A  "buyer,"  produced  by  the  broker, 
who  will  not  give  the  principal  rea- 
sonable time  to  make  the  ordinary 
and  necessary  arrangements  to  com- 


2028 


CHAP.    Ill]  OF   BROKERS  [§    244! 

mated,  or  a  binding  contract  entered  into,  no  further  evidence  could 
ordinarily  be  required  upon  this  point.  So,  also,  if  the  broker  pro- 
duces an  unrevoked  offer  which  the  principal  can  at  once  turn  into  a 
contract  this  would  be  sufficient  evidence  of  the  buyer's  willingness.79 
In  the  absence  of  evidence  of  this  sort,  it  must  appear  that  the  buyer 
was  in  fact  ready  and  willing,  and  that  he  remained  in  that  condition 
long  enough  to  have  enabled  the  principal,  in  the  ordinary  course  of 
business,  to  deal  with  him,  if  he  so  desired.  A  purchaser  who  will  not 
buy  when  the  time  comes,  or  who  changes  his  mind  before  the  principal 
can  close  with  him,  or  who  imposes  new  terms  or  conditions  as  prereq- 
uisites to  the  purchase,  is  not  such  a  buyer  as  the  rule  contemplates. 
That  no  sale  takes  place  must,  as  to  this  point,  be  the  principal's  fault, 
and  not  the  buyer's,  in  order  to  entitle  the  broker  to  commissions  as 
for  a  purchaser  produced. 

Where  no  sale  is  effected, — thus  furnishing  evidence  of  readiness 
and  willingness, — the  burden  of  showing  that  his  purchaser  was  ready 
and  willing  rests  ordinarily  upon  the  broker.80 

§  2441.  Pecuniary  responsibility  of  purchaser. — It  is  also  incum- 
bent upon  the  broker  who  contends  that  he  has  found  a  purchaser,  to 
show  that  the  purchaser  produced  was  ready  or  able  pecuniarily  to 
complete  the  purchase.  Pecuniary  responsibility  may  be  implied  in 
many  cases,  but  in  cases  of  this  nature  the  broker,  by  the  weight  of  au- 
thority, must  be  prepared  to  prove  that  the  purchaser  found  by  him 
was  pecuniarily  able  to  pay  the  purchase  price  agreed  upon.81  He  cer- 
tainly cannot  satisfy  his  undertaking  by  the  production  of  a  mere  "man 
of  straw." 

plete  the  sale  to  him,  is  not  such  a  carry   out   the   contract   of  sale,   we 

buyer  as  will  entitle  the  broker  to  a  are  of  opinion  that  the  great  weight 

commission.   Bunyard  v.  Farman, of  authority,  and  the  well-considered 

Mo.  App.  — ,  161  S.  W.  640.  cases  on  the  subject,  require  that  he 

79  An  offer  or  contract  in  writing  make   such   proof,   because   he   must 

will  be  good  evidence  of  imllingness,  show,  before  he  is  entitled  to  recover 

though  it  may  furnish  no  indication  his  commissions,  that  he  performed 

as  to  ability.      Flynn    v.    Jordal,  124  those   acts   which,    according   to   the 

Iowa,  457.     To  same  general  effect:  contract  of  his  employment,  it  was 

Ryer  v.  Turkel,  75  N.  J.  L.  677.  necessary  for  him  to  perform  in  or- 

so  See  Brackenridge  v.  Claridge,  91  der  to  become  entitled  to  the  compen- 

'fex.  527,  43  L.  R.  A.  593.  sation    agreed    upon."     Approved    in 

si  In  Colburn  v.  Seymour,  32  Colo.  Fox  v.   Denargo   Land   Co.,   37   Colo. 

430,  2  Ann.    Gas.    182,  it    was    said:  20~3. 

"While  it  is  true  there  seems  to  be  "We  think,"  said  Beck,  J.,  "that  in 

some    conflict    of    authority    on    the  order  to  entitle  plaintiffs  to  recover, 

question  of  whether  or  not  it  is  neces-  something  more  than  a  mere  offer  to 

sary  for  the  broker  to  prove  the  flnan-  purchase  should  be  shown  by  them, 

cial  ability  of  the  purchaser  in  those  Such  an  offer  could  be  made  by  one 

cases    where    the    owner    refuses    to  without  means,  and  who  is  in  no  con- 

2029 


§  2441] 


THE  LAW  OF  AGENCY 


[BOOK  v 


The  principal  may,  -of  course,  accept  the  purchaser  produced  in  such 
a  way  as  to  foreclose  his  subsequent  reliance  upon  this  objection,  even 
though  the  purchaser  proves  to  be  unable  to  carry  out  his  contract.82 


dition  to  comply  with  the  terms  of 
the  sale,  and  against  whom  a  claim 
for  damages  resulting  from  a  failure 
to  perform  the  contract  of  purchase 
could  not  be  enforced.  An  offer  from 
such  an  one  ought  not  to  be  considered 
as  constituting  the  performance  of 
plaintiffs'  undertaking  to  negotiate 
the  sale  of  the  land.  As  the  pecuniary 
responsibility  of  the  purchasers  was, 
or  ought  to  have  been,  known  to  the 
plaintiffs,  the  burden  rested  upon 
them  to  show  it."  In  Iselin  v.  Griffith, 
62  Iowa,  668,  followed  in  Tracy  v. 
Fobes,  132  Iowa,  250;  McGinn  v.  Gar- 
ber,  125  Iowa,  533;  and  to  the  same 
effect  are:  Wagner  v.  Norris,  39  Colo. 
106;  Coleman  v.  Meade,  -13  Bush 
(Ky.),  358;  Pratt  v.  Hotchkiss,  10 
111.  App.  603;  Jenkins  v.  Hollings- 
worth,  83  111.  App.  139;  Hersher  v. 
Wells,  103  111.  App.  418;  Norman  v. 
Reuther,  25  Misc.  (N.  Y.)  161;  Young 
v.  Ruhwedel,  119  Mo.  App.  231;  Riggs 
v.  Turnbull,  105  Md.  135,  11  Ann.  Gas. 
783,  8  L.  R.  A.  (N.  S.)  824;  Robert- 
son v.  Allen,  107  C.  C.  A.  254,  184  Fed. 
372;  Camard  Investment  Co.  v.  Lloyd, 
11  W.  L.  R.  338,  affirmed  12  W.  L.  R. 
497. 

Where  the  purchaser,  in  proof  of 
his  financial  ability,  showed  only  that 
he  was  buying  for  a  syndicate  and 
that  he  "would  be"  prepared  to  pay 
with  money  furnished  by  the  syndi- 
cate, but  it  did  not  appear  that  he 
actually  had  the  money,  or  that  it 
had  been  raised  by  anyone,  or  that 
the  members  of  the  alleged  syndicate 
had  ever  actually  subscribed  the 
money,  it  was  held  not  enough.  Mat- 
tingly  v.  Pennie,  105  Cal.  514. 

But,  on  the  other  hand,  in  Hart  v. 
Hoffman,  44  How.  Pr.  168,  the  Court 
of  Appeals  of  New  York  held  that  no 
such  proof  is  required,  saying  that 
solvency  is  presumed;  and  the  same 
ruling  was  followed  in  Cook  v.  Kroe- 


meke,  4  Daly  (N.  Y.),  268,  and  Goss 
v.  Broom,  31  Minn.  484. 

See  also,  Duclos  v.  Cunningham,  102 
N.  Y.  678. 

In  Butler  v.  Baker,  17  R.  I.  582,  33 
Am.  St.  Rep.  897,  the  question  was 
raised,  but  not  decided. 

In  Grosse  v.  Cooley,  43  Minn.  188, 
where  the  broker  produced  a  pur- 
chaser who  entered  into  a  written 
contract  to  buy  on  the  proposed 
terms,  it  was  held  that  the  broker 
was  entitled  to  recover  his  commis- 
sions, although  he  offered  no  evidence 
of  the  purchaser's  ability.  The  court 
said:  "Solvency  is  always  presumed 
until  insolvency  is  proved." 

To  same  effect:  Crevier  v.  Stephen, 
40  Minn.  288. 

In  Parker  v.  Esta  brook,  68  N.  H. 
349,  it  was  said:  "When  the  vendor 
accepts  the  purchaser  and  enters  into 
a  contract  with  him,  the  solvency  of 
the  purchaser  is  presumed  in  the  ab- 
sence of  proof."  To  same  effect: 
Davis  v.  Morgan,  96  Ga.  518. 

82  Ordinarily,  if  the  principal  after 
such  investigation  as  he  cares  to 
make  and  acting  on  his  own  judg- 
ment rather  than  on  the  representa- 
tions of  the  broker,  accepts  the  buyer 
produced  and  enters  into  a  binding 
contract  with  him,  he  cannot  later  ob- 
ject upon  the  ground  that  he  was  not 
financially  able  to  buy.  Wright  v. 
Brown,  68  Mo.  App.  577;  Parker  v. 
Estabrook,  68  N.  H.  349;  Russell  v. 
Hurd,  113  111.  App.  63;  Wray  v.  Car- 
penter, 16  Colo.  271,  25  Am.  St.  Rep. 
288;  Moore  v.  Irvin,  89  Ark.  289,  131 
Am.  St.  Rep.  97,  20  L.  R.  A.  (N.  S.) 
1168;  Scully  v.  Williamson,  26  Okla. 
19,  27  L.  R.  A.  (N.  S.)  1089;  Odell  v. 
Dozier,  104  Ga.  203;  Alt  v.  Doscher, 
102  App.  Div.  (N.  Y.)  344,  affirmed  in 
186  N.  Y.  566;  Travis  v.  Graham,  23 
N.  Y.  App.  Div.  214;  Brady  v.  Foster, 
72  App.  Div.  (N.  Y.)  416;  Passing- 


2030 


CHAP.    Ill] 


OF  BROKERS 


[§    2441 


It  is  also  possible  for  the  principal  by  his  conduct — as,  for  example, 
by  expressly  putting  his  rejection  of  the  purchaser  upon  other  grounds 
— to  estop  himself  from  raising  this  one  at  a  later  time.88 

What  constitutes  financial  readiness  or  ability  in  these  cases  cannot 
be  determined  by  any  hard  and  fast  rule.  It  is,  obviously,  a  very  dif- 
ferent question  from  that  of  solvency.84  Much  must  depend  upon  the 
terms  prescribed  in  each  case,  and  a  man  must  be  deemed  pecuniarily 
able  and  ready  when  he  has  made  the  preparations  and  arrangements 
which  are  in  accordance  with  safe  and  conservative  dealing.85  The 


ham  v.  King,  14  Times  L.  R.  392.  Or 
upon  the  ground  that  the  purchaser 
failed  to  make  subsequent  payments 
under  the  contract.  Hallack  v.  Hinck- 
ley,  19  Colo.  38;  Stewart  v.  Fowler,  53 
Kan.  537;  Francis  v.  Baker,  45  Minn. 
83. 

(See  also,  Davis  v.  Morgan,  96  Ga. 
518,  in  which  the  broker  had  secured 
a  person  with  whom  the  defendant 
principal  had  made  a  valid  contract, 
and  the  sale  failed  because  of  defects 
in  the  principal's  title,  the  court  said 
that  under  such  circumstances  the 
broker  was  under  no  need  of  proving 
the  customer's  financial  ability.) 

But  this  is  not  necessarily  so,  as 
where  the  dealings  are  merely  pre- 
liminary and  tentative  and  based 
upon  the  express  or  implied  repre- 
sentations of  the  broker.  Butler  v. 
Baker,  17  R.  I.  582;  Burnham  v.  Up- 
ton, 174  Mass.  408;  Siemssen  v. 
Roman,  35  Neb.  892. 

ss  See  McDermott  v.  Mahoney,  139 
Iowa,  292;  Feist  v.  Jerolamon,  81  N. 
J.  L.  437  (where  the  principal  raised 
no  objection  to  the  purchaser,  but  de- 
manded a  higher  price) ;  Mooney  v. 
Elder,  56  N.  Y.  238;  Duclos  v.  Cun- 
ningham, 102  N.  Y.  678;  West  v. 
Averill  Grocery  Co.,  109  Iowa,  488. 

s*  Thus  in  Colburn  v.  Seymour,  32 
Colo.  430,  2  Ann.  Gas.  182,  it  is  said: 
"There  is  a  marked  distinction  be- 
tween the  solvency  of  an  individual 
and  his  ability  to  make  a  purchase. 
Solvency  means  his  ability  to  dis- 
charge his  legal  obligations,  while  his 
ability  to  purchase  property  means, 
as  the  authorities  say,  that  he -is 


'ready'  to  do  so,  which,  according  to 
Webster,  is  'equipped  or  supplied 
with  what  is  needed  for  some  act  or 
event.' "  [Cf.  Hart  v.  Hoffman,  44 
How.  Pr.  (N.  Y.)  168.] 

In  Chipley  v.  Leathe,  60  Mo.  App. 
15,  it  is  said  that  the  broker  has  per- 
formed "when  he  produces  a  pur- 
chaser who  is  willing  and  able  and 
offers  to  make  the  purchase  accord- 
ing to  the  terms  of  the  employment, 
or  when  he  secures  a  valid  contract 
of  purchase  signed  by  a  person  who 
is  able  to  specifically  perform  it,  or 
is  financially  able  to  answer  in  dam' 
ages  in  case  he  should  make  default." 

ss  Thus  if  the  buyer  has  the  money 
in  the  bank,  where  he  can  obtain  it 
at  any  time  during  banking  hours,  it 
is  enough,  and  he  is  not  obliged  to 
carry  it  with  him  when  he  goes  to 
accept  the  seller's  offer.  McDermott 
v.  Mahoney,  139  Iowa,  292. 

"  'Pecuniarily  able,'  in  this  connec- 
tion, must,  of  course,  have  a  reason- 
able construction.  It  cannot  mean 
that  the  proposed  purchaser  must 
necessarily  have  all  the  money  in  his 
pocketbook  or  to  his  credit,  at  the 
bank,  but  that  he  is  able  to  command 
the  necessary  money  to  close  the  deal 
on  reasonable  notice,  or  within  the 
time  limited  by  the  vendor,  if  a  time 
be  limited."  McCabe  v.  Jones,  141 
Wis.  540. 

But  proof  merely  that  the  customer 
had  property  out  of  which  the  price 
might  have  been  raised  is  not  proof 
that  a  customer  is  ready  and  able  to 
take  within  the  requirements  of  this 
rule.  Dent  v.  Powell,  93  Iowa,  711. 


2031 


THE  LAW  OF  AGENCY 


[BOOK    V 


purchaser,  for  example,  is  not  financially  ready  and  able  if  he  has  to 
procure  the  deed  of  the  lands  in  question  in  order  that  he  may  then 
go  out  and  raise  the  purchase  price ; 8e  but  he  would  doubtless  be 
deemed  to  be  if,  where  cash  is  to  be  paid,  he  is  ready  to  turn  over  part 
himself  and  produces  a  responsible  lender  who  is  ready  to  loan  and 
pay  over  the  residue  upon  receiving  a  mortgage  contemporaneously 
with  the  delivery  of  the  deed.87  Where  only  part  of  the  purchase  price 
is  required  to  be  paid  down  with  security  upon  the  land,  he  is  "ready" 
if  he  has  the  necessary  cash  payment  and  is  prepared  and  offers  to  ex- 
ecute and  deliver  the  necessary  securities  for  the  residue.88 

§  2442.  Abandonment  by  broker  before  success. — As  has  several 
times  been  pointed  out,  in  order  to  entitle  the  broker  to  commissions 
in  the  ordinary  case,  he  must  produce  results,  he  must  be  the  procur- 
ing cause. 

If,  therefore,  the  broker  abandons  the  undertaking, — if  his  relations 
are  terminated, — if  his  time  expires, — before  he  has  found  the  pur- 
chaser, he  can  claim  no  commissions  for  a  subsequent  sale  made  by 
the  owner,  though  made  to  a  purchaser  whom  the  broker  had  pre- 
viously tried  to  reach.89 

<••)  bilBV  £  aoii,"y>3  an  rortw  10      ajO'iloD  lo  oaueoad  o-jliiii  alsa  ynJ  bnn 

hh;a  nu'OD  9<lt  .ofjii  aTsqiviiliq  siIJ  ni 
749;  Hunn  v.  Ashton,  121  Iowa,  265; 
Chaffee  v.  Widman,  48  Colo.  34,  139 
Am.  St.  Rep.  220;  Moore  v.  Breunin- 
ger,  34  App.  D.  C.  86;  Sawyer ,>jr. 
Bowman,  91  Iowa,  717  (abandonment 
by  mutual  consent);  Butterfield  v. 

Consol.  Fuel  Co.,  Utah,  — ,  132 

Pac.  559;  Philip  v.  Bauer,  5  W.  L.  R. 
187. 

Where  the  plaintiff  had  entirely 
failed  to  make  the  sale,  and  then 
many  months  later  other  persons  in- 
duced plaintiff's  party  to  make  the 
purchase,  plaintiff  cannot  recover. 
Kifer  v.  Yoder,  198  Pa.  308. 

So  where  a  broker's  efforts  to  sell 
the  property  had  failed,  and  the 
principal  had  revoked  his  authority, 
it  was  held  that  the  principal  was  not 
liable  for  commissions,  though  he 
afterwards  sold,  through  other  brok- 
ers, to'  a  person  to  whom  the  first 
broker  had  endeavored  to  sell,  it  ap- 
pearing that  the  revocation  was  in 
good  faith,  with  no  intention  then  of 
renewing  the  negotiations.  Uphoff  v. 
Ulrich,  2  111.  App.  399. 
2032 


nostril  K  x'    bgn^la 

seMcCune  v.  Badger,  126  Wis.  186 
(but  see  McCabe  v.  Jones,  141  Wis. 
540) ;  O'Brien  v.  Gilliland,  4  Tex.  Civ. 
App.  40. 

In  Fox  v.  The  Denargo  Land  Co., 
37  Colo.  203,  the  purchaser  offered  to 
take  an  option,  with  which  he  in- 
tended to  be  able  to  raise  the  neces- 
sary funds  to  pay  the  purchase  price. 
This  was  held  not  to  be  a  sufficiently 
able  purchaser. 

87  See  Clark  v.  Wilson,  41  Tex.  Civ. 
App.  450;  McCabe  v.  Jones,  141  Wis. 
540.  But  the  proposed  lender  must 
be  present  at  the  time  it  is  intended 
to  close  the  transaction.  McCune  v. 
Badger,  126  Wis.  186. 

ss  Clark  v.  Wilson,  41  Tex.  Civ.  App. 
450. 

8»  Earp  v.  Cummins,  54  Pa.  394,  93 
Am.  Dec.  718;  Wylie  v.  Marine  Nat. 
Bank,  61  N.  Y.  415;  Holley  v.  Town- 
send,  2  Hilton  (N.  Y.),  34;  Sibbald 
v.  Bethlehem  Iron  Works,  83  N.  Y. 
378,  38  Am.  Rep.  441;  Page  v.  Griffin, 
71  Mo.  App.  524;  Jones  v.  Buck,  147 
Iowa,  494;  Moore  v.  Cresap,  109  Iowa, 


CHAP.    Ill] 


OF   BROKERS 


[§    2442 


Whether  the  broker  had  thus  abandoned  the  undertaking  and  term- 
inated his  relations  is,  ordinarily,  a  question  of  fact.  A  mere  temporary 
cessation  of  activity  would  not  necessarily  be  an  abandonment,  nor 
would  the  fact  that  the  broker  had  turned  the  matter  over  to  the  prin- 
cipal for  completion  after  putting  him  into  communication  with  the 
purchaser,  be  deemed  an  abandonment. 

"    5fll    TO    T1  K.ff    ':.      .'.'• 

So  where  all  attempts  by  the 
broker  to  sell  the  property  had  ceased 
for  more  than  six  months,  and  the 
broker  had  moved  away,  it  was  held 
that  the  principal  was  not  liable  to 
him  for  commissions,  although  the 
principal  finally  sold  to  a  person  with 
whom  the  broker  had  previously  ne- 
gotiated, but  without  success.  Lipe 
v.  Ludewick,  14  111.  App.  372. 

In  Sibbald  v.  Bethlehem  Iron 
Works,  83  N.  Y.  378,  38  Am.  Rep.  441, 
Finch,  J.,  says:  "It  follows,  as  a  nec- 
essary deduction  from  the  established 
rule,  that  a  broker  is  never  entitled 
to  commissions  for  unsuccessful  ef- 
forts. The  risk  of  failure  is  wholly 
his.  The  reward  comes  only  with  his 
success.  That  is  the  plain  contract 
and  contemplation  of  the  parties.  The 
broker  may  devote  his  time  and  labor, 
and  expend  his  money  with  ever  so 
much  of  devotion  to  the  interest  of 
his  employer,  and  yet,  if  he  fails,  if 
'without  effecting  an  agreement  or  ac- 
complishing a  bargain,  he  abandons 
the  effort,  or  his  authority  is  fairly 
and  in  good  faith  terminated,  he 
gains  no  right  to  commissions.  He 
loses  the  labor  and  effort  which  was 
staked  upon  success.  And  in  such 
event  it  matters  not  that  after  his 
failure,  and  the  termination  of  his 
agency,  what  he  has  done  proves  of 
use  and  benefit  to  the  principal.  In 
a  multitude  of  cases  that  must  neces- 
sarily result.  He  may  have  intro- 
duced to  each  other  parties  who 
otherwise  would  have  never  met;  he 
may  have  created  impressions  which, 
under  later  and  more  favorable  cir- 
cumstances, naturally  lead  to  and  ma- 
terially assist  in  the  consummation  of 
a  sale;  he  may  have  planted  the  very 


seeds  from  which  others  reap  the 
harvest;  but  all  that  gives  him  no 
claim.  It  was  part  of  his  risk  that, 
failing  himself,  not  successful  in  ful- 
filling his  obligations,  others  might 
be  left  to  some  extent  to  avail  them- 
selves of  the  fruit  of  his  labors.  As 
was  said  in  Wylie  v.  Marine  National 
Bank,  61  N.  Y.  415,  in  such  a  case  the 
principal  violates  no  right  of  the 
broker  by  selling  'to  the  first  party 
who  offers  the  price  asked,  and  it 
matters  not  the  sale  is  to  the  very 
party  with  whom  the  broker  had  been 
negotiating.  He  failed  to  find  or  pro- 
duce a  purchaser  upon  the  terms  pre- 
scribed in  his  employment,  and  the 
principal  was  under  no  obligation  to 
wait  longer  that  he  might  make  fur- 
ther efforts.  The  failure,  therefore, 
and  its  consequences,  were  the  risk 
of  the  broker  only." 

See  also,  Donovan  v.  Weed,  182  N. 
Y.  43;  Bouscher  v.  Larkins,  84  Hun 
(N.  Y.),  288. 

In  Ropes  v.  John  Rosenfeld's  Sons, 
145  Cal.  671,  it  was  held  that  where 
the  broker  had  all  of  the  following 
day  in  which  to  make  a  sale,  he  could 
not  recover  for  a  sale  made  by  the 
owner  the  day  after  the  time  limit 
had  expired,  although  the  broker 
may  have  been  the  procuring  cause. 

In  Fairchild  v.  Cunningham,  84 
Minn.  521,  after  the  plaintiff  (broker) 
had  failed  to  produce  a  purchaser 
and  the  owner  had  placed  the  prop- 
erty in  the  hands  of  another  broker, 
the  owner  sold  to  a  purchaser  who 
had  been  interested  by  plaintiff.  The 
court  held  that,  since  the  relation 
had  entirely  ceased  and  there  was  no 
bad  faith,  nothing  was  recoverable. 

The  refusal  of  the  broker,  at  the 


128 


2033 


§  2443] 


THE  LAW  OF  AGENCY 


[BOOK  v 


-fimi'hfti;  ••-.'•  •  rr  a  a/[j -j$rt}'.>rf7/ 

§  2443.  Must  be  sale,  not  mere  option  or  conditional  contract. — 

Where  the  undertaking  of  the  broker  is  to  find  a  purchaser  or  to  make 
a  sale,  the  principal  is  not  bound  to  accept,  nor  is  the  broker  entitled  to 
commissions  for  producing,  a  person  who  is  only  willing  to  take  an  op- 
tion to  purchase,  or  will  only  enter  into  a  contract  upon  terms  which 
were  not,  expressly  or  by  implication,  a  part  of  the  principal's  offer,80 
such  as  a  provisional  contract  or  a  contract  which  gives  him  the  right 
to  terminate  it,  before  full  performance  upon  his  part,  by  forfeiting  de- 
posits or  paying  liquidated  damages ; 91  unless,  indeed,  he  actually  ex- 
ercises his  option  and  buys.92 


purchaser's  request,  to  ask  the  owner 
to  lower  the  price  fixed  is  not  an 
abandonment.  McCormack  v.  Hen- 
derson, 100  Mo.  App.  647. 

See  also,  Enochs  v.  Paxton,  87 
Miss.  660;  Jones  v.  Buck,  147  Iowa, 
494. 

so  Conditions  which  would  be  at- 
tached to  the  principal's  implied  un- 
dertaking would  not  be  hostile  or  un- 
usual conditions  within  this  rule;  e. 
g.,  that  a  principal  who  holds  him- 
self out  as  the  owner  has  a  market- 
able title.  See  Brackenridge  v.  Cla- 
ridge,  91  Tex.  527,  43  L.  R.  A.  593. 

»i  Warnekros  v.  Bowman,  —  Ariz. 
— ,  128  Pac.  49,  43  L.  R.  A.  (N.  S.) 
91,  (stock);  Brown  v.  Keegan,  32 
Colo.  463;  Fox  v.  Land  Co.,  37  Colo. 
203;  Hildenbrand  v.  Lillis,  10  Colo. 
App.  522;  Block  v.  Ryan,  4  App.  Cas. 
D.  C.  283;  Lawrence  v.  Rhodes,  188 
111.  96;  Pape  v.  Romy,  16  Ind.  App. 
470;  Aigler  v.  Land  Co.,  51  Kan.  718; 
Zeidler  v.  Walker,  41  Mo.  App.  118; 
Kimberly  v.  Henderson,  29  Md.  512; 
Runyon  v.  Wilkinson,  57  N.  J.  L.  420; 
Ward  v.  Zborowski,  31  N.  Y.  Misc. 
66;  Halprin  v.  Schachne,  25  N.  Y. 
Misc.  797;  Brackenridge  v.  Claridge, 
91  Tex.  527,  43  L.  R.  A.  593;  Rankin 
v.  Grist  (Tex.  Civ.  App.),  129  S.  W. 
1147;  Tousey  v.  Etzel,  9  Utah,  329; 
Jones  v.  Eilenfeldt,  28  Wash.  687; 
Dwyer  v.  Raborn,  6  Wash.  213;  Law- 
rence v.  Pederson,  34  Wash.  1;  Stilt 
v.  Huidekopers,  17  Wall.  (U.  S.)  384. 

See  also,  Humphries  v.  Smith,  5 
Ga.  App.  340;  Crockett  v.  Grayson, 
98  Va.  354;  Murray  v.  Rickard,  103 


Va.  132;  Lindsay  v.  Steel  Co.,  195 
Pa.  120;  Hammond  v.  Crawford,  14 
C.  C.  A.  109,  66  Fed.  425;  Richard- 
son v.  Olanthe  Milling  Co.,  167  Ala. 
411,  140  Am.  St.  Rep.  45. 

Contra:  Parker  v.  Estabrook,  68  N. 
H.  349. 

Where  the  buyer  produced  by  the 
broker  reserves  to  himself  the  right 
to  withdraw  from  the  contract  upon 
the  happening  of  a  certain  contin- 
gency, having  no  connection  with 
the  fault  of  the  principal,  and  does 
withdraw  because  that  contingency 
happens,  the  broker  has  not  earned 
his  commission.  Condict  v.  Cowd- 
rey,  139  N.  Y.  273;  Kost  v.  Reilly,  62 
Conn.  57,  is  to  the  same  effect.  There, 
in  a  contract  for  the  sale  of  a  saloon, 
was  a  provision  that  there  should  be 
no  sale  in  case  no  license  for  the 
place  was  granted.  No  license  was 
granted  and  it  was  held  that  the 
broker  had  not  made  a  sale. 

Where  the  buyer  produced  will  go 
no  further  at  the  time  than  to  make 
a  provisional  arrangement  and  make 
a  deposit,  but  ultimately  refuses  to 
accept  a  deed  of  conveyance,  the 
broker  is  not  entitled  to  commissions. 
Yeager  v.  Kelsey,  46  Minn.  402. 

Where  the  broker  is  employed  to 
secure  a  sale  of  property  and  secured 
only  a  man  who  is  willing  to  take  a 
lease,  with  a  privilege  of  buying  in 
the  fee,  he  has  not  performed  his  un- 
dertaking and  is  entitled  to  no  com- 
mission. Woolley  v.  Schmal,  5  Ohio 
Cir.  Ct.  7G. 

»2Morson  v.  Burnside,  31  Ont.  438. 


2034 


CHAP.    Ill] 


OF   BROKERS 


[§    2443 


But  where  the  person  produced  by  the  broker  was  ready,  willing 
and  able  to  enter  into  a  binding  and  enforceable  contract,  the  mere  fact 
that  the  principal  voluntarily  enters  into  such  a  contract  as  will  per- 
mit the  buyer  to  withdraw  without  completing  the  purchase  ought  not 
to  deprive  the  broker  of  his  commissions,93  though  there  may  be  cases 
which  seem  to  hold  the  contrary.94 

And  though  the  principal  is  not  bound  to  accept  the  purchaser  who 
will  take  only  an  option  or  a  defeasible  contract,  there  is  authority  for 
saying  that,  if  he  does  voluntarily  do  so,  he  thereby  manifests  his  sat- 
isfaction with  the  broker's  performance,  and  must  pay  him  his  commis- 
sions, even  though  the  sale  ultimately  fails.95  This,  however,  seems  to 
be  a  question  of  fact,  and  the  mere  fact  that  the  principal  entered  into 
the  only  contract  which  the  buyer  produced  was  willing  to  make,  ought 
not  to  be  regarded  as  conclusive  evidence  of  his  satisfaction  with  the 
broker's  performance.96 


See  also,  Kimberly  v.  Henderson,  29 
Md.  512;  Block  v.  Ryan,  4  App.  Gas. 
D.  C.  283;  Hallack  v.  Hinckley,  19 
Colo.  38. 

93  So  held :  Leete  v.  Norton,  43 
Conn.  219  (disapproved  in  Reiger  v. 
Bigger,  29  Mo.  App.  421;  distinguish- 
ed in  Lawrence  v.  Rhodes,  188  111. 
96);  Mayhew  v.  Brislin,  13  Ariz.  102. 

See  also,  Wilson  v.  Mason,  158  111. 
304,  49  Am.  St.  Rep.  162. 

»*  In  Lawrence  v.  Rhodes,  188  111. 
96,  there  was  a  provision  in  the  con- 
tract which  in  substance  gave  the 
purchaser  the  right  to  withdraw  up- 
on forfeiting  the  first  payment. 
Some  controversy  arising  over  the 
title,  the  principal,  to  avoid  litiga- 
tion, paid  back  the  first  payment  and 
the  contract  was  canceled  by  mutual 
consent.  Held,  that  the  broker  was 
not  entitled  to  his  commissions  (re- 
versing 87  111.  App.  672).  The  de- 
cision proceeds  upon  two  main 
grounds,  one,  an  assumption  that  the 
purchaser  produced  would  not  have 
made  an  unconditional  contract 
(which  would  bring  the  case  within 
the  rule  first  stated  in  this  section); 
secondly,  that  the  contract  with  the 
broker,  which  required  a  "sale," 
meant  a  completed  sale  (a  point  up- 
on which  there  is  room  for  difference 
of  opinion). 


But  though  a  defeasible  contract 
only  is  made,  and  the  buyer  at  first 
elects  not  to  go  on  but  within 
a  few  days  and  before  the  broker's 
employment  is  ended  decides  to  and 
does  buy  upon  the  original  terms,  the 
broker  may  recover.  Shelton  v.  Lun- 
din,  45  Ind.  App.  172. 

95  See,  for  example,  per  Earl,  J.,  in 
Gilder  v.  Davis,  137  N.  Y.  504,  20  L. 
R.  A.  398;  Nesbitt  v.  Helser,  49  Mo. 
383.  Approved  in  Mayhew  v.  Brislin, 
13  Ariz.  102. 

se  in  Kimberly  v.  Henderson,  29 
Md.  512,  where  it  was  held  that  .the 
broker  was  not  entitled  to  his  com- 
missions, it  appeared  that  the  clause 
in  the  contract  which  gave  the  pur- 
chaser the  right  to  withdraw  was 
prepared  by  the  broker  and  inserted 
at  his  instance. 

In  Zeidler  v.  Walker,  41  Mo.  App. 
118,  the  court  say  that,  in  the  ab- 
sence of  evidence  to  the  contrary, 
they  would  assume  that  the  contract 
as  made  was  the  only  contract  the 
purchaser  was  willing  to  make. 
Nothing  was  said  about  the  effect  of 
entering  into  it  as  an  approval  or 
ratification.  It  was  simply  held  that 
the  broker  had  not  performed. 

In  Reiger  v.  Bigger,  29  Mo.  App. 
421,  the  court  held  that  the  making 
of  the  contract  which  was  made  was 


2035 


§  2444] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2444*  Must  be  sale,  not  exchange. — For  reasons  similar  to  those 
referred  to  in  the  preceding  section,  a  broker  employed  to  sell  does 
not  earn  his  commissions  merely  by  producing  someone  who  will  ex- 
change lands  or  other  property  for  the  principal's  land.  But  if  the 
principal  sees  fit  to  accept  such  property  in  lieu  of  money,  and  does 
so,  or  waives  the  requirement  of  all  cash  and  accepts  part  payment  in 
property,  or  expressly  or  tacitly  consents  to  an  alteration  of  the  terms 

of  the  employment,  the  broker  will  be  entitled  to  his  commissions.97    A 
airl  2%ifinfi(n  -/.ip-fjri;  »(t,Qe.roi/  vji^umjiov  ^DM 

not  to  be  regarded  as  showing  satis- 
faction with  the  broker's  perform- 
ance, denying  Leete  v.  Norton,  43 
Conn.  219. 

97  Rabb  v.  Johnson,  28  Ind.  App. 
665,  in  which  the  defendant  had 
agreed  to  pay  the  broker  a  certain 
commission  if  he  should  secure  a  sale 
of  defendant's  land  for  $40  an  acre, 
which  would  aggregate  $8,320.  The 
plaintiff  broker  found  a  man  who 
was  willing  to  give  tne  stipulated 
price,  but  only  in  a  livery  business, 
which  he  claimed  was  of  at  least  that 
value.  The  defendant,  through  the 
plaintiff,  negotiated  a  contract  of  ex- 
change which  stipulated  that  the  liv- 
ery business  was  valued  at  $8,320  as 
between  the  parties.  The  court  held 
that  the  plaintiff's  right  to  and  con- 
tract for  commission  on  the  purchase 
price  was  unaffected  by  the  fact  that 
it  was  paid  in  a  livery  business  in- 
stead of  in  cash. 

Kennerly  v.  Somerville,  68  Mo. 
App.  222,  in  which  the  court  held 
that  the  broker's  right  to  commis- 
sion was  unchanged  by  the  fact  that 
of  an  acknowledged  consideration, 
part  was  in  cash,  part  in  notes,  and 
part  in  other  land.  The  court  held 
that  the  broker  was  entitled  to  the 
stipulated  per  cent,  of  what  the  jury 
might  determine  from  the  evidence 
to  be  the  "actual  value  received  by 
the  defendant." 

Grether  v.  McCormick,  79  Mo.  App. 
325,  in  which,  the  defendants  had 
agreed  to  pay  the  plaintiff  a  five  per 
cent  commission  if  they  would  find  a 


purchaser  for  the  property  at  $45,000. 
The  plaintiffs  found  no  cash  pur- 
chaser, but  did  find  a  man  who  would 
trade.  The  defendants,  when  the 
matter  was  mentioned  to  them,  en- 
couraged the  plaintiffs  to  proceed 
and  negotiate  a  trade.  After  a  con- 
tract of  exchange  for  the  other  prop- 
erty upon  an  express  valuation  of 
$60,000  had  been  accepted  by  the  de- 
fendants, it  was  held  the  plaintiffs 
were  entitled  to  a  commission  "on 
the  value  of  the  property  taken  in 
exchange." 

Crowley  Co.  v.  Myers,  69  N.  J.  L. 
245,  where  it  was  held  that  the 
broker's  right  to  a  two  per  cent  com- 
mission on  the  selling  price  was  un- 
affected by  the  fact  that  the  princi- 
pal, while  still  contracting  for 
$70,000.,  the  price  set,  agreed  to  take 
certain  specified  property  at  $30,000. 

Thornton  v.  Moody,  24  S.  W.  331 
(Tex.  Civ.  App.),  in  which  the  de- 
fendant agreed  to  pay  the  plaintiff 
$1,500  for  the  sale  of  a  piece  of  prop- 
erty which  he  valued  at  $35,000,  and 
5  per  cent  of  $8,500  for  the  sale  of  a 
second  piece,  which  he  valued  at 
$8,500.  The  plaintiff  in  fact  negoti- 
ated an  exchange  contract,  which  the 
defendant  accepted,  In  which  the  de- 
fendant's property  was  valued  at 
prices  a  little  above  those  he  had  first 
set,  and  the  other  property  had  cor- 
responding values.  The  plaintiff  was 
held  entitled  to  the  sums  fixed  in  his 
contract. 

Dreisback  v.  Rollins,  39  Kan.  268, 
is  to  the  same  general  effect 


2036 


CHAP.    Ill] 


OF   BROKERS 


[§    2445 


fortiori  will  this  be  true  where  the  terms  of  the  employment  were  com- 
prehensive enough  to  include  either  a  sale  or  an  exchange.98 

§  2445.  Sale  by  principal  in  person — Exclusive  agencies. — Unless 
the  principal  has  expressly  relinquished  that  right,  he  is  at  perfect  lib- 
erty to  sell  the  property  by  his  own  efforts,  notwithstanding  the  em- 
ployment of  the  broker,  and,  in  case  of  such  a  sale,  he  will  not  be  liable 
to  the  broker  for  commissions,  if  the  broker's  efforts  were  not,  in  fact, 
the  procuring  cause  of  the  sale." 

The  principal's  right  to  make  the  sale  himself  is  not  surrendered 


as  As,  for  example,  in  Clark  v. 
Allen,  125  Cal.  276,  where  the  em- 
ployment was  to  procure  a  "deal." 

90  Cook  v.  Forst,  116  Ala.  395;  Hill 
v.  Jebb,  55  Ark.  574;  Dolan  v.  Scan- 
Ion,  57  Cal.  261;  Fist  v.  Currie,  49 
Colo.  284;  Hungerford  v.  Hicks,  39 
Conn.  259;  Doonan  v.  Ives,  73  Ga. 
295;  White  v.  Benton,  121  Iowa,  354; 
Armstrong  v.  Wann,  29  Minn.  126; 
Putnam  v.  How,  39  Minn.  363;  Baars 
v.  Hyland,  65  Minn.  150;  Wylie  v. 
Marine  Nat.  Bank,  61  N.  Y.  415;  Mc- 
Clave  v.  Paine,  49  N.  Y.  561,  10  Am. 
Rep.  431;  Roberts  v.  Markham,  26 
Okla.  387;  Turner  v.  Baker,  225  Pa. 
359;  Kidman  v.  Howard,  18  S.  Dak. 
161;  Evans  v.  Gay  (Tex.  Civ.  App.), 
74  S.  W.  575;  Hammond  v.  Mau,  69 
Wash.  204,  40  L.  R.  A.  (N.  S.)  1142; 
Darrow  v.  Harlow,  21  Wis.  302,  94 
Am.  Dec.  541;  Brinson  v.  Davies,  105 
L.  T.  134,  27  L.  T.  R.  442;  Markle  v. 
Blain,  11  O.  W.  R.  505. 

It  is,  of  course,  true  that  if,  though 
the  principal  sells,  he  sells  to  one 
who  was  really  "procured"  by  the 
broker,  the  fact  that  the  principal 
makes  the  sale  in  person  will  not  re- 
lieve him  from  liability  to  the 
broker.  See  ante,  §  2435;  Lipscomb  v. 
Cole,  81  Mo.  App.  53. 

i  Dole  v.  Sherwood,  41  Minn.  535, 
5  L.  R.  A.  720,  16  Am.  St.  Rep.  731; 
Ingold  v.  Symonds,  125  Iowa,  82;  id., 
134  Iowa,  206;  Turner  v.  Baker,  225 
Pa.  359;  Waterman  v.  Boltinghouse, 
82  Cal.  659;  Gilbert  v.  McCullough, 
146  Iowa,  333;  Gilbert  v.  Coons,  37 
111.  App.  448;  Johnston-Reynolds 


Land  Co.  v.  Fuqua,  —  Ark.  — ,  1"51  S. 
W.  693. 

In  Smith  v.  Preiss,  117  Minn.  392, 
It  is  said:  "An  exclusive  agency  to 
sell  property  is  not,  in  this  state, 
equivalent  to  a  grant  of  the  'exclusive 
right  to  sell;'  and  where  the  owner 
grants  an  exclusive  agency  only,  he 
retains  the  right  in  himself  to  sell, 
without  being  liable  to  the  agent  for 
a  commission,"  citing,  Dole  v.  Sher- 
wood, supra;  Baars  v.  Hyland,  supra. 

Exclusive  rights  to  sell  are  not 
lightly  inferred.  In  Tracy  v.  Abney, 
122  Iowa,  306,  a  formal  and  unusu- 
ally full  contract  in  writing  provided 
that,  if  the  principal  should  desire  to 
take  land  out  of  the  market  or  raise 
the  price,  he  could  do  so  by  giving  the 
broker  thirty  days'  notice  and  paying 
him  his  disbursements  and  a  2% 
commission,  was  held  not  to  prevent 
a  sale  by  the  principal  in  person  with- 
out liability  to  the  broker.  He  had 
not  relinquished  his  right  and  such  a 
sale  w?s  held  not  to  be  a  taking  of 
the  land  out  of  the  market  within 
the  terms  of  the  contract. 

Same  in  case  of  loan  broker.  Mott 
v.  Ferguson,  92  Minn.  201  (and  fact 
that  principal's  own  arangements  for 
the  money  were  not  enforceable  un- 
der the  statute  of  frauds  is  imma- 
terial, so  far  as  the  broker's  claim  is 
concerned). 

No  notice  need  be  given  by  princi- 
pal where  he  has  acted  independently 
of  the  broker.  Mott  v.  Ferguson, 
supra;  White  v.  Benton,  121  Iowa, 
354;  Hallstead  v.  Perrigo,  87  Neb. 
128. 


2037 


§  2445] 


THE  LAW  OF  AGENCY 


[BOOK  v 


merely  by  giving  the  broker  the  exclusive  agency.1  That  does  not  nec- 
essarily mean  anything  more  than  that  the  principal  will  not  employ 
any  other  broker,  leaving  him  still  free  to  sell  in  person.  But  the  prin- 
cipal may  agree — for  a  sufficient  consideration — that,  during  a  stated 
period,  he  will  not  sell  except  through  the  broker,2  or  that  the  broker 
shall  have  his  commission  whoever  makes  the  sale,8  and  the  like;  and 


2  Thus  in  Gregory  v.  Bonney,  135 
Cal.  589,  the  principal  expressly 
agreed:  "I  agree  not  to  sell  or  dis- 
pose of  said  property  during  the  life 
of  this  agreement  except  through 
the  agency  of  Charles  E.  Gregory. 
Should  I  do  so,  I  will  pay  the  full 
amount  of  the  commission  above 
provided." 

Where  the  principal  had  contracted 
that  his  broker  should  have  the  "ex- 
clusive agency"  to  sell  certain  land 
for  a  period  of  three  years,  in  con- 
sideration of  the  broker's  agreement 
to  "give  reasonable  time  and  atten- 
tion to  the  sale  of  said  lands  and  to 
have  same  examined  and  advertised," 
it  was  held  that  the  principal  had  by 
this  granted  away  his  right  to  sell 
the  land,  as  well  as  the  right  to  em- 
ploy other  brokers,  without  becom- 
ing liable  to  the  broker  for  his  com- 
mission. Hunter  v.  Wenatchee  Land 
Co.,  50  Wash.  438. 

s  In  Kimmell  v.  Skelly,  130  Cal. 
555,  the  contract  in  writing  provided: 
"This  employment  and  authority 
shall  continue  for  the  drawn  by  me 
in  writing,  and  I  agree  to  pay  to  said 
H.  &  L.,  in  the  event  of  the  sale  of 
said  real  property  by  them  or  by  any- 
one else,  including  myself,  while  this 
contract  is  in  force,"  the  commission 
stipulated  for. 

See  also,  Campbell  T.  Thomas,  87 
Cal.  428;  Crane  v.  McCormick,  92  Cal. 
176;  Hammond  v.  Mau,  69  Wash.  204, 
40  L.  R.  A.  (N.  S.)  1142. 

In  Metcalf  v.  Kent,  104  Iowa,  487, 
the  written  contract  provided  that 
the  commission  should  be  payable  if 
the  property  "is  sold  during  the  pend- 
ency of  this  contract,  or  to  a  person 
whom  second  party  [the  broker] 
finds,  shows  the  property  to,  or  di- 
rects to  said  property,  or  secures 


such  person  after  the  expiration  of 
said  contract." 

In  Lapham  v.  Flint,  86  Minn.  376, 
the  contract  provided  for  payment  of 
commission  even  if  the  principal 
made  the  sale  in  person.  Same  in 
Singleton  v.  O'Blenis,  125  Ind.  151. 
Same  in  effect:  Leslie  v.  Boyd,  124 
Ind.  320. 

In  Schultz  v.  Griffin,  5  N.  Y.  Misc. 
499,  the  contract  gave  the  broker  "the 
exclusive  sale  for  twenty  days." 

In  Harrell  v.  Zimpleman,  66  Tex. 
292,  a  known  custom,  assented  to, 
was  held  to  amount  to  a  contract  to 
give  the  broker  the  exclusive  right  to 
sell  for  a  period  fixed.  See  also, 
Stringfellow  v.  Powers,  4  Tex.  Civ. 
App.  199. 

In  Levy  v.  Rothe,  .17  N.  Y.  Misc. 
402,  the  broker  was  given  "the  option 
and  sole  agency"  to  sell  for  a  certain 
period. 

Where  the  contract  provides  for 
ten  days'  written  notice  of  the  with- 
drawal of  the  property,  and  the 
owner  sells  in  person  without  giving 
such  notice,  he  will  be  liable  to  the 
broker  for  commissions  if  the  broker 
actually  produces  a  purchaser  before 
notice  of  the  sale;  and  if  not,  then 
for  damages  for  labor  and  expendit- 
ures by  the  broker  in  endeavoring  to 
find  a  purchaser  after  the  sale  by  the 
principal  and  before  notice  of  it  to 
the  broker.  Thompson  Co.  v.  Gold- 
man, 41  Pa.  Super.  Ct.  209. 

In  Terry  v.  Wilson's  Estate,  50 
Minn.  570,  the  principal  had  agreed 
with  the  agent  that  if  within  a  cer- 
tain time  a  sale  of  the  land  was 
made  by  either  the  agent  or  the  prin- 
cipal, the  agent  should  have  commis- 
sion, and  the  court  allowed  the  agent 
no  commission  when  the  principal 
had  made  a  transfer  of  the  property 


2038 


n  r  f  /- 

CHAP.    Ill]  OF   BROKERS  [§    2446 

in  such  a  case  a  sale  by  the  principal  in  person  will  be  a  breach  of  the 
contract  in  the  one  case  and  entitle  the  broker  to  his  commissions  in 
the  other.4 

§  2446.  Giving  time  to  the  broker. — Where  a  time  is  fixed  for  per- 
formance by  the  broker,  a  number  of  considerations  arise.  If  all  that 
the  negotiations  amount  to  is  an  offer  by  the  principal  that  he  will  pay 
a  commission  if  a  purchaser  be  found  within  a  certain  time,  the  offer 
will  only  be  accepted  and  ripen  into  a  contract  by  the  finding  of  the 
purchaser  within  that  time.  At  any  time  before  that  event,  the  offer 
may  be  withdrawn  by  the  principal.  A  sale  by  the  principal  in  person 
would,  if  known,  doubtless  be  regarded  as  a  withdrawal ; 6  a  number 
of  cases  seem  to  hold  it  a  withdrawal  even  if  not  known.6 

If  what  the  negotiations  amount  to  is  a  contract  of  employment  for 
the  period  fixed,  or  a  binding  contract  that  a  commission  will  be  paid 
;f  a  purchaser  is  found  within  that  time,  the  broker  will  usually  be  en- 
titled to  damages  in  the  first  case,  and,  usually,  to  the  amount  of  his 
commission  in  the  second,  if  he  finds  a  purchaser  within  that  period, 
although  the  principal  may,  in  the  meantime,  have  sold  the  property 
or  withdrawn  it  from  sale.  (See  post  §  2452.)  If,  however,  in  either 
case,  a  sale  by  the  principal  can  be  regarded  as  an  implied  exception 
in  the  contract,  then  the  broker  is  not  entitled  if  that  contingency  oc- 
curs, even  though  he  should  perform.  The  court  in  Minnesota  seems 
to  read  such  an  exception  into  the  contract;7  courts  of  other  states 

absolute  on  its  face,  but  in  fact  a  o  Bissell  v.  Terry,  69  111.  184; 
mortgage,  on  the  ground  that  such  Walker  v.  Denison,  86  111.  142. 
mortgage  was  not  a  sale  within  the  6  See,  Ahern  v.  Baker,  34  Minn.  98; 
meaning  of  the  contract.  White  v.  Benton,  121  Iowa,  354;  Hail- 
In  Rucker  v.  Hall,  105  Cal.  425,  un-  stead  v.  Perrigo,  87  Neb.  128;  Smith 
der  a  similar  contract,  it  was  held  v.  Fowler,  57  Tex.  Civ.  App.  356; 
that  a  lease  made  by  the  principal  in  Johnston-Reynolds  Land  Co.  v.  Fu- 
person,  which  also  gave  the  buyer  an  qua,  —  Ark.  — ,  151  S.  W.  693;  Hill 
absolute  option  of  purchase,  was  to  v.  Jebb,  55  Ark.  574. 
be  regarded  as  equivalent  to  a  sale  1  In  Baars  v.  Hyland,  65  Minn.  150, 
for  the  purposes  of  this  contract,  in-  the  broker  was  to  receive  a  commis- 
asmuch  as  it  completely  put  it  out  sion  in  case  he  produced  a  purchaser 
of  the  power  of  the  broker  to  make  by  November  16.  On  the  evening  of 
a  sale  to  anyone  else.  that  day,  at  8  o'clock,  a  purchaser 
*  Even  though  the  broker  has  an  ex-  was  found,  and  at  9 : 14  a  telegram 
elusive  right  of  sale  during  a  certain  was  sent  to  the  principal,  who  lived 
time,  his  right  is  not  violated  because  in  New  York.  The  telegram  was  re- 
the  principal  during  that  time  be-  ceived  at  9:15  the  next  morning,  but 
gins  negotiations  with  a  purchaser,  the  principal  had  already,  on  that 
found  by  his  own  effort,  which  do  morning,  sold  the  property.  The 
not  ripen  into  a  sale  until  after  the  court  said  that  ordinarily  this  would 
broker's  term  has  expired.  Humph-  have  been  a  sufficient  performance 
ries  v.  Smith,  5  Ga.  App.  340.  by  the  broker;  that,  having  found 

2039 


§  2447] 


THE  LAW  OF  AGENCY 


[BOOK  v 


in  other  cases  have  not  done  so,  and  have,  therefore,  held  the  principal 
liable.8 

§  2447.  Broker's  right  not  defeated,  how — Principal's  default. — 
As  has  been  already  seen,  the  principal  cannot,  when  the  broker's  ef- 
forts have  resulted  in  negotiations  for  a  sale,  step  in  and  by  taking  the 
matter  into  his  own  hands  (or  those  of  another  agent),  and  complet- 
ing the  sale,  escape  liability  to  the  broker.9  Nor  if,  within  the  time 


a  purchaser  within  the  time  limit,  he 
is  allowed  in  addition  a  reasonable 
time  in  which  to  notify  the  princi- 
pal; hut,  "conceding  that  this  plain- 
tiff had  all  of  November  16  in  which 
to  find  a  purchaser,  and  a  reasonable 
time  thereafter  in  which  to  give  de- 
fendant notice  thereof,  still,  his 
right  to  compensation  was  subject  to 
the  contingency  that  defendant  might 
sell  to  some  other  purchaser  before 
he  received  such  notice  from  plain- 
tiff, and  if  that  contingency  happen- 
ed, plaintiff's  right  to  compensation 
was  defeated." 

s  In  Blumenthal  v.  Bridges,  91  Ark. 
212,  24  L.  R.  A.  (N.  S.)  279,  it  ap- 
peared that  the  principals  had  given 
to  the  broker  written  authority  to 
find  a  purchaser  for  their  land, 
which  stated  that  it  should  be  "good" 
until  a  certain  date.  The  broker  did 
not  sign  that,  nor  any  other  agree- 
ment, nor  does  it  appear  from  the 
case  that  he  bound  himself  to  do  any- 
thing at  all.  He  did,  however,  set 
about  endeavoring  to  find  a  pur- 
chaser. Before  the  expiration  of  the 
period  the  principal  sold  and  convey- 
ed the  land  to  a  purchaser  not  found 
by  the  broker.  After  the  broker 
learned  of  the  sale  he  came  to  the 
principal,  claimed  that  he  had  made 
a  verbal  sale  of  the  land  to  a  pur- 
chaser named  before  the  principal 
had  made  the  sale,  tendered  to  the 
principal  the  full  purchase  price  and 
demanded  a  conveyance  to  his  pur- 
chaser. The  court  held  that  the 
broker  was  entitled  to  recover.  The 
court  said  that  the  case  did  not  fall 
within  the  ordinary  rule  that  the 
principal,  though  he  has  employed  a 


broker,  impliedly  reserves  the  right 
to  sell  the  land  himself,  but  that  the 
case  came  within  the  rule  that  where 
"the  contract  expressly  stipulated  for 
a  definite  period  of  time  within 
which  the  agent  might  make  a  sale: 
in  such  case  the  contract  implies  an 
exclusive  right  to  sell  within  tho 
time  named,  without  the  right  of  the 
principal  to  revoke  the  agency  un- 
less there  is  a  reservation  to  the  con- 
trary."  The  court  also  held  tho 
broker  was  entitled  to  recover  "the 
profit  he  would  have  realized  from 
the  performance  of  the  contract  if  he 
had  been  permitted  to  perform  It 
within  the  time  named." 

In  Levy  v.  Rothe,  17  N.  Y.  Misc. 
402,  the  principal  gave  to  the  broker 
a  contract  by  which  the  broker  was 
to  have  "the  option  and  sole  agency 
to  sell  and  offer  or  sale"  certain 
premises  for  the  period  of  six  months 
from  the  date  thereof,  and  in  which 
the  principal  also  agreed  "not  to 
place  the  said  premises  for  sale  dur- 
ing the  said  period  in  the  hands  of 
any  other  agent  or  broker."  About  a 
month  afterwards  the  principal  sold 
and  conveyed  the  land  to  a  purchaser 
found  by  himself.  On  the  next  day 
the  broker  came  in  with  a  purchaser. 
Tlie  court  held  that  by  the  contract 
the  principal  had  agreed  not  to  sell 
during  that  period  In  person  and 
that  the  broker  was  entitled  to  his 
commission. 

»  Hallack  v.  Hinckley,  19  Colo.  38; 
Gresham  v.  Connolly,  114  Ga.  906; 
Rigdon  v.  More,  226  111.  382;  Gouge  v. 
Hoyt,  127  Iowa,  340;  Gibson  v.  Hunt 
(Iowa),  94  N.  W.  277;  Sullivan  v. 
Tufts,  203  Mass.  155;  Bowling  v. 


2040 


CHAP.    IIlJ 


OF   BROKERS 


[§    2447 


limited,  the  broker  has  produced  a  purchaser  who  is  ready,  willing  and 
able  to  purchase  upon  the  terms  prescribed,  can  the  principal  evade 
the  payment  of  the  broker's  commission  by  then  refusing  or  neglecting 
to  consummate  the  sale,10  or  by  changing  his  terms,11  or  by  selling  the 


Morrill,  165  Mass.  491;  O'Gonnell  v. 
Casey,  206  Mass.  520;  Butler  v.  Ken- 
nard,  23  Neb.  357;  Nicholas  v.  Jones, 
23  Neb.  813;  Sibbald  v.  Bethlehem 
Iron  Works,  83  N.  Y.  378,  38  Am. 
Rep.  441;  Carrol  v.  Pettit,  67  Hun 
(N.  Y.),  418;  Canfield  v.  Orange,  13 
N.  Dak.  622;  Keys  v.  Johnson,  68  Pa. 
42;  Tilden  v.  Smith,  24  S.  Dak.  576. 

A  roundabout  or  disguised  sale  by 
the  principal  to  the  broker's  cus- 
tomer is  within  the  rule.  Glade  v. 
Mining  Co.,  129  Mo.  App.  443;  Alex- 
ander v.  Smith,  — •  Ala.  ,  61  So. 

68;  Fist  v.  Currie,  49  Colo.  284. 

But  not  where  the  principal  did 
not  know  that  he  was  dealing  with 
the  same  party  and  there  was  no  col- 
lusion. Cole  v.  Kosch,  116  N.  Y.  App. 
Div.  715. 

i*  Handley  v.  Shaffer,  Ala.  , 

59  So.  286;  Neilson  v.  Lee,  60  Cal. 
555;  Crelan  v.  Gardner,  43  Cal.  306; 
Oullahan  v.  Baldwin,  100  Cal.  648; 
Merriman  v.  Wickersham,  141  Cal. 
567;  Phelps  v.  Prusch,  83  Cal.  626; 
Fiske  v.  Soule,  87  Cal.  313;  Smith 
v.  Schiele,  93  Cal.  144;  Spaulding  v. 
Saltiel,  18  Colo.  86;  Millett  v.  Earth, 
18  Colo.  112;  Home  Banking  Co.  v. 
Baum,  85  Conn.  383;  Fenn  v.  Ware, 
100  Ga.  563;  Fischer  v.  Bell,  91  Ind. 
243;  Love  v.  Miller,  53  Ind.  294,  21 
Am.  Rep.  192;  Felts  v.  Butcher,  93 
Iowa,  414;  Bird  v.  Phillips,  115  Iowa, 
703;  Gillett  v.  Corum,  7  Kan.  156; 
Beougher  v.  Clark,  81  Kan.  250,  29 
L.  R.  A.  (N.  S.)  198;  Niederlander 
v.  Starr,  50  Kan.  770;  Sandefur  v. 
Hines,  69  Kan.  168;  Veazie  v.  Parker, 
72  Me.  443;  Cook  v.  Fiske,  12  Gjay 
(Mass.),  491;  Holden  v.  Starks,  159 
Mass.  503,  38  Am.  St.  Rep.  451; 
Graves  v.  Cook,  115  Minn.  34;  Goss 
v.  Stevens,  32  Minn.  472;  Gaty  v. 
Foster,  18  Mo.  App.  639;  Bell  v. 
Kaiser,  50  Mo.  150;.  Tyler  v.  Parr, 
52  Mo.  249;  Bailey  v.  Chapman,  41 


Mo.  536;  Jones  v.  Stevens,  36  Neb. 
849;  Owen  v.  Riddle,  81  N.  J.  L.  546, 
Ann.  Gas.  1912,  B.  45;  Burling  v. 
Gunther,  12  Daly  (N.  Y.),  6;  Sibbald 
v.  Bethlehem  Iron  Works,  83  N.  Y. 
378,  38  Am.  Rep.  441;  Gorman  v. 
Scholle,  13  Daly  (N.  Y.),  516;  Dor- 
Ion  v.  Forrest,  101  N.  Y.  App.  Div. 
32;  Moses  v.  Bierling,  31  N.  Y.  462; 
York  v.  Nash,  42  Ore.  321;  Lund  v. 
Babb,  25  S.  Dak.  439;  Taylor  v.  Cox, 
16  S.  W.  1063;  Lawson  v.  Thompson, 
10  Utah,  462;  Reynolds,  etc.,  v. 
Green,  78  Vt.  28;  Kelly  v.  Phelps,  57 
Wis.  425;  Kock  v.  Emmerling,  22 
How.  (U.  S.)  69;  Watson  v.  Brooks, 
8  Sawy.  (U.  S.  C.  C.)  316;  Bagshame 
v.  Rowland,  7  W.  L.  R.  158. 

11  Handley  v.  Shaffer,  Ala.  — , 

59  So.  286;  Boland  v.  Ashurst,  145 
Cal.  405;  Buckingham  v.  Harris,  10 
Colo.  455;  Bash  v.  Hill,  62  111.  216; 
Plant  v.  Thompson,  42  Kan.  664,  16 
Am.  St.  Rep.  512;  Guthrie  v.  Bright, 
26  Ky.  L.  R.  1021,  82  S.  W.  985; 
Heaton  v.  Edwards,  90  Mich.  500;  Mc- 
Govern  v.  Bennett,  146  Mich.  558; 
Ranson  v.  Weston,  110  Mich.  240; 
Hubachek  v.  Hazzard,  83  Minn.  437; 
Delta,  etc.,  Land  Co.  v.  Wallace,  83 
Miss.  656:  Nesbitt  v.  Helser,  49  Mo. 
383;  Davidson  v.  Stocky,  202  N.  Y. 
423;  Chilton  v.  Butler,  1  E.  D. 
Smith  (N.  Y.),  150;  Keys  v.  John- 
son, 68  Pa.  42;  Webb  v.  Burroughs, 
25  S.  Dak.  629;  Heimberger  v.  Rudd, 

S.  Dak.  ,  138  N.  W.  374;  Pas- 

chall  v.  Gilliss,  113  Va.  643;  Stewart 
v.  Mather,  32  Wis.  344;  Oliver  v. 
Katz,  131  Wis.  409. 

After  the  broker  has  fully  per- 
formed, found  a  purchaser  whom  the 
principal  has  accepted  and  with 
whom  he  has  made  a  contract,  the 
broker's  right  to  commissions  there- 
for cannot  be  affected  by  the  fact  that 
acting  at  the  request  of  the  pur- 
chaser, he  has  obtained  a  change  in 


2041 


§  2447] 


THE  LAW  OF  AGENCY 


[BOOK  v 


property  to  another,12  or  by  so  negligently  dealing  with  the  proposed 
purchaser  as  to  lose  the  benefit  of  the  sal^x  or  by  refusing  to  enforce 
the  contract  against  the  buyer,14  or  by  voluntarily  releasing  the  buyer 
from  the  obligations  of  the  contract.15  So  if  the  broker  has  fulfilled 
upon  his  part,  he  will  be  entitled  to  his  commissions  although  the  sale 
is  not  consummated  because  the  principal's  title  proves  to  be  defec- 
tive,16 unless  the  defect  was  known  to  the  broker  at  the  time  he  under- 


the  contract  with  the  principal's  con- 
sent. Fairly  v.  Wappoo  Mills,  44  S. 
Car.  227,  29  L.  R.  A.  215. 

After  a  broker  has  found  a  pur- 
chaser whom  the  principal  accepts 
and  who  is  ready,  willing  and  able 
to  pay  the  price  stipulated,  the 
broker's  right  to  commissions  is  not 
affected  by  the  fact  that  the  princi- 
pal and  his  wife  then  refuse  to  exe- 
cute the  deed  unless  the  buyer  will 
pay  more.  Home  Banking  &  Realty 
Co.  v.  Baum,  85  Conn.  383. 

See  also,  Nosotti  v.  Auerbach,  79 
L.  T.  (N.  S.)  413. 

12  Lane  v.  Albright,  49  Ind.  275; 
Reed's  Ex'rs  v.  Reed,  82  Pa.  420;  Fox 
v.  Byrnes,  52  N.  Y.  Super.  Ct.  150; 
Sylvester  v.  Johnson,  110  Tenn.  392; 
Ford  v.  Easley,  88  Iowa,  603. 

Where  the  broker  is  to  be  paid  a 
percentage  of  the  amount  received, 
through  his  efforts,  by  the  principal, 
the  principal  cannot,  by  disposing  of 
his  own  right,  deprive  the  broker  of 
his  right  to  commissions.  Hix  v. 
Edison  El.  L.  Co:,  10  N.  Y.  App.  Div. 
75. 

A  sale  to  someone  who  is  only  the 
nominee  or  substitute  or  colleague  of 
the  buyer  produced  by  the  broker  is, 
for  the  purpose  of  the  broker's  right 
to  commissions,  a  sale  to  his  pur- 
chaser. McLaughlin  v.  Campbell,  78 
N.  J.  L.  541. 

;  "See  ante,  §  1536;  Potvin  v.  Cur- 
Tan,  13  Neb.  302;  Parker  v.  Walker, 
86  Tenn.  566;  Ratts  v.  Shepherd,  37 
Kan.  20. 

If  by  the  principal's  unnecessary 
and  unreasonable  delay  the  purchaser 
is  lost,  the  broker  who  has  produced 


him  is  entitled  to  his  commission. 
Mooney  v.  Elder,  56  N.  Y.  238. 

i*  Friestedt  v.  Dietrich,  84  111.  App. 
604;  Grouse  v.  Rhodes,  50  111.  App. 
120;  Love  v.  Miller,  53  Ind.  294,  21 
Am.  Rep.  192;  Love  v.  Owens,  31  Mo. 
App.  501;  Lunney  v.  Healey,  56  Neb, 
313,  44  L.  R.  A.  593;  Seabury  v.  Fi- 
delity Ins.,  etc.,  Co.,  205  Pa.  234; 
Hippie  v.  Laird,  189  Pa.  472;  Lund  v. 
Bapp,  25  S.  Dak.  439;  Parker  v. 
Walker,  86  Tenn.  566. 

"Ward  v.  Cobb,  148  Mass.  518,  12 
Am.  St.  Rep.  587;  Foster  v.  Wynn,  51 
111.  App.  401;  Nagl  v.  Small,  —  Iowa, 
— ,  138  N.  W.  849;  Duke  v.  Graham, 
—  Iowa,  — ,  143  N.  W.  817;  Lunney 
v.  Healey,  56  Neb.  313,  44  L.  R.  A. 
593. 

Mere  fact  that  principal  has  an  op- 
tion not  a  term  in  the  broker's  em- 
ployment, or  inserts  conditions  in  the 
contract  of  sale  by  which  he  may 
terminate  the  contract,  and  does  so, 
does  not  relieve  him  from  payment 
of  commissions.  Ketcham  v.  Axel- 
son,  —  Iowa,  — ,  142  N.  W.  62;  Betz 
v.  Land  Co.,  46  Kan.  45;  Stewart  v. 
Fowler,  53  Kan.  537. 

IB  See  ante.,  §  1535;  Birmingham 
Land,  etc.,  Co.  v.  Thompson,  86  Ala. 
146;  Gonzales  v.  Broad,  57  Gal.  224; 
Smith  v.  Schiele,  93  Cal.  144;  Block 
v.  Ryan,  4  App.  D.  C.  283;  Goodridge 
v.  Holladay,  18  111.  App.  363;  Whalen 
v.  Gore,  116  111.  App.  504;  Tackett  v. 
Powley,  130  111.  App.  97;  Jones  v. 
Ford,  154  Iowa,  549;  Davis  v.  Law- 
rence, 52  Kan.  383;  Stanton  v.  Barnes, 
72  Kan.  541;  Remington  v.  Sellers,  8 
Kan.  App.  806;  Witherell  v.  Murphy, 
147  Mass.  417;  .Fitzpatrick  v.  Gilson, 


2042 


CHAP.    Ill] 


OF   BROKERS 


[§    2447 


took  the  service ; "  or  because  the  principal  cannot  perform  the  condi- 


176  Mass.  477;  Roche  v.  Smith,  176 
Mass.  345,  51  L.  R.  A.  510;  Monk  v. 
Parker,  180  Mass.  246;  Hannan  v. 
Moran,  71  Mich.  261;  Stange  v.  Gosse, 
110  Mich.  153;  Hamlin  v.  Schulte,  34 
Minn.  534;  Roberts  v.  Kimmons,  65 
Miss.  332;  Hynes'  Ex'r.  v.  Brettelle,  70 
Mo.  App.  344;  Perrin  v.  Kimberlm, 
110  Mo.  App.  661;  Brown  v.  Smith, 
113  Mo.  App.  59;  O'Neil  v.  Printz,  115 
Mo.  App.  215;  Reasoner  v.  Yates,  90 
Neb.  757  (here  sub-agent  was  suing 
agent);  Knapp  v.  Wallace,  41  N.  Y. 
477;  Doty  v.  Miller,  43  Barb.  (N.  Y.) 
529;  Sibbald  v.  Bethlehem  Iron 
Works,  83  N.  Y.  378,  38  Am.  Rep. 
441;  Gorman  v.  Hargis,  6  Okla. 
360;  Yoder  v.  Randol,  16  Okla.  308,  3 
L.  R.  A.  (N.  S.)  576;  Kyle  v.  Rippey, 
20  Oreg.  446;  McLaughlin  v.  Wheeler, 
1  S.  Dak.  497;  Conklin  v.  Krakauer, 
70  Tex.  735;  Willson  v.  Crawford,  — 
Tex.  Civ.  App.  — ,  130  S.  W.  227; 
Hamburger  v.  Thomas,  —  Tex.  Civ. 
App.  — ,  118  S.  W.  770;  id.,  —  Tex. 
Civ.  App.  — ,  126  S.  W.  561;  Fawyer  v. 
Fullingham  (Tex.  Civ.  App.),  149  S. 
W.  746;  Dean  v.  Williams,  56  Wash. 
614;  Barthell  v.  Peter,  88  Wis.  316, 
43  Am.  St.  Rep.  906;  Arnold  v.  Nat'l 
Bank  of  Waupaca,  126  Wis.  362,  3  L. 
R.  A.  (N.  S.)  580;  Brydges  v.  Clem- 
ents, 14  Man.  L.  R.  588. 

The  objection  to  the  title  must  be 
one  well  founded  and  reasonable. 
See  Hanesly  v.  Bagley,  109  Ga.  346; 
Reid  v.  Thompson,  20  Ky.  Law  Rep. 
1887,  50  S.  W.  248. 

One  who  represents  himself  to  the 
broker  as  owner  cannot  escape  pay- 
ment of  commissions  because  he  had 
no  title.  Valerius  v.  Luhring,  87  Neb. 
425;  Vaughn  v.  McCarthy,  59  Minn. 
199. 

The  same  rule  applies  where  there 
is  a  deficiency  in  the  quantity  of 
land.  Cawker  v.  Apple,  15  Colo.  141; 
Cohen  v.  Farley,  28  N.  Y.  Misc.  168. 

Also  to  a  broker  employed  to  pro- 
cure a  loan.  Fitzpatrick  v.  Gilson, 
176  Mass.  477;  Peet  v.  Sherwood,  43 


Minn.  447;  Holly  v.  Gosling,  3  E.  D. 
Smith  (N.  Y.),  262;  Cheatham  v. 
Yarbrough,  90  Tenn.  77;  Sweeney  v. 
Ten  Mile  Oil  &  Gas  Co.,  130  Pa. 
193;  Middleton  v.  Thompson,  163  Pa. 
St.  112;  Green  v.  Lucas,  33  L.  T.  (N. 
S.)  584;  Smith  v.  Peyrot,  201  N.  Y. 
210. 

But  if  the  agreement  is  that  the 
broker  shall  have  all  above  a  certain 
price  actually  received  and  the  sale 
is  not  made  because  of  a  defect  in  the 
principal's  title,  it  has  been  held  that 
the  broker  cannot  recover.  Crockett 
v.  Grayson,  98  Va.  354;  Ford  v. 
Brown,  120  Gal.  551. 

An  agent  for  the  sale  of  land  who 
employs  a  broker  to  find  a  purchaser 
is  liable  to  a  broker  though  the  sale 
fails  because  his  principal  had  no 
title.  Barthell  v.  Peter,  88  Wis.  316, 
43  Am.  St.  Rep.  906;  Reasoner  v. 
Yates,  90  Neb.  757. 

Cost  of  removing  a  defect  in  the 
title  should  be  deducted  from  the 
principal's  share  of  the  proceeds  and 
not  from  the  agent's.  Wiseart  v. 
Dietz,  67  Iowa,  121. 

iTHoyt  v.  Shipherd,  70  ^HT  309; 
Hynes'  Ex'r.  v.  Brettelle,  70  Mo.  App. 
344;  Brady  v.  Maddox  (Tex.  Civ. 
App.),  124  S.  W.  739  (where  broker 
who  was  employed  by  husband  knew 
that  wife  owned  the  land);  Hollwey 
v.  Covert,  11  Ont.  Weekly  Rep.  433. 

Contra:  Martin  v.  Ede,  103  Cal. 
157,  where  the  court  said:  "With  the 
title  or  ownership  of  the  property  he 
(broker)  had  nothing  to  do,  and  his 
^knowledge  as  to  the  title  or  the  equit- 
able estate  of  J.  C.  therein  was  of  no 
consequence." 

The  principal  has  the  burden  of 
showing  that  the  broker  had  knowl- 
edge of  the  defect.  Davis  v.  Morgan, 
96  Ga.  518. 

Where  the  adult  owners  of  land 
misrepresented  to  the  broker  that  an 
order  of  court  had  been  obtained  for 
the  sale  of  infant  owners'  interest  and 
the  purchaser  found  refused  to  com- 


2043 


§  2447] 


THE  LAW  OF  AGENCY 


[BOOK  v 


tions  or  terms  imposed  upon  him  and  to  which  he  has  agreed ; 18  or  be- 
cause the  principal's  wife  refuses  to  join  in  the  conveyance;19  or  be- 
cause the  purchaser  refuses  to  complete  the  sale  on  account  of  false 
representations  made  by  the  principal.20 


plete  the  sale  on  the  ground  that, 
even  if  the  order  had  been  obtained, 
he  did  not  believe  it  valid,  the  broker 
cannot  recover.  Folsom  v.  Lewis,  14 
Misc.  (N.  Y.)  605. 

But  if  the  transaction  fails  for  a 
misrepresentation  made  by  the 
broker,  he  cannot  recover.  Shrop- 
shire v.  Frankel,  45  N.  Y.  Misc.  616. 

isHecht  v.  Hall,  62  111.  App.  100; 
Jones  v.  Ford,  154  Iowa,  549;  Smith 
v.  Adelberg,  72  Wash.  434. 

Even  though  it  was  stipulated  that 
the  broker's  commissions  were  to  be 
payable  out  of  the  payments  made  by 
the  purchaser,  yet  if  those  payments 
fail  because  the  seller  did  not  per- 
form conditions  imposed  upon  him, 
the  broker  may  recover.  Pederson  v. 
North  Yakima,  etc.,  Co.,  63  Wash. 
636. 

Where  the  principal,  at  the  time  of 
closing  the  contract  with  a  purchaser 
ready  to  buy,  insists  upon  reserving 
a  right  to  rescind,  not  a  term  in  the 
employment  of  the  broker,  and  later 
exercises  this  right,  the  broker's 
claim  to  commissions  is  not  affected 
by  it.  Ketcham  v.  Axelson,  —  Iowa, 
— ,  142  N.  W.  62. 

i»Staley  v.  Hufford,  73  Kan.  686; 
Clapp  v.  Hughes,  1  Phila.  382;  Ham- 
lin  v.  Schulte,  34  Minn.  534;  Marlin 
v.  Sipprell,  93  Minn.  271;  Herrick  v. 
Woodson,  143  Mo.  App.  258;  Curry  v. 
Whitmore,  110  Mo.  App.  204;  Young 
v.  Ruhwedel,  119  Mo.  App.  231;  Tebo 
v.  Mitchell,  5  Pennewell  (Del.),  356; 
Goldberg  v.  Gelles,  33  N.  Y.  Misc. 
797;  Bell  v.  Stedman,  88  Neb.  625. 

Same  where  wife  is  principal  and 
husband  will  not  join.  Ennis  v. 
Eager,  152  Mo.  App.  493. 

20  Glentworth  v.  Luther,  21  Barb. 
(N.  Y.)  145;  Hugill  v.  Weekley,  64 
W.  Va.  210,  15  L.  R.  A.  (N.  S.)  1262; 
Condict  v.  Cowdrey,  57  N.  Y.  Super. 
Ct  66  (but  see  s.  o.,  139  N.  Y.  273); 


Cohen  v.  Farley,  28  N.  Y.  Misc.  168; 
Dotson  v.  Milliken,  209  U.  S.  237,  52 
L.  Ed.  768;  Walsh  v.  Hastings,  20 
Colo.  243.  See  also,  Hannan  v.  Mor- 
an;  71  Mich.  261; '  Gordon  v.  Rosen- 
thai,  130  N.  Y.  Supp.  226  (where  the 
sale  failed  because  the  principal,  al- 
though he  had  represented  to  the 
broker  that  he  owned  all  the  land 
under  three  houses,  was  found  not  to 
own  a  narrow  strip  between  two  of 
them,  and  could  therefore  not  sell 
them  all  as  one  parcel). 

But  it  is  held  in  a  number  of  cases 
in  New  York  that  where  the  buyer 
produced  by  the  broker  will  not  buy 
on  the  terms  fixed  by  the  seller,  the 
broker  is  not  entitled  to  commissions, 
even  though  the  buyer's  refusal  to 
complete  the  purchase  was  due  to 
misinformation,  given  by  the  seller 
to  the  broker  and  by  the  broker  re- 
peated to  the  prospective  buyer,  con- 
cerning such  collateral  matters  as 
size,  frontage,  and  the  like,  not  made 
terms  in  the  broker's  employment. 
Curtiss  v.  Mott,  90  Hun,  439;  Dia- 
mond v.  Hartley,  38  App.  Div.  87,  47 
App.  Div.  1;  Hausman  v.  Hartfelder, 
81  App.  Div.  46;  Keough  v.  Meyer, 
127  App.  Div.  273;  Hess  v.  Realty  Co., 
67  Misc.  390. 

But  if  the  parties  closed  a  contract, 
the  party  produced  then  became  a 
buyer,  and  the  broker  would  be  en- 
titled to  commissions,  even  though 
the  sale  later  fell  through,  because 
of  the  seller's  misrepresentations. 
Sotsky  v.  Ginsburg,  129  App.  Div. 
441. 

Broker's  right  not  defeated  be- 
cause the  coniract  entered  into  by 
the  principal  with  the  seller  is  not 
specifically  enforceable  because  il- 
legal. Manker  v.  Tough,  79  Kan.  46, 
17  Ann.  Cas.  208,  19  L.  R.  A.  (N.  S.) 
676. 


2044 


CHAP.    Ill]  OF  BROKERS  [§    2448 

Where  the  purchaser  refuses  to  perform  in  accordance  with  a  right 
to  do  so  reserved  in  the  bargain  as  negotiated  by  the  broker,  but  which 
was  not  one  of  the  terms  originally  fixed  by  the  principal,  and  has  not 
been  assented  to  by  him,  the  broker  cannot  recover. 

Where,  though  the  broker  did  not  find  a  purchaser  upon  the  terms 
originally  fixed,  the  principal  has  accepted  a  purchaser  produced  by 
the  broker  and  entered  into  a  contract  to  sell  to  him  upon  different  but 
still  acceptable  terms,  the  broker  will  be  entitled  to  his  commissions 
even  though  the  latter  contract  is  never  consummated  because  of  the 
principal's  inability,  neglect  or  default.21 

§  2448.  Buyer's  default. — So,  it  has  been  held  in  many 

cases  that  where  the  broker's  undertaking  is  to  find  a  purchaser  upon 
terms  satisfactory  to  the  seller,  and  he  has  in  good  faith  produced  a 
buyer  whom  the  seller,  acting  on  his  own  judgment  after  making  such 
investigations  as  he  cares  to  make,  and  being  at  liberty  to  exact  such 
assurances  as  he  deems  necessary,  actually  accepts  and  with  whom  the 
seller  enters  into  a  binding  contract,  the  broker  is  entitled  to  his  com- 
missions although  the  buyer,  without  fault  on  the  broker's  part,  does 
not  or  cannot  perform  the  contract  so  made.22 

Moreover,  even  where  general  terms  were  prescribed,  as  in  the  or- 
dinary case,  it  seems  to  be  a  fair  rule,  sustained  by  the  weight  of  au- 
thority, that,  where  the  principal,  uninfluenced  by  the  fraud  or  mis- 
representation of  the  broker,  has,  voluntarily,  after  such  investigation 
as  he  cared  to  make  and  upon  establishing  such  safe  guards  as  he 
deemed  desirable,  accepted  a  purchaser  produced  in  good  faith  by  the 
broker,  and  has  entered  into  a  final — as  distinct  from  a  merely  tentative 
and  temporary — contract  of  sale  with  him,  the  fact  that  the  buyer  ulti- 
mately fails  or  refuses  to  perform  the  contract  so  made  does  not  de- 
feat the  broker's  right  to  his  commission,23  unless  performance  by  the 

~jn     ".bsasmi  efW  easfau   bas 

21  Hamburger  v.  Thomas  (Tex.  Civ.  Hinckley,  19  Colo.  38;    Fox  v.  Ryan, 
App.),    118    S.    W.    770;     Graves    v.  240  111.  391;    Wenks    v.    Hazard,  149 
Bains,   78  Tex.   92;    Gilder  v.   Davis,  Iowa,   16;    Nagl  v.   Small,  -  -  Iowa, 
137  N.  Y.  504,  20  L.  R.  A.  398;   Lock-  ,  138  N.  W.  849;  Ketcham  v.  Axel- 
wood  v.  Halsey,  41  Kan.  166;    Gelatt  son,    Iowa,  ,  142    N.    W.    62; 

v.  Ridge,  117  Mo.  553,  38  Am.  St.  R.  Stewart    v.     Fowler,    53     Kan.     537; 

683;    Bailey    v.    Rowe,    33    Okla.    51;  Ward  v.  Cobb,  148  Mass.  518,  12  Am. 

Smith  v.  Schiele,  93  Cal.  144;    Boyle  St.    Rep.    587;    Roche    v.    Smith,  176 

v.  Grassick,  2  Western  L.  Repr.  (Re-  Mass.  595,  79  Am.  St.  Rep.  345,  51  L. 

gina)  284  (where  the  principal  after  R.  A.  510;  Francis  v.  Baker,  45  Minn, 

accepting  the  terms  refused  to  go  on  83;   Gilder  v.  Davis,  137  N.  Y.  504,  20 

simply  because  the  buyer  was  a  busi-  L.  R.  A.  398. 

ness  competitor).  23  See    Bingham   v.    Davidson,    141 

22  See  ante,  §  2430,  note  39;  Bingham      Ala.    551;    Moore   v.    Irwin,    89   Ark. 
v.  Davidson.  141  Ala.  551;  Hallack  v.       289,  131  Am.  St.  Rep.  97,  20  L,.  R.  A. 

2045 


§  2449] 


THE  LAW  OF  AGENCY 


[BOOK  v 


purchaser  is,  expressly  or  by  the  fair  interpretation  of  some  special 
term  in  the  broker's  contract  with  the  principal,  made  a  condition  pre- 
cedent to  the  broker's  right  of  recovery.24 

Where  the  sale  fails  because  of  some  error  or  default  of  the  broker, 
he  could  not  ordinarily  recover  under  the  rule  above  stated.25 

§  2449.  Revocation  of  authority. — Where  there  has  been  no  con- 
tract between  the  principal  and  the  broker  that  the  latter  shall  have 
some  particular  time  within  which  to  find  a  purchaser,  it  is,  as  a  gen- 
eral rule,  entirely  competent  for  the  principal  to  revoke  the  authority 
without  liability  at  any  time  before  it  is  performed.  If  it  be  regarded 
as  a  mere  employment  at  will,  it  could  be  so  terminated.  If  the  trans- 
action be  regarded  as  an  offer  to  the  broker  to  pay  him  if  he  will  per- 
form a  certain  act,  namely,  find  a  purchaser,  the  offer  mav  be  with- 

.  >  r 


(N.  S.)  1168;  Wray  v.  Carpenter,  16 
Colo.  271,  25  Am.  St.  Rep.  265;  Odell 
v.  Dozier,  104  Ga.  203;  Payne  v. 
Ponder,  139  Ga.  282;  Wilson  v. 
Mason,  158  111.  304,  49  Am.  St.  Rep. 
162;  Springer  v.  Orr,  82  111.  App. 
558;  Friestedt  v.  Dietrich,  84  111. 
App.  604;  Wenks  v.  Hazard,  149 
Iowa,  18;  Stewart  v.  Fowler,  53  Kan. 
537;  Ward  v.  Cobb,  148  Mass.  518, 
12  Am.  St.  Rep.  587;  Roche  v.  Smith, 
176  Mass.  595,  79  Am.  St.  Rep.  345, 
51  L.  R.  A  510;  Lunney  v  Healey, 
56  Neb.  313;  Parker  .v.  Estabrook, 
68  N.  H.  349;  Scully  v.  Williamson, 
26  Okla.  19,  Ann.  Cas.  1912,  A.  1265; 
Hippie  v.  Laird,  189  Pa.  472;  Sea- 
bury  v.  Fidelity  Trust  Co.,  205  Pa. 
234;  Mattes  v.  Engel,  15  S.  Dak.  330; 
Parker  v.  Walker,  86  Tenn.  566; 
Hugill  v.  Weekley,  64  W.  Va.  210, 
15  L.  R.  A.  (N.  S.)  1262. 

Contra:  RiggB  v.  Turnbull,  105  Md. 
135,  8  L.  R.  A.  (N.  S.)  824,  11  A.  & 
E.  Ann.  Cas.  783,  seems  to  go  upon  a 
contrary  theory,  though  some  dis- 
tinctions are  possible.  Butler  v. 
Baker,  17  R.  I.  582,  33  Am.  St.  Rep. 
897,  is  easily  distinguishable,  as  the 
principal  acted  upon  the  broker's 
judgment,  rather  than  on  his  own. 

24  Thus,  where  the  broker  is  not  to 
be  paid  until  the  buyer  pays  a  stipu- 
lated sum.  Boysen  v.  Frink,  80  Ark. 
254.  Where  the  contract  expressly 


stipulates  that  the  commission  is  not 
to  be  paid  unless  a  stipulated  future 
payment  is  made.  Van  Norman  v. 
Fitchette,  100  Minn.  145  (but  "pay- 
ment" by  foreclosing  the  mortgage 
and  bidding  in  the  land,  held, 
enough.  Crane  v.  Eddy,  191  111.  645). 
Where  the  broker  is  to  be  paid  out 
of  future  payments  on  the  purchase 
when  and  as  they  are  paid.  Hoi- 
brook  v.  Investment  Co.,  30  Ore. 
259;  Murray  v.  Rickard,  103  Va.  132. 
Where  it  was  expressly  agreed  that 
if  the  sale  agreement  failed  the 
broker's  right  to  commissions  should 
also  fail.  Lassen  v.  Bayliss,  60  C. 
C.  A.  512,  125  Fed.  744.  Where  there 
was  a  stipulation  that  the  broker's 
commissions  "were  not  to  be  paid 
until  and  unless  title  passed."  Fit- 
tichauer  v.  Van  Wyck,  92  N.  Y.  Supp. 
241.  Same  effect,  Leschziner  v.  Bau- 
man,  83  N.  J.  L.  743.  Where  the  sale 
had  to  be  "put  through."  Holton  v. 

Job  Iron  Co.,  122  C.  C.  A.  ,  204 

Fed.  947. 

In  Boysen  v.  Frink,  supra,  where 
the  principal  had  to  make  a  com- 
promise with  the  buyer,  it  was  said 
that  the  broker's  right  depended 
upon  whether  the  notes  given  by  the 
buyer  could,  by  proper  diligence, 
have  been  collected. 

25  Scott  v.  Gage,  16  S.  Dak.  285; 
Snyder  v.  Fidler,  135  Iowa,  304. 


2046 


CHAP.    Ill] 


OF   BROKERS 


[§    2450 


drawn  by  the  principal  without  liability  at  any  time  before  its  accept- 
ance by  the  performance  of  the  act.26  The  only  thing  which  would 
prevent  revocation  or  withdrawal  would  be  performance.  It  would 
make  no  difference  that  much  time  had  been  spent  or  that  the  perform- 
ance was  great ;  unless  the  act  could  be  regarded  as  at  least  practically 
performed,  the  principal  might  revoke  without  liability.  What  would 
be  regarded  as  the  finding  or  producing  of  a  purchaser  so  as  to  con- 
stitute performance  has  already  been  considered. 

§  2450.  Reasonable  time  in  which  to  find  a  purchaser. — Notwith- 
standing an  occasional  statement  to  the  contrary,  it  certainly  cannot  be 
maintained,  in  the  ordinary  case  in  which  a  commission  is  offered  for 
the  finding  of  a  purchaser,  that — though  performance  within  a  reason- 
able time,  if  the  offer  be  not  withdrawn,  is  ordinarily  sufficient, — the 


26  in  Cadigan  v.  Crabtree,  179 
Mass.  474,  88  Am.  St.  Rep.  397,  55  L. 
R.  A.  77,  it  is  said:  "The  promise 
to  pay  a  brokerage  commission  if  a 
customer  is  found  to  purchase  at  a 
stated  price  is  not  the  ordinary  em- 
ployment of  labor,  but  is  more  in  the 
nature  of  an  offer,  namely,  an  offer 
to  pay  a  commission  if  a  person  is 
produced  who  buys  at  the  price 
named;  and,  like  any  other  offer,  it 
can  be  withdrawn  at  any  time,  with- 
out regard  to  the  fact  that  work  has 
been  done  by  a  person  in  reliance 
on  it,  provided  the  work  done  has 
not  brought  the  person  within  the 
terms  of  the  offer."  See  also,  same 
case,  186  Mass.  7,  104  Am.  St.  Rep. 
543,  66  L.  R.  A.  982;  and  Auerbach  v. 
Internationale  Gesellschaft,  177  Fed. 
458. 

In  Smith  v.  Kimball,  193  Mass. 
582,  it  is  said:  "Nor  is  there  any 
question  possible  as  to  the  defend- 
ants' right  to  terminate  the  plaintiff's 
employment.  They  could  have  done 
this,  acting  in  good  faith,  even  if 
they  had  known  who  the  plaintiff's 
customer  was,  and  then  had  pro- 
ceeded to  deal  with  him  themselves. 
There  is  no  ground  on  which  it  can 
be  said  that  the  defendants  in  throw- 
ing over  the  plaintiff  and  themselves 
dealing  directly  with  [the  purchaser], 
acted  in  bad  faith  within  the  rule  of 
Sibbald  v.  Bethlehem  Iron  Co.,  83  N. 


Y.  378,  38  Am.  Rep.  441"  [quoted  from 
in  a  following  note.] 

Mere  authority  revocable  at  any 
time,  before  performance,  without  lia- 
bility. Cronin  v.  American  Securi- 
ties Co.,  163  Ala.  533,  136  Am.  St.  Rep. 
88;  Wolber  v.  Chambers,  128  111.  App. 
624;  Milligan  v.  Owen,  123  Iowa,  285; 
Frazier  v.  Cox,  —  Ky.  — ,  125  S.  W. 
148;  Faraday  Coal  Co.  v.  Owens, 
26  Ky.  L.  Rep.  243,  80  S.  W. 
1171;  Woods  v.  Love,  207  Mass.  1; 
Loxley  v.  Studebaker,  75  N.  J.  L.  599; 
Donovan  v.  Weed,  182  N.  Y.  43;  Ral- 
eigh Real  Estate  Co.  v.  Adams,  145 
N.  Car.  161;  McCallum  v.  Grier,  86  S. 
Car.  162,  138  Am.  St.  Rep.  1037;  Til- 
den  v.  Smith,  24  S.  Dak.  576. 

Death  of  principal  terminates  it  as 
in  other  cases.  Kyle  v.  Gaff,  105  Mo. 
App.  672. 

Sale  of  the  land  by  principal  in 
person  or  through  another  broker  is 
held  in  many  cases  to  terminate  the 
authority,  even  though  no  notice  was 
given.  See  cases  cited  in  second  note 
to  the  following  section. 

In  Weisels-Gerhart  R.  E.  Co.  v. 
Wainwright,  127  Mo.  App.  514,  the 
broker  found  a  purchaser  and  notified 
the  principal  to  that  effect,  but  not 
on  the  terms  specified.  In  the  mean- 
time the  principal  sold  and  informed 
the  broker.  The  broker  then  closed 
with  his  purchaser  on  the  prescribed 
terms.  Held,  too  late. 


2047 


§  2451] 


THE  LAW  OF  AGENCY 


[BOOK  v 


broker  is  entitled,  as  against  a  withdrawal  of  the  offer  by  the  principal, 
to  a  reasonable  or  any  other  particular  time  in  which  to  find  a  pur- 
chaser. The  principal  may  sell  in  person,  other  brokers  may  be  em- 
ployed, and  the  reward  is  to  the  diligent. 

On  the  other  hand,  there  is  both  reason  and  authority  for  the  state- 
ment that  there  may  be  cases  in  which  the  principal  has  so  invited  the 
broker  to  expend  time  and  money  in  getting  ready  to  perform — in  get- 
ting property  into  condition  to  market,  and  the  like — in  doing  acts 
which  must  be  done  before  it  is  possible  to  accomplish  the  desired  ob- 
ject— that,  as  an  inference  of  fact  from  the  circumstances,  an  implied 
agreement  that  the  broker  shall  be  entitled  to  a  reasonable  time  in  which 
to  perform,  may  legitimately  be  found.27 

§  2451.  Definite  time — Contract  for. — It  is  entirely  competent 
for  the  parties  to  make  a  contract  that  the  broker  shall  have  a  definite 
time ;  and,  while  the  principal  might,  nevertheless,  in  such  a  case,  re- 
voke any  authority  he  had  given  to  the  broker  (not  being  coupled  with 
an  interest,  etc.),28  he  would  be  liable  to  the  broker  for  the  breach  of 
the  contract  if  he  should  terminate  it  before  the  expiration  of  the  time 
fixed.29 


27  So  held  in  Glover  v.  Henderson, 
120  Mo.  367,  41  Am.  St.  Reo.  695; 
Jaekel  v.  Caldwell,  156  Pa.  266; 
Dodge  v.  Childers,  —  Mo.  — ,  151  S. 
W.  749. 

Where  the  owner  of  a  tract  of  land, 
consisting  of  290  lots,  contracted 
with  a  real  estate  broker  to  give  him 
the  "exclusive  sale"  of  them  under 
circumstances  involving  much  pre- 
liminary work  and  expense,  held, 
that  the  word  "exclusive"  involves 
the  idea  of  permanence  in  the 
broker's  employment,  at  least  until 
he  has  had  a  reasonable  time  in 
which  to  perform,  unless  some  good 
reason  is  shown  by  the  principal  for 
its  termination.  Bathrick  v.  Coffin, 
13  N.  Y.  App.  Div.  101. 

In  Peterson  v.  Hall,  61  Minn.  268, 
a  loan  broker  who  was  known  to  be 
relying  upon  eastern  people  for  the 
money  and  who  had  taken  and  for- 
warded an  application  for  the  loan, 
which  was  accepted  in  due  course, 
was  held  entitled  to  his  commission, 
although  the  principal  had  in  the 
meantime  attempted  to  withdraw  his 
application.  The  court  put  the  case 


upon  the  ground  that  the  broker  was 
entitled  to  a  reasonable  time. 

See  also,  Green  v.  Cole,  127  Mo. 
587,  cited  in  note  74,  post;  Cloe 
v.  Rogers,  31  Okla.  255,  38  L.  R.  A. 
(N.  S.)  366;  Rowan  v.  Hull,  55  W. 
Va.  335,  104  Am.  St.  Rep.  998,  2  Am. 
&  Eng.  Ann.  Cas.  884. 

28  Knudson  v.  Laurent,  —  Iowa,  — , 
140  N.  W.  392. 

2fl  See  Milligan  v.  Owen,  123  Iowa, 
285  (some  of  the  expressions  in  this 
case  are  not  well  chosen);  McLane 
v.  Maurer,  28  Tex.  Civ.  App.  75; 
Green  v.  Cole,  103  Mo.  70;  s.  c.,  127 
Mo.  587;  Auerbach  v.  Internationale 
Gesellschaft,  177  Fed.  458;  Hardwick 
v.  Marsh,  96  Ark.  23;  Hancock  v. 
Stacy,  103  Tex.  219;  Goodmanson  v. 
Rosenstein,  144  111.  App.  243;  Jaekel 
v.  Caldwell,  156  Pa.  2C6;  Randle  v. 
Bloomfield,  146  Ky.  421;  Cloe  v. 
Rogers,  31  Okla.  255,  38  L.  R.  A.  (N. 
S.)  366;  Aldons  v.  Grundy,  21  Mani- 
toba, 559;  Richardson  v.  McClary,  16 
Manitoba,  74. 

The  remedy  in  such  cases  must 
usually  be  an  action  for  damages  for 
the  breach  of  the  contract  and  not 


2048 


CHAP.    Ill]  OF   BROKERS  [§    2452 

It  is,  of  course,  possible  for  the  parties  in  these  cases  to  make  an  ex- 
press and  formal  contract  which  would  be  free  from  doubt;  but,  un- 
fortunately, they  rarely  do,  and  the  matter  is  left  to  be  determined 
from  more  or  less  ambiguous  materials.  The  great  difficulty  in  the 
ordinary  case  is  to  determine  whether  there  is  any,  and,  if  so,  what 
consideration  for  the  principal's  promise  to  grant  a  particular  time. 

§  2452.  When  such  contract  exists — Consideration  for. — In  the 
first  place  it  may  be  noticed  that  the  mere  fact  that  a  time  is  mentioned 
within  which  a  purchaser  is  to  be  found  does  not  amount  to  a  contract 
that  the  broker  shall  have  that  time  within  which  to  find  one.  It  may 
simply  be  the  fixing  of  a  time  at  which  the  authority  or  offer  shall  ex- 
pire if  not  sooner  terminated.30 

But  suppose  the  principal  does  declare  that  the  broker  shall  have  a 
certain  time  within  which  to  find  a  purchaser,  or  that  he  shall  have  the 
exclusive  authority  for  that  time,  or  that  the  principal  will  not  himself 
sell  the  property  within  that  time.  Does  this  bind  the  principal?  It 
certainly  does  not  unless  there  is  some  consideration  for  it.  What  is 
the  consideration?  What  the  principal  does  in  such  a  case  may,  and 
probably  ordinarily  does,  amount  merely  to  an  offer  of  a  unilateral 
contract.  The  principal  says  merely,  "I  offer  you  my  promise  to  pay 
commission  for  your  act  of  finding  a  purchaser."  The  offer  may  be 

an  action  to  recover  commissions.  cumstances,  a  mere  limit  as  to  the 
Knudson  v.  Laurent,  supra;  Gilbert  time  allowed  for  performance  of  a 
v.  McCullough,  14&  Iowa,  333,  and  contract  of  agency  to  sell  land  can 
cases,  supra.  be  construed  into  an  agreement  on 
so  in  Brown  v.  Pforr,  38  Cal.  550,  the  part  of  the  principal  not  to  re- 
the  brokers  were  to  receive  a  com-  voke  the  power.  The  rule  that  in 
mission  in  case  they  produced  a  pur-  this  class  of  contracts  the  principal 
chaser  within  a  month.  It  was  held  may  revoke  at  any  time  before  cow- 
that  this  did  not  mean  that  the  own-  plete  performance  by  the  broker,  un- 
ers  contracted  that  the  brokers  less  he  has  expressly  agreed  other- 
should  have  a  month  in  which  to  pro-  wise,  may  be  a  harsh  rule,  as  sug- 
duce  a  customer,  but  that  the  offer  gested  by  counsel;  but  if  it  Is,  it 
was  to  remain  open  so  long  unless  would  seem  to  be  a  very  easy  matter 
sooner  revoked.  The  court  said:  "It  for  the  broker  to  protect  himself 
seems  obvious  to  us  that  the  restric-  against  it.  At  all  events,  if  he  does 
tion  was  intended  for  the  benefit  of  not  insert  a  covenant  to  that  effect 
the  defendant,  and  not  the  plaintiffs.  in  his  contract,  the  courts  cannot  do 
The  force  of  the  limitation  is  that  it  for  him." 

the  defendant  will  pay  them  the  stip-  See  Blumenthal  v.  Goodall,  89  Cal. 
ulated  price  for  the  service  if  they  251,  where  this  case  is  distinguished, 
completely  perform  it  within  one  In  Milligan  v.  Owen,  123  Iowa, 
month;  otherwise  he  will  pay  them  285,  the  owner  offered  to  pay  a  corn- 
nothing.  There  is  nothing  directly  mission  if  a  buyer  could  be  found  by 
or  impliedly  affecting  the  question  of  a  given  date.  Held,  not  to  amount 
revocation;  and,  indeed,  we  are  un-  to  a  contract  that  the  broker  should 
able  to  perceive  how,  under  any  cir-  have  until  that  date  to  find  one, 
129  2049 


§  2452] 


THE  LAW  OF  AGENCY 


[BOOK  v 


accepted  by  the  performance  of  the  act.  Until  it  is  so  accepted  there 
is  no  contract.  The  broker  has  promised  nothing;  he  does  not  agree 
that  he  will  find  a  purchaser,  or  even  that  he  will  make  any  attempt  to 
do  so.  He  may  perform  or  not,  as  he  pleases.  He  may  go  part  way 
and  leave  performance  incomplete.81  Neither  is  the  principal  bound 
until  his  offer  has  been  accepted  by  the  performance  of  the  act,  and  it 
must  ordinarily  be  full  performance,  because  that  is  the  acceptance 
stipulated  for.  Until  it  has  been  so  accepted,  where  this  is  all,  the 
principal  may  withdraw  his  offer,  even  though  the  broker  may  have 
made  much  progress  toward  acceptance.  Harsh  as  the  conclusion  may 
seem,  the  principal  would  not  be  under  any  liability  to  the  broker  in 
such  a  case,  because  no  contract  has  ever  been  made  between  them.32 


si  In  Siegel  v.  Rosenzweig,  129 
App.  Div.  (N.  Y.)  547,  a  broker,  au- 
thorized to  produce  a  purchaser  on 
certain  terms,  applied  to  the  defend- 
ant. Defendant  agreed  that,  if  the 
broker  would  cease  his  efforts  to  sell 
and  would  disclose  the  names  of  the 
owners  in  order  that  defendant 
might  deal  directly,  he  would  pay  a 
commission  in  case  a  purchase  was 
made.  The  broker  so  agreed  and  the 
defendant  made  the  purchase.  De- 
fendant resisted  the  action  for  the 
commission  on  the  ground  that  the 
contract  of  the  broker  to  receive  com- 
missions from  the  buyer  while  in  the 
employ  of  a  seller  was  illegal,  but  the 
court  held  that,  since  the  owner  has 
the  right  at  any  time  before  a  pur- 
chaser is  produced  to  discharge  the 
broker,  the  broker  has  the  right  to 
agree  not  to  attempt  to  find  a  pur- 
chaser and  no  notice  to  the  owner  is 
necessary. 

32  See  the  language  of  Professor 
Williston  in  his  note  to  Wald's 
Pollock  on  Contracts,  Ed.  1906,  p.  34, 
note  39,  where  he  says:  "One  of  the 
most  troublesome  questions  in  regard 
to  revocation  relates  to  the  right  of 
an  offerer  to  revoke  an  offer  to  make 
a  unilateral  contract  after  the  con- 
sideration has  been  partly  performed, 
but  before  it  has  been  completely  per- 
formed. On  principle  it  is  hard  to 
see  why  the  offerer  may  not  thus  re- 
voke his  offer.  He  cannot  be  said  to 


have  already  contracted,  because  by 
the  terms  of  his  offer  he  was  only  to 
be  bound  if  something  was  done,  and 
it  has  not  yet  been  done,  though  it 
has  been  begun.  Moreover,  it  may 
never  be  done,  for  the  promisee  has 
made  no  promise  to  complete  the  act 
and  may  cease  performance  at  his 
pleasure.  To  deny  the  offerer  the 
right  to  revoke  is,  therefore,  in  effect 
to  hold  the  promise  of  one  contract- 
ing party  binding  though  the  othei 
party  is  neither  bound  to  perform 
nor  has  actually  performed  the  re- 
quested consideration.  The  practical 
hardship  of  allowing  revocation  un- 
der such  circumstances  is  all  that 
can  make  the  decision  of  the  ques- 
tion doubtful." 

After  referring  to  Offord  v.  Davies, 
12  C.  B.  (N.  S.)  748;  Plumb  v.  Camp- 
bell, 129  111.  101,  107;  Blumenthal  v. 
Goodall,  89  Cal.  251;  Los  Angeles 
Traction  Co.  v.  Wilshire,  135  Cal.  654, 
658;  Vigo  Agricultural  So.  v.  Brum- 
fiel,  102  Ind.  146,  52  Am.  Rep.  657,  he 
proceeds:  "The  difficulty  with  these 
solutions  of  the  problem  is  that  they 
fail  to  take  into  account  the  offerer's 
right  to  impose  such  conditions  as  he 
chooses  in  his  offer.  An  offer  condi- 
tional on  the  performance  of  an  act 
does  not  become  a  contract  by  the 
doing  of  anything  else,  such  as  part 
performance  or  giving  the  offerer  a 
promise  to  do  the  act.  See  White  v. 
Corlies,  46  N.  Y.  467.  Nor  can  it  be 


2050 


CHAP.    Ill] 


OF   BROKERS 


[§    2453 


But,  as  has  already  been  seen,  there  may  easily  be  cases  in  which  the 
principal  has  so  invited  the  broker  to  enter  upon  an  undertaking  re- 
quiring time  for  its  full  completion,  that  an  actual  commencement  of 
performance  with  the  intention  of  completing  it  would  be  such  an  ac- 
ceptance as  would  prevent  the  principal's  withdrawal  without  liability. 

§  2453.  The    negotiations    may,    however,    take    another 

form.  The  principal  may  in  substance  and  effect,  even  if  not  expressly, 
say  to  the  broker,  "If  you  will  put  my  property  on  your  books  or  in 
your  lists,  or  in  your  advertisements,  etc.,  and  attempt  to  find  a  pur- 
chaser, I  will  pay  you  a  commission  in  case  you  find  one."  This,  again, 
is  an  offer  of  a  unilateral  contract,  but  the  act  stipulated  for  here  is  not 
the  sale,  but  some  earlier  act,  and  the  offer  may  be  accepted  by  the  per- 
formance of  the  preliminary  act  stipulated,  namely,  putting  the  prop- 
erty upon  the  broker's  books  or  lists,  etc.,  and  attempting  to  find  a  pur- 
chaser. When  this  is  done  the  principal's  offer  is  accepted,  a  contract 
is  immediately  formed,  and,  although  the  commission  is  not  earned 
until  performance  of  the  main  act,  the  principal  is  bound  by  any  of  the- 
terms  of  the  contract,  respecting  the  time  to  be  allowed  for  the  per- 


admitted  that  beginning  performance 
by  one  to  whom  an  offer  of  a  unilat- 
eral contract  has  been  made  imports 
any  promise  on  his  part  to  complete 
the  performance.  The  decision  in 
Biggers  v.  Owen,  79  Ga.  658,  there- 
fore, seems  sound,  although  the  re- 
sult is .  harsh.  In  that  case  it  was 
held  that  an  offer  of  reward  might 
be  withdrawn  after  the  plaintiff  had 
nearly  completed  the  performance 
requested." 

See  also,  article  in  23  Harvard 
Law  Rev.  159,  by  Professor  Clarence 
D.  Ashley,  entitled,  "Offers  Calling 
for  a  Consideration  Other  Than  a 
Counter  Promise,"  and  Auerbach  v. 
Internationale  Gesellschaft,  177  Fed. 
458.  See  also  now,  Ashley  on  the 
Law  of  Contracts,  1911. 

But  in  a  review  of  the  last  named 
work  by  Sir  Frederick  Pollock,  in  28 
Law  Quarterly  Review,  100,  it  is 
said:  "One  or  two  [of  Professor  Ash- 
ley's propositions]  seem  to  us  really 
paradoxical,  as  where  he  maintains 
that  in  a  unilateral  contract,  where 
a  promise  is  offered  for  an  act  re- 
quiring an  appreciable  time  for  per- 


formance, there  is  no  consideration 
for  the  promise  and  no  acceptance 
until  the  act  is  completed.  If  this 
be  so,  the  promisor  may  withdraw 
his  offer  when  the  work  is  all  but 
done,  or  the  promisee  may  capri- 
ciously leave  the  work  half  done,  and 
in  either  case  without  remedy,  un- 
less there  be  something  in  the  cir- 
cumstances which  can  be  made  to 
support  an  action  of  tort.  A  carter, 
for  example,  who  is  carrying  goods 
to  a  wharf  to  be  put  on  an  outgoing 
ship,  may  abandon  them  in  the  mid- 
dle of  the  journey.  Both  the  plain 
man  and  the  average  lawyer  will  say 
that,  whatever  Prof.  Ashley's  logic 
may  be,  the  law  really  cannot  be  so 
absurd  as  that;  and  they  will  be 
right,  and,  what  is  more,  any  ration- 
al court  before  whom  such  a  ques- 
tion is  moved  will  surely  find  a  way 
to  make  them  so.  It  might  easily  be 
held  that  acting  on  a  request  for  an 
act  to  be  done  for  reward  implies  a 
promise  to  go  through  with  the  per- 
formance. At  all  events  it  seems  to. 
us  that  the  offer  is  irrevocably  ac- 
cepted by  the  first  unequivocal  com.- 


2051 


§  2454] 


THE  LAW  OF  AGENCY 


[BOOK  v 


formance  of  the  contract.33  From  this  time  on  the  principal  would  be 
liable  to  the  broker  for  preventing  the  performance  of  the  contract  ac- 
cording to  its  terms. 

§  2454.  The    negotiations   may   also   take   another  form. 

The  principal  ma}'  say  to  the  broker  in  substance  and  effect,  if  not  ex- 
pressly, "I  will  promise  to  pay  you  a  commission  if  you  will  promise  to 
list  it,  advertise  it,  or  otherwise  endeavor  to  find  a  purchaser."  This  is 
the  offer  of  a  bilateral  contract.  The  broker's  promise  may  be  made 
in  words  or  it  may  be  inferred  as  a  fact  from  bis  conduct,  as,  for  ex- 
ample, in  accepting  the  employment  and  entering  upon  the  perform- 
ance.34 In  this  case  both  parties  are  bound,  and  the  principal  will  be 
liable  to  the  broker  for  any  breach  of  the  terms  of  the  contract. 


mencement  of  the  act  requested.  In 
fact,  it  does  not  often  happen  that  a 
man  sets  about  a  job  without  writing 
or  uttering  some  kind  of  word  of  ac- 
ceptance. 'All  right*  is  enough." 

See  also,  27  Has  v.  L.  Rev.  644. 

33  See  Coward  v.  Waters,  98  Mass. 
596;  Cloe  v.  Rogers,  31  Okla.  255,  38 
L,  R.  A.  (N.  S.)  366;  Attix  v.  Pelan, 
5  Iowa,  336. 

In  Metcalf  v.  Kent,  104  Iowa,  487, 
the  court  said  that  the  consideration 
on  the  broker's  part  was  that  he 
"would  endeavor  to  find  a  purchaser," 
and  that  he  performed  on  his  part  by 
his  efforts  to  do  so.  Attix  v.  Pelan, 
supra,  is  put  upon  the  same  ground. 

In  Tracy  v.  Abney,  122  Iowa,  306, 
the  broker's  promise  was  only  to  "ad- 
vertise said  land  and  try  to  get  a 
buyer  for  same." 

In  Kimmell  v.  Skelly,  130  Gal.  555, 
it  was  said  that  a  contract  to  pay  "in 
consideration  of  the  broker's  efforts 
to  secure  a  purchaser"  was  good.  In 
Long  v.  Herr,  10  Colo.  380,  the  court 
says  that  the  consideration  for  the 
principal's  promise  "was  the  services 
to  be  rendered,  and  the  expenses  to 
be  incurred,  by  plaintiffs,  in  their  ef- 
forts to  make  a  sale  of  the  property." 
This  case  and  the  preceding  ones  in- 
volved the  promise  of  the  owner  to 
pay  the  broker  even  though  the  own- 
*r  sold  in  person.  It  is  upon  some 
such  ground  as  this  that  Hardwick 
V.  Marsh,  96  Ark.  23,  referred  to  in 


a  later  note,  must  be  sustained,  if  it 
can  be  sustained  at  all. 

In  Green  v.  Cole,  127  Mo.  587,  the 
brokers  agreed  to  have  a  tract  of 
land  surveyed  and  replatted  in  small 
tracts  or  lots  and  put  into  a  condi- 
tion to  sell.  The  brokers  were  to  re- 
ceive all  in  excess  of  a  certain  sum 
and  to  have  a  certain  time  in  which 
to  make  sale.  Before  the  expiration 
of  the  time  limit  the  owner  sold.  The 
court  held  that  under  the  contract 
the  brokers  were  entitled  to  the  time 
limited  to  make  a  sale  and  that  they 
were  entitled  to  recover  as  damages 
the  excess  received  by  the  owner  over 
the  price  the  owner  was  to  receive  in 
case  the  broker  sold. 

s*  In  Rowan  v.  Hull,  55  W.  Va.  335, 
104  Am.  St.  Rep.  998,  2  Am.  &  Eng. 
Ann.  Gas.  884,  a  memorandum  de- 
scribing the  premises,  signed  by  the 
owner  alone,  and  containing  the 
statement,  "land  to  be  exclusively 
with  them  three  months  and  until 
withdrawn,"  was  given  the  brokers. 
The  broker  produced  a  purchaser 
within  three  months,  but  after  notice 
by  the  owner  that  he  had  decided  not 
to  sell.  The  court  held  that  the 
broker,  by  accepting  the  memorandum 
and  entering  upon  the  performance, 
had  entered  into  a  bilateral  contract, 
binding  on  both  parties,  and  that  the 
owner  could  not  rightfully  revoke  the 
authority  within  the  time  limited. 

See  also,  the  dissenting  opinion  of 


2052 


CHAP.    Ill] 


OF   BROKERS 


[§    2454 


In  view  of  the  harshness  of  the  first  rule,  courts  often  manifest  a 
very  strong  desire  to  bring  the  case,  if  possible,  within  one  or  other  of 
the  remaining  classes.85 


Timlin,  J.,  In  Schoenmann  v.  Whitt, 
136  Wis.  332,  19  L.  R.  A.  (N.  S.)  598. 

In  Hartford  v  McGillicuddy,  103 
Me.  224,  12  Ann.  Gas.  1083,  16  L.  R. 
A.  (N.  S.)  431,  the  court  appear  to 
reach  the  same  conclusion,  saying 
that  there  was  a  "complete  contract." 

In  Stensgaard  v.  Smith,  43  Minn. 
11,  19  Am.  St.  Rep.  205,  the  owner 
gave  the  broker  a  memorandum, 
signed  only  by  himself,  stating:  "In 
consideration  of  S  [the  broker]  agree- 
ing to  act  as  agent  for  the  sale  of  the 
property  hereinafter  mentioned,  I 
have  hereby  given  to  said  S  the  ex- 
clusive sale,  for  three  months  from 
date,  of  the  following  property."  The 
broker  immediately  took  steps  to  ef- 
fect a  sale,  posted  notices,  published 
advertisements  and  individually  so- 
licited purchasers.  About  a  month 
afterwards  the  owner  sold  without 
the  aid  of  the  broker.  The  court  re- 
fused recovery  on  the  ground  that 
if  the  memorandum  be  treated  as  an 
offer  of  a  bilateral  contract  it  did 
not  appear  that  the  broker  had  ac- 
cepted, his  efforts  in  attempting  to 
find  a  purchaser  being  equally  refer- 
able to  an  intention  by  him  to  treat 
the  memorandum  as  an  offer  of  a  uni- 
lateral contract  to  be  accepted  only 
by  the  production  of  a  purchaser. 

In  Lapham  v.  Flint,  86  Minn.  376, 
the  declaration  set  forth  a  memoran- 
dum of  employment  for  a  certain 
time,  signed  by  the  owner,  and  al- 
leged that  the  broker  had  made  an 
attempt  to  sell  when  the  owner  him- 
self sold.  On  demurrer  the  declara- 
tion was  held  good.  An  attempt  was 
made  to  distinguish  Stensgaard  v. 
Smith,  supra,  on  the  ground  that 
"there  was  nothing  in  the  contract 
to  indicate  any  acceptance  of  the  ob- 
ligation." The  court  said :  "If  in  fact 
the  agent  proceeded  in  good  faith  to 
carry  out  the  terms  of  the  agreement. 


advertised  the  property,  and  endeav- 
ored to  find  a  purchaser  for  it,  ac- 
cording to  the  written  terms,  that 
would  constitute  an  acceptance." 

35  In  many  cases  the  courts  seem 
to  have  paid  little  or  no  attention  to 
the  question  of  consideration,  but  ap- 
pear to  have  assumed  that  there  was 
a  contract.  See  Gregory  v.  Bonney, 
135  Cal.  589;  Harrison  v.  Augerson, 
115  111.  App.  226  (a  striking  in- 
stance) ;  Hartford  v.  McGillicuddy, 
103  Me.  224,  12  Ann.  Cas.  1083,  16  L. 
R.  A.  (N.  S.)  431;  Hardwick  v. 
Marsh,  96  Ark.  23  (here  the  broker 
opened  a  correspondence  by  inquir- 
ing whether  the  principal  had  land 
for  sale;  principal  replied  that  he 
had  and  would  pay  a  commission  for 
selling  it;  broker  replied  that  he 
thought  he  could  sell  for  a  certain 
price  and  would  want  six  months' 
time  in  which  to  do  it;  principal  re- 
plied fixing  a  higher  price  and  say- 
ing, "This  offer  good  for  six  months." 
Here  correspondence  terminated  un- 
til just  before  the  expiration  of  the 
six  months  broker  sent  word  that  he 
had  made  a  contract  for  the  sale  of 
the  land,  to  which  principal  replied 
that  he  had  sold  the  land  in  person 
two  or  three  days  before.  Broker  held 
entitled  to  recover.  What  was  the 
consideration  for  principal's  promise 
to  allow  six  months'  time?  Not  the 
broker's  promise  to  find  a  purchaser. 
Not  the  finding  of  the  purchaser,  for 
before  that  had  been  done  principal 
had  revoked  the  offer  by  selling  the 
land  himself  (if  the  cases  upon  this 
point  be  sound);  if  anything,  then, 
by  some  implied  promise  to  try  to 
find  a  purchaser  or  by  the  act  of  en- 
deavoring to  find  a  purchaser.  No 
notice  of  either  of  these  forms  of  ac- 
ceptance had  been  given. 

Compare  Hancock  v.  Stacy,  103 
Tex.  219. 


§  2455] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2455.  Performance  liberally  viewed  in  order  to  avoid  hardship 
to  broker. — In  order  to  further  obviate  the  harshness  of  the  first 
rule,  courts  have  also  been  very  liberal  in  endeavoring  to  find  at  least 
a  practical  and  substantial  performance  on  the  broker's  part,  especially 
where  the  principal  has  manifested  a  tendency  to  attempt  to  get  the 
benefit  of  the  broker's  performance  without  paying  for  it;  and  the 
courts  have,  therefore,  frequently  held,  where  the  principal  was  evi- 
dently in  bad  faith  endeavoring  to  terminate  the  broker's  authority, 
while  at  the  same  time  getting  the  benefit  of  his  performance,  that  the 
broker  had  so  far  substantially  performed  as  to  constitute  an  acceptance 
of  the  principal's  offer  and  the  closing  of  a  binding  contract  with  the 
broker,  and,  therefore,  that  the  broker  might  recover  either  upon  the 
theory  that  performance  had  been  prevented  by  the  principal,88  or  upon 


36  In  Sibbald  v.  Bethlehem  Iron  Co., 
83  N.  Y.  378,  38  Am.  Rep.  441,  often 
cited  upon  this  point,  it  is  said: 
"Thus,  if  in  the  midst  of  negotiations 
instituted  by  the  broker,  and  which 
were  plainly  and  evidently  approach- 
ing success,  the  seller  should  revoke 
the  authority  of  the  broker,  with  the 
view  of  concluding  the  bargain  with- 
out his  aid,  and  avoiding  the  pay- 
ment of  commissions  about  to  be 
earned,  it  might  well  be  said  that  the 
due  performance  of  his  obligation  by 
the  broker  was  purposely  prevented 
by  the  principal.  But  if  the  latter 
acts  in  good  faith,  not  seeking  to  es- 
cape the  payment  of  commissions, 
but  moved  fairly  by  a  view  of  his 
own  interest,  he  has  the  absolute 
right,  before  a  bargain  is  made,  while 
negotiations  remain  unsuccessful, 
before  commissions  are  earned,  to  re- 
voke the  broker's  authority,  and  the 
latter  cannot  thereafter  claim  com- 
pensation for  a  sale  made  by  the 
principal,  even  though  it  be  to  a  cus- 
tomer with  whom  the  broker  unsuc- 
cessfully negotiated,  and  even 
though,  to  some  extent,  the  seller 
might  justly  be  said  to  have  availed 
himself  of  the  fruits  of  the  broker's 
labor." 

In  Rees  v.  Fellow,  38  C.  C.  A.  94,  97 
Fed.  167,  the  same  idea  is  expressed 
as  follows:  "Unless  there  was  evi- 
dence which  would  have  reasonably 


justified  a  jury  in  finding  that,  when 
the  authority  was  revoked,  a  negotia- 
tion instituted  by  Fellow  [the 
broker]  was  plainly  and  obviously 
approaching  success,  and  that  Rees 
[the  principal],  with  a  knowledge  of 
this,  revoked  his  authority  for  the 
purpose  of  concluding  the  sale  with- 
out his  assistance,  and  of  avoiding 
the  payment  to  him  of  the  price  ob- 
tained in  excess  of  the  price  fixed  in 
the  option  agreement,  there  was  no 
case  for  the  jury  at  all.  If  the  revo- 
cation was  in  bad  faith,  it  might  well 
be  said  that  the  due  performance  of 
his  obligation  was  prevented  for  the 
purpose  of  concluding  the  sale  him- 
self, and  saving  the  stipulated  com- 
pensation. In  this  event  the  princi- 
pal would  not  be  permitted  to  rely 
upon  the  defense  that  the  broker  had 
not  performed  his  contract,  in  order 
to  defeat  a  recovery  of  the  stipulated 
commissions.  But  if,  on  the  other 
hand,  Rees  acted  in  good  faith,  not 
intending  to  escape  the  payment  of 
commissions,  but  moved  only  by  the 
changed  circumstances,  and  in  his 
own  interest,  and  while  the  negotia- 
tions were  unsuccessful  or  inconclus- 
ive, he  had  the  absolute  right  to  ter- 
minate the  option.  After  such  a  rev- 
ocation he  was  at  perfect  liberty  to 
resume  or  continue  efforts  to  sell  to 
a  customer  who  had  been  unsuccess- 
fully approached  by  Fellow,  even 


2054 


CHAP.    Ill] 


OF   BROKERS 


[§    2456 


the  theory  that  the  broker  had  substantially  performed,  and  that  any 
deficiencies  in  performance  had  been  waived  by  the  principal.87 

§  2456.  Employment  of  two  or  more  brokers. — Unless  he  has 
expressly  agreed  to  give  one  broker  the  exclusive  authority  to  sell,  the 
principal  may  employ  several  brokers  to  sell  the  same  property.38 
Where  several  are  so  employed,  the  authority  of  each  being  limited  to 
the  particular  transaction,  the  sale  of  the  property,  either  by  the  princi- 
pal in  person  or  by  any  one  of  the  brokers,  operates  at  once,  it  is  held, 
to  terminate  the  authority  of  all  of  the  brokers,  although  they  had  no 
actual  notice  of  the  sale,38  probably  upon  the  theory  that  this  is  an  im- 


though  he,  to  some  extent,  availed 
himself  of  the  former  unsuccessful 
labors  of  Fellow." 

In  Bowe  v.  Gage,  132  Wis.  441,  12 
L.  R.  A.  (N.  S.)  265,  the  principal  by 
sharp  practice  and  deceit  attempted 
to  get  rid  of  the  broker  and  then 
sold  to  his  purchaser.  The  broker 
was  permitted  to  recover. 

To  the  same  effect:  Blum'enthal  v. 
Goodall,  89  Cal.  251;  Heaton  v.  Ed- 
wards, 90  Mich.  500;  Leonard  v.  El- 
dridge,  184  Mass.  594;  Martin  v. 
Holly,  104  N.  C.  36;  Knox  v.  Parker, 
2  Wash.  34;  Branch  v.  Moore,  84  Ark. 
462,  120  Am.  St.  Rep.  78;  O'Connell 
v.  Casey,  206  Mass.  520;  Reade  v. 
Haak,  147  Mich.  42. 

In  Dodge  v.  Childers,  167  Mo.  App. 
448,  the  court  held  that  the  broker 
had,  to  all  intents  and  purposes,  per- 
formed, at  the  time  of  the  attempted 
revocation;  and  that  the  act  of  revo- 
cation could  only  be  deemed  an  effort 
in  bad  faith  to  get  the  benefit  of  the 
service  without  paying  for  it. 

37  Smith  v.  Sharp,  162  Ala.  433; 
Smith  v.  Anderson,  2  Idaho,  495; 
Maddox  v.  Harding,  91  Neb.  292; 
Knox  v.  Parker,  2  Wash.  34. 

ss  Tinges  v.  Moale,  25  Md.  480,  90 
Am.  Dec.  73;  McClave  v.  Paine,  49  N. 
Y.  561,  10  Am.  Rep.  431;  Duval  v. 
Moody,  24  Tex.  Civ.  App.  627;  Smith 
v.  Fowler,  57  Tex  Civ.  App.  356. 

3»  See  Ahern  v.  Baker,  34  Minn.  98. 
In  this  case  Vanderbergh,  J.,  said: 
"The  defendant,  on  the  9th  day  of 


September,  specially  authorized  one 
Wheeler,  as  his  agent,  to  sell  the  real 
property  in  controversy,  and  to  exe- 
cute a  contract  for  the  sale  of  the 
same.  He  in  like  manner  on  the 
same  day  empowered  one  Fairchild  to 
sell  the  same  land,  the  authority  of 
the  agent  in  each  instance  being  lim- 
ited to  the  particular  transaction 
named.  On  the  same  day  Wheeler 
effected  a  sale  of  the  land,  which  was 
consummated  by  a  conveyance.  Sub- 
sequently, on  the  10th  day  of  Sep- 
tember, Fairchild,  as  agent  for  de- 
fendant, and  having  no  notice  of  the 
previous  sale  made  by  Wheeler,  also 
contracted  to  sell  the  same  land  to 
this  plaintiff,  who  upon  defendant's 
refusal  to  perform  on  his  part,  brings 
this  action  for  damages  for  breach  of 
the  contract. 

"This  is  a  case  of  special  agency, 
and  there  is  nothing  in  the  case  go- 
ing to  show  that  the  plaintiff  [de- 
fendant?] would  be  estopped  from 
setting  up  a  revocation  of  the  agency 
prior  to  the  sale  by  Fairchild.  A 
revocation  may  be  shown  by  the 
death  of  the  principal,  the  destruc- 
tion of  the  subject-matter,  or  the  de- 
termination of  his  estate  by  a  sale, 
as  well  as  by  express  notice.  The 
plaintiff  [defendant?]  had  a  right  to 
employ  several  agents,  and  the  act  of 
one  in  making  a  sale  would  preclude 
the  others  without  any  notice,  unless 
the  nature  of  his  contract  with  them 
required  it.  In  dealing  with  the  agent 


2055 


§  2457] 


THE  LAW  OF  AGENCY 


[BOOK  v 


plied  term  of  the  employment.  The  principal  may  also  revoke  the 
authority  of  one  or  all  of  them,  as  in  other  cases,  but  a  notice  to  one 
broker  that  the  principal  had  decided  not  to  sell  would  not  affect  others 
with  whom  the  one  notified  had  no  connection.40 

Where  several  brokers  are  thus  employed,  it  is  entirely  possible  that 
each  may  find  a  different  purchaser  under  such  conditions  as  to  entitle 
him  to  a  commission,  even  though  the  principal  can  sell  to  but  one  of 
them  or  does  not  sell  to  any  of  them. 

§  2457.  Which  one  entitled — How  determined. — To  determine 
which  of  several  brokers  is  entitled  to  the  commissions,  where  each 
claims  to  have  found  the  same  purchaser,  is  a  question,  in  many  cases, 
of  no  little  difficulty.  Where  all  the  brokers  are  employed  indepen- 
dently at  least,  so  that  competition  among  them  is  not  a  feature  of  the 
undertaking,  it  would  seem  that  the  ordinary  rule  applicable  to  the 
case  of  the  employment  of  a  single  broker  would  apply,  i.  e.,  that  the 
broker  who  was  the  efficient  procuring  cause  of  the  sale  is  entitled 


the  plaintiff  took  the  risk  of  the  rev- 
ocation of  his  agency.  1  Pars.  Cont. 
71."  This  case,  of  course,  goes  fur- 
ther than  is  necessary  for  the  present 
purpose,  because  here  no  one  but  the 
broker  is  involved. 

In  White  v.  Benton,  121  Iowa,  354, 
the  court  say  of  the  broker's  right  to 
complain  of  such  a  revocation: 
"Moreover,  as  we  understand  it,  such 
a  result  was  directly  contemplated 
by  their  contract.  They  listed  the 
lands  upon  their  books  and  went 
about  finding  a  purchaser  therefor 
with  a  full  understanding  that  they 
were  to  have  nothing  unless  they 
found  an  acceptable  customer.  They 
also  knew  full  well  that  other  agents 
had  the  property  listed,  and  were 
seeking  a  customer  therefor,  and  that 
defendant  himself  retained  the  right 
to  find  and  deal  with  a  customer, 
should  he  be  able  to  do  so.  Now, 
clearly,  they  took  the  chances  of  be- 
ing able  to  present  themselves  with 
a  customer  ahead  of  the  other  agents, 
and  before  defendant  himself  found 
one,  and  thus  earn  the  promised  com- 
mission. Turning  the  proposition 


about,  they  took  the  chances  of  a  sale 
being  made  to  a  customer  brought 
forward  by  some  other  agent,  or  to 
one  of  the  defendant's  own  finding. 
Defendant  occupied  the  position,  and 
no  other,  of  saying  to  the  several 
agents  with  whom  he  had  listed  his 
land,  that,  if  any  one  of  them  should 
bring  to  him  a  customer  for  his  land 
before  he  should  sell  it  himself,  he 
would  pay  a  commission;  otherwise, 
none  would  be  paid.  This  is  the  sum 
and  substance  of  the  contract  under 
which  plaintiffs  went  to  work,  as 
shown  by  the  record  made  upon  the 
trial." 

See  also,  Fenton  v.  Miller,  153 
Iowa,  747;  McFarland  v.  Howell,  — 
Iowa,  — ,  143  N.  W.  860;  Hallstead  v. 
Perrigo,  87  Neb.  128;  Kelly  v.  Bren- 
nan,  55  N.  J.  Eq.  423;  Teal  v.  Mc- 
Knight,  110  La.  Ann.  256;  Smith  v. 
Fowler,  57  Tex.  Civ.  App.  356;  Fraz- 
ier  v.  Cox,  —  Ky.  — ,  125  S.  W.  148; 
Mott  v.  Ferguson,  92  Minn.  201. 

Contra:  Not  terminated  until 
broker  is  notified.  Woodall  v.  Foster, 
91  Tenn.  195. 

40  Lloyd  v.  Matthews,  51  N.  Y.  124. 


2056 


CHAP.    Ill] 


OF   BROKERS 


[§    2457 


to  receive  the  commissions,41   and  that  this  right  of  the  successful 
broker  cannot  be  affected  or  defeated  by  the  fact  that  the  principal 


*i  In  Whitcomb  v.  Bacon,  170 
Mass.  479,  64  Am.  St.  Rep.  317,  it  is 
said:  "Where  two  or  more  brokers 
are  employed,  there  is  no  implied 
contract  to  pay  more  than  one  com- 
mission, and  it  therefore  becomes 
necessary  to  lay  down  a  rule  for  de- 
termining which  one  of  different  pos- 
sible claimants  is  entitled  to  be  paid. 
A  similar  rule  exists  in  the  law  of 
insurance,  stated  thus  in  Phil.  Ins. 
(5th  ed.),  §  1132:  'In  case  of  the 
concurrence  of  different  causes,  to 
one  of  which  it  is  necessary  to  at- 
tribute the  loss,  it  is  to  be  attributed 
to  the  efficient  predominating  peril, 
whether  it  is  or  is  not  in  activity  at 
the  consummation  of  the  disaster.' 
And  again  in  §  1137:  'If,  where  dif- 
ferent parties,  whether  the  assured 
and  the  underwriter,  or  different  un- 
derwriters are  responsible  for  differ- 
ent causes  of  loss,  which  concur 
in  the  loss,  and  the  damage  by 
each  cause  cannot  be  distinguish- 
ed, the  party  responsible  for  the  pre- 
dominating efficient  cause,  or  that  by 
which  the  operation  of  the  other  is 
directly  occasioned  as  being  merely 
incidental  to  it,  is  liable  to  bear  the 
loss.'  This  latter  rule  is  expressly 
accepted  as  correct  in  Howard  Ins. 
Co.  v.  Norwich  &  New  York  Trans- 
portation Co.,  12  Wall.  194,  199,  20 
L.  Ed.  378,  the  court  saying:  'When 
there  are  two  concurrent  causes  of  a 
loss  the  predominating  efficient  one 
must  be  regarded  as  the  proximate, 
when  the  damage  done  by  each  can- 
not be  distinguished.'  '  In  determin- 
ing what  constitutes  proximate  cause 
the  same  considerations  apply  equal- 
ly in  actions  of  contract  and  of  tort. 
New  York  &  Boston  Despatch  Ex- 
press Co.  v.  Traders  &  Mechanics' 
Ins.  Co.,  132  Mass.  377,  32  Am.  Rep. 
440.  It  may  be  that  there  are  differ- 
ent causes  which  assist  in  producing 
a  result,  and  that  the  result  would 
not  have  happened  if  either  one  of 
the  different  causes  had  been  want- 


ing. A  familiar  example  is  found  in 
cases  where  there  has  been  a  delay 
by  a  carrier  in  transporting  goods, 
which  are  afterwards  destroyed  by 
flood  or  fire.  Hoadley  v.  Northern 
Transportation  Co.,  115  Mass.  304,  15 
Am.  Rep.  106;  Denny  v.  New  York 
Central  Railroad,  13  Gray,  481,  74 
Am.  Dec.  645;  Memphis  &  Charleston 
Railroad  v.  Reeves,  10  Wall.  176,  19 
L.  Ed.  909.  So  where  several  brokers 
have  each  endeavored  to  bring  about 
a  sale  which  is  finally  consummated, 
it  may  happen  that  each  has  contrib- 
uted something  without  which  the  re- 
sult would  not  have  been  reached. 
One  may  have  found  the  customer, 
who  otherwise  would  not  have  been 
found,  and  yet  the  customer  may  re- 
fuse to  conclude  the  bargain  through 
his  agency;  and  another  broker  may 
succeed  where  the  first  has  failed.  In 
such  a  case,  in  the  absence  of  any 
express  contract,  that  one  only  is  en- 
titled to  a  commission  who  can  show 
that  his  services  were  the  really  ef- 
fective means  of  bringing  about  the 
sale  or,  to  use  the  language  of  Phil- 
lips, the  predominating  efficient 
cause." 

In  Stone  v.  Ferry,  144  111.  App.  191, 
the  defendant  had  employed  two 
brokers  to  dispose  of  his  realty  for 
other  realty  and  some  money.  In 
March,  1906,  the  plaintiff  interested 
in  defendant's  property  one  of  three 
joint  owners  of  property,  with  the 
purpose  of  securing  a  trade  between 
defendant  and  the  three  owners.  Of 
this  plaintiff  informed  the  defendant 
and  for  this  he  secured  exact  figures 
concerning  the  details  and  rents  of 
defendant's  property.  He  dealt,  how- 
ever, with  but  one  of  the  joint  own- 
ers and  relied  upon  the  idea  that 
that  one  was  communicating  with  the 
others.  While  plaintiff's  efforts  were 
pausing,  although  not  at  all  aban- 
doned, the  other  agent  got  hold  of  all 
of  the  joint  owners,  took  two  of  them 
to  see  defendant's  property,  gave 


2057 


§  2457] 


THE  LAW  OF  AGENCY 


[BOOK   V 


in  person,  or  by  another  agent,  takes  into  his  own  hands  and  completes 
the  transaction  which  the  broker  has  inaugurated.42 


them  the  information  over  again,  and 
brought  them  to  the  defendant,  with 
the  result  that  a  written  contract  of 
exchange  was  made  and  consummated. 
The  plaintiff's  claim  for  commission 
was  denied  upon  the  ground,  that,  al- 
though he  may  have  secured  the  in- 
terest of  the  one  joint  owner,  he  did 
not  get  all,  and  that  until  all  were 
procured,  he  was  not  the  efficient  and 
procuring  cause  of  the  trade. 

Where  one  broker  tries  and  fails, 
and  another  later  takes  the  matter 
up  and  succeeds  in  selling  to  the 
same  person  to  whom  the  first 
broker  had  vainly  tried  to  sell,  the 
second  broker  is  the  one  entitled  to 
the  commissions.  Duval  v.  Moody, 
24  Tex.  Civ.  App.  627;  Kifer  v.  Yoder, 
198  Pa.  308,  and  other  cases  cited, 
ante,  §  2442,  note  89. 

Where  a  broker  calls  the  property 
to  the  attention  of  a  possible  buyer, 
but  the  latter  for  personal  reasons 
wholly  refuses  to  deal  with  the 
broker  and  goes  to  another  through 
whom  he  buys  the  property,  the 
first  broker  is  not  the  procuring 
cause.  Witherbee  y.  Walker,  42 
Colo.  1. 

Where  a  buyer  is  first  seen  by  one 
broker  and  ultimately  buys  through 
him,  the  fact  that  the  buyer  also 
went  to  another  broker,  the  plaintiff 
and  asked  for  a  price,  doing  so  mere- 
ly for  the  purpose  of  comparison  with 
that  asked  by  the  one  with  whom  he 
was  negotiating,  the  plaintiff  is  not 
the  procuring  cause.  Crutchfield  v. 
Webster,  31  Okla.  142. 

«  Weeks  v.  Smith,  79  N.  J.  L.  388 
(sale  of  a  steamboat) ;  Beougher  v 
Clark,  81  Kan.  250,  27  L.  R.  A,  (N! 
S.)  198. 

In  Cunliff  v.  Hausman,  97  Mo.  App. 
467,  it  was  held  that  a  broker  who 
procures  a  purchaser  is  entitled  to 
his  commission  even  although  the 
purchaser  does  not  close  negotiations 
with  this  broker,  but  completes  the 


contract  with  another  agent  who  had 
authority  from  the  owner  to  sell. 

In  Hovey  v.  Aaron,  133  Mo.  App. 
573,  a  broker  who  was  authorized  to 
get  a  purchaser  at  $30,000,  interested 
a  man  in  the  land  and  took  him  to 
look  at  it.  This  purchaser  saw  on 
the  land  the  sign  of  another  broker 
and  by  going  to  him  secured  a  con- 
tract for  $29,000,  which  the  owner 
accepted,  in  ignorance  of  the  fact 
that  the  purchaser  had  had  any  deal- 
ings with  the  first  broker.  Yet  upon 
the  ground  that  this  first  broker  was 
the  moving  cause  in  securing  this 
purchaser  the  court  held  him  entitled 
to  a  commission  from  the  seller. 

In  Smith  v.  Truitt,  107  Mo.  App.  1, 
a  broker  had  interested  a  purchaser 
in  the  land,  and  was  to  see  whether 
he  could  get  a  reduction  in  the  price. 
He  was  allowed  his  commission,  al- 
though before  he  could  see  the  owner 
the  buyer  saw  him,  and  got  the  re- 
duction, and  had  the  sale  completed 
through  the  aid  of  another  broker 
who  was  called  in  by  the  seller  mere- 
ly to  attend  to  the  final  negotiations. 

In  Votaw  v.  McKeever,  76  Kan.  870, 
it  is  said:  "If  an  agent  by  his  own 
exclusive  efforts  produces  a  pur- 
chaser, shows  him  the  property,  and 
after  considerable  effort  prevails  on 
him  to  take  the  property,  but  delays 
the  final  act  of  closing  the  trade  un- 
til the  following  day,  and  while  the 
negotiations  thus  stand  in  abeyance 
another  agent  induces  the  purchaser 
to  pay  the  purchase  price  and  the 
owner  to  execute  a  conveyance,  such 
agent  should  not  be  regarded  as  the 
efficient,  proximate  and  procuring 
cause  of  the  sale." 

In  Lewis  v.  McDonald,  83  Neb.  694, 
the  plaintiff,  a  real  estate  broker 
with  authority  to  sell  defendant's 
land,  interested  a  purchaser  and  be- 
gan negotiations  which  were  never 
expressly  ended.  This  purchaser  de- 
cided to  buy,  but  made  an  ar- 


2058 


CHAP.    Ill] 


OF   BROKERS 


[§    2457 


Where  several  brokers  are  openly  and  avowedly  employed,  so  that 
each  can  be  said  to  have  undertaken  the  employment  on  that  basis,  it  is 
held  in  many  cases  that  the  entire  duty  of  the  principal  is  performed 
by  remaining  neutral  between  them,  and  that  he  has  a  right  to  sell  to 
the  buyer  who  is  first  produced  by  any  of  them,  and  to  pay  that  broker 
the  commission,  without  being  called  upon  to  decide  which  of  the  sev- 
eral brokers  was  the  primary  cause  of  the  sale.43  The  various  theories 


rangement  with  another  real  estate 
agent,  who  was  allowed  to  Intervene 
in  the  suit,  whereby  the  second  agent 
sought  and  obtained  from  the  de- 
fendant authority  to  make  contract 
for  sale  of  the  land  and  a  promise  of 
commission  for  any  sale  accomplished. 
The  second  agent  knew  of  the  plain- 
tiff's negotiations,  the  defendant  did 
not,  and  the  sale  was  completed 
through  the  second  agent.  It  was 
held  that,  as  between  the  brokers,  the 
plaintiff's  efforts  were  the  effective 
cause  of  the  sale  and  that  he  was  en- 
titled to  his  commission. 

In  Grinnell  Co.  v.  Simpson,  64 
Wash.  564,  the  plaintiff  had  procured 
a  purchaser  willing  to  buy  defend- 
ant's property,  and  had  communi- 
cated to  defendant  the  name  of  the 
intending  purchaser.  The  latter, 
meeting  another  broker  with  whom 
the  property  had  also  been  listed, 
concluded  the  sale  with  him.  Held, 
that  the  plaintiff  was  the  procuring 
cause  of  the  sale,  and  therefore,  en- 
titled to  his  commission,  even  tho  he 
had  not  concluded  the  sale. 

4»Vreeland  v.  Vetterlein,  33N.J.  L. 
247;  Higgins  v.  Miller,  109  Ky.  209; 
Hopkins  v.  Moseley  (Ky.),  31  Ky.  L. 
Rep.  1308,  105  S.  W.  104;  Eggleston 
v.  Austin,  27  Kan.  245  (dictum); 
Daniel  v.  Land  Co.,  9  App.  D.  C.  483; 
Scott  v.  Lloyd,  19  Colo.  401;  Carper 
v.  Sweet,  26  Colo.  547;  Farrar  v. 
Brodt,  35  111.  App.  617;  McGuire  v. 
Carlson,  61  111.  App.  295;  Hennings 
v.  Parsons,  108  Va.  1,  15  Ann.  Cas. 
765;  Day  v.  Porter,  161  111.  235, 
(dictum);  Glenn  v.  Davidson,  37  Md. 
365  (by  custom);  Glascock  v.  Van- 
fleet,  100  Tenn.  603;  House  v.  Easley 
(Tex.  Civ.  App.),  147  S.  W.  303;  Dore 


v.  Jones,  70  Wash.  157;  Nation  v. 
Harness,  33  Okla.  630;  Higinbotham 
v.  McKenzie,  88  Neb.  323.  See  also, 
Slagle  v.  Russell,  114  Md.  418. 

In  Higgins  v.  Miller,  supra,  it  is 
said:  "The  same  rule  cannot  apply 
where  a  number  of  agents,  acting  in- 
dependently, are  endeavoring  to  con- 
summate a  sale  of  property  as  where 
there  is  only  one.  When  it  is  open 
ly  in  the  hands  of  a  number  of 
agents,  they  all  know  that  each  will 
probably  be  active  in  his  efforts  to 
consummate  a  sale;  that  each  has 
the  right  to  solicit  a  purchaser  when- 
ever an  opportunity  is  offered;  that 
each  knows  he  has  competitors  in 
the  efforts  he  is  putting  forth  to 
make  a  sale;  that  each  knows  if  he 
fails  to  effect  a  sale  another  agent  is 
likely  to  do  so  by  applying  his  pow- 
ers for  driving  a  bargain,  and  may 
succeed.  While  these  competitive 
efforts  are  going  on,  the  owner  of  the 
property  is  silently  waiting  for  an 
acceptable  offer  by  one  of  the  agents 
who  has  undertaken  to  make  a  sale 
for  him.  Neither  of  the  agents  can 
complain  of  him  because  another 
agent  is  actively  endeavoring  to  con- 
si;  inmate  a  sale.  Our  opinion  is  that, 
when  property  'has  been  listed  for 
sale  with  a  number  of  real  estate 
agents,  the  one  who  succeeds  in 
bringing  the  seller  and  purchaser  to- 
gether and  induces  them  to  enter  into 
the  contract,  is  the  one  who  has  earn- 
ed the  commission,  and  this  is  true, 
regardless  of  the  question  as  to  who 
first  introduced  the  seller  and  the 
purchaser."  Quoted  with  approval  in 
Fenton  v.  Miller,  153  Iowa,  747. 

In  Edwards  v.  Pike,  49  Tex.  Civ. 
App.  30,  it  is  said:  "The  broker  who 


2059 


§  2457J 


THE  LAW  OF  AGENCY 


[BOOK  v 


on  which  this  rule  is  based  are  stated  in  the  notes  attached  to  this  sec- 

•xf  nso  li 

"But  it  appears  to  b«  equally  obvi- 
ous," says  Chief  Justice  Beasley,  In 
Vreeland  v.  Vetterlein,  supra,  "that 
another  principle  must  be  applied  to 
cases  in  which  several  agents  are 
avowedly  employed  by  the  owner. 
Under  such  circumstances,  it  would 
be  impracticable  to  resort  to  the 
same  rule  as  when  a  monopoly  to  sell 
is  given  to  one.  In  the  latter  case, 
the  implied  understanding  is,  that 
the  seller  will  not  take  advantage  of 
the  endeavors  of  the  agent,  and  that 
no  other  person  is  authorized  to  do 
so.  But  in  the  instance  of  a  number 
of  agents,  the  agreement  of  non-inter- 
ference is  not  so  wide,  for  it  extends 
to  the  act  of  the  seller  only.  Where, 
the  property  is  openly  put  in  the 
hands  of  more  than  one  broker,  each 
of  such  agents  is  aware  that  he  is 
subject  to  the  arts  and  chances  of 
competition.  If  he  finds  a  person  who 
is  likely  to  buy  and  quits  him  with- 
out having  effected  a  sale,  he  is  aware 
that  he  runs  the  risk  of  such  person 
falling  under  the  influence  of  his  com- 
petitor— and  in  such  case,  he  may 
lose  his  labor.  This  is  a  part  of  the 
inevitable  risk  of  the  business  he  has 
undertaken.  On  the  other  hand,  if 
fortune  should  be  propitious,  a  bid- 
der for  the  property  on  sale,  who  has 
been  solicited  by  his  rival,  may  come 
to  him,  and  by  his  means  effect  the 
bargain.  Now,  in  this  competition, 
the  vendor  of  the  property  is  to  re- 
main neutral;  he  is  interested  only 
in  the  result.  But  when  either  of 
the  agents  thus  employed  brings  a 
purchaser  to  him,  and  a  bargain  is 
struck  at  the  required  price,  on  what 
ground  can  he  refuse  to  complete  the 
bargain?  Can  he  say  to  the  success- 
ful competitor,  this  purchaser  was 
first  approached  by  your  rival,  and 
you  should  have  refused  to  treat  with 
him  on  the  subject?  There  is  no 
legal  principle  upon  which  such  a  po- 
sition could  rest.  It  is  contrary  to 
the  usages  of  everyday  commerce. 
Every  advertisement  of  a  stock  of 


tion. 

undertakes  a  sale  of  property  with 
full  knowledge  that  another  broker 
has  also  undertaken  to  sell  it,  ought 
not  to  expect  more  of  the  owner  than 
that  he  will  not  interfere  in  favor  of 
the  one  or  the  other.  It  is  then  an 
even  contest  between  them,  where 
the  chances  of  success  in  contempla- 
tion of  the  competition  to  be  expected 
should  be  presumed  to  have  been  duly 
weighed  by  each;  and  if  as  a  result  of 
such  competition,  without  interfer- 
ence or  fault  on  the  part  of  the  own- 
er, the  sale  is  actually  consummated 
by  his  competitor,  the  broker  who 
brought  the  prospective  purchaser 
and  the  owner  together,  but  who  fail- 
ed to  consummate  a  sale  upon  the 
terms  agreed  upon  between  him  and 
the  buyer,  ought  not  to  be  permitted 
to  charge  against  the  owner  the  loss 
sustained  by  him,  not  by  the  owner's 
fault,  but  as  a  result  of  acts  of  his 
competitor  and  conduct  of  the  pur: 
chaser,  which  he  reasonably  should 
have  contemplated  might  ensue  when 
he  undertook  and  performed  the 
service." 

In  Dalke  v.  Sivyer,  56  Wash.  462,  27 
L.  R.  A.  (N.  S.)  195,  it  was  said:  "It 
is  also  well  settled  that,  where  the 
owner  or  agent  lists  property  with 
different  brokers  for  sale,  the  con- 
tracts not  being  exclusive,  the  brok- 
ers run  a  race  of  energy  for  the  prize, 
viz.,  the  commission;  that  they  enter 
into  a  competition  in  this  respect; 
and  that,  no  matter  how  much  energy 
or  time  a  broker  ma'y  have  expended 
in  attempting  to  make  a  sale,  he  can- 
not complain  if  his  competitor 
reaches  the  goal  before  he  does  by  se- 
curing a  purchaser  who  is  ready,  able 
and  willing  to  purchase." 

In  Dore  v.  Jones,  70  Wash.  157,  the 
court  said:  "The  mere  fact  that  the 
plaintiff  first  introduced  the  purchas- 
er to  the  defendants  is  not  a  compli- 
ance with  the  contract  to  sell,  where 
it  is  shown  that  the  sale  is  made  and 
closed  by  another  agent  with  whom 
the  property  is  also  listed." 


2060 


CHAP.    Ill] 


OF   BROKERS 


[§ 


§  2458.  Same   subject — Interpleader. — Other   cases    state 

the  rule  somewhat  less  broadly,44  and  it  is  everywhere  agreed  that,  in 
order  to  be  entitled  to  the  benefit  of  it,  the  principal  must  in  fact  have 
remained  neutral,  and  he  certainly  must  not  knowingly  permit,  much 
less  aid  in  or  connive  at,  the  appropriation  by  one  man  of  the  rewards 
of  what  was  really  another  man's  effort.46 


goods  for  sale  has  a  tendency  to  carry 
off  the  customers  of  rival  dealers. 
And  if,  therefore,  it  should  be  known 
to  the  vendor  of  the  property  that 
the  agent  who  introduces  a  purchaser 
to  him  has,  by  the  usual  arts  of  com- 
petition, taken  such  purchaser  out  of 
the  hands  of  his  rival,  I  am  not 
aware  of  anything  in  the  law  which 
would  justify  such  vendor  in  a  refusal 
to  complete  the  contract.  The  task 
would  be  difficult  and  the  risk  great 
if  vendors  were  called  upon  to  decide 
between  the  claims  of  contestants. 
How  would  it  be  possible  for  such 
vendor  to  say  whose  influence  it  was 
that  produced  the  sale,  where  the  pur- 
chaser has  been  solicited  by  both 
agents?  It  would  be  at  variance  with 
all  practical  rules  to  require  the  party 
selling  to  pronounce  under  the  pen- 
alty of  paying  double  commissions, 
upon  the  metaphysical  question, 
which  agent,  under  such  circum- 
stances was  the  efficient  cause  of  the 
sale.  In  the  absence  of  all  collusion 
on  the  part  of  the  vendor,  the  agent 
through  whose  instrumentality  the 
sale  is  carried  to  completion  is  en- 
titled to  the  commissions.  This  rule, 
I  think,  will  be  found  to  be  in  ac- 
cord with  the  cases  heretofore  de- 
cided." 

*4  in  Reynolds  v.  Tompkins,  23  W. 
Va.  229,  235,  it  is  said  by  Johnson,  J.: 
"If  he  has  several  agents  employed, 
to  sell  the  same  land,  and  one  has 
found  a  purchaser  and  has  negotiated 
with  him  to  sell  the  land  at  a  certain 
stipulated  price  and  on  certain  terms, 
different  from  those  specified  in  the 
authority  to  sell,  and  when  the  sale 
was  about  to  be  consummated  an- 
other agent  of  the  owner  meets  the 
same  person,  who  talks  to  him  about 
the  offer  of  the  first  agent,  and,  with 


full  knowledge  of  the  negotiations  of 
the  first  agent,  the  second  agent  sells 
to  such  person  the  same  property  for 
a  less  price,  but  on  the  same  terms 
as  to  cash  down  and  time  in  which 
to  pay  the  deferred  payments,  and 
the  owner  is  ignorant  of  the  negotia- 
tions of  the  first  agent  with  the  pur- 
chaser, but  ratifies  the  sale  by  the 
second  agent,  made  on  the  terms  pro- 
posed by  the  first,  he  is  not  liable  to 
the  second,  but  to  the  first  agent,  and 
should  pay  him  a  reasonable  compen- 
sation for  procuring  said  sale." 

45  In  Breman  v.  Roach,  47  Mo.  App. 
290,  it  was  said  by  Judge  Thompson: 
"In  the  absence  of  a  distinct  contract 
that  the  commission  is  to  be  paid  to 
the  agent  who  first  consummates  the 
sale,  it  belongs,  as  in  other  cases,  to 
the  agent  whose  exertions  are  the 
procuring  cause  of  the  sale.  After  he 
has  shaken  the  tree,  another  agent  is 
not  to  be  permitted  to  run  up  and 
carry  off  the  fruit;  and  if  the  owner 
allows  this  to  be  done,  he  is  responsi- 
ble to  the  first  agent." 

In  Holland  v.  Vinson,  124  Mo.  App. 
417,  it  is  said:  "The  law  will  not  per- 
mit one  broker  who  has  been  intrust- 
ed with  the  sale  of  land  and  is  work- 
ing with  a  customer  whom  he  has 
found,  to  be  deprived  of  his  commis- 
sion by  another  agent  stepping  in  and 
selling  to  said  customer  for  less  than 
the  first  broker  is  empowered  to  re- 
ceive. The  land-owner  does  wrong  to 
grant  such  authority  to  the  interfer- 
ing broker  and  is  bound  to  pay  the 
one  who  procures  the  buyer." 

See  also,  Wright  v.  Brown,  68  Mo. 
App.  577;  Gerhart  Co.  v.  Marjorie  Co., 
144  Mo.  App.  620. 

In  Hogan  v.  Slade,  98  Mo.  App.  44, 
where  it  appeared  that  the  principal, 
knowing  that  his  broker,  one  Hogan. 


2061 


§  2458] 


In  either  class  of  cases  it  is  quite  possible  that  the  principal  may  in 
fact  be  held  to  more  than  one  payment  if  different  juries  differ  as  to 
who  was  the  procuring  cause.*8  It  is  not  ordinarily  a  case  in  which 
interpleader  is  possible,*7  since  the  various  claims  usually  arise  out  of 
separate  and  distinct  contracts  and  are  not  necessarily  to  the  same 


was  endeavoring  to  make  a  sale  to 
Greenwood  in  the  face  of  repeated 
changes  in  the  price  fixed  by  the  prin- 
cipal, made  a  sale  to  Greenwood 
through  another  broker  at  a  lower 
price  than  was  last  named  to  Hogan 
the  court  said :  "If  the  owners  choose 
to  close  a  deal  to  Hogan's  customer, 
Greenwood,  through  other  agents  and 
at  a  lower  price  than  was  named  to 
Hogan,  while  the  latter's  agency  was 
unrevoked  and  he  was  still  working 
with  his  customer  at  the  price  named 
to  him,  they  must  pay  Hogan  his  com- 
mission; otherwise  any  real  estate 
agent  who  had  borne  the  burden  and 
the  heat  of  the  day  in  working  up  a 
sale  might  have  his  reward  snatched 
from  him  at  the  eleventh  hour  by  his 
principal  empowering  someone  else  to 
sell  at  a  smaller  price." 

In  Wood  v.  Wells,  103  Mich.  320, 
the  principal,  "knowing  that  the 
broker  had  found  and  was  negotiating 
with  a  certain  person,  sold  the  prem- 
ises to  that  person  through  another 
agent,  upon  substantially  the  same 
terms.  Held,  that  he  was  liable  to 
the  first  broker.  To  same  effect,  see: 
Beougher  v.  Clark,  81  Kan.  250,  27  L. 
R.  A.  (N.  S.)  198. 

Jennings  v.  Trummer,  52  Ore.  149, 
132  Am.  St.  Rep.  680,  23  L.  R.  A.  (N. 
S.)  164,  is  to  the  same  effect.  The 
court  said  that  the  conduct  of  the 
principal  was"  entirely  lacking  in  good 
faith  towards  the  broker. 

In  Elmendorf  v.  Golden,  37  Wash. 
664,  the  principal  had  not  originally 
employed  two  brokers,  but  after  em- 
ploying one  and  being  notified  by  him 
that  he  had  a  certain  person  interest- 
ed as  the  buyer,  permitted  another 
broker  to  interfere  and  consummate 
the  sale  to  that  person.  Held,  liable 
to  the  first  broker. 

To   the   same   effect:    Peckham   v. 


Ashhurst,  18  R.  I.  376;  Gibson's  Es- 
tate, 161  Pa.  177;  Eggleston  v.  Austin, 
27  Kan.  245;  Sylvester  v.  Johnson, 
110  Tenn.  392;  French  v.  McKay,  181 
Mass.  485;  Bowling  v.  Morrill,  165 
Mass.  491. 

This  is  but  another  aspect  of  a  rule 
already  considered,  that  the  principal 
cannot,  after  the  broker  has  practi- 
cally found  the  purchaser,  deprive 
him  of  his  commission  by  stepping 
in  and  concluding  the  sale  either  in 
person  or  by  another  agent. 

Not  even  these  cases  in  the  Mis- 
souri Court  of  Appeals,  which,  per- 
haps, go  further  than  any  others  in 
sustaining  the  right  to  the  commis- 
sion of  the  broker  who  was  the  real 
procuring  cause,  as  against  the 
broker  who  actually  concluded  the 
sale,  go  so  far  as  to  entitle  the  former 
to  the  commission  unless  he  was  in 
fact  the  procuring  cause.  The  fact 
that  the  principal  sells  to  the  buyer 
actually  produced  by  one  broker  for 
a  less  price  than  he  had  named  to 
another  broker  who  had  attempted  to 
sell  to  the  same  person,  does  not  al- 
ter the  result.  Gerhart  Real  Estate 
Co.  v.  Marjorie  Real  Estate  Co.,  144 
Mo.  App.  620;  Dalke  v.  Sivyer,  56 
Wash.  462,  27  L.  R.  A.  (N.  S.)  195; 
Frink  v.  Gilbert,  53  Wash.  392. 

40  Or  may  voluntarily  pay  one  and 
then  be  compelled  to  pay  another,  as 
in  Jarvis  v.  Shaefer,  105  N.  Y.  289; 
Bell  v.  Rokeby,  15  Man.  L.  R.  327,  and 
many  other  cases. 

47  The  claims  arise  out  of  distinct 
and  independent  contracts  and  are 
not  necessarily  claims  to  the  same 
thing.  Greatorex  v.  Shackle,  [1895] 
2  Q.  B.  249;  Hoyt  v:  Gouge,  125  Iowa, 
603;  Maxwell  v.  Frazier,  52  Ore.  183, 
18  L.  R.  A.  (N.  S.)  102;  Sachsel  v. 
Farrar,  35  111.  App.  277. 


2062 


CHAP.    Ill]  OF   BROKERS  [§    2459 

thing,  although  some  cases  allow  it,48  and  the  circumstances  may  be  such 
as  to  make  interpleader  generally  available.  Otherwise,  the  principal 
must  defend  himself  at  law.  For  this  purpose  it  is,  of  course,  compe- 
tent for  him  to  show  that  the  plaintiff  was  not  the  procuring  cause,  but 
that  some  other  man  was.49 

§  2459.  Abandonment  by  one  broker — Termination  of  his 

authority. — The  same  rule  in  regard  to  the  abandonment  of  the 
effort,  which  has  been  already  noticed,  applies  here  also.  Thus  if  one 
of  several  brokers  gives  notice  to  his  principal  that  he  cannot  effect  a 
sale,  he  will  not  be  entitled  to  commissions  because  another  broker, 
who  is  informed  by  the  first  that  the  property  is  for  sale,  succeeds  in 
finding  a  purchaser.50  So,  if  two  brokers  are  employed,  and  one  of 
them  enters  into  negotiations  with  a  purchaser  which  fail  and  are  aban- 
doned, he  will  not  be  entitled  to  commissions  because  another  broker 
subsequently  succeeds,  wholly  through  his  own  efforts,  in  making  a 
sale  to  the  same  person,  and  upon  substantially  the  same  terms  as  those 
proposed  by  the  first  broker.51  The  same  result  will  follow  where  one 
broker  has  not  been  able  within  a  reasonable  time  to  effect  a  sale,  and 
another  broker  afterwards  succeeds  in  selling  to  a 'purchaser  first  ap- 
proached by  the  former  broker.52  And  so  where  the  principal,  acting 
in  good  faith,  and  with  no  intention  of  defeating  the  broker's  claim, 
revokes  his  authority,  while  his  efforts  are  yet  unsuccessful,  the  broker 
will  not  be  entitled  to  commissions,  even  though  the  principal  in  per- 
son or  through  another  broker  subsequently  sells  to  a  purchaser  to 
whom  the  first  broker  had  endeavored  to  sell.53 

48  Thus  in  New  York,  see,  Dreyer  tion  of  the  purchaser  to  the  property, 
v.  Rauch,  42  How.  Pr.  22;   Bickart  v.  but  failed  to  get  a  contract  because 
Hoffman,  19  N.  Y.  Suppl.  472;   Crane  the  purchaser  could  not  comply  with 
v.  McDonald,  118  N.  Y.  648;   Shapiro  the  terms,  and  the  matter  was   left 
v.  Shapiro,  117  N.  Y.  App.  Div.  817.  there.     Then  a  second  broker,  who 
See  also,  Fenton  v.  Miller,  163  Iowa,  had  the  agency  for  the  same  property, 
747.  obtained   a   contract  with   the  same 

49  Mead   v.    Arnold,    131    Mo.    App.  man   as   purchaser  by   bringing   for- 
214;  Gerhart  R.  E.  Co.  v.  Marjorie  R.  ward  a  lender,  so  that  the  purchaser 
E.  Co.,  144  Mo.  App.  620.  could   comply  with  the  terms.     The 

BO  Holley  v.  Townsend,  2  Hilton  (N.  first  broker  was  held  to  have  earned 

Y.),  34;  Friend  v.  Triggs  Co.,  147  111.  no  commission. 

App.  427.  62  Staehlin  v.  Kramer,  118  Mo.  App. 

si  Livezy    v.    Miller,    61    Md.    336;  329.     To  same  effect:    De  Zavala  v. 

Hollyday  v.  Southern  Farm  Agency,  Royaliner  (N.  Y.  App.  Div.),  84  N.  Y. 

100  Md.  295;  Witherbee  v.  Walker,  42  Suppl.  969;  s.  c.,  45  N.  Y.  Misc.  430» 

Colo.  1;  Cole  v.  Kosch,  116  N.  Y.  App.  ss  Smith  v.  Kimball,  193  Mass.  582;, 

Div.  715.  Leonard  v.  Eldridge,  184  Mass.   594. 

In  Frink  v.  Gilbert,  53  Wash.  392,  In  Girardeau  v.  Gibson,  122  Ga.  313, 

the  first  broker  had  called  the  atten-  the  sale  which  a  first  broker  had  ne- 

2063 


§§  2460,2461] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2460.  Duty  to  notify  principal,  when  purchaser  found. 

— As  a  corollary  to  the  rule  protecting  the  principal  who  in  good  faith 
has  paid  the  first  broker  who  produces  a  purchaser,  it  is  said  that 
when  one  of  several  brokers  has  procured  a  purchaser,  it  is  his  duty, 
if  hje  intends  to  claim  commissions,  to  report  his  name  and  offer  to  his 
principal,  and  if  he  fails  to  do  so,  he  cannot  complain  if  the  principal, 
in  good  faith  and  without  notice,  pays  the  commissions  to  another 
broker  who  subsequently  sells  to  the  same  purchaser  at  the  same  price.54 

§  2461.  How  much  compensation  broker  entitled  to — Quantum 
meruit. — As  has  already  been  pointed  out,  the  broker  ordinarily  is 
not  entitled  to  compensation  unless  he  has  performed  his  undertaking. 
When  he  has  done  that,  he  is  entitled  to  his  compensation,  at  the  rate 
agreed,  if  any ;  if  not,  at  the  customary  rate ;  and,  if  there  be  no  cus- 
tom, then  at  the  reasonable  value.  Ordinarily,  there  is  no  middle 
ground, — the  broker  has  either  performed  or  he  has  not, — he  is  en- 
titled to  the  whole  commission  or  nothing,  and  there  is  no  room  to 
claim  part  compensation  for  part  performance,  or  reasonable  compen- 
sation for  some  valuable  service  rendered  but  less  than  complete  per- 
formance.65 The  cases  are  very  numerous  in  which  it  is  obvious  that 

' 'i 


gotiated  was  abandoned  with  the  con- 
sent of  all  the  parties  concerned,  in- 
cluding the  broker,  and  the  broker 
was  not  thereafter  allowed  commis- 
sion when  the  property  was  subse- 
quently sold  to  the  same  purchaser 
upon  practically  the  same  terms,  but 
when  there  had  been  no  bad  faith  in 
the  transactions. 

s*  Tinges  v.  Moale,  25  Md.  480,  90 
Am.  Dec.  73. 

In  Gilbert  v.  McCullough,  146  Iowa, 
333,  it  was  said:  "By  withholding 
the  name  of  the  purchaser  proposed, 
the  agont  voluntarily  kept  from  his 
principal  the  knowledge  which  would 
have  enabled  the  latter  to  protect 
himself  as  well  as  the  agent,  and 
therefore  the  latter,  rather  than  the 
principal,  was  at  fault." 

In  Johnson  Bros.  v.  Wright,  124 
Iowa,  61,  it  was  held  that  the  notice 
must  be  not  only  sent,  but  received, 
during  the  time  originally  set  for  the 
duration  of  the  agency. 

In  Gibbons  v.  Sherwln,  28  Neb.  146, 
however,  there  was  originally  no  time 
limit  set,  and  while  to  the  principal's 


• 

knowledge  negotiations  probably  suc- 
cessful were  pending,  he  set  a  time 
limit  and  required  notice  within  that 
time.  The  notice  was  sent  within  the 
time,  but  received  only  later,  and  the 
broker  was  allowed  to  recover. 

It  is  not  necessary  that  the  broker 
shall  have  notified  his  principal  of 
the  name  of  the  purchaser  where  the 
principal's  conduct  shows  that  it 
would  have  been  of  no  use.  Feist  v. 
Jerolamon,  81  N.  J.  L.  437. 

55  See  Knudson  v.  Laurent,  • — 
Iowa,  — ,  140  N.  W.  392;  Gilbert  v. 
McCullough,  146  Iowa,  333,  and  cases 
therein  cited ;  Clark  v.  Davies,  88  Neb. 
67. 

In  Cadigan  v.  Crabtree,  179  Mass. 
474,  88  Am.  St.  Rep.  397,  55  L.  R.  A. 
77,  it  is  said:  "A  broker  who  has  not 
been  successful  in  procuring  a  cus- 
tomer for  his  principal  is  never  en- 
titled to  recover  on  a  quantum  mermt 
for  work  done.  Where  a  broker  has 
done  work,  but  another  broker  has 
closed  the  trade,  it  was  held  that  un- 
der the  peculiar  circumstances  of 
Dowling  v.  Morrill,  165  Mass.  491,  not 


2064 


CHAP.    Ill]  OF   BROKERS  [§    2461 

the  principal  has  derived  some  benefit  from  the  broker's  efforts,  which 
have,  nevertheless,  failed  of  success.  If  the  broker  cannot  or  does  not 
perform,  although  he  makes  much  effort,  or  if  he  gives  it  up  before 
success,  and  the  principal  or  someone  else  takes  the  matter  up  and 
brings  it  to  completion,  the  broker,  though  he  may  to  some  extent  have 
contributed  to  the  result,  is  not  the  procuring  cause  of  it,  and,  as  has 
been  seen,56  is  ordinarily  entitled  to  no  compensation.57 

But  there  may  be  different  situations.  Thus,  as  has  been  seen,  the 
undertaking  may  be  to  "assist,"  or  "try,"  or  ''urge,"  and  the  like,  which 
would  not  require  a  successful  issue.  The  parties  may  mutually  have 
altered  the  terms,  either  expressly  or  by  implication.  The  principal 
may  have  waived  the  kind  of  performance  originally  demanded.  As 
seen  in  several  instances,  it  may  become  evident  that  a  purchaser  can- 
not be  found  for  the  quantity  of  land,  or  for  the  price  or  upon  the  terms 
of  payment  originally  fixed,  and  the  principal,  without  terminating  the 
employment, — the  agent  not  having  abandoned  the  undertaking, — may 
accept  a  performance  by  the  agent  under  such  circumstances  that, 
though  payment  in  the  original  form  is  no  longer  practicable,  the  prin- 
cipal may  fairly  be  held  to  have  undertaken  to  pay  a  commission  suited 
to  the  new  situation, — either  pro  rata  according  to  the  degree  of  per- 
formance, or  quantum  meruit  where  there  is  no  other  basis  for  estimat- 
ing it.58 

that  he  could  recover  on  a  quantum  approval  Prickett  v.  Badger,  1  C.  B. 
meritit  for  work  done,  but  that  a  com-  (N.  S.)  296." 
mission  was  earned  if  his  work  was  56  See  ante,  §  2442. 
in  fact  the  efficient  and  predominat-  ^  An   occasional   case   to   the   con- 
ing cause  of  the  sale;  and  so,  where  trary,  of  course,  can  be  found,  such 
a  customer  is  found  to  purchase  prop-  as    Hawkins    v.    Chandler,    8    Houst. 
erty  but  the  trade  is  not  made  or  is  (Del.)  434  (a  mere  charge  to  a  jury 
not     carried     through     because     the  and,  apparently,  wrong) ;   Deneau  v. 
broker's  principal  is  not  able,  or  does  Lemieux   (Quebec),  4  East  L.  Rep'r. 
not  choose,   to   convey  the   property  93. 

for  which  he  employed  the  broker  to  88  See   Von   Tobel   v.   Mill   Co.,   32 

find   a   purchaser,   it   is   now  settled  Wash.   683,   where   it  was   held   that 

that  the  broker's   remedy  is  to  sue  when  the  principal  had  agreed  to  a 

his  principal  for  a  commission,  and  reduction  in  his  price  and  concluded 

that  in  such  an  action  he  can  recover  a  sale  to   the   broker's  customer  on 

his  commission.     See,  Fitzpatrick  v.  that  basis,  the  broker  could  recover 

Gilson,  176  Mass.  477,  and  cases  there  quantum  meruit ;  McDonald  v.  Cabi- 

cited;    although  at  one  time  counte-  ness    (  Tex.    Civ.    App.),    98    S.    W. 

nance  was  given  to  the  proposition  943,   where   there   was   a   change   in 

that  in  such  a  case  the  remedy  of  the  terms,    with   the   same   result;  Byrd 

broker  was  on  a  quantum  meruit  for  v.    Frost     (Tex.    Civ.    App.),    26    S. 

work  done.     See,  Drury  v.  Newman,  W.  46;   Schultz  v.  Zelman  (Tex.  Civ. 

99    Mass.    256,    258;    also,   Walker   v.  App.),    Ill    S.    W    776;     Beister    v. 

Tirrell,  101  Mass.  257,  258,  citing  with  Evans,    59    111.    App.    181;     Ratts    v. 
130                                               2065 


§§  2462,2463] 


THE  LAW  OF  AGENCY 


[BOOK   V 


§  2462.  At  what  time  commission  payable. — The  broker,  in  the 
ordinary  case,  is  entitled  to  his  commissions  when  he  has  completed  his 
undertaking,  which,  as  has  been  seen,  is  usually  to  find  a  purchaser 
upon  the  terms  required.  He  is  not  ordinarily  a  guarantor  that  the 
purchaser  so  produced,  and  who  has  been  accepted  by  the  principal, 
will  perform.  Neither,  ordinarily,  where  the  terms  provide  for  de- 
ferred payments,  is  he  required  to  wait  for  his  commissions  until  those 
payments  are  made.  He  may  expressly  agree,  of  course,  that  his  com- 
missions shall  only  be  payable  as  such  payments  are  received,  and  such 
agreements  are  not  uncommon.89  He  may  also  agree  to  that,  by  im- 
plication.60 

§  2463.  Broker  to  sell  chattels. — The  same  principles  also  apply 
to  the  case  of  the  broker  employed  to  effect  a  sale  of  chattels,  such  as 
stocks,  bonds,  merchandise,  and  the  like.  Whenever,  within  the  time 
limited,  the  broker  has  performed  the  undertaking  of  his  employment, 
the  broker's  right  to  his  commission  is  complete,  but  he  has  ordinarily 
earned  nothing  unless  he  can  show  an  employment  61  to  sell  the  chattels, 


Shepherd,  37  Kan.  20;  Ice  v.  Maxwell, 
61  W.  Va.  9;  Peterson  v.  St.  Francis 
Hotel  Co.,  61  Wash.  378. 

59  This  was  the  case  in  Crane  v. 
Eddy,  191  111.  645,  85  Am.  St.  Rep. 
284.  (Here  the  price  was  to  be  paid 
in  instalments  secured  by  a  trust 
deed.  Commission  was  to  be  paid  in 
pro  rata  instalments  as  the  seller  re- 
ceived the  price.  After  part  had  been 
paid,  buyer  made  default;  seller  fore- 
closed and  bid  in  the  land  in  satisfac- 
tion of  unpaid  amount.  Held,  that 
balance  of  the  commission  became  at 
once  payable.)  To  same  effect  is 
Peters  v.  Anderson  (Va.),  23  S.  E. 
754. 

Where  the  payments  of  commis- 
sion were  to  be  made  pro  rata,  the 
fact  that  the  buyer  makes  default  in 
time  of  payment,  but  the  seller  waives 
it  and  makes  new  arrangements,  does 
not  defeat  broker's  right  to  commis- 
sion on  that  amount. 

Where  the  agreement  is  that  the 
broker  shall  net  be  paid  until  the 
deed  is  delivered,  the  fact  that  the 
deed  is  never  delivered  because  the 
principal  cannot  make  a  good  title 
does  not  defeat  the  broker's  right. 
Gauthier  v.  Wett,  45  Minn.  192. 


eoin  Marx  v.  Otto,  117  Mich.  510, 
the  broker  was  to  have  two  per  cent 
on  the  price  up  to  $5,000  and,  in  ad- 
dition, all  he  could  get  in  excess  of 
$5,000.  He  sold  for  $5,600,  of  which 
$1,000  was  to  be  paid  down  and  the 
balance  secured  by  mortgage.  There 
was  no  agreement  as  to  the  time 
when  the  $600  should  be  paid.  The 
court  said  it  was  for  the  jury  to  de- 
termine whether  it  was  to  be  paid  be- 
fore the  amount  was  received  upon 
the  mortgage. 

In  Peters  v.  Anderson,  88  Va.  1051, 
land  was  sold  for  $85,000  and  the 
broker  was  to  have  10  per  cent.  Ten 
thousand  dollars  was  paid  down  and 
balance  deferred  and,  in  fact,  never 
paid.  No  express  agreement  as  to 
when  commission  was  due.  Court 
held  that  it  was  equitable  that  broker 
should  have  his  commissions  pro  rata 
out  of  the  payments  as  made,  and  not 
wholly  out  of  the  first  payment.  (See 
s.  c.,  23  S.  E.  754.) 

ei  Gardner  v.  Pierce,  131  N.  Y.  App. 
Div.  605;  Kalina  v.  Robert  Gair  Co., 
125  N.  Y.  Suppl.  1040  (a  broker  who 
had  procured  customers  to  purchase 
goods  was  not  allowed  to  recover  com- 
missions, because  the  only  evidence 


2066 


CHAP.    Ill] 


OF   BROKERS 


[§    2463 


and  the  accomplishment  of  his  undertaking,62  within  the  time  and  upon 
the  terms  set.63  That  undertaking-  does  not  ordinarily  require  that  the 
sale  be  in  all  details  a  completed  one.  If  the  broker  be  the  procuring 


in  regard  to  employment  was  that 
after  he  had  secured  the  customers 
he  wrote  to  a  clerk  of  the  defendant 
corporation  that  he  should  expect 
his  commissions,  but  the  clerk  was 
not  one  authorized  to  employ  agents). 
See  also,  McKenzie  v.  Lego,  98  Wis. 
J64. 

62  Gardner  v.  Pierce,  supra;  Attrill 
v.  Patterson,  58  Md.  226  (a  broker 
employed  to  secure  a  compromise  has 
not  earned  his  commission,  where  a 
law  suit  becomes  necessary  to  force 
the  other  side  to  terms). 

In  Sterling  v.  Aultman- Thresher 
Co.,  151  Mich.  184,  the  broker's  con- 
tract was  that  he  should  have  com- 
mission only  on  orders  that  were  ac- 
cepted by  principal,  and  the  court  al- 
lowed no  commissions  for  orders  that 
were  not  so  accepted. 

In  Steinbach  v.  Montpelier  Car- 
riage Co.,  37  Fed.  760,  the  agent  was 
employed  to  get  orders  for  goods. 
Some  of  the  orders  which  he  secured 
he  mailed,  but  they  were  never  re- 
ceived by  defendant  though  there 
were  circumstances  from  which  de- 
fendant might  have  known  such  or- 
ders were  sent.  Held,  the  agent 
could  not  recover  commission  on 
these  orders. 

In  Dougan  v.  Turner,  51  Minn.  330, 
the  principal  agreed  to  pay  a  certain 
percentage  upon  such  orders  as  the 
plaintiff  should  obtain.  Held,  the 
plaintiff  had  fully  performed  when  he 
gets  the  orders,  and  his  commission 
is  not  lost,  because  some  were  coun- 
termanded. 

But  in  Sanderson  v.  Tinkham,  etc., 
Co.,  83  Iowa,  446,  where  the  agent  was 
to  have  commissions  on  the  amount 
of  his  sales,  it  was  held  that  he  was 
not  entitled  to  have  commissions  on 
mere  oral  and  conditional  promises 
to  buy. 

G3  in  McCurry  v.  Hawkins,  83  Ark. 


202,  a  broker  was  employed  to  secure 
the  sale  of  a  lease  within  a  set  time, 
and  securing  the  lessor's  consent  to 
the  assignment  was  a  part  of  the  un- 
dertaking. The  lessor's  consent  was 
obtained  8  days  late,  although  the 
purchaser  was  secured  well  within 
the  time,  the  broker  was  not  allowed 
to  recover  his  commission. 

In  Gardner  v.  Pierce,  131  N.  Y.  App. 
Div.  605,  the  purchaser  of  a  yacht, 
with  whom  the  broker  had  begun  ne- 
gotiations during  the  time  set,  was 
procured  only  after  the  expiration  of 
the  time.  Held,  that  to  entitle  the 
broker  to  his  commissions  he  must 
have  been  the  procuring  cause  within 
the  time  set.  See  also,  Hurst  v.  Wil- 
liams-, 31  Ky.  L.  R.  658,  102  S.  W. 
1176,  in  which  a  broker  was  given 
authority  for  one  month  to  sell  a  lot 
of  timber.  The  owner  sold  to  a  man 
who  six  months  later  was  actually 
found  and  produced  by  the  broker. 
The  court  held  that  to  entitle  the 
broker  to  commissions  he  must  plead 
and  prove  either  a  new  contract  of 
employment  or  an  extension  and  that 
he  fails  where  he  has  set  up  only  the 
original  contract  of  employment. 

In  Rhodes  v.  Wetherill,  236  Pa.  66, 
a  broker  to  sell  a-  limited  number  ot 
shares  of  stock  was  held  not  to  earn 
commissions  by  producing  a  pur- 
chaser who  would  only  buy  the  whole 
issue  of  stock  and  pay  later  if  upon 
investigation,  he  was  satisfied  with 
the  condition  of  the  company. 

In  Dibble  v.  Dimick,  143  N.  Y.  549, 
the  broker  had  been  employed  to  sell 
goods  upon  a  commission  payable 
when  the  price  was  paid,  and  he  was 
allowed  commissions  on  goods  sold  on 
orders  secured  by  him  during  the 
period  of  his  agency,  but  not  deliv- 
erable until  after  that  period. 

It  is  entirely  competent  to  provide 
that  commissions  shall  only  be  paid 


§  2463] 


THE  LAW  OF  AGENCY 


[BOOK    V 


cause  6*  in  securing  a  customer  who  is  ready,  willing,  and  able  8B  to 
make  the  proposed  purchase  upon  the  principal's  terms,  the  broker  has 
ordinarily  fully  performed.  His  right  to  commissions  will  therefore 
not  be  defeated  by  his  principal's  subsequent  failure  or  refusal  to  make 
use  of  the  broker's  services,  or  to  complete  a  contract  made  with  a  cus- 


upon  sales  of  goods  which  are  actu- 
ally paid  for;  or  upon  those  orders 
only  which  the  principle  accepts 
(Ross  v.  Portland  Coffee  Co.,  30  Wash. 
647);  though  such  a  contract  would 
not  ordinarily  be  construed  as  giving 
the  principal  an  arbitrary  right  to  re- 
ject orders  secured  by  the  broker 
from  suitable  purchasers.  Sherman 
v.  Port  Huron  Engine  Co.,  13  S.  Dak. 
95.  A  variance  from  the  terms  may  be 
agreed  to  or  ratified  by  the  principal, 
and  the  broker  will  then  be  entitled 
to  his  commissions.  Everett  Co.  v. 
Cumberland,  etc.,  Co.,  112  Wis.  544. 

6*  See  Charles  v.  Klingstein,  50 
Colo.  406  (broker  to  sell  a  stock  of 
goods  who  produces  a  buyer  to  whom 
the  principal  actually  makes  a  satis- 
factory sale  is  entitled  to  his  com- 
mission though  seller  and  buyer  close 
the  matter  up  without  the  broker's 
assistance);  Workman  v.  Culberg,  15 
Phila.  345,  aff'd  by  Supreme  Court, 
(in  which  the  plaintiff  was  employed 
to  secure  a  charter  party  for  a  boat, 
but  was  given  no  exclusive  agencv. 
He  secured  and  introduced  to  his 
principal  a  shipper  with  whom  tile 
principal  made  a  contract.  The 
plaintiff  was  allowed  his  commission 
even  although  the  owner  went  to  an- 
other broker  to  complete  the  formal 
papers);  Northrop  v.  Diggs,  128  Mo. 
App.  217,  (a  broker  employed  to  ne- 
gotiate Ihe  sale  of  a  lease  for  $2,000 
who  shews  that  he  began  conversa- 
tion with  a  man  who  did  offer  $2,000 
for  the  lease,  and  that  the  principal 
did  sell  to  the  same  man  for  $2,000 
has  evidence  to  go  to  the  jury  on 
the  question  whether  he  "began  the 
negotiations"  and  procured  the  cus- 
tomer). Glade  v.  Eastern  111.  Min.  Co., 
129  Mo.  App.  443,  (where  the  broker 
was  to  sell  a  mining  lease);  Gould 


v.  Ricard  B.  &  E.  Co.,  136  111.  App. 
322;  Southwestern  Port  Huron  Co.  v. 
Wilber,  75  Kans.  175."  (In  the  last 
two  cases,  brokers  to  sell  machinery, 
who  were  not  given  the  machinery  to 
sell  and  deliver,  were  allowed  com- 
missions when  they  found  purchasers 
read,  willing  and  able). 

But  the  agent  is  not  the  procuring 
cause  of  a  sale  of  powder  which  his 
principal  makes  to  a  purchaser, 
where  the  agent  had  previously  so- 
licited purchases  from  his  principal; 
but  no  orders  or  dealings  resulted  im- 
mediately, and  the  purchase  was 
later  determined  upon  by  the  buyer. 
King  Powder  Co.  v.  Button,  42  Colo. 
316.  So  if  the  broker  is  not  the  pro- 
curing cause  and  can  show  no  more 
than  that  his  services  "tended"  to 
obtain  the  purchaser,  he  cannot  re- 
cover. Ayres  v.  Thomas,  116  Cal.  140. 

ss  Fairly  v.  Wappoo  Mills,  44  S.  Car. 
227,  29  L.  R.  A.  215;  Canadian  Imp. 
Co.  v.  Cooper,  88  C.  C.  A.  325,  161  Fed. 
279,  (a  broker  who  produces  a  cus- 
tomer, ready,  willing  and  able  to  buy 
defendant's  bonds  had  sufficiently  per- 
formed his  employment).  Or  a  cus- 
tomer whom  the  principal  accepts. 
Restein  v.  McCadden,  166  Pa.  340. 

But  the  customer  who  is  willing  to 
make  only  a  contract  which  he  may 
avoid  and  which  he  subsequently  does 
avoid,  is  not-  ready,  willing  and  able 
within  this  requirement.  Lindsay  v. 
Carbon  Steel  Co.,  195  Pa.  120.  See 
also,  Richardson  v.  Olanthe  Milling 
&  Elevating  Co.,  167  Ala.  411,  140 
Am.  St.  Rep.  45. 

See  also,  Merritt  v.  Lillyblade,  57 
Wash.  159,  in  which  a  broker  to  sell 
a  hotel  business,  its  good  will,  fur- 
nishings and  lease,  found  a  customer 
who  signed  an  agreement  to  take  if 
the  lessor  would  agree  to  a  new  term 


2068 


CHAP.    Ill] 


OF   BROKERS 


tomer  secured  by  the  broker,66  nor,  after  the  broker  has  found  a  possi- 
ble customer  and  begun  negotiations  with  him,  by  the  principal's  tak- 
ing the  matter  out  of  the  broker's  hands  and  himself  completing  the 
contract,67  even  on  different  terms  when  the  customer  produced  could 
have  been  had  at  the  stipulated  terms.68  So  if  the  broker  brings  to  the 


In  the  lease.  The  principal  marked 
the  contract  approved,  but  the  lessor's 
assent  could  not  be  obtained,  and  the 
broker  was  denied  his  commission  on 
the  ground  that  his  customer  was  will- 
ing to  make  only  a  provisional  con- 
tract and  was  not  ready  and  willing 
to  take  it  as  the  principal  had  it  to 
offer,  and  as  the  broker  understood 
he  was  offering  it. 

It  is  no  defense  that  the  customer 
produced  was  not  acting  in  his  own 
interest,  "so  long  as  he  actually  was 
representing  people  who  were  ready, 
willing  and  able  to  buy.  Henry  v. 
Stewart,  185  111.  448. 

es  Strong  v.  Prentice  Brownstone, 
Co.,  6  N.  Y.  Misc.  57;  Obenauer  v.  Sol- 
omon, 151  Mich.  570,  (where  the  prin- 
cipal refused  to  sell  to  a  satisfactory 
customer  for  timber.  The  broker 
was  allowed  commission);  Cooke  v. 
Fiske,  78  Mass.  491,  (where  the  prin- 
cipal agreed  with  the  customer  se- 
cured by  the  plaintiff  upon  terms  for 
a  proposed  charter  party  and  then 
refused  to  execute  the  formal  paper. 
The  broker  was  allowed  his  commis- 
sion) ;  Stevenson  v.  Morris  Machine, 
Wqrks,  69  Miss.  232,  (the  agent  had 
secured  orders  for  machinery,  which 
were  lost  by  reason  of  the  defendant 
principal's  unreasonable  and  im- 
proper delay  in  filling  them.  The 
agent  was  allowed  "damages  meas- 
ured by"  the  commissions  which  he 
would  have  had,  had  the  orders  been 
filled);  Delafield  v.  Smith,  101  Wis. 
664,  70  Am.  St.  Rep.  938,  (an  agent 
made  contracts  binding  upon  himself 
personally  for  sale  of  fruit  which  he 
was  employed  to  sell.  The  principal 
approved  of  and  ratified  the  orders, 
but  later  refused  to  deliver  the  fruit 
under  them.  The  broker  was  allowed 
nothing  for  the  damages  which  he 


had  to  pay  for  breach  of  his  contract 
with  the  customer,  but  he  was  allow- 
ed his  commissions  upon  the  orders 
so  accepted);  Jones  v.  Moore,  30  Ky. 
L.  R.  603,  99  S.  W.  286,  (the  case  of 
a  broker  employed  to  sell  the  output 
of  a  distillery) ;  Everett  Co.  v.  Cum- 
berland, etc.,  Co.,  112  Wis.  544  (where 
the  principal  failed  to  deliver  part  of 
the  goods  sold  by  the  broker) ; 
Sweeney  v.  Ten  Mile  Oil  &  Gas  Co., 
130  Pa.  193  (where  the  contract  failed 
because  of  the  principal's  inability 
to  give  good  title  to  the  leaseholds 
to  be  conveyed). 

67  Clark  v.  Morris,  30  App.  D.  C.  553, 
(the  case  of  a  broker  to  secure  sub- 
scriptions for  mining  stock);  South- 
western Port  Huron  Co.  v.  Wilber,  75 
Kan.  175  (broker  to  sell  harvesting 
machinery);  M'Millan  v.  Beves,  77  C. 
C.  A.  444,  147  Fed.  218;  Canadian  Imp. 
Co.  v.  Cooper,  161  Fed.  279.  (In  the 
last  two  cases  the  broker  was  allowed 
commissions  where  he  had  been  ne- 
gotiating for  sale  of  the  principal's 
bonds  and  the  principal  had  himself 
taken  the  matter  from  the  broker  and 
completed  a  sale.)  Blumberg  v. 
Sterling  Bronze  Co.,  56  N.  Y.  Misc 
477,  (which  was  the  case  of  broker 
to  sell  lighting  fixtures);  Baskerville 
v.  Gaar,  Scott  &  Co.,  14  S.  D.  1,  (sale 
of  threshing  machines).  In  Merri- 
man  v.  McCormick  Harvester  Ma- 
chine Co.,  101  Wis.  619,  the  fact  that 
before  the  principal  filled  orders 
which  the  broker  obtained,  he  re- 
took them  or  took  substituted  new 
orders  from  the  customers,  was  held 
not  to  defeat  the  agent's  right  to  com- 
mission. 

es  M'Millan  v.  Beves,  supra 
(semble);  Selby  v.  Jarrett,  30  Okla. 
74,  (broker  brought  a  buyer  to  seller 
and  in  that  interview  a  sale  was 


2069 


§2463] 


THE  LAW  OF  AGENCY 


[BOOK    V 


principal  a  prospective  purchaser  whom  the  principal  accepts,  and  with 
whom  the  principal  completes  a  binding  contract,  the  broker's  duties, 
as  in  the  corresponding  case  of  land,00  are  usually  fully  performed.70 
His  right  to  his  commission,  in  this  as  in  the  case  of  the  real  estate 
broker,  will  not  usually  be  defeated  by  the  fact  that  the  contract  is  not 
ultimately  carried  out,71  and  in  dealing  with  such  a  customer  and  enter- 
ing into  a  contract  with  him,  the  principal  may  thereby  accept  him  as 
satisfactory,  so  that  the  broker  need  not  prove,  and  the  principal  can- 


made,  though  the  seller  reduced  his 
price  from  $2,400  to  $2,000). 

69  See  ante,  §  2437. 

™Wenks  v.  Hazard,  149  Iowa,  16, 
an  agent  to  sell  stock  was  allowed  his 
commission  when  he  had  produced  a 
man  with  whom  his  principal  made 
a  valid  and  binding  contract  for  the 
sale  of  the  stock,  even  although  the 
sale  subsequently  failed  because  of 
the  insolvency  of  the  purchaser.  See 
also,  McKenzie  v.  Lego,  98  Wis.  364; 
Hodges  v.  Bayley,  102  Ark.  200. 

71  Broker  does  not  lose  his  commis- 
sions because  principal  sees  fit  to  re- 
lease the  purchaser,  found  by  the 
broker,  from  his  obligation  to  per- 
form. Ely  v.  Wilde,  62  Oreg.  111. 
The  broker's  right  "to  be  paid  his 
commissions  was  not  affected  by  his 
principal's  failure  to  deliver  the 
goods  contracted  for  by  him  which 
the  plaintiff's  customer  was  ready  to 
receive."  Bartow  v.  Parsons  Pulp  Co., 
208  Mass.  232,  citing,  Fitzpatrick  v. 
Gilson,  176  Mass.  477;  Monk  v. 
Parker,  180  Mass.  246;  Cohen  v. 
Ames,  205  Mass.  186;  Goodnough  v. 
Kinney,  205  Mass.  203. 

See  also,  Farjeon  v.  Indian  Terri- 
tory Illuminating  Oil  Co.,  120  N.  Y. 
Suppl.  298,  in  which  it  was  held  that 
the  broker  employed  to  secure  a  con- 
tract does  not  lose  his  right  to  com- 
mission because  after  the  contract  is 
secured,  there  is  trouble  over  it  be- 
tween the  parties.  Lindsay  v.  Carbon 
Steel  Co.,  195  Pa.  120,  where  the 
broker  was  allowed  his  commission 
for  sales  for  which  he  had  secured  a 
contract  for  his  company  and  might 


have  made,  even  although  they 
chose  to  refuse  to  sell  the  goods  on 
the  ground  that  the  other  party  had 
not  sent  in  his  specifications  within 
the  time  required  by  the  contract. 
Taylor  Man'f'g  Co.  v.  Key,  86  Ala. 
212,  in  which  the  broker  was  allowed 
his  commission,  under  a  contract  by 
which  he  was  to  receive  no  commis- 
sion on  machinery  taken  back,  but  no 
machinery  was  to  be  taken  back  with- 
out his  consent,  unless  absolutely 
necessary,  and  the  principal  instead 
of  foreclosing  a  mortgage  on  adequate 
security,  which  had  been  given  for 
price,  received  back  the  machinery. 
In  Restein  v.  McCadden,  166  Pa.  340, 
an  agent  to  sell  kites  on  commission 
had  secured  an  offer  which  his  princi- 
pal had  accepted.  Later  the  customer 
refused  to  take  and  pay  for  the  kites 
on  the  ground  that  they  were  faultily 
built  and  would  not  fly.  The  defend- 
ant contended  that  by  the  contract  of 
employment  the  agent  was  to  have 
his  commissions  only  when  the  pur- 
chase money  was  paid.  The  court, 
however,  held  that  securing  the  good 
contract  was  enough,  and  that  the  de- 
fendant by  failing  to  enforce  the  con- 
tract could  not  defeat  the  agent's 
right  to  commission. 

In  Concannon  v.  Point  Milling  Co., 
156  Mo.  Aipp.  79,  it  was  held  that  the 
broker  had  earned  his  commissions 
where  he  had  brought  buyer  and  sell- 
er together  and  they  had  agreed  up- 
on all  details,  although  the  making  of 
a  written  memorandum  was  deferred 
and  the  sale  ultimately  was  not  con- 
summated. 


2070 


CHAP.    Ill]  OF  BROKERS  [§§    2464-2466 

not  subsequently  deny  his  readiness,  willingness  or  ability.72  By 
merely  suggesting  to  the  principal  the  names  of  possible  customers 
whom  the  principal  himself  secures,  the  broker  earns  no  commission.78 

§  2464.  Abandonment  by  broker. — As  in  the  case  of  the 

real  estate  broker,74  the  broker  to  sell  chattels  who  fails  to  do  so,  whose 
time  expires,  whose  authority  is  terminated,  who  abandons  the  effort, 
is  not  entitled  to  commissions  merely  because  the  principal  later  in  good 
faith  sells  to  a  purchaser  whom  the  broker  had  originally  attempted  to 
reach  but  whom  he  had  not  been  able  to  bring  to  the  point  of  making 
himself  a  purchaser.75 

§  2465.  Revocation  of  authority. — Like  other  principals 

similarly  situated  the  principal  may  sell  the  chattel  himself,  without 
liability  to  the  broker  who  has  not  yet  produced  a  purchaser,  unless  the 
principal  by  efficient  contract  has  limited  his  right  in  that  regard.70 

So,  as  in  other  cases,  he  may  revoke  the  authority  of  the  broker  at 
any  time  before  execution, — without  liability,  where  he  has  not  con- 
tracted for  a  definite  term ;  with  liability  for  the  breach  of  the  contract 
where  such  a  contract  was  made.77 

§  2466.  Several  brokers. — Where  several  brokers  are  em- 
ployed, the  rules  applicable  seem  to  be  the  same  as  in  the  corresponding 
case  of  real  estate  already  considered.78  If  several  are  openly  so  em- 
ployed so  that  each  knows  and  understands  that  it  is  a  race  of  the  dili- 

72Wenks  v.  Hazard,  supra;  Stein-  sell  the  first  ones.    Held,  that  he  was 

bach  v.   Montpelier  Carriage  Co.,  37  not  entitled  to  commissions  on  this 

Fed.  760.  sale. 

73  Donaldson  Bond  &  Stock  Co.  v.  In   Ely  v.   Wilde,   62   Oreg.   Ill,   a 
Houck,  213  Mo.  416,  in  which  the  de-  broker    had    begun    negotiations    for 
fendant   sold    its    railway   to   a   pur-  sale  with  a  certain  party,  but  had  not 
chaser    whose    name    had   been   sug-  closed    any    arrangement,    when    his 
gested  by  the  plaintiff,  but  whom  the  principal,  thinking  that  another  agent 
defendant  had  himself  procured,  and  could  sell  a  larger  quantity  to  this 
the  defendant  was  held  liable  for  no  prospective    buyer    than    the    broker 
commission.  could,  asked  the  broker  to  "pass  the 

74  See  ante,  §  2442.  deal   to"   this   other   agent,   and   the 
76  in  Brown  v.  Northampton,  etc.,      broker  assented.     The  second  agent 

Traction  Co.,  119  C.  C.  A.  193,  200  sold  more  than  the  broker  had  con- 
Fed.  897,  a  broker  had  attempted  to  templated.  Held,  that  the  broker  was 
sell  certain  bonds,  but  though  he  had  not  entitled  to  commissions  on  this 
had  reasonable  time  and  full  oppor-  sale. 

tunity,  he  had  not  been  able  to  sell  7e  As     to     contracts     of    exclusive 

them,  and  his  authority  was  termi-  agency,  etc.,  see  ante,  §  2445. 

nated.     Subsequently,  a  new  issue  of  77  See,    ante,  §    2449.      Hollweg    v. 

bonds,    better   secured,   was   brought  Schaefer  Brokerage  Co.,  117  C.  C.  A. 

out  and  sold  direct  to  the  people  to  83,  197  Fed.  689. 

whom  the  broker  had  vainly  tried  to  78  See  ante,  §  2456. 

2071 


§  2467] 


THE  LAW  OF  AGENCY 


[BOOK  v 


gent,  the  principal,  who  has  remained  impartial,  may  fairly  pay  the 
commission  to  the  broker  who  first  brings  in  the  purchaser,  without  be- 
ing liable  to  pay  again  if  some  other  one  undertakes  to  establish  that  he 
was  really  the  procuring  cause.79  But  where  a  broker  is  employed  upon 
the  basis  that  he  is  the  only  one  employed  and  not  put  on  his  guard  as 
to  the  possibility  of  competition,  it  is  held  that  he  is  entitled  to  the  com- 
mission who  was  really  the  procuring  cause,  though  some  other  broker 
may  have  first  brought  him  to  the  principal's  view.80 

§  2467.  Broker  to  effect  loan. — The  rights  and  duties  of  a  broker 
employed  to  secure  a  loan  depend  in  general  upon  the  same  principles 
which  govern  the  broker  who  undertakes  to  find  a  purchaser  of  prop- 
erty. The  loan  broker  is  entitled  to  his  commissions  where  he  has  pro- 
cured a  lender  who  is  ready,  willing  and  able  to  lend  the  money  upon 
the  terms  proposed.81  If  he  does  less  than  that,  he  has  not  earned  his 


"See  ante,  §  2457. 

so  Weeks  v.  Smith,  79  N.  J.  L.  388. 

siMasterton  v.  Knights,  135  111. 
App.  548;  Brillow  v.  Oziemkowski, 
112  111.  App.  165;  Vinton  v.  Baldwin, 
88  Ind.  104,  45  Am.  Rep.  447;  Scovill 
v.  Upham,  55  Minn.  267;  Budd  v. 
Zoller,  '  52  Mo.  238;  Fullerton  v. 
Carpenter,  97  Mo.  App.  385;  Neftel- 
berger  v.  Garner,  125  N.  Y.  App.  Div. 
420;  Hevia  v.  Lopardo,  127  N.  Y.  App. 
Div.  189;  Phillips  v.  Langlow,  55 
Wash.  385;  Green  v.  Reed,  3  Fost.  & 
F.  226;  Green  v.  Lucas,  31  L.  T.  (N. 
S.)  731. 

In  Bruce  v.  Bevis,  56  Wash.  547,  the 
broker,  who  had  himself  already 
made  two  loans  of  his  own  money  up- 
on the  property  in  question,  was  ap- 
plied to  for  a  third  loan.  The  owner 
offered  him  a  commission  of  $350  if 
he  would  negotiate  a  loan.  He  him- 
self made  the  new  loan,  and  was 
payee  of  the  note  and  mortgage.  The 
court  seems  to  assume  that  the  prin- 
cipal understood  that  the  broker  was 
lending  his  own  money,  and  acqui- 
esced therein.  It  says  that  the  facts 
do  not  warrant  the  application  of  the 
rule  which  forfeits  the  broker's  com- 
mission where  he  acts  for  other  inter- 
ests than  the  principal's  and  allows 
the  broker  his  commission.  A  loan  is 
not  negotiated  when  the  broker  has 


procured  merely  a  tentative  arrange- 
ment for  making  it,  which  afterwards 
fails  without  the  fault  of  the  piinci- 
pal.  Murray  v.  East  End  Imp.  Co. 
(Ky.),  60  S.  W.  648;  Chambers  v. 
Ackley,  91  N.  Y.  Supp.  78. 

In  Rosenthal  v.  Gunn,  119  N.  Y. 
Supp.  165,  it  was  held  that,  where  a 
broker  was  employed  to  procure  a 
loan  and  the  loan  was  never  made, 
although  the  broker  proved  that  he 
produced  a  man  who  made  a  con- 
tract with  his  principal  to  make  the 
loan,  the  broker  cannot  recover  his 
commission  unless  he  further  proves 
that  the  loan  failed  by  defendant's 
fault  or  by  defect  in  his  title.  But 
compare,  Stauffer  v.  Linenthal,  29 
Ind.  App.  305. 

A  distinction  has  been  made  in  sev- 
eral cases  in  New  York  between  the 
case  of  the  broker  to  find  a  buyer  and 
the  broker  to  procure  a  loan.  In  the 
former  case  if  the  matter  has  gone 
far  enough  to  ripen  Into  a  contract 
to  buy,  that  contract  can  be  specifi- 
cally enforced;  while  even  a  contract 
to  make  a  loan  cannot  be  so  enforced. 
Consequently  it  is  held  in  these 
cases  that  if  the  lender  produced  by 
the  broker,  although  bound  to  do  so, 
will  not  finally  make  the  loan  except 
for  some  reason  connected  with  the 
borrower,  the  broker  is  not  entitled 


2072 


CHAP.    Ill] 


OF   BROKERS 


[§    2467 


commissions,82  unless  his  employer  waives  the  deficiencies  ;  but  if  he  has 
done  that,  he  can  not  be  deprived  of  his  commissions  because  his  em- 
ployer neglects  or  refuses  to  take  the  loan,83  or  changes  his  terms,84  or 


to  his  commission.  Crasto  v.  White, 
52  Hun,  473;  Duckworth  v.  Rogers, 
109  N.  Y.  App.  Div.  168;  Ashfield  v. 
Case,  93  N.  Y.  App.  Div.  452;  Holliday 
v.  Distilling  Co.,  130  N.  Y.  App.  Div. 
654.  But  compare,  Fitzpatrick  v.  Gil- 
son,  176  Mass.  477. 

Procuring  an  agreement  to  make  a 
loan  is  not  the  same  as  procuring  a 
loan.  Rosenthal  v.  Gunn,  119  N.  Y. 
Supp.  165. 

In  Brillow  v.  Oziemkowski,  112  111. 
App.  165,  the  broker  employed  to  se- 
cure a  mortgage  loan  had  obtained  a 
lender  ready,  willing  and  able  to 
make  the  loan  upon  the  proposed 
terms,  but  expecting  a  good  title.  The 
broker  attended  to  the  abstract  and 
bad  a  continuation  made.  This  con- 
tinuation showed  two  judgments 
against  the  borrower's  predecessor  in 
title,  which  were  liens  upon  the  land. 
After  broker  had  received  continua- 
tion he  wrote  to  principals  that  he 
had  an  acceptance  of  their  loan  and 
asked  them  to  come  in  to  execute 
trust  deed  and  note.  He  prepared  the 
papers,  and  after  they  were  signed, 
secured  payment  of  his  commission, 
had  the  trust  deed  recorded,  and  then 
told  his  principals  that  the  loan  could 
not  be  completed  because  of  the  two 
judgments.  He  was  allowed  to  keep 
his  commission  upon  the  ground  that 
before  he  discovered  the  encum- 
brances he  had  completely  earned  his 
commission  by  finding  a  man  who 
was  ready,  able  and  willing  to  lend 
upon  security  of  a  good  title. 

In  Derrickson  v.  Quimby,  43  N.  J. 
L.  373,  the  broker  secured  from  his 
principal  a  written  application  for  a 
loan  with  a  written  authorization  to 
broker  to  negotiate  the  loan.  The 
broker  distributed  copies  of  this  ap- 
plication and  authority  and  was  al- 
lowed commission  for  a  loan  made  in 
consequence  of  this  circular,  although 


the    lender   went   to    defendant    and 
dealt  with  him  directly. 

The  broker  has  not  found  a  person 
ready,  willing  and  able  until  the  per- 
son not  only  is  found,  but  the  broker 
brings  him  to,  or  communicates  the 
fact  to,  his  principal.  Morton  v.  Pe- 
tit, 133  N.  Y.  App.  Div.  377. 

But  this  is  not  necessary  where  the 
principal  entirely  repudiates  the  em- 
ployment. Steele  v.  Lippman,  115  N. 
Y.  Supp.  1099. 

Lender  must  be  ready  to  loan  on 
terms  proposed.  Strauss  v.  Brewing 
Co.,  134  N.  Y.  App.  Div.  174.  Lender, 
who  when  produced,  will  loan  only  on 
unusual  terms,  e.  g.,  upon  a  gold 
basis,  is  not  such  a  lender  as  satisfies 
the  broker's  obligation.  Caston  v. 
Quimby,  178  Mass.  153,  52  L.  R.  A. 
785. 

82  Here,  as  in  other  cases,  the  com- 
mission is  payable  usually  only  for 
results,  and  not  for  unsuccessful  ef- 
forts. Demarest  v.  Tube  Co.,  71  N.  J. 
L.  14. 

ss  Squires  v.  King,  15  Colo.  416; 
Hanesley  v.  Bagley,  109  Ga.  346;  Vin- 
ton  v.  Baldwin,  supra;  Little  v.  Lig- 
gett, 86  Kan.  747;  West  v.  Hudson, 
171  Mich.  669. 

8*Vinton  v.  Baldwin,  supra;  Green 
v.  Lucas,  supra;  Corning  v.  Calvert,  2 
Hilt.  (N.  Y.)  56.;  Van  Orden  v.  Mor- 
ris, 19  N.  Y.  Misc.  497,  affirming  18  N. 
Y.  Misc.  579;  Chambers  v.  Peters,  30 
N.  Y.  Misc.  756;  Lord  v.  Moran,  31  N. 
Y.  Misc.  750;  Perry  v.  Bates,  115  N. 
Y.  App.  Div.  337;  Morrison  v. 
Tuska,  113  N.  Y.  Supp.  611;  Glover 
v.  Duffy,  112  N.  Y.  Supp.  1099;  Gat- 
ling  v.  Central  Spar  Vereln,  67  N.  Y. 
App.  Div.  50;  Phister  v.  Gove,  48  Mo. 
App.  455,  (where  the  court  points 
out  that  if  the  loan  fails  because  of 
principal's  fault  no  tender  by  the 
proposed  lender  is  necessary); 
Squires  v.  King,  15  Colo.  416;  Rundle 
v.  Staats,  19  Colo.  App.  164. 


2073 


§  2468] 


THE  LAW  OF  AGENCY 


[BOOK  V 


because  the  security  offered  proves,  upon  investigation,  to  be  defec- 
tive.85 

Like  other  principals  similarly  situated,  the  principal  here  may,  un- 
less he  has  expressly  surrendered  that  right,  obtain  the  needed  loan 
through  his  own  exertions  and  if  he  does  so  before  the  broker  has  pro- 
cured a  lender,  the  broker  is  not  entitled  to  commissions.88 

§  2468.  Broker  to  effect  exchange. — The  same  general  principles 
apply,  so  far  as  the  nature  of  the  case  will  admit,  to  the  case  of  a  broker 
employed  to  effect  an  exchange  of  property.  He  cannot,  in  the  ordi- 
nary case,  actually  effect  the  exchange  in  behalf  of  either  party.  He  is 
usually  a  mere  negotiator,  rather  than  an  agent  to  agree  upon  terms. 
He  is  entitled  to  his  commissions  when,  and  only  when,  he  has  within 

In  Loan  Co.  of  Alabama  v.  Deans,  discovered  that  the  time  for  filing 
94  Ala.  377,  the  defendant  had  em- 
ployed the  plaintiff  to  secure  for  her 
a  loan  upon  her  lumber  land  "upon 
terms  usually  required  by  Eastern 
money  lenders."  The  court  thought 
that  evidence  clearly  sustained  the 
plaintiff's  contention  that  he  was  not 
told  that  the  purpose  of  securing  the 
loan  was  for  the  erection  of  a  saw 
mill.  When  the  broker  obtained  peo- 
ple who  were  ready  to  lend  with  a 
mortgage  which  forbade  waste  or  use 
of  timber  beyond  necessary  domestic 
use,  the  defendant  refused  to  take  the 
loan  because  of  that  limitation.  The 
term  was  not  shown  to  have  been  an 
unusual  one  and  the  defendant  did  not 
so  claim.  It  was  held  that  the  broker 
had  fully  earned  his  commissions  and 
was  not  to  be  deprived  of  them  by 
the  principal's  refusal. 

ss  Clark  v.  Thompson,  75  Conn.  161; 
Wright  v.  Young,  176  Mass.  100;  Fitz- 
patrick  v.  Gilson,  176  Mass.  477; 
Fullerton  v.  Carpenter,  97  Mo.  App. 
197;  Peet  v.  Sherwood,  43  Minn.  447; 
Middleton  v.  Thompson,  163  Pa.  112; 
Holly  v.  Gosling,  3  E.  D.  Smith  (N. 
Y.),  262;  Steele  v.  Rumore,  117  N.  Y. 
Supp.  189;  Silberberg  v.  Chipman,  42 
Colo.  20,  15  L.  R.  A.  (N.  S.)  187, 
Cwhere  the  broker  procured  a  lender, 
with  whom  the  principal  made  a 
binding  contract,  which  however  had 
a  stipulation  against  incumbrances 
and  mechanics'  liens.  Then  it  was 


claims  under  the  mechanic  lien  law 
was  not  expired,  but  the  principal  re- 
fused to  give  bond  to  protect  the 
lender.  The  broker  was  allowed  his 
commissions). 

Same  rule  applies  where  loan  fails 
because  the  borrower,  e.  g.,  an  execu- 
tor, has  not  the  necessary  legal  ca- 
pacity to  borrow.  Fullerton  v.  Car- 
penter, 97  Mo.  App.  197.  To  same  ef- 
fect, Smith  v.  Peyrot,  201  N.  Y.  210, 
where  the  executor  was  held  person- 
ally liable  where  he  had  employed  the 
broker  to  secure  the  loan  and  the 
broker  had  found  a  lender,  but  the 
loan  failed  because  the  executor 
could  not  furnish  the  agreed  security. 

But  this  is  not  so  where  the  broker 
knows  of  the  defect  at  the  time  that 
he  makes  his  contract.  Shropshire 
v.  Frankel,  45  N.  Y.  Misc.  616.  Nor 
where  the  objection  raised  against 
the  security  are  not  well  founded. 
Hanesley  v.  Bagley,  109  Ga.  346.  See 
also,  Reid  v.  Thompson,  20  Ky.  L.  R. 
1887,  50  S.  W.  248. 

seMott  v.  Ferguson,  92  Minn.  201 
No  notice  is  required  to  be  given  to 
the  broker,  that  the  principal  has 
himself  secured  the  loan.  Kimball  v. 
Hayes,  199  Mass.  516;  Davison  v. 
Herndon,  125  Ga.  385;  Neftelberger  v. 
Garner,  125  N.  Y.  App.  Div.  420; 
Hevia  v.  Lopardo,  127  N.  Y.  App.  Div. 
189. 


2074 


CHAP.    Ill]  OF   BROKERS  [§    2469 

the  time  limited,  if  any,  produced  a  party  ready  and  able  to  exchange  on 
the  terms  designated,  or  with  whom  the  principal  deals.87  Neither  can 
his  right  to  compensation  be  defeated  because  the  principal  then  re- 
fuses to  exchange,  or  is  not  able  to  make  a  good  title,  or  takes  the  mat- 
ter into  his  own  hands,  or  loses  the  benefit  through  his  own  fault  or 
neglect.88 

§  2469.  Bringing    parties   to    terms. — In    some    respects, 

however,  the  nature  of  the  transaction  makes  the  ordinary  rules  govern- 
ing employments  to  find  a  purchaser  inapplicable.  If  the  offer  is  to 
pay  a  commission  for  bringing  about  an  exchange  of  the  principal's 
land  for  certain  other  land,  or  for  a  named  amount  of  certain  other 
land,  and  the  like,  the  cases  are  not  essentially  different.  But  these 
cases  are  comparatively  rare.  If,  on-  the  other  hand,  the  undertaking 
be  to  find  some  one  who  will  exchange  some  land  for  the  principal's 
land,  a  different  situation  is  presented.  Land  indefinitely  is  not  a  com- 
modity of  fixed  value  like  money.  It  must  necessarily  be  the  fact,  there- 
fore, in  the  ordinary  case,  that  the  principal  reserves  the  right  to  de- 
termine several  questions  before  an  exchange  can  be  effected.  Is  he 
willing  to  accept  the  land  proffered  at  all?  If  so,  how  much  of  it, 
which  portion  of  it,  at  what  price,  upon  what  terms  and  conditions? 
The  mere  fact  that  the  broker  has  found  some  one  who  is  ready,  willing 
and  able  to  exchange  some  land  for  the  principal's  land  is  not  here 
enough.  He  must  find  someone  ready,  willing  and  able  to  exchange 
land  of  a  kind  and  quantity  and  upon  terms  which  the  principal  is  will- 
ing to  accept.  If  the  parties  cannot  or  do  not  agree  upon  terms,  the 
broker  has  not  earned  his  commissions.89  If,  however,  they  do  agree, 

87Redfield  v.  Tegg,  38  N.  Y.   212;  concluded  the  negotiations  In  person; 

Little  v.  Rees,  34  Minn.  277;   Brown  it  Is  enough  If  he  is  the  procuring 

v.  Wilson,  98  Iowa,  316;  Lockwood  v.  cause.     French  v.  McKay,  181  Mass. 

Halsey,  41  Kan.   166;    Greenwood  v.  485. 
Burton,  27  Neb.  808.  Broker  A  cannot  recover  commis- 

Where  an  exchange  Is  consummat-  sions    where    B    was    the    procuring 

ed  as  the  result  of  the  broker's  efforts,  cause  of  the  exchange,  though  A  had 

he    Is    entitled    to    his    commissions  Introduced  the  owner  to  B.     Wilson 

though  his  principal  at  first  refused  v.  Alexander  (Tex.),  18  S.  W.  1057. 
to  consider  the  trade  and  a  slight  mod-          »s  Lundeen  v.  Ottis,  164  Cal.  1831; 

ification  of  terms  was  necessary  in  Lewis  v.   Mansfield  Grain  Co.    (Tex. 

order  to   bring  it  about.     Geiger  v.  Civ.  App.),  121  S.  W.  585;  Greenwood 

Kiser,  47  Colo.  297.  v.  Burton,  27  Neb.  808. 

Where  the  parties  never  come  to          89  In  Rockwell  v.  Newton,  44  Conn, 

terms,    the    broker    is    not    entitled.  333,  defendant  agreed  to  pay  plaintiff 

Pierce  v.  Trultt  (Pa.),  12  Atl.  661.  a  broker,   a  commission   for  finding 

As  in  the  case  of  sales,  it  is  not  some  one  with  whom  an  exchange  of 

necessary  that  the  broker  shall  have  lands  could  be  effected.     The  broker 

2075 


§  2470] 


THE  LAW  OF  AGENCY 


[BOOK  v 


and  the  principal  unconditionally  accepts  the  proposed  terms,  it  is  ordi- 
narily enough.  That  he  has  so  accepted  them  may  be  shown  by  the  fact 
that  they  did  make  the  exchange,  or  by  the  fact  that  they  entered  into 
an  unconditional  and  binding  contract  to  exchange.90 

§  2470.  Failure  of  contract. — The  fact  that  the  proposed 

trader  was  able  to  pay  in  the  land  offered  is  ordinarily  as  important  as 
that  the  proposed  cash  purchaser  is  financially  able  to  pay  in  money. 
Hence,  if  the  proposed  trader  did  not  own,91  or  had  not  the  legal  capac- 

found  a  person  who  offered  to  ex- 
change upon  certain  terms,  stating 
that  the  incumbrance  upon  his  land 
amounted  to  a  certain  sum.  Defend- 
ant said  he  would  trade  upon  those 
terms,  and  a  day  was  fixed  when  the 
parties  should  meet  and  close  the 
transaction.  Before  that  date,  defend- 
ant found  that  the  other  party  had 
not  correctly  stated  the  amount  oj 
the  incumbrances  on  his  land,  and 
therefore  dropped  the  matter  and  did 
not  attend  at  the  date  fixed  for  con- 
summation. Held,  that  the  broker 
was  not  entitled  to  commissions. 

In  Chenkin  v.  Lipman,  138  'N.  Y. 
App.  Div.  267,  the  plaintiff,  who  had 
been  employed  to  accomplish  an  ex- 
change of  lands,  had  produced  a  cus-- 
tomer  with  whom  the  defendant 
principal  met  and  agreed  upon  terms. 
Both  properties  were  subject  to  en- 
cumbrances, and  upon  the  basis  of  the 
encumbrances  which  they  all  sup- 
posed existed  they  made  their  terms. 
When  they  were  at  their  final  meet- 
ing with  purpose  of  putting  agree- 
ment in  writing,  it  was  discovered 
that  the  property  of  the  trader  was 
not  subject  to  one  of  the  mortgages 
which  was  supposed  existed  and 
would  continue  in  favor  of  that 
trader.  When  this  was  discovered 
they  failed  to  come  to  new  terms  and 
the  deal  fell  through.  The  plaintiff 
was  allowed  no  commission. 

In  Mainhart  v.  Poerschke,  32  N.  Y. 
Misc.  97,  plaintiff  had  been  employed 
to  effect  an  exchange  of  land.  He 
procured  a  customer  for  defendant, 
and  through  his  efforts,  the  parties 
agreed  upon  a  sum  to  be  paid  defend- 


ants for  the  difference  in  the  equities 
of  the  land  to  be  exchanged.  A  ten- 
ant occupied  the  premises  of  defend- 
ant, and  under  his  lease  was  entitled 
to  ninety  days'  notice  to  vacate. 
Plaintiff  knew  of  this  provision.  The 
customer  refused  to  take  the  land, 
unless  he  got  immediate  possession. 
Defendant  refused  to  enter  into  a  con- 
tract, unless  purchaser  took  premises 
subject  to  the  lease,  and  so  the  trans- 
action fell  through.  Held,  plaintiff  was 
not  entitled  to  a  commission,  since 
he  had  not  brought  the  minds  of  the 
parties  to  an  agreement. 

In  Shelton  v.  Lundin,  45  Ind.  App. 
172,  the  broker  found  a  party  who 
made  a  contract  to  exchange,  but  re- 
served the  right  to  rescind.  He  did 
rescind,  but  three  days  later  renewed 
the  negotiations  and  effected  a  trade 
upon  substantially  the  same  terms. 
Held,  to  be  in  effect  an  uninterrupted 
transaction,  and  that  the  broker  was 
entitled  to  his  commissions. 

90  Quitzow  v.  Perrin,  120  Cal.  255. 
In  Greusel  v.  Dean,  98  Iowa,  405,  a 

contract  for  exchange  which  required 
the  party  found  to  show  that  he  had 
a  good  title  to  the  land  which  he  pro- 
posed to  convey,  which  he  could  not 
do,  was  held  not  to  be  such  an  ac- 
ceptance as  to  preclude  the  principal 
that  his  property  had  not  been  "dis- 
posed of"  by  the  broker. 

91  Where  no  exchange  was  consum- 
mated,  broker,   in   order   to   recover 
must  show  that  the  party  produced 
by  him  had  title  to  the  property  he 
proposed     to     convey     in    exchange. 
Hersher  v.  Wells,  103  111.  App.  418. 

Where  the  exchange  failed  because 


2076 


CHAP.    Ill] 


OF   BROKERS 


[§    2470 


ity  to  transfer,92  the  land  offered,  it  is  fatal  to  the  broker's  case  unless 
the  principal  has  in  fact  accepted  him.  If,  however,  where  the  broker 
has  acted  in  good  faith,93  the  principal  unconditionally  accepts  the  party 
produced,  and,  after  such  investigation  as  he  cares  to  make,  voluntarily 
enters  into  a  binding  contract  with  him,  the  broker,  by  the  weight  of 
authority,  will  be  deemed  to  have  earned  his  commissions  and  his  right 
is  not  affected  by  the  fact  that  the  party  produced  subsequently  fails  or 
is  unable  to  perform.94 


the  purchaser  could  not  convey  title, 
broker  is  not  entitled  to  commissions. 
Greusel  v.  Dean,  98  Iowa,  405;  Jenk- 
ins v.  Hollingsworth,  83  111.  App.  139. 

s2  If  the  customer  has  not  the  legal 
capacity  to  convey  the  land  which, 
in  accordance  with  the  arrangement 
of  the  broker,  he  was  to  convey,  the 
broker  has  earned  no  commission. 
Mitchell  v.  Weddington  (Ky.),  122  S. 
W.  802.  This  was  the  case  of  a  broker 
employed  to  secure  a  sale  to  defend- 
ant, and  one  of  proposed  sellers  was 
an  infant.  But  the  principle  would 
be  the  same. 

»3  A  real  estate  broker  cannot  re- 
cover for  procuring  a  futile  contract 
to  exchange  land  where  he  knows 
that  the  party  produced  has  no  title 
to  the  land  he  proposes  to  convey. 
Wiley  v.  Kraslow  Const.  Co.,  141  N. 
Y.  App.  Div.  706. 

"When  the  broker  knows  that  the 
customer  produced  by  him  has  not 
a  title,  and  omits  to  tell  his  customer 
of  that  fact,  he  has  not  acted  in  good 
faith  and  has  not  earned  his  com- 
missions. Burnham  v.  Upton,  174 
Mass.  408;  Butler  v.  Baker,  17  R.  I. 
582,  33  Am.  St.  Rep.  897;"  Roche  v. 
Smith,  176  Mass.  595,  79  Am.  St.  Rep. 
345,  51  L.  R.  A.  510. 

To  same  effect:  Norman  v.  Reuther, 
25  N.  Y.  Misc.  161. 

o*  In  Roche  v.  Smith,  176  Mass.  595, 
79  Am.  St.  Rep.  345,  51  L.  R.  A.  510, 
it  was  said:  "When  a  broker  em- 
ployed to  procure  a  person  to  convey 
land  to  his  principal,  by  way  of  sale 
or  exchange,  in  good  faith,  produces 
a  customer  as  a  person  who  is  ready, 
able  and  willing  to  do  so,  the  princi- 
pal has  three  courses  of  action  open 


to  him:  1.  He  may  examine  the 
title  of  the  customer,  and  accept  him 
or  not  accept  him  on  learning  the  re- 
sult of  the  examination.  2.  He  may 
enter  into  a  contract  with  him,  in 
which  it  is  provided  that  his  title 
shall  be  examined  and  if  it  turns  out 
that  his  title  is  not  good  the  contract 
is  at  an  end:  or  3.  He  may  "enter  in- 
to a  binding  contract  with  him  for 
the  conveyance  of  the  land.  In  case 
he  takes  the  third  course  of  action  he 
is  given  full  compensation  in  damages 
for  the  loss  of  his  bargain,  if  the  cus- 
tomer fails  to  fulfill  his  contract  by 
conveying  the  land.  Since  the  prin- 
cipal gets  full  compensation  for  the 
loss  of  his  bargain  in  that  event, 
there  is  no  escape  from  holding  that 
the  broker  has  earned  his  commission 
when  his  efforts  have  resulted  in  the 
making  of  a  valid  contract.  It  does 
not  lie  in  the  mouth  of  the  principal 
to  say  that  the  broker's  commission 
has  not  been  earned,  when  he  has  se- 
cured through  the  broker's  efforts  the 
land  he  wanted  or  full  compensation 
for  it.  He  cannot  retain  the  right  to 
this  compensation  and  not  pay  for  the 
broker's  services  in  obtaining  it  for 
him." 

To  the  same  effect,  see,  Lunney  v. 
Healey,  56  Neb.  313,  44  L.  R.  A.  593; 
Kalley  v.  Baker,  132  N.  Y.  1,  28  Am. 
St.  Rep.  542;  Slocum  v.  Ostrander, 
141  N.  Y.  App.  Div.  380;  Lewis  v. 
Mansfield  Elevator  Company  (Tex. 
Civ.  App.),  121  S.  W.  585;  Whitaker 
v.  Engle,  111  Mich.  205. 

In  Lowe  v.  Miller,  53  Ind.  294,  21 
Am.  Rep.  192,  the  broker  had  pro- 
duced a  customer  whose  written  offer 
of  exchange,  the  defendant  principal 


2077 


§  2470] 


THE  LAW  OF  AGENCV 


|  BOOK   V 


The  principal  may,  of  course,  make  a  purely  tentative  acceptance,95 
or  he  may,  by  the  terms  of  the  contract,  reserve  the  right  to  reject  the 


had  In  writing  accepted.  When  the 
parties  later  met  to  complete  the 
transaction  and  to  exchange  deeds, 
this  man,  whom  the  broker  had  pro- 
duced, became  dissatisfied  with  his 
bargain  and  refused  to  perform.  But 
the  broker  was  allowed  his  commis- 
sion, in  that  he  had  secured  for  his 
principal  a  contract  which  the  court 
thought  was  valid,  binding  and  spe- 
cifically enforceable. 

In  Bird  v.  Blackwell,  135  Mo.  App. 
23,  defendant  employed  plaintiff  to 
effect  an  exchange  of  land.  Plaintiff 
found  a  party  with  whom  the  de- 
fendant made  a  contract,  and  who, 
by  the  bargain,  was  to  pay  plaintiff. 
Defendant  failed  to  carry  out  the  con- 
tract because  his  wife  refused  to 
sign.  Held,  that  plaintiff  could  re- 
cover from  defendant. 

Contra:  On  the  other  hand,  it  is 
held  in  several  cases  that,  although 
the  principal  has  accepted  the  party 
produced  and  entered  into  a  binding 
contract  with  him  for  an  exchange, 
the  broker  is  not  entitled  to  his  com- 
missions, where  the  contract  so  made 
is  not  performed  because  of  the  in- 
ability of  the  party  produced  by  the 
broker  to  convey  the  property  he  has 
agreed  to  convey.  Although  the  con- 
tract may  be  enforceable  in  one 
sense,  that  is  to  enable  the  principal 
to  recover  damages,  it  is  not  enforce- 
able in  the  sense  that  it  enables  the 
principal  to  secure  that  which  he  was 
to  pay  the  broker  for  securing  for 
him.  Greusel  v.  Dean,  98  Iowa,  405; 
Felts  v.  Butcher,  93  Iowa,  414;  Snyder 
v.  Fidler,  125  Iowa,  378. 

In  Snyder  v.  Fidler,  supra,  the 
court  says:  "But  the  term  'enforce- 
able contract'  as  here  employed 


• 


means  something  more  than  a  con- 
tract of  legal  validity,  the  violation  of 
which  will  afford  a  cause  of  action 
It  is  a  contract  which  can  be  so  en- 
forced as  to  give  the  principal  the 
property,  or  the  money  or  the  profit 
or  other  advantage  for  which  he  bar- 
gained. For  instance,  in  this  case, 
the  completion  of  the  contract  of  ex- 
change depended  upon  the  ability  of 
the  man  produced  by  plaintiff  to  give 
good  title  to  certain  land  and  to  pay 
a  certain  sum  of  money.  Now  if  this 
person  had  no  title  to  the  land,  or  had 
not  the  money  wherewith  to  make  the 
proposed  payment,  or  was  an  irre- 
sponsible adventurer,  there  the  con- 
tract, although  valid,  was  not  en- 
forceable, and  was  valueless.  No  ex- 
change is  thereby  effected,  and  the 
condition  upon  which  the  plaintiff  al- 
leges he  was  to  receive  commissions 
has  never  been  complied  with." 

In  Freedman  v.  Gordan,  4  Col.  App. 
343,  the  defendant  had  employed  the 
plaintiff  to  dispose  of  a  stock  of 
goods  which  she  owned,  for  real 
estate  and  cash.  The  plaintiff  inter- 
ested one  Tinkel  who  claimed  to  have 
land  to  trade.  Tinkel  was  brought 
to  defendant  and  after  conference  to- 
gether they  greed  upon  terms  of 
trade.  (Whether  they  put  their 
agreement  in  writing  does  not  appear 
in  the  opinion.)  Later  it  turned  out 
that  Tinkel  had  no  title  and  the 
trade  was  abandoned.  The  court,  in 
reversing  a  judgment  allowing  the 
plaintiff  his  commission,  says:  "There 
is  nothing  in  the  foregoing  facts 
which  would  entitle  the  plaintiff  to 
any  compensation." 

In  Jenkins  v.  Hollingsworth,  83  111. 
App.  139,  the  defendant  had  employed 


»5  When  a  vendor  employs  a  broker 
to  sell  his  land,  and,  relying  wholly 
on  the  broker,  does  not  exercise  his 
own  judgment  as  to  the  responsibil- 
ity of  the  purchaser  produced  by  the 


broker,  but  signs  a  contract  which 
the  purchaser  is  unable  to  carry  out, 
the  broker  is  not  entitled  to  his  com- 
missions. Butler  v.  Baker,  17  R.  I. 
582,  33  Am.  St.  Rep.  897. 


2078 


CHAP.    Ill] 


OF   BROKERS 


[§    2471 


proposed  exchange  upon  making  further  investigations,  and  if  he  does 
so,  the  broker  will  not  be  entitled  ;96  and  here,  as  in  the  cases  of  sales, 
the  terms  of  the  employment  may  show  that  an  actually  consummated 
exchange  was  contemplated.97 

§  2471.  Broker  to  purchase  land. — The  same  general  principles 
apply  also  to  the  case  of  the  broker  authorized  to  purchase  land.    He  is 


the  plaintiff  to  secure  a  trade  of  de- 
fendant's realty.  The  plaintiff  pro- 
duced one  Piper,  whom  defendant 
met  and  with  whom  he  entered  into 
a  written  contract  of  exchange.  It 
was  admitted  that  the  title  of  Piper 
to  the  land  that  he  proposed  to  con- 
vey was  defective  and  that  on  that 
account  the  trade  was  not  consum- 
mated. The  appellate  court  reversed 
a  judgment  for  the  plaintiff  upon  the 
ground  that  Piper  was  not  able  to 
trade  and  that  the  contract  he  made 
was  not  capable  of  specific  perform- 
ance. 

In  Moskowitz  v.  Hornberger,  15  N. 
Y.  Misc.  645,  and  again  20  N.  Y.  Misc. 
558,  the  defendant  had  employed  the 
plaintiff  to  accomplish  a  trade  of  de- 
fendant's real  estate.  The  plaintiff 
produced  a  trader  with  whom  defend- 
ant entered  into  a  contract  acknowl- 
edged to  be  valid  and  binding.  The 
title  which  this  trader  held,  however, 
was  subject  to  certain  tax  liens  and 
was  questionable  in  that  it  was  de- 
rived through  a  religious  corporation, 
which,  It  was  claimed,  had  no  power 
to  take  title.  Each  time  the  upper 
court  reversed  the  lower  court  for 
failing  to  take  evidence  of  the  state 
of  this  trader's  title,  and  upon  the 
second  hearing  the  opinion  says:  "If 
employed  to  effect  an  exchange,  he 
must  go  a  step  further  and  prove  that 
the  person  procured  was  able  as  well 
as  willing  to  carry  out  the  contract 
made."  The  court  said  that  there 
is  a  distinction  between  an  employ- 
ment of  a  broker  "to  effect  an  ex- 
change" and  one  "to  procure  the  ex- 
ecution of  a  contract  for  an  ex- 
change;" and  held  the  contract  in 
question  to  be  of  the  former  sort. 


The  court  thinks  Kalley  v.  Baker, 
(132  N.  Y.  1,  28  Am.  St.  Rep.  542), 
supra,  is  distinguishable  upon  this 
ground. 

se  Where  the  principal  in  the  con- 
tract which  he  makes  with  the  trader 
presented  by  the  broker  expressly  re- 
serves a  time  in  which  to  investigate 
the  trader's  title,  with  right  to  deem 
the  contract  ended  if  it  should  not; 
prove  satisfactory,  the  broker  has 
earned  no  commission  if  the  title 
should  then  be  unsatisfactory.  Bar- 
ber v.  Hildebrand,  42  Neb.  400;  Jacob- 
son  v.  Rotzien,  111  Minn.  527. 

9?  in  Seimssen  v.  Homan,  35  Neb. 
892,  the  broker  had  produced  one  Roll 
as  a  customer  to  trade,  with  whom 
the  defendant  principal  entered  into 
a  valid  contract  of  exchange.  The 
exchange  by  deeds,  however,  was 
never  effected  because  the  trader's 
land  was  subject  to  $300  more  of  en- 
cumbrance than  the  contract  pro- 
vided for.  The  court  refused  to  al- 
low the  broker  a  commission,  but 
finally  rested  its  judgment  upon  the 
contract  of  employment:  "We  have 
no  occasion  to  determine  *  *  *  the 
general  rule,  since  it  is  clear  to  us 
from  the  evidence  *  *  *  that  the  un- 
derstanding of  the  parties  was  that 
his  compensation  depended  upon  an 
execution  of  the  contract  between  the 
plaintiff  in  error  (the  principal)  and 
Roll."  See  also,  Barber  v.  Hilde- 
brand, 42  Neb.  400. 

See  also,  Moskowitz  v.  Hornberger, 
20  N.  Y.  Misc.  558,  referred  to  in  a 
preceding  note,  where  the  decision  is 
put  upon  this  ground.  Woolley  v. 
Lowenstein,  83  Hun  (N.  Y.),  155; 
Emens  v.  St.  John,  79  Hun,  99. 


2079 


§    2472]  THE  LAW  OF  AGENCY  [BOOK    V 

not  expected  to  pay  for  the  land  himself  or  to  take  a  transfer  of  the  title 
to  himself,  and  he  has  no  authority  to  make  a  conveyance  to  his  prin- 
cipal or  to  accept  payment  of  the  price  from  him  for  the  seller.  At  most, 
he  must  be  in  this  case,  as  in  the  others  here  being  considered,  a  mere 
negotiator,  who  is  employed  to  find  some  one  who  is  ready,  willing  and 
able  to  sell  to  his  principal  the  land  which  the  principal  desires  to  buy 
upon  the  terms  and  for  the  price  which  the  principal  has  fixed  or  upon 
which  he  is  willing  to  purchase.  When  such  a  seller  can  be  deemed  to 
be  "found,"  would  seem  to  rest  upon  substantially  the  same  considera,- 
tions  as  in  the  case  of  finding  a  purchaser,  already  considered.1'8  When 
the  broker  has  thus  found  the  seller,  he  has  ordinarily  earned  his  com- 
mission ;  and  his  right  is  not  to  be  defeated  because  the  principal  then 
refuses  to  buy,  or  changes  his  terms,  or  is  not  willing  or  able  to  do  the 
necessary  acts  required  upon  his  part  to  complete  the  purchase. 

As  in  the  case  of  the  broker  to  negotiate  an  exchange,  the  broker  has 
not  performed  unless  the  seller  he  produces  has  title  "  and  the  capacity 
to  convey  it,1  or  unless  the  principal  voluntarily  accepts  him  and  makes 
such  a  bargain  with  him  as  he  desires.2 

As  in  the  case  of  the  broker  to  sell  land,  also,  if  the  broker  abandons 
the  effort,  if  his  time  expires,  if  he  fails  to  produce  results,  if  his  em- 
ployment be  terminated  before  he  has  performed,  he  is  not  entitled  to 
commissions  merely  because  at  a  later  time  the  principal  in  person  or 
through  some  other  broker  accomplishes  the  very  result  which  the  first 
broker  had  vainly  attempted  to  accomplish.3  Neither  is  he  entitled  to 
his  commission  unless  he  was  the  procuring  or  efficient  cause.* 

§  2472.  Broker  to  find  a  tenant. — The  same  principles  apply  to  a 
broker  employed  to  secure  a  tenant  or  a  lessee.  The  broker  must  be  the 
procuring  cause  5  in  securing,  within  the  period  of  his  agency,6  a  person 

98  See  ante,  §  2434  et  seg.    In  Bol-  »  See  Philip  v.  Bauer  (Victoria  Br. 

ton  v.  Colburn,  78  Neb.  731,  it  is  said  Col.),  5  West  L.  Rep'r.  187. 

that  the  broker  must  either  procure  4  Where  the  broker  had  vainly  at- 

a  valid  conveyance  or  an  enforceable  tempted  to  effect  a  sale  to  his  princi- 

contract   of   sale    before   he   can   re-  pal,  a  city,  and  the  city  then  proposed 

cover.  to   take   the   land   by   the   power   of 

»9  Anderson  v.  Johnson,  16  N.  Dak.  eminent     domain,     whereupon     the 

174.  owner    sold,    the    broker    was    held 

1  Mitchell    v.    Weddington     (Ky.),  not     to     be     the     procuring     cause. 
122  S.  W.  802  (where  one  of  the  pro-  Martien  v.  Baltimore,  109  Md.  260. 
posed  sellers  was  an  infant).  »  Myers  v.  Dean,  9  N.  Y.  Misc.  183; 

2  Knapp  v.  Wallace,  41  N.  Y.  477,  Boyd  v.  Improved  Property  Holding 
(where  principal  made  a  binding  con-  Co.,  135  N.  Y.  App.  Div.  623;   Meyer 
tract  with  the  proposed   seller,  who  v.    Improved   Property   Holding   Co., 
was  subsequently  found  to  be  unable  137   N.   Y.   App.   Div.   691;    Alden   v. 
to    convey.      Held,    broker    entitled).  Earle,  121  N.  Y.  688,  24  N.  E.  705. 
Same,  Kalley  v.  Baker,  132  N.  Y.  1,  « In  Cadigan  v.  Crabtree,  179  Mass. 
28  Am.  St.  Rep.  547.  474,      88     Am.     St.     Rep.     397,     55 

2080 


CHAP.    Ill] 


OF   BROKERS 


[§    2472 


ready,  willing  and  able  to  become  the  tenant 7  upon  the  stipulated  terms. 
If  he  does  that,  he  has  fully  performed,8  and  his  right  to  commissions 
is  not  lost  because  the  principal  chooses  himself  directly  to  execute  the 
contract,  or  because  the  principal  refuses  to  accept  the  person,9  or  sets 
new  terms,10  or  because  the  negotiation  fails  on  account  of  the  princi- 
pal's false  representations,11  or  because  of  defects  in  his  title.  When,, 
however,  no  terms  have  been  stipulated,  then  the  broker  has  not  per- 
formed unless  he  has  procured  a  man  with  whom  the  principal  has  ac- 
tually come  to  definite  terms.1 


L.  R.  A.  77,  the  broker  before 
he  was  dismissed  had  gone  far 
in  interesting  two  men  in  taking  a 
lease  of  defendant's  hotel.  He  be- 
lieved that  they  would  take  upon  the 
terms  of  the  defendant  and  so  in- 
formed the  defendant  at  the  time  of 
his  dismissal.  But  he  had  secured 
no  offer  from  them,  and  it  was  only 
after  the  plaintiff  had  been  dismiss- 
ed and  a  new  broker  employed  that 
they  did  decide  to  take  the  lease  up- 
on those  terms.  Through  the  second 
broker  the  transaction  was  completed 
and  the  lease  made.  On  the  ground 
that  he  had  not  procured  the  ten- 
ants within  the  term  of  his  agency, 
even  granting  that  his  efforts  were 
the  compelling  force,  the  plaintiff  was 
denied  recovery  of  his  commissions. 
See  also,  Alden  v.  Earle,  121  N.  Y. 
688,  24  N.  E.  705. 

7  In  Crombie  v.  Waldo,  137  N.  Y. 
129,  a  broker  who  had  been  employed 
to  secure  the  taking  of  a  lease  of  de- 
fendant's property  by  the  school  trus- 
tees, procured  from  the  school  trus- 
tees only  an  unenforceable  contract 
to  take  a  lease  upon  certain  condi- 
tions. Although  the  defendant 
signed  the  contract,  actually  unen- 
forceable, but  upon  the  plaintiff's  rep- 
resentation that  It  was  enforceable, 
the  plaintiff  was  not  allowed  to  re- 
cover his  commission. 

s  Benedict  v.  Pincus,  134  N.  Y.  App. 
Div.  555,  in  which  the  broker  who 
had  secured  a  tenant  with  whom  the 
principal  made  a  good  and  binding 

131  2081 


contract  for  a  lease,  was  allowed  hla 
commission  even  although  at  the 
time  that  the  contract  was  executed 
he  assented  to  his  principal's  remark 
that  he  should  have  his  commission 
only  when  the  lease  was  actually 
taken  and  rent  paid,  and  although 
later  there  was  trouble  between  the 
principal  and  the  tenant,  so  that  no 
lease  was  ever  executed  and  no 
money  paid.  "Plaintiff's  acquies- 
cence in  the  suggestion,  if  he  did  ac- 
quiesce, which  he  denies,  was  not  a 
binding  contract  because  it  was 
without  consideration." 

a  Cohen  v.  Ames,  205  Mass.  186. 
Where  the  employment  is  to  find  a 
lessee  who  will  give  satisfactory  bond 
for  rent,  and  a  lease  "with  the  usual 
covenants  in  such  leases,"  the  princi- 
pal cannot  arbitrarily  and  unreason- 
ably reject  a  man  procured  by  the 
broker,  but  if  the  broker  procured 
one  ready  to  comply  "with  the  terms 
of  the  proposed  lease  as  understood 
between  the  plaintiff  and  the  defend- 
ants at  the  time  of  the  written  agree- 
ment" of  employment,  the  broker  has 
fully  earned  his  commission.  Mul- 
lally  v.  Greenwood,  127  Mo.  138,  48 
Am.  St.  Rep.  613. 

10  Tanenbaum  v.  Boehm,  126  N.  Y. 
App.  Div.  730. 

11  Washburne  v.  Bradley,  169  Mass. 
86. 

12  In   Rice   v.   Neuman,   115   N.   Y. 
Suppl.  83,  it  appeared  that  the  plain- 
tiff had  been  employed  by  the  defend- 
ant .to  secure  a  lessee  for  the  defend- 


§§  2473,2474] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2473.  Other  cases  within  the  same  principles. — The  same  gen- 
eral rules,  finally,  may  apply  also  to  a  variety  of  other  transactions  not 
falling  strictly  within  any  of  the  more  general  classes  already  consid- 
ered. Thus,  they  apply  to  the  employment  of  a  broker  to  procure  a 
charterer  for  a  ship,13  to  secure  the  making  of  a  contract,1*  to  effect  a 
compromise  of  a  disputed  claim,16  to  procure  employment,16  to  collect 
a  claim,17  and  the  like. 

§  2474.  Commissions  from  both  parties. — As  has  been  seen,  the 
broker  will  not  ordinarily  be  permitted  to  undertake  to  represent  both 
parties  in  the  same  transaction.18  His  duty  to  his  principal  and  the  pol- 
icy of  the  law  demand  that,  unless  his  principal  has  expressly  stipulated 
for  less,  the  broker  shall  give  to  his  principal  his  undivided  efforts  and 
allegiance.  To  be  secretly  in  the  service  of  the  opposing  party,  while 
ostensibly  acting  for  his  principal  only,  is  a  fraud  upon  the  latter  and  a 
breach  of  public  morals  which  the  law  will  not  tolerate.  If,  therefore, 
each  of  the  parties  to  the  transaction  was  entirely  ignorant  of  the 
broker's  relations  to  the  other,  such  double  service  on  the  part  of  the 
broker  will  defeat  his  right  to  recover  commissions  from  either  of 
them.19  If  one  of  the  parties  only  was  ignorant,  he  will  certainly  be  ab- 


ant's  property,  but  that  the  defendant 
was  to  negotiate  the  particular  terms 
of  the  lease.  The  plaintiff  claims  that 
he  procured  lessees,  but  his  claim  is 
denied  by  the  court,  because  the  evi- 
dence showed  that  it  had  not  defi- 
nitely appeared  either  to  plaintiff  or 
to  defendant  who  the  lessees  were  to 
be,  nor  the  terms  upon  which  possi- 
ble lessees  would  be  accepted. 

is  Workman  v.  Culberg,  15  Phila. 
345;  Hagar  v.  Donaldson,  11  Pa.  Co. 
Ct.  252;  Cooke  v.  Fiske,  78  Mass.  491. 

i*  Farjeon  v.  Indian  Territory  Il- 
luminating Oil  Co.,  120  N.  Y.  Suppl. 
298;  Harvey  v.  Cook,  24  111.  App.  134 
(contract  for  advertising);  Hix  v. 
Edison  El.  L.  Co.,  10  N.  Y.  App.  Div. 
75;  Holmes  v.  Neafie,  151  Pa.  392  (for 
the  building  olf  a  ship). 

isAttrill  v.  Patterson,  58  Md.  226. 

IB  Bush  v.  Mattox,  116  Ga.  42. 

"  In  United  States  v.  Sanborn,  135 
U.  S.  271,  34  L.  Ed.  112,  the  defend- 
ant upon  his  representation  to  the 
secretary  of  the  treasury  that  a  leg- 
acy tax  was  due  from  a  certain  es- 


tate and  was  being  withheld,  was 
employed  "to  assist  in  the  collection 
of  the  money."  The  regular  revenue 
officer  for  the  district  knew  of  the 
estate  and  the  tax  was  not  being  re- 
sisted. The  executor  finally  paid  it 
without  hearing  of  or  seeing  the  de- 
fendant, and  all  that  the  defendant 
did  was  to  ask  the  the  assistance  of 
this  regular  collector.  When  the  tax 
was  paid  into  the  central  office  the 
commissions  on  the  amount  were 
sent  to  the  defendant.  After  discovery 
of  the  facts  the  government  is  allow- 
ed to  recover  the  amount  of  the 
money  so  paid  as  commission,  upon 
the  ground  that  the  defendant  had  in 
no  way  performed  his  undertaking 
and  that  what  the  regular  collector 
had  done,  he  had  done  in  conse- 
quence of  his  regular  duties  and  not 
under  the  defendant. 

is  See  ante,  §  1206  et  seq. 

is  Green  v.  Southern  State  Lumb. 
Co.,  141  Ala,  680,  163  Ala.  511;  Rau- 
er's  Law,  etc.,  Co.  v.  Bradbury,  3  Cal. 
App.  256;  Alta  Inv.  Co.  v.  Worden,  25 


2082 


CHAP.    Ill] 


OF   BROKERS 


[§    2474 


solved  from  the  duty  to  pay  commissions ;  and  while  the  authorities  are 
not  all  agreed  as  to  the  liability  of  the  other  party  who  has  employed 
the  broker,  knowing  of  his  relations  to  the  first,  and  while  many  cases 
seem  to  ignore  the  point,  it  is  held  in  many  others  and  there  are  strong 


Colo.  215;  Harten  v.  Laffler,  31  App. 
Gas.  D.  C.  362;  Bates  v.  Copeland, 
McArth.  &  M.  (D.  C.)  50;  Robbins  v. 
Sears,  23  Fed.  874;  Gann  v.  Zettler, 
3  Ga.  App.  589;  Van  Weissingen  v. 
Blum,  92  111.  App.  145;  Boyd  v.  Dul- 
laghan,  33  111.  App.  266;  Young  v. 
Trainor,  158  111.  428;  Bunn  v.  Reach, 
214  111.  259;  Reed  v.  Ziemans,  145  111. 
App.  425,  (defendant  principal  at 
least  was  uninformed);  Casady  v. 
Carraher,  119  Iowa,  500;  Raisin  v. 
Clark,  41  Md.  158,  20  Am.  Rep.  66; 
Rice  v.  Wood,  113  Mass.  133,  18  Am. 
Rep.  459;  Walker  v.  Osgood,  98  Mass. 
348,  93  Am.  Dec.  168;  Scribner  v.  Col- 
lar, 40  Mich.  375,  29  Am.  Rep.  541; 
Leathers  v.  Canfleld,  117  Mich.  277; 
Welb  v.  Paxton,  36  Minn.  532;  Stein- 
mueller  v.  Williams,  113  Minn.  91; 
De  Steiger  v.  Hollington,  17  Mo.  App. 
382;  Collins  v.  Fowler,  8  Mo.  App. 
588;  Strawbridge  v.  Swan,  43  Neb. 
781,  (the  defendant  at  least  did  not 
know  of  the  dual  agency);  Marsh 
v.  Buchan,  46  N.  J.  Eq.  595;  Empire 
State  Ins.  Co.  v.  Amer.  Central  Ins. 
Co.,  138  N.  Y.  446;  Jacobs  v.  Beyer, 
141  N.  Y.  App.  Div.  49;  Bell  v.  Mc- 
Connell,  37  Oh.  State  396,  41  Am. 
Rep.  528;  Rice  v.  Davis,  136  Pa.  439, 
20  Am.  St.  Rep.  931;  Wilkinson  v. 
McCullough,  196  Pa.  205,  79  Am.  St. 
Rep.  702;  Lynch  v.  Fallen,  11  R.  I. 
311,  23  Am.  Rep.  458;  Siler  v.  Per- 
kins, —  Tenn.  — ,  149  S.  W.  1060; 
Tinsley  v.  Penniman,  12  Tex.  Civ. 
App.  591;  Scott  v.  Kelso  (Tex.  Civ. 
App.),  130  S.  W.  610;  Shepard  v.  Hill, 
6  Wash.  605;  Tasse  v.  Kindt,  125  Wis. 
631;  Meyer  v.  Hanchett,  39  Wis.  419, 
s.  c.,  43  Wis.  246;  Morison  v. 
Thompson,  L.  R.  9  Q.  B.  480;  Bart- 
ram  v.  Lloyd,  88  L.  T.  286.  [This  list 
is  selective  rather  than  exhaustive.] 
No  double  agency  though  broker 
rendered  some  service  for  other 


party,  if  not  employed  by  him. — The 
fact  that  the  broker  of  the  seller  ren- 
ders some  service  for  the  buyer  in 
finding  land  does  not  make  a  case  of 
double  agency  within  the  rule  where 
he  was  not  employed  as  his  agent 
and  was  to  receive  no  commission 
from  him.  Donohue  v.  Padden,  93 
Wis.  20;  Barringer  v.  Stoltz,  39  Minn. 
63. 

Voluntary  payment  of  a  commis- 
sion by  other  party. — The  fact  that 
after  the  transaction  is  ended  the 
buyer  voluntarily  gives  the  seller's 
agent  a  sum  of  money,  there  having 
been  no  employment  and  no  promise 
to  pay  does  not  of  itself  defeat  the 
agent's  right  to  a  commission  from 
the  seller.  Campbell  v.  Yager,  32 
Neb.  266. 

Where  price  was  fixed  by  principal. 
— As  has  been  pointed  out  many 
times,  (see  ante,  §  1199)  it  is  not  be- 
cause the  principal  is  in  fact  injured 
that  the  double  agency  is  prohibited. 
Hence,  even  though  price  and  terms 
are  fixed  by  the  principal  it  is  incon- 
sistent with  his  duty  for  a  broker  to 
take  a  commission  from  the  opposite 
side,  and  he  will  forfeit  his  right  to 
a  recovery  if  he  does.  Steinmueller 
v.  Williams,  113  Minn.  91,  citing 
others.  (See  also,  Jacobs  v.  Beyer, 
141  N.  Y.  App.  Div.  49,  where  the 
terms  were  not  fixed  but  the  princi- 
pal made  a  good  trade.) 

But  some  cases  regard  such  a 
broker  as  a  mere  middleman,  and 
therefore  not  within  the  rule.  See 
Tass  v.  Kindt,  145  Wis.  115. 

Recovering  back  commissions  al- 
ready paid. — The  defrauded  principal 
may  recover  back  from  the  broker 
commissions  paid  before  the  discov- 
ery of  the  double  agency.  Andrews 
v.  Ramsey,  [1903]  2  K.  B.  635;  Hogle 
v.  Meyering,  161  Mich.  472;  Campbell 


2083 


§  2474] 


THE  LAW  OF  AGENCY 


[BOOK  v 


reasons  of  public  policy  which  support  the  rule,  that  the  broker  should 
not  be  permitted  to  recover  of  him  either,  in  any  case  at  least  in  which 
this  second  employment  is  one  which  offers  a  temptation  to  the  agent 
to  violate  his  duty  to  his  first  principal.20  A  custom  to  charge  commis- 
sions to  both  parties  will  not  be  enforced.21 

If,  however,  both  parties,  having  full  knowledge  of  his  relations  to 
each  of  them,  voluntarily  see  fit  to  entrust  him  with  their  business,  there 
is  no  legal  objection,  and  in  such  a  case  the  broker  may  recover  from 
each  his  stipulated  compensation.22 

As  to  where  the  burden  of  proof  lies  in  these  cases,  there  seems  to  be 
some  difference  of  view.  It  is  said  in  some  cases  that,  inasmuch  as  the 

v.    Baxter,   41   Neb.   729;    Plotner   v.      94  Va.  1;   Robinson  v.  Mollett,  L.  R. 


Chillson,  21  Okla.  224,  129  Am.  St. 
Rep.  776;  Burnham  Lumb.  Co.  v. 
Rannie,  59  Fla.  179;  Cannell  v.  Smith, 
142  Pa.  25.  (Fact  that  sale  was  an 
advantageous  one  does  not  affect  the 
right.) 

20  As  has  often  been  pointed  out, 
this  is  not  because  the  law  has  any 
tenderness    for    the    defendant    but 
simply    because    such    contracts    are 
opposed    to    sound    policy    and    the 
courts  will  not  enforce  them.     See 
Finnerty  v.  Fritz,  5  Colo.  174;    Boll- 
man  v.   Loomis,  41  Conn.   581;    Red 
Cypress  Lumber  Co.  v.  Perry,  118  Ga. 
876;   Raisin  v.  Clark,  41  Md.  158,  20 
Am.  Rep.  66;    Sullivan  v.  Tufts,  203 
Mass.  155;  Farnsworth  v.  Hemmer,  1 
Allen  (Mass.),  494,  79  Am.  Dec.  756; 
Walker  v.  Osgood,  98   Mass.  348,  93 
Am.   Dec.   168;    Smith  v.  Townsend, 
109    Mass.   500;    Rice   v.   Wood,   113 
Mass.  133,  18  Am.  Rep.  459;    Stern- 
berger  v.  Young,  73   N.~  J.   Eq.   586; 
Nekerda  v.  Presberger,  123  N.  Y.  App. 
Div.  418;   Bell  v.  McConnell,  37  Ohio 
St.  396,  41  Am.  Rep.  528;    Everhart 
v.    Searle,    71    Pa.    256;     Lynch    v. 
Fallen,  11  R.  I.  311,  23  Am.  Rep.  458; 
Morison  v.  Thompson,  L  R.  9  Q.  B. 
480. 

21  Walker  v.  Osgood,  98  Mass.  348, 
93    Am.    Dec.    168;     Farnsworth    v. 
Hemmer,  1  Allen  (Mass.),  494,  79  Am. 
Dec.  756;  Raisin  v.  Clark,  21  Md.  158, 
20  Am,  Rep.  6G;   Ferguson  v.  Gooch, 


7  H.  L.  802. 

22  Red  Cypress  Lumber  Co.  v. 
Perry,  118  Ga.  876;  Alexander  v. 
Northwestern  University,  57  Ind. 
466;  Leekins  v.  Nordyke  Co.,  66 
Iowa,  471;  Rice  v.  Wood,  113  Mass. 
133,  18  Am.  Rep.  459;  Scribner  v. 
Collar,  40  Mich.  375,  29  Am.  Rep. 
541;  Wasser  v.  Western  Land  Sec. 
Co.,  97  Minn.  460;  De  Steiger  v.  Holl- 
ington,  17  Mo.  App.  382;  Stripling  v. 
Maguire,  108  Mo.  App.  594;  Lips- 
comb  v.  Mastin,  142  Mo.  App.  228; 
Rowe  v.  Stevens,  53  N.  Y.  621;  Joslin 
v.  Cowee,  56  N.  Y.  626;  Willner  v. 
Scale,  127  N.  Y.  App.  Div.  180;  Tieck 
v.  McKenna,  115  N.  Y.  App.  Div.  701; 
Lamb  v.  Baxter,  130  N.  Car.  67; 
Rolling  Stock  Co.  v.  Railroad,  34 
Ohio  St.  450;  Bell  v.  McConnell,  37 
Ohio  St.  396,  41  Am.  Rep.  528;  Ar- 
thur v.  Porter  (Tex.  Civ.  App.),  116 
S.  W.  127;  Shropshire  v.  Adams,  40 
Tex.  Civ.  App.  339;  Darrow  Invest. 
Co.  v.  Breyman,  32  Wash.  234;  Phil- 
ips v.  Langlow,  55  Wash.  385. 

Where  the  agent  of  the  seller  is 
also  entitled  to  a  commission  from 
the  buyer,  and  the  seller  without 
justification  refuses  to  sell  after  a 
buyer  is  found,  thus  preventing  the 
agent  from  earning  his  commission 
from  the  buyer  as  well  as  from  the 
seller,  the  agent  may  recover  from 
the  seller  for  the  loss  of  both. 
Hunter  v.  Lyons,  — Tex.  Civ.  App.  — , 
144  S.  W.  353. 


2084 


CHAP.    Ill] 


OF   BROKERS 


[§    2474 


employment  by  both  is  only  lawful  with  the  consent  of  both,  the  broker 
who  appears  to  have  been  acting  for  both  must  show  that  the  necessary 
consent  was  had.  In  other  cases,  it  is  said  that,  as  the  law  will  not  as- 
sume fraudulent  conduct  on  the  part  of  the  broker,  it  must  be  presumed 
that  he  had  the  necessary  consent  until  the  contrary  appears ;  and  that 
if  the  defendant  wishes  to  make  the  lack  of  his  own  or  the  other  prin- 
cipal's consent  a  defense,  he  must  allege  and  prove  it.28 


23  Two  distinct  questions  are  in- 
volved in  this  matter:  1.  Did  the 
defendant  principal  know  and  as- 
sent? 2.  Did  the  other  principal 
know  and  assent?  The  assent  of 
both  is  necessary. 

Where  defendant  claims  that,  at 
the  time  the  broker  undertook  to 
act  for  him,  he  was  already  in  the 
service  of  the  other  party,  held,  that 
defendant  must  allege  it  in  his 
pleading  as  a  defense,  and  that  where 
this  is  not  done  the  broker  is  not  re- 
quired to  show  that  he  acted  in  good 
faith.  Cook  v.  Piatt,  126  Mo.  App. 
553;  Owen  v.  Matthews,  123  Mo.  App. 
463. 

On  the  other  hand,  in  Dennison  v. 
Gault,  132  Mo.  App.  301,  the  burden 
of  showing  the  consent  of  both  is  put 
upon  the  broker;  but  see  same  case 
again,  140  Mo.  App.  444,  it  is  simply 
declared  that  the  broker  cannot  re- 
cover unless  both  knew  and  con- 
sented, but  does  not  say  who  has  the 
burden  of  proof.  In  Hannan  v. 
Prentis,  124  Mich.  417,  it  is  said  that 
the  burden  of  showing  that  the  de- 
fendant principal  knew  of  the  double 
agency  is  upon  the  broker. 

In  Redmond  v.  Henke,  137  Iowa, 
228,  where  the  defendant  relied  upon 
fact  that  broker  was  already  in  the 
service  of  the  other  party,  it  is  said 
that  the  burden  was  on  the  defend- 
ant to  show  that  employment  and  his 
own  lack  of  knowledge  of  it. 

In  Hanna  v.  Haynes,  42  Wash.  284, 
where  the  defendant  made  the  de- 
fense that  the  plaintiff  broker  had 
already  received  a  part  of  the  com- 
mission of  another  broker  for  selling 
the  property  in  question  to  defend- 
ant, it  was  said  that  the  burden  of 


proving  perfect  fairness  was  upon 
the  broker.  See  also,  Sullivan  v. 
Tufts,  203  Mass.  155. 

Plaintiff  must  disclose  to  the  sec- 
ond employer  his  relations  with  the 
first.  Feist  v.  Jerolamon,  81  N.  J. 
L.  437;  Marsh  v.  Buchan,  46  N.  J.  Eq. 
595. 

In  Red  Cypress  Lumber  Co.  v. 
Perry,  118  Ga.  876,  where  the  defend- 
ant made  the  objection  that  there 
was  no  evidence  that  the  other  prin- 
cipal knew  of  plaintiff's  engagement 
to  serve  defendant,  it  was  held  that 
as  a  defense  this  must  be  pleaded, 
and  that  the  burden  of  proof  was  on 
defendant.  "The  plaintiff  claimed  to 
be  a  middleman.  Dual  agency  was 
not  absolutely  contrary  to  public 
policy,  but  only  so  if  the  principal 
did  not  know  thereof.  And  as  it  re- 
quired two  elements  to  defeat  the 
agents'  right  to  recover,  both  should 
have  been  proved  by  the  party  assert- 
ing the  invalidity  of  the  contract." 

In  Grasinger  v.  Lucas,  24  S.  Dak. 
42,  it  is  said  that  the  defendant  need 
not  plead  the  double  agency  but  may 
defeat  the  plaintiff  by  bringing  out 
the  facts  upon  cross-examination. 

In  Rice  v.  Davis,  136  Pa.  439,  20 
Am.  St.  Rep.  931,  it  is  held  that  to 
justify  a  recovery  against  the  second 
principal  something  more  than  his 
mere  knowledge  that  the  broker  had 
already  received  a  commission  from 
the  other  party,  and  something  more 
than  his  mere  silence  or  failure  then 
to  dissent.  "Nothing  short  of  clear 
and  satisfactory  proof  of  an  express 
agreement  to  do  so  [i.  e.,  waive  the 
benefit  of  the  rule]  should  be  regard- 
ed as  sufficient  for  that  purpose." 


2085 


§  2475] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2475.  How  in  case  of  mere  middle-man. — Where,  however,  the 
agent  stands  in  the  situation  of  a  mere  middle-man,  not  having  under- 
taken to  act  as  agent  for  either  party  or  to  exercise  for  either  his  skill, 
knowledge  or  influence,  but  merely  to  bring  the  parties  together  to  deal 
for  themselves,  and  he  himself  stands  entirely  indifferent  between  them, 
it  is  held  that  he  may  recover  from  each  although  each  was  ignorant  of 
his  relations  to  the  other.24  Such  cases  may  undoubtedly  occur,  but,  as 
has  been  well  said,  "their  exceptional  character  should  appear  clearly, 
before  they  should  be  exempted  from  the  general  principle."25 


24  Clark  v.  Allen,  125  Cal.  276; 
Manders  v.  Craft,  3  Colo.  App.  236; 
Cox  v.  Haun,  127  Ind.  325;  Mullen  v. 
Keetzleb,  7  Bush  (Ky.),  253;  Rupp 
v.  Sampson,  16  Gray  (Mass.),  398,  77 
Am.  Dec.  416;  Quinn  v.  Burton,  195 
Mass.  277;  Ranney  v.  Donovan,  78 
Mich.  318;  Montross  v.  Eddy,  94 
Mich.  100,  34  Am.  St.  Rep.  323;  Friar 
v.  Smith,  120  Mich.  411,  46  L.  R.  A. 
229;  Childs  v.  Ptomey,  17  Mont.  502; 
Shepherd  v.  Hedden,  29  N.  J.  L.  334 
(price  fixed);  Feist  v.  Jerolaman,  81 
N.  J.  L.  437;  Ross  v.  Carr,  15  N. 
Mex.  17;  Siegel  v.  Gould,  7  Lans.  (N. 
Y.)  177;  Jarvis  v.  Schaefer,  105  N.  Y. 
289;  Knauss  v.  Krueger  Brewing 
Co.,  142  N.  Y.  70;  Norton  v.  Genesee 
Nat.  Sav.  Ass'n,  57  N.  Y.  App.  Div. 
520;  Silkerkraus  v.  Winnie,  — N.  Y. 
App.  Div.  — ,  142  N.  Y.  Supp.  887; 
Grasinger  v.  Lucas,  24  S.  Dak.  42; 
Herman  v.  Martineau,  1  Wis.  151,  60 
Am.  Dec.  368;  Stewart  v.  Mather,  32 
Wis.  344;  Barry  v.  Schmidt,  57  Wis. 
172,  46  Am.  Rep.  35;  Orton  v.  Sco- 
field,  61  Wis.  382;  Donohue  v.  Pad- 
den,  93  Wis.  201;  Tasse  v.  Kindt,  145 
Wis.  115;  McClure  v.  Luke,  84  C.  C. 
A.  1,  154  Fed.  647,  24  L.  R.  A.  (N. 
S.)  659;  Mitchell  v.  Duke,  134  Fed. 
999. 

In  Rupp  v.  Sampson,  supra,  Bige- 
low,  C.  J.  said:  "The  claim  of  the 
plaintiff  would  have  stood  on  a  very 
different  ground  if  he  had  been  em- 
ployed as  a  broker  to  buy  or  sell 
goods.  It  would  in  such  case  have 
been  a  fraud  for  him  to  conceal  his 
agency  for  one  from  the  other.  The 


interests  of  buyer  and  seller  are 
necessarily  adverse,  and  it  would 
operate  as  a  surprise  on  the  confi- 
dence of  both  parties,  and  essentially 
affect  their  respective  interests,  if 
one  person  should,  without  their 
knowledge,  act  as  the  agent  of  both. 
Farebrother  v.  Simmons,  5  Barn.  & 
Aid.  333;  Story  on  Agency,  §  31. 
But  the  plaintiff  did  not  act  in  any 
such  capacity.  He  was  not  an  agent 
to  buy  or  sell,  but  only  acted  as  a 
middleman  to  bring  the  parties  to- 
gether, in  order  to  enable  them  to 
make  their  own  contracts.  He  stood 
entirely  indifferent  between  them, 
and  held  no  such  relation  in  conse- 
quence of  his  agency  as  to  render  his 
action  adverse  to  the  interests  of 
either  party." 

One  who  is  a  mere  middleman  for 
a  seller  of  land  may  without  breach 
of  duty  to  him,  receive  employment 
from  the  purchaser  to  act  as  the  pur- 
chaser's agent  in  the  same  transac- 
tion and  such  employment  does  not 
destroy  his  right  to  commissions  or 
entitle  the  seller  to  recover  from  the 
agent  the  amount  he  has  retained  as 
commissions  out  of  the  purchase 
price.  Alexander  v.  North-Western 
Christian  University,  57  Ind.  466; 
but  see  Braden  v.  Sherer  Town  Lot 
&  Immigration  Co.  (Tex.  Civ.  App.), 
128  S.  W.  1159. 

25  See  per  Graves,  J.,  in  Scribner 
v.  Collar,  40  Mich.  375,  29  Am.  Rep. 
541.  See  also,  the  discussions  in 
Tasse  v.  Kindt,  145  Wis.  115. 


2086 


CHAP.    Ill] 


OF   BROKERS 


[§§    2476,2477 


In  order  to  occupy  the  position  of  the  middleman,  it  is  said  in  a  re- 
cent case,26  the  broker  must  "have  limited  his  exertions  to  such  service. 
If  in  addition  thereto,  the  middleman  assists  either  in  effecting  a  trade, 
he  becomes  to  that  extent  a  partisan  agent,  and  the  duty  immediately  de- 
volves upon  him  to  disclose  his  agency  to  the  other." 

§  2476.  How  affected  by  misconduct. — The  broker's  duty  to  his 
principal  to  have  and  exercise  reasonable  skill,  care  and  prudence  has 
already  been  noticed,  as  has  also  his  duty  to  obey  the  lawful  instruc- 
tions of  his  principal.  For  a  breach  of  these,  as  has  been  seen,  the 
principal  may  maintain  an  action  against  the  broker,  or,  if  he  prefer,  he 
may  show  the  misconduct  in  bar  or  by  way  of  recoupment,  in  an  action 
brought  by  the  broker  for  his  compensation.27 

§  2477.  How  affected  by  disloyalty,  double  dealing,  etc. — So,  as 
has  been  seen  in  many  cases  in  the  preceding  sections,  the  broker  who, 
in  disregard  of  his  duty,  conceals  adverse  interests  or  secretly  enters 


26  Casady  v.  Carraher,  119  Iowa, 
500.  So  in  the  later  case  of  Stapp 
v.  Godfrey,  —  Iowa,  — ,  139  N.  W. 
893,  the  same  court  held  that  if  the 
broker  "actually  participated  in  the 
negotiations  leading  up  to  the  final 
exchange,"  he  could  not  be  regarded 
as  a  mere  middleman  within  the 
rule. 

Broker  to  negotiate  exchange  o] 
property. — While,  if  the  only  duty  of 
the  broker  is  to  bring  together  two 
parties  who  may  then  negotiate  the 
exchange  for  themselves,  he  is  usu- 
ally regarded  as  a  mere  middle-man. 
(See  Norton  v.  Genessee,  etc.,  Loan 
Ass'n,  57  N.  Y.  App.  Div.  520;  Clark 
v.  Allen,  125  Cal.  27'6,  and  other 
cases  cited,  supra,  §  2413) ;  it  is  held 
in  several  cases  that  an  agent  to  ne- 
gotiate an  exchange  of  properties, — 
as  distinguished  from  an  employ- 
ment merely  to  bring  parties  togeth- 
er or  to  bring  about  an  exchange 
of  particular  properties  on  terms 
prescribed, — necessarily  involves  the 
duty  of  seeking  and  bargaining  for 
the  best  exchange  possible,  and  that 
the  broker  cannot  in  such  a  case  be 
a  mere  middle-man.  See  Hannan  v. 
Prentis,  124  Mich.  417;  Pinch  v. 
Morford,  142  Mich.  63;  Harkness  v. 
Briscoe,  47  Mo.  App.  196;  Casady  v. 


Carraher,  119  Iowa,  500;  Gracie  v. 
Stevens,  56  N.  Y.  App.  Div.  203,  af- 
firmed without  opinion  in  171  N.  Y. 
658;  Jacobs  v.  Beyer,  141  N.  Y.  App. 
Div.  49. 

In  Horwitz  v.  Pepper,  128  Mich. 
688,  it  was  held  that  where  the  plain- 
tiff first  obtained  from  the  alleged 
principal  contract  of  sale  to  himself, 
refusing  until  afterward  to  disclose 
the  name  of  the  purchaser,  he  was 
something  more  than  a  middle-man, 
and  hence,  if  without  the  seller's 
knowledge,  he  was  also  to  receive 
compensation  from  the  purchaser,  he 
could  not  recover  a  commission  from 
the  seller  under  the  rule  laid  down  in 
Friar  v.  Smith,  120  Mich.  411,  46  L. 
R.  A.  229. 

A  broker  who  takes  an  active  part 
In  endeavoring  to  induce  his  princi- 
pal to  purchase  cannot  be  deemed 
to  be  a  mere  middle-man.  Green  v. 
Southern  States  Lumb.  Co.,  141  Ala. 
680,  163  Ala.  511;  Harten  v.  Loffler, 
31  App.  Gas.  D.  C.  362. 

27  Fisher  v.  Dynes,  62  Ind.  348; 
Dodge  v.  Tileston,  12  Pick.  (Mass.) 
328;  Denew  v.  Daverell,  3  Camp.  451; 
Hamond  v.  Holiday,  1  C.  &  P.  384; 
White  v.  Chapman,  1  Stark.  113; 
Hurst  v.  Holding,  3  Taunt.  32. 


2087 


§  2477] 


THE  LAW  OF  AGENCY 


[BOOK  v 


into  the  service  of,  or  himself  becomes,  the  adverse  party  forfeits  his 
right  to  commissions,28  must  account  for  gains  unlawfully  acquired,29 
and  will  be  liable  in  damages  for  any  loss  caused  to  his  principal  by  his 


zs  Broker  interested,  in  purchase. — 
Broker  cannot  recover  commissions 
for  finding  a  purchaser  with  whom 
he  had  secretly  arranged  to  join  in 
the  purchase.  Slagle  v.  Russell,  114 
Md.  418;  Blake  v.  Stump,  72  Md.  172; 
Raisin  v.  Clark,  41  Md.  158,  20  Am. 
Rep.  66;  Finch  v.  Conrade,  154  Pa. 
326. 

Where  the  broker,  being  secretly 
interested  in  the  purchase,  fraudu- 
lently induces  the  principal  to  sell  for 
an  inadequate  price,  and  he  and  his 
confederate  sell  to  a  bona  fide  pur- 
chaser the  principal  may  hold  both 
the  broker  and  his  accomplice  liable 
for  the  loss.  Waterbury  v.  Barry, 
145  N.  Y.  App.  Div.  773. 

Broker  himself  'becoming  the  'buy- 
er.— The  real  estate  agent  or  broker, 
like  other  agents,  is  disqualified  to 
buy  the  property  on  his  own  account, 
either  directly  or  indirectly,  without 
his  principal's  full  knowledge  and 
consent  See,  for  example,  McGar  v. 
Adams,  65  Ala.  106;  Kingsley  v. 
Wheeler,  95  Minn.  360;  Jansen  v.  Wil- 
liams, 36  Neb.  869.  20  L.  R.  A.  207; 
Ruckman  v.  Bergholz,  37  N.  J.  L.  437 
(even  though  at  price  fixed);  Rod- 
man v.  Manning,  53  Ore.  336,  20  L.  R. 
A.  (N.  S.)  1158;  Stewart  v.  Mather, 
32  Wis.  344.  If  he  does  so,  he  can 
recover  no  commission,  because  of 
this  disloyalty.  Same  rule  applied 
where  the  buyer  was  a  corporation 
in  which  the  broker  was  stockholder 
and  director.  Humphrey  v.  Eddy 
Transport  Co.,  107  Mich.  163;  and 
where  the  broker  was  also  an  attor- 
ney at  law  and  the  purchaser  was 
his  client  who  was  buying  for  a  cor- 
poration in  which  the  broker  was  a 
director.  Nekarda  v.  Presberger,  123 
N.  Y.  App.  Div.  418. 

Even  where  he  purchases  with  the 
principal's  consent,  he  can  ordinarily 
have  no  commissions  in  the  absence 


of  a  special  agreement  to  pay  It,  be- 
cause when  he  becomes  purchaser, 
even  with  the  principal's  consent,  he 
ordinarily  ceases  to  be  agent  or 
broker  and  therefore  can  have  no 
commissions  in  that  capacity.  Ham- 
mond v.  Buckwalter,  12  Ind.  App. 
177;  Christiansen  v.  Mille  Lacs  Land 
Co.,  113  Minn.  120,  Ann.  Cas.  1912  A, 
200. 

Where  he  purchases  with  princi- 
pal's consent,  but  that  consent  was 
obtained  by  concealing  important  in- 
formation, sale  will  not  be  enforced. 
Bentley  v.  Nasmith,  46  Can.  Sup. 
477. 

But  in  Reed's  Ex'r  v.  Reed,  82  Pa. 
420,  it  was  held  that  where  a  broker 
who  was  negotiating  a  sale  to  a 
group  of  persons  was  known  by  the 
principal  to  be  one  of  the  group  and 
the  principal  made  no  objections,  his 
right  to  commission  was  not  affected. 

So  where  an  agent  to  sell,  had  also 
taken  an  option  from  the  principal, 
and  because  of  the  principal's  unrea- 
sonable refusal  to  deal  with  a  pur- 
chaser produced  the  agent  was  com- 
pelled to  exercise  his  option  in  order 
to  carry  out  his  bargain  with  the 
purchaser,  it  was  held  that  he  was 
entitled  to  recover  his  commission. 
Riemer  v.  Rice,  88  Wis.  16. 

Finding  purchaser  before  becom- 
ing agent. — There  is,  it  is  held,  no 
disloyalty  or  fraud  in  the  fact  that, 
before  the  broker  received  the  ap- 
pointment to  find  a  purchaser,  he 
had  already  found  a  person  who  de- 
sired to  buy,  but  was  not  employed 
as  that  person's  agent  to  purchase. 
Donohue  v.  Padden,  93  Wis.  20; 
Barringer  v.  Stoltz,  39  Minn.  63. 

28  See  ante,  §  1224  et  seq.,  §  1588  et 
seg.  Where  the  broker  sells  to  his 
own  employee  and  confederate,  he 
must  account  for  the  profits  even 
though  he  never  gets  them  from  his 


2088 


CHAP.    Ill] 


OF   BROKERS 


[§    2477 


perfidious  conduct.30    Failure  to  disclose  information  necessary  for  his 
principal's  protection  will  have  the  same  effect.31 


employee.  Powers  v.  Black,  159  Pa. 
153.  But  if  there  was  really  no 
agency,  this  duty  to  account  will  not 
arise,  and  the  mere  fact  that  the 
alleged  agent  may  have  taken  a  com- 
mission is  not  conclusive  that  he 
was  agent.  Steele  v.  Lawyer,  47 
Wash.  266. 

Broker  or  optionee. — Where  the 
broker  also  takes  an  option  to  pur- 
chase, and  exercises  that  option  in 
good  faith  before  having  found  a 
purchaser,  he  need  not  account  for 
a  subsequent  profit;  but  if,  while 
still  broker  and  before  exercising 
his  option,  he  finds  a  profitable  pur- 
chaser he  may  not  then  claim  his  op- 
tion and  keep  the  profit.  'Neighbor 
v.  Pacific  Realty  Co.,  —  Utah,  — ,  124 
Pac.  523. 

*o  See  cases  in  preceding  sections; 
also,  Featherston  v.  Trone,  82  Ark. 
381;  Bragg  v.  Eagan,  —  Ind.  App.  — , 
98  N.  E.  835;  Hobart  v.  Sherburne, 
66  Minn.  171;  Burnham  City  Lumb. 
Co.  v.  Rannie,  59  Fla.  179. 

si  See  ante,  §§  1207,  1588;  Carter 
v.  Owens,  58  Fla.  204;  Young  v. 
Hughes,  32  N.  J.  Eq.  372. 

Broker  concealing  the  real  pur- 
chaser from  his  principal,  thereby  in- 
ducing him  to  sell  at  a  less  price 
than  he  would  otherwise  have  done, 
cannot  recover  commissions.  Hafner 
v.  Herron,  165  111.  242. 

Broker  who  sends  a  customer  to 
his  principal  to  negotiate,  without 
informing  the  principal  that  the  cus- 
tomer is  already  determined  to  pay 
the  principal's  price,  forfeits  his 
commission  though  principal  obtain- 
ed that  price.  Soule  v.  Deering,  87 
Me.  365.  See  also,  Henderson  v.  Vin- 
cent, 84  Ala.  99;  Wiggins  v.  Wilson, 
55  Fla.  346. 

But  in  Hinton  v.  Coleman,  76  Wis. 
221,  it  was  held  that  a  mere  intima- 
tion by  a  broker  to  buy  land  of  the 
sum  his  principal  might  be  induced 


to  pay  for  it,  made  in  good  faith  and 
incidentally,  however  it  might  affect 
the  value  of  his  services,  was  not 
such  treachery  and  disloyalty  as  to 
lead  to  a  forfeiture  of  all  right  to 
compensation. 

Dividing  commissions  with  agent 
of  other  party. — As  has  already  been 
seen,  ante,  §  1590,  notes,  it  has  been 
held  that  secret  agreements  between 
the  brokers  of  the  respective  parties 
to  divide  their  commissions  are  or- 
dinarily held  illegal,  as  leading  to 
the  temptation  to  sacrifice  the  prin- 
cipals by  bringing  together  those  who 
will  pay  the  largest  commissions 
rather  than  those  who  will  pay  the 
best  prices,  and  to  stifle  competition 
by  keeping  the  basis  of  computing 
commissions  as  large  as  possible,  and 
will  therefore  defeat  the  right  of 
either  broker  to  a  commission. 
Norman  v.  Roseman,  59  Mo.  App. 
682;  Levy  v.  Spencer,  18  Colo.  532,  36 
Am.  St.  Rep.  303;  Hobart  v.  Sher- 
burne, 66  Minn.  171;  Howard  v. 
Murphy,  70  N.  J.  L.  141,  1  A.  &  E. 
Ann.  Gas.  571. 

In  Alvord  v.  Cook,  174  Mass.  120, 
the  court  said  that  evidence  of  this 
mere  fact  was  not  enough,  as  matter 
of  law,  and  without  further  proof 
of  the  circumstances,  to  defeat  re- 
covery; but  in  Quinn  v.  Burton,  195 
Mass.  277,  the  court  distinguished 
Alvord  v.  Cook  and  applied  the  gen- 
eral rule. 

Dividing  commissions  with  "buyer. 
— There  is,  however,  said  to  be  no 
legal  objection  to  an  agreement  by 
the  broker,  in  order  to  induce  a  pur- 
chase, to  divide  the  broker's  com- 
mission with  the  purchaser.  Scott 
v.  Lloyd,  19  Colo.  401;  Chase  v.  Veal, 
83  Tex.  333;  Lawler  v.  Armstrong,  53 
Wash.  664. 

So  where  the  agent  and  associate 
of  an  undisclosed  buyer,  with  his 
consent  obtained  from  the  agent  of 


2089 


§  24/8] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2478.  No  compensation  when  undertaking  illegal. — If  the  un- 
dertaking of  th2  broker  was  to  do  something  which  was  illegal,  im- 
moral, or  opposed  to  public  policy,32  he  can  recover  no  commissions, 
although  his  undertaking  be  fully  performed.38  But  he  is  not  neces- 
sarily affected  by  the  unlawful  intentions  of  the  parties  whom  he  brings 
together,  although  the  contract  which  they  make  would  be  void  because 
of  such  intentions.  Whether  he  is  or  not,  depends  upon  the  question 
whether  he  was  privy  to  the  unlawful  intention.  As  is  said  by  Mr.  Jus- 
tice Matthews,  in  a  leading  case  before  the  Supreme  Court  of  the 
United  States:  "It  is  certainly  true  that  a  broker  might  negotiate  such 
a  contract  without  being  privy  to  the  illegal  intent  of  the  principal 
parties  to  it  which  renders  it  void,  and  in  such  a  case,  being  innocent 
of  any  violation  of  law,  and  not  suing  to  enforce  an  unlawful  contract, 
has  a  meritorious  ground  for  the  recovery  of  compensation  and  ad- 
vances. But  we  are  also  of  the  opinion  that  when  the  broker  is  privy 
to  the  unlawful  designs  of  the  parties,  and  brings  them  together  for  the 
very  purpose  of  entering  into  an  illegal  agreement,  he  is  particeps  crim- 


the  seller  an  agreement  to  divide  the 
latter  agent's  commission  with  the 
former  agent  in  case  of  a  sale  to  his 
buyer,  it  was  held  that  there  was  no 
objection  to  a  recovery  from  the 
agent  of  the  seller.  Sherwood  v. 
Lovett,  113  Minn.  83. 

Other  arrangements  unfair  and 
prejudicial  to  principal. — In  Hewett 
v.  Lichty  Mfg.  Co.,  147  Iowa,  270,  the 
defendant  had  employed  the  plaintiff 
on  commissions  to  procure  for  defend- 
ant the  insertion  of  advertisements  in 
a  number  of  newspapers,  agreeing  to 
pay  the  publishers  in  due  bills,  by 
which  defendant  promised  to  deliver 
to  the  publishers  a  certain  quantity 
of  defendant's  medicine  for  a  cash 
price  much  less  than  the  market 
price,  which  medicines  it  was  con- 
templated the  publishers  would  sell 
and  thus  help  create  a  demand  for 
it  which  would  bring  additional 
business  to  defendant.  Plaintiff  se- 
cured a  number  of  advertisements, 
but  it  was  shown  that  the  publishers 
relied  for  their  compensation  not 
upon  the  due  bills  which  they  had 
never  used,  but  upon  secret  premi- 
ums given  to  them  by  plaintiff.  Held, 


plaintiff  was  not  entitled  to  his  com- 
mission, having  deprived  defendant 
of  a  material  advantage,  that  of  cre- 
ating a  demand  for  defendant's 
medicine. 

Sharing  commissions  with  associ- 
ate agent. — The  fact  that  the  broker 
induces  another  agent  or  person  to 
nelp  him  for  a  share  of  the  commis- 
sion does  not  defeat  his  right  to  the 
commissions  if  he,  with  such  aid, 
performs  the  stipulated  service. 
Heidenheimer  v.  Walthew,  2  Tex. 
Civ.  App.  501. 

32  See  subject  discussed,  ante,  §  82, 
et  seg. 

ssFareira  v.  Gabell,  89  Pa.  89;  Ir- 
win  v.  Williar,  110  U.  S.  499,  28  L. 
Ed.  225;  Lyon  v.  Mitchell,  36  N.  Y. 
235,  93  Am.  Dec.  502. 

A  wagering  contract  Is  illegal  and 
void  as  opposed  to  public  policy,  and 
a  broker  who  knowingly  makes  such 
a  contract  and  advances  money  on 
account  thereof  at  his  principal's  re- 
quest cannot  recover  either  the  ad- 
vances or  commissions.  Harvey  v. 
Merrill,  150  Mass.  1,  15  Am.  St.  Rep. 
159,  5  L.  R.  A.  200.  Same  effect: 
Lyons  v.  Coe,  177  Mass.  382. 


2090 


CHAP.    Ill] 


OF  BROKERS 


[§    24/9 


inis,  and  cannot  recover  for  services  rendered  or  losses  incurred  by 
himself  on  behalf  of  either  in  forwarding  the  transaction."34 

§  2479.  How  when  not  licensed.— Where  a  statute  or  ordinance 
requires  brokers  to  be  licensed,  and  forbids,  imposes  a  penalty  for,  or 
otherwise  makes  unlawful,  the  exercising  of  the  vocation  without  a  li- 
cense, it  is  generally  held  that  an  unlicensed  broker  cannot  recover,  ei- 
ther upon  the  contract  or  upon  a  quantum  meruit,  for  services  rendered 
by  him  in  that  capacity ; 8B  although  courts  are  by  no  means  agreed 


a*  In  Irwin  v.  Williar,  110  U.  S. 
499,  510,  28  L.  Ed.  225,  cited  with 
approval  in  Crawford  v.  Spencer,  92 
Mo.  498,  1  Am.  St.  Rep.  745.  See 
also,  Bibb  v.  Allen,  149  U.  S.  481,  37 
L.  Ed.  819;  Ormes  v.  Dauchy,  82  N. 
.  Y.  443,  37  Am.  Rep.  583.  To  same 
effect,  see  Bailey  v.  Phillips,  159  Fed. 
535.  A  broker  may  recover  his  com- 
missions for  services  rendered  in 
finding  a  purchaser  for  'certain 
goods,  even  though  the  contract 
made  between  the  buyer  and  seller, 
after  the  broker  has  completed  his 
undertaking,  was  illegal  or  opposed 
to  public  policy.  Crane  v.  Whitte- 
more,  4  Mo.  App.  510. 

35  See  ante,  §  91;  Ford  v.  Thoma 
son,  11  Ga.  App.  359;  Douthart  v. 
Congdon,  197  111.  349,  90  Am.  St.  Rep. 
167;  Kirk  v.  Rich,  156  111.  App.  483; 
Whitfield  v.  Huling,  50  111.  App. 
179;  Hustis  v.  Pickands,  27  111.  App. 
270;  Eckert  v.  Collat,  46  111.  App. 
361;  Beecher  v.  Peru  Trust  Co.,  - 
Ind.  App.  — ,  97  N.  E.  23;  Richard- 
son v.  Brix,  94  Iowa,  626;  Manker  v. 
Tough,  79  Kans.  46,  17  Ann.  Gas.  208, 
19  L.  R.  A.  (N.  S.)  675,  (in  which 
the  court  adopts  the  rule  as  settled, 
but  denies  its  theoretical  sound- 
ness); Yount  v.  Denning,  52  Kans. 
629,  and  again  62  Kans.  217,  50  L. 
R.  A.  103;  Harding  v.  Hagar,  60  Me. 
340  and  63  Me.  515;  Black  v.  Sec. 
Mut.  Life  Ass'n,  95  Me.  35,  54  L.  R. 
A.  939;  Buckley  v.  Humason,  50 
Minn.  195,  36  Am.  St.  Rep.' 637,  16  L. 
R.  A.  423;  Johnson  v.  •Hulings,  103 
Pa.  498,  49  Am.  Rep.  131;  Holt  v. 
Green,  73  Pa.  198,  13  Am.  Rep.  737; 
Luce  v.  Cook,  227  Pa.  224;  Pile  v. 


ei- 

Carpenter,  118  Tenn.  288;  Stevenson 
v.  Ewing,  87  Tenn.  46;  Saule  v.  Ryan 
(Tenn.  Ch.),  53  S.  W.  977;  Cope  v. 
Rowlands,  2  M.  &  W.  149 

The  subsequent  taking  out  of  li- 
cense, before  suit  brought  and  even 
if  it  be  dated  back,  will  not  cure  the 
defect  or  allow  the  broker  to  re- 
cover his  commission.  Luce  v.  Cook, 
227  Pa.  224;  Saule  v.  Ryan  (Tenn. 
Ch.),  53  S.  W.  977. 

On  the  other  hand,  the  broker's 
right  to  commission  will  not  be  de- 
feated by  the  expiration  of  his  li- 
cense after  his  services  are  rendered, 
but  before  the  contract  between  the 
customer  and  the  principal  is  actu- 
ally entered  into.  Reed  v.  Young,  146 
111.  App.  210.  See  also,  Coates  v.  Lo 
cust  Point  Co.,  102  Md.  291,  5  Ann. 
Cas.  895. 

It  has  been  said  that  the  broker 
is  not  deprived  of  his  right  to  com- 
mission by  lack  of  a -license,  where 
although  the  ordinance  requiring  the 
license  is  unrepealed,  the  city  officers 
under  instruction  from  the  mayor 
and  the  council  have  ceased  to  col- 
lect and  refuse  to  accept  the  license 
fees.  Wickes  v.  Carlisle,  12  Okla. 
337. 

In  Pile  v.  Carpenter,  118  Tenn.  288, 
the  court  held  that  a  statute  exacting 
a  privilege  tax  from  "real  estate  deal- 
ers and  agents"  applied  to  a  man 
who  did  business  by  taking  options 
from  the  people  whose  land  he  sold, 
and  then  negotiating  the  sale  in  his 
own  name. 

The  rule  which  makes  invalid  the 
contract  for  commission  of  an  unli- 
censed broker  does  not  affect  the  va 


2OQ I 


§  248o] 


THE  LAW  OF  AGENCY 


[BOOK  v 


ther  as  to  the  construction  or  effect  of  such  statutes.86  The  presump- 
tion is  that  the  broker  has  complied  with  the  law  and  is  duly  licensed, 
and  the  burden  of  proof  is  upon  him  who  alleges  the  contrary.87 

Such  statutes,  however,  do  not  ordinarily  apply  to  the  case  of  a  pri- 
vate individual  not  carrying  on  the  business  of  a  broker,  and  such  an 
one  may  recover  an  agreed  commission  for  a  single  sale  though  he  had 
no  license.88 

2.  Right  to  Reimbursement  and  Indemnity. 

§  2480.  Entitled  to  reimbursement  and  indemnity. — The  broker 
is  entitled  to  be  reimbursed  for  all  costs  and  expenses  which  he  has 
fairly  and  in  good  faith  incurred,  and  to  be  indemnified  against  any 
losses  on  liabilities  to  which  he  has  been  legally  subjected,  while  act- 
ing as  such  broker  in  the  ordinary  and  proper  course  of  his  business  by 
the  authority  and  for  the  benefit  of  his  principal,  and  which  were  not 


lidity  of  the  contracts  which  he  ne- 
gotiates for  his  principal.  Murray  v. 
Doud,  167  111.  368,  59  Am.  St.  Rep. 
297. 

se  The  rule  of  the  foregoing  cases, 
however,  is  not  everywhere  followed 
and  some  states,  where  there  is  a 
license  requirement,  allow  the  un- 
licensed broker  to  recover  his  com- 
mission, either  upon  the  ground  that 
the  particular  statute  nowhere  makes 
the  unlicensed  pursuit  of  the  busi- 
ness unlawful,  but  simply  supplies  to 
the  state  a  source  of  revenue;  see 
Lindsey  v.  Rutherford,  56  Ky.  (17  B. 
Monroe)  245;  Stiewell  v.  Lally,  89 
Ark.  195;  Fairly  v.  Wappoo  Mills,  44 
S.  Car.  227,  29  L.  R.  A.  215;  Rucker- 
man  v.  Bergholz,  37  N.  J.  L.  437 
(&ictum)  or  even  where  the  statute 
expressly  forbids  unlicensed  pursuit 
of  the  business,  and  makes  it  a  mis- 
demeanor, upon  the  theory  that  the 
statute  is  bat  a  revenue  measure  and 
that  the  penalty  provided  is  exclusive 
of  all  other  remedies  for  its  enforce- 
ment. Sunflower  Lumber  Co.  v. 
Turner  Supply  Co.,  158  Ala.  191,  132 
Am.  St.  Rep.  20;  Coates  v.  Locust 
Point  Co.,  102  Md.  291,  5  Ann.  Cas. 
895;  Walker  v.  Baldwin,  103  Md.  352; 
Prince  v.  Eighth  Street  Baptist 
Church,  20  Mo.  App.  332;  Hughes  v. 


Snell,  28  Okla.  828,  Ann.  Cas.  1912 
D.  374,  34  L.  R.  A.  (N.  S.)  1133; 
Ober  v.  Stephens,  54  W.  Va.  354; 
Cobb  v.  Dunlevle,  63  W.  Va.  398; 
Houston  v.  Boagni,  1  McGloin  (La.), 
164;  Amato  v.  Dreyfus  (Tex.  Civ. 
App.),  34  S.  W.  450;  Watkins  Land 
Mtg.  Co.  v.  Thetford,  43  Tex.  Civ. 
App.  536. 

sTShepler  v.  Scott,  85  Pa.  329; 
Sprague  v.  Reilly,  34  Pa.  Super.  332; 
Yedinskey  v.  Strouse,  6  Pa.  Super. 
587;  Black  v.  Snock,  204  Pa.  119; 
655.  See  Harding  v.  Hagar,  60  Me. 
340. 

ss  Chadwick  v.  Collins,  26  Pa.  138; 
Raeder  v.  Butler,  19  Pa.  Super.  604; 
Yedinskey  v.  Strouse,  6  Pa.  Super. 
587;  Black  v.  Snock,  204  Pa.  119; 
Shepler  v.  Scott,  85  Pa.  329;  O'Neill 
v.  Sinclair,  153  111.  525;  Johnson  v. 
Williams,  8  Ind.  App.  677;  Pope  v. 
Beals,  108  Mass.  561,  (but  see  Pratt 
v.  Burden,  168  Mass.  596);  Jackson 
v.  Hough,  38  W.  Va.  236.  See  also, 
Galloway  v.  Prettyman,  218  Pa. 
293,  in  which  it  was  held  that  a 
Pennsylvania  license  statute  did  not 
apply  to  a  foreign  broker  who  in 
Pennsylvania  made  a  special  contract 
to  sell  foreign  land,  and  sought  his 
purchaser  out  of  Pennsylvania. 


200,2 


CHAP.    Ill 


OF   BROKERS 


[§    2480 


the  result  of  his  own  misconduct  or  neglect."  Thus  when  a  broker 
purchases  or  sells  property  without  disclosing  to  the  respective  prin- 
cipals in  the  transaction  the  name  of  the  party  for  whom  he  acts,  he  be- 
comes, on  the  one  side,  liable  personally  for  the  purchase  price  of  the 
property  bought,  and,  on  the  other,  is  entitled  to  collect  such  price  from 
the  principal  at  whose  instance  the  purchase  was  made.  The  principal 
in  such  a  case  can  relieve  himself  from  liability  to  the  broker  only  by 
showing  payment  of  the  contract  price  by  him  to  the  original  vendor, 
or  a  release  for  a  good  and  valuable  consideration  from  the  broker.40 

So  where  a  broker  acting  in  good  faith,  but  without  disclosing  his 
principal,  sold  repudiated  bonds  by  the  direction  of  his  principal,  it  was 
held  that  he  was  entitled  to  recover  from  the  latter  the  damages  he  had 
suffered  by  reason  of  making  the  sale.41 

So  a  broker  who  at  the  direction  of  his  principal,  buys  property  for 
the  principal  to  be  held  as  an  investment  or  carried  for  an  advance,  is 


s»Lacey  v.  Hill,  L.  R.  18  Eq.  182; 
Ruffner  v.  Hewitt,  7  W.  Va.  585; 
Beach  v.  Branch,  57  Ga.  362;  Searing 
v.  Butler,  69  111.  575;  Perin  v.  Parker, 
126  111.  201,  9  Am.  St.  Rep.  571,  2  L. 
R.  A.  336;  Maitland  v.  Martin,  86  Pa. 
120;  Zimmerman  v.  Weber,  135  N.  Y. 
App.  Div.  428;  Carroll  v.  Lemmons, 
164  Mo.  App.  655  (loan  broker  reim- 
bursed for  expenses  of  abstract  ob- 
tained) and  cases  cited  in  following 
notes. 

The  fact  that  the  principal,  with- 
out the  broker's  fault,  received  no 
benefit  from  an  expense  properly  in- 
curred, does  not  effect  the  broker's 
right  to  recover.  Carroll  v.  Lem- 
mons, supra. 

No  right  to  reimbursement  for  do- 
ing that  which  the  law  imposes  upon 
the  broker  rather  than  upon  the 
principal.,  e.  g.,  putting  tags  on  goods 
to  comply  with  a  local  law.  Trous- 
dale  v.  Arkadelphia  Milling  Co.,  — 
Ark.  — ,  153  S.  W.  618. 

Unless  there  be  an  agreement  to 
that  effect,  it  Is  not  necessary  that 
a  broker  who  has  received  a  deposit 
of  collaterals  as  security  shall  sell  the 
collaterals  before  suing  for  what  the 
principal  owes  him.  De  Cordova  v. 
Barnum,  130  N.  Y.  615,  27  Am.  St. 
Rep.  538. 


*oKnapp  v.  Simon,  96  N.  Y.  284. 

«  Maitland  v.  Martin,  86  Pa.  120. 

So,  where  the  broker,  who  has 
made  in  his  own  name  a  contract 
which  the  principal  refuses  to  ful- 
fill, settles  with  the  other  party,  he 
may  have  indemnity  from  his  prin- 
cipal. Searing  v.  Butler,  69  111.  575. 
To  same  effect,  see  Bailey  v.  Carn- 
duff,  14  Colo.  App.  169;  Zimmerman 
v.  Weber,  135  N.  Y.  App.  Div.  428. 
If  the  broker  were  compelled  to  pay 
damages  on  account  of  the  "false 
packing"  of  the  goods  put  into  his 
hands  for  sale,  he  would  be  entitled 
to  indemnity.  Beach  v.  Branch,  57 
Ga.  362. 

Where  a  note  broker  sells  the  note 
of  an  insolvent,  and  when  the  pur- 
chaser has  discovered  the  insolven- 
cy, the  contract  is  rescinded,  the 
broker  may  charge  to  his  principal 
the  money  that  he  pays  to  the  pur- 
chaser at  the  rescission  of  the  sale 
and  the  return  of  the  note.  Stewart 
v.  Orvis,  47  How.  N.  Y.  Prac.  518. 

Where  a  broker  sells  stock  which 
the  principal  later  refuses  to  deliver, 
broker  may  recover  increased  cost 
of  purchasing  such  stock  to  deliver 
within  a  reasonable  time.  Bank  of 
Bisbee  v.  Graf,  12  Ariz.  156. 


2093 


§  248 1] 


THE  LAW  OF  AGENCY 


[BOOK   V 


entitled  to  be  reimbursed  for  the  cost  thereof ; 42  or  for  other  expenses 
properly  incurred  according  to  the  rules  of  the  exchange  or  market  in 
which  the  parties  are  dealing,43  and,  in  case  he  is  compelled  to  resell 
it  at  a  loss  owing  to  the  refusal  x>r  neglect  of  the  principal  to  make  fur- 
ther payments  or  keep  good  his  margins,  the  broker  is  entitled  to  re- 
cover for  the  loss  thereby  sustained.4* 

§  2481    Needless  expenses — Illegal  transactions. — But  if 

the  expense  or  disbursement  for  which  the  broker  claims  reimburse- 
ment, or  the  liability  against  which  he  seeks  indemnity,  was  unneces- 
sarily incurred,45  or  was  the  result  of  the  broker's  own  misconduct  or 
neglect,46  or  of  a  violation  of  his  principal's  instructions,47  or  of  depar- 
ture from  his  authority,48  (unless  the  principal  has  condoned  or  rati- 
fied the  act),49  or  was  incurred  while  knowingly  acting  in  illegal  or  im- 
moral transactions  or  transactions  opposed  to  public  policy,  as  in  the 
numerous  cases  in  which  brokers  seek  reimbursement  for  advances  or 
expenses  incurred  in  what  they  knew  to  be  wagering  transactions  in 
stock  or  merchandise,80  he  cannot  recover. 


*2  Bennett  v.  Covington,  22  Fed. 
816;  Marshall  v.  Levy,  66  Cal.  236 
(broker  is  entitled  to  reimbursement 
for  assessments  paid  by  him  upon 
stock  which  he  has  purchased  and 
was  carrying  for  his  principal). 

«  In  Perin  v.  Parker,  126  111.  201, 
9  Am.  St.  Rep.  571,  2  L.  R.  A.  336, 
the  court  quote  with  approval  the 
statement  of  Leake  on  Contracts,  56: 
"The  employment  of  a  broker  to  buy 
and  sell  shares  operates  as  a  request 
to  make  all  payments  required  by 
the  rules  of  the  Stock  Ex- 
change, or  other  share  market,  in 
the  course  of  the  execution  of  the 
employment,  with  a  promise  of  re- 
payment." There  were  cited,  Bayley 
v.  Wilkins,  7  C.  B.  886;  Westropp  v. 
Solomon,  8  C.  B.  345;  Taylor  v. 
Stray,  2  C.  B.  (N.  S.)  175;  Smith  v. 
Lindo,  5  C.  B.  (N.  S.)  587. 

4*  Bennett  v.  Covington,  supra; 
Fairbairn  v.  Milliard,  104  N.  Y.  App. 
Div.  259;  Gregory  v.  Wendell,  40 
Mich.  432,  (cases  in  which  upon  his 
principal's  order  to  sell,  or  his  refusal 
to  accept  the  goods,  the  broker  sold 
goods  which  he  had  previously  pur- 
chased for  the  principal).  Worthing- 


ton  v.  Tormey,  34  Md.  182;  Durant 
v.  Burt,  98  Mass.  161;  Esser  v.  Lind- 
erman,  71  Pa.  76;  Norden  v.  Duke, 
129  N.  Y.  App.  Div.  158;  Lacey  v. 
Hill,  L.  R.  18  Equity  Cases,  182. 

45  Clegg  v.  Townshend,  16  L.  T.  R. 
N.  S.  180. 

46  Duncan   v.   Hill,   L.   R.   8    Exch. 
242;  Ellis  v.  Pond,  [1898]  1  Q.  B.  Div. 
426. 

"  Haas  v.  Ruston,  14  Ind.  App.  8, 
56  Am.  St.  Rep.  288  (broker  whose 
authority  was  to  make  sales  only  sub- 
ject to  his  principal's  affirmance, 
made  absolute  contracts  in  his  own 
name.  The  principal  refused  to  ap- 
prove or  perform  the  contracts,  but 
was  held  not  liable  to  the  broker,  for 
reimbursement  for  the  broker's  lia- 
bility on  the  absolute  contracts). 

48Bowlby  v.  Bell,  3  C.  B.  284; 
Fletcher  v.  Marshall,  15  M.  &  W.  755. 
No  reimbursement  for  an  expense  not 
authorized  by  the  circumstances. 
Park  v.  Hogle,  124  Iowa,  98. 

49 Ratification  cures  breach  of  in- 
structions. Gillett  v.  Whiting,  141 
N.  Y.  71,  38  Am.  St.  Rep.  762. 

so  See  ante,  §  111,  et  seq.;  Allkins 
v.  Jupe,  2  C.  P.  Div.  375;  Samuels  v. 


CHAP.    Ill] 


OF   BROKERS 


[§    2482 


§  2482.  How  when  undertaking  not  performed. — The  right  of  the 
broker  to  reimbursement  and  indemnity  when  he  fails  to  fully  complete 
his  undertaking,  depends  upon  the  nature  of  the  undertaking  and  the 
reason  of  his  failure.  In  this  respect  the  question  is  analogous  to  that 
of  his  right  to  compensation.  A  broker  who  undertakes  to  sell  property, 
for  example,  is  ordinarily,  as  has  been  seen,  entitled  to  no  compensa- 
tion unless  he  finds  a  purchaser  who  is  ready,  willing  and  able  to  buy 
upon  the  terms  stipulated.51  Unless  there  is  an  express  contract  to  the 
contrary,  he  is  understood  as  risking  the  chance  of  losing  his  labor  if 
his  efforts  do  not  prove  successful,  and  the  same  considerations  apply 
to  his  right  to  recover  for  his  expenses  incurred.  If  being  left  at  liberty 
to  choose  his  own  means  and  methods  as  to  the  accomplishment  of  the 
result,  he  incurs  expenses  in  travelling,  advertising  and  similar  en- 
deavors, he  will  not  be  entitled  to  reimbursement  for  these  if,  without 
the  principal's  fault,  his  efforts  fail  of  success.52  And  even  if  success- 
ful, he  would  not,  in  the  absence  of  a  contract  or  custom  to  the  contrary, 
be  entitled  to  recover,  as  his  commission  is,  in  ordinary  cases,  supposed 
to  cover  these  expenses.53 

Where,  however,  the  principal  expressly  directs  that  certain  means 


Oliver,  130  111.  73  ("cornering"  the 
market);  Bartlett  v.  Smith,  13  Fed. 
263  (dealing  in  "futures");  Wagner 
v.  Hildebrand,  187  Pa.  136  (same); 
Harvey  v.  Merrill,  150  Mass.  1,  15 
Am.  St.  Rep.  159  (same);  Barnes  v. 
Smith,  159  Mass.  344  (same); 
Sprague  v.  Warren,  26  Neb.  326,  3  L. 
R.  A.  679  (same);  Dows  v.  Glaspel, 
4  N.  Dak.  251  (same);  Riordan  v. 
Doty,  50  S.  Car.  537  (same);  Harvey 
v.  Doty,  50  S.  Car.  548  (same); 
Bartlett  v.  Collins,  109  Wis.  477 
(same). 

See  also,  Hubbard  v.  Sayre,  105 
Ala.  440;  Sheehy  v.  Shinn,  103  Cal. 
325;  Cushman  v.  Root,  89  Cal.  373,  23 
Am.  St.  Rep.  482,  12  L.  R.  A.  511; 
Jamieson  v.  Wallace,  60  111.  App.  618, 
167  111.  388;  Elder  v.  Talcott,  43  111. 
App.  439;  O'Brien  v.  Luques,  81  Me. 
46;  Burt  v.  Myer,  71  Md.  467;  North- 
rup  v.  Bufflngton,  171  Mass.  468; 
Lyons  v.  Coe,  177  Mass.  382;.  Kahn 
v.  Watson,  46  Ohio,  195;  Stewart  v. 
Parnell,  147  Pa.  523;  Peters  v.  Grim, 
149  Pa.  163,  34  Am.  St.  Rep.  399; 


Saunders  v.  Phelps,  53  S.  Car.  173; 
Floyd  v.  Patterson,  72  Tex.  202,  13 
Am.  St.  Rep.  787;  Lovejoy  v.  Kauf- 
man, 16  Tex.  Civ.  App.  377. 

si  See  ante,  §§  2426,  2427. 

52  Sibbald  v.  Bethlehem  Iron  Co., 
83  N.  Y.  378,  38  Am.  Rep.  441;  Didion 
v.  Duralde,  2  Robinson  (La.),  163; 
Reynolds-McGinness  Co.  v.  Green,  78 
Vt  28;  Lyttle  v.  Goldberg,  131  Wis. 
613;  Thuner  v.  Kanter,  102  Mich.  59. 

OB  in  this  respect  the  broker 
stands  in  the  attitude  of  one  pursu- 
ing an  independent  calling,  who  hav- 
ing undertaken  a  certain  duty  is  left 
at  liberty  to  choose  his  own  means 
and  methods. 

In  McDonald  v.  Ortman,  98  Mich. 
40,  the  broker  had  an  express  agree- 
ment for  a  commission  of  2  1-2  per 
cent  of  the  price  which  should  be 
obtained,  and  a  judgment  in  his  fa- 
vor was  reversed  because  the  lower 
court  admitted  evidence  of  the 
money  paid  out  in  securing  custom- 
ers, of  time  spent  in  the  effort  and  of 
the  value  of  the  agent's  time. 


2095 


§§    2483,  2484]  THE  LAW  OF  AGENCY  [BOOK   V 

or  methods  be  adopted,  the  broker  would  be  entitled  to  reimbursement 
for  the  expense  thereby  incurred.54 

So  where  the  broker  is  employed  to  perform  a  service  which  neces- 
sarily requires  that  he  should  incur  certain  expenses  in  preparation  for 
the  accomplishment  of  the  object,  and  before  a  reasonable  time  has 
been  allowed  him  in  which  to  bring  the  undertaking  to  a  termination, 
his  authority  is,  without  his  fault,  revoked  by  his  principal,  there  may 
undoubtedly  be  cases  in  which  he  would  be  entitled  to  be  reimbursed 
for  this  outlay.85 

3.  Right  to  a  Lien. 

§  2483.  No  general  lien. — Brokers  do  not  usually  possess  the 
right  of  a  general  lien,  though  like  other  agents  they  may  be  in  a  sit- 
uation to  exercise  the  right  of  a  particular  lien.  The  reason  of  this  is 
found  in  the  distinguishing  character  of  the  broker,  that,  in  general,  he 
is  not  entrusted  with  the  possession  of  the  property  respecting  which 
he  is  employed  to  act.  The  right  of  lien,  as  has  been  seen,  is  a  right  in 
one  person  to  retain  that  which  is  in  his  possession  belonging  to  an- 
other, until  certain  demands  of  the  party  in  possession  are  satisfied,  and 
it  presupposes  that  the  person  claiming  the  lien  has  possession  of  the 
property.  It  is  evident,  however,  from  the  nature  of  the  broker's  em- 
ployment that  he  has  not,  under  ordinary  circumstances,  any  property 
of  his  principal  in  his  possession  upon  which  the  lien  could  attach.56 

§  2484.  Liens  in  special  cases — Stock  brokers — Real  estate  brok- 
ers— Insurance  brokers. — But  a  broker  may  be,  and  often  is,  in- 
trusted with  the  possession  of  the  property  in  respect  to  which  he  ne- 
gotiates, thus  combining,  with  his  character  as  broker,  certain  also  of 
the  characteristics  of  the  factor.  Where  such  is  the  case,  he  may  in 
many  instances  have  a  lien  upon  such  property  for  his  costs  and 
charges  in  respect  thereto. 

Thus  a  stockholder  is  often  a  pledgee,  but  he  will  at  least  have  a  lien 
for  commissions  and  disbursements  upon  purchases  of  stocks  made  by 
him  for  his  principal  ;57  a  loan  broker  has  a  lien  for  his  commissions 
upon  a  loan  obtained  and  received  by  him  for  his  principal ; 5S  a  real 

34  See  ante,  §  1601.  Hope    v.    Glendinning,    [1911]    App. 

G5  See  ante,  §  2450;    Hill  v.  Jones,  Cas.  419.    So,  also,  a  bill  or  exchange 

152   Pa.   433;    Glover   v.    Henderson,  broker.     Bank  v.  Levy,  1  McMul.  L, 

120  Mo.   367,    41   Am.   St.   Rep.   695;  (S.  Car.)   283. 

Jaekel  v.  Caldwell,  156  Pa.  266.  »» Vinton  v.  Baldwin,  95  Ind.  433. 

5«  Barry  v.  Boninger,  46  Md.  59.  In  Peterson  v.  Hall,  61  Minn.  268, 

57  Stewart  v.  Drake,  46  N.  Y.  449;  a  real  estate  broker  to  whom  a  note 

Willard  v.  White,  56   Hun    (N.  Y.),  and  mortgage  had  been  delivered  in 

581;  Jones  v.  Gallagher,  3  Utah,  54;  order   to   obtain   a   loan   upon   them 

2096 


CHAP.    Ill] 


OF   BROKERS 


[§    2486 


estate  broker,  who  has  bought  land  for  his  principal  and  with  his  con- 
sent prepared  and  received  the  conveyance,  may  have  a  lien  upon  the 
deed  for  his  commissions;59  a  broker  who  has  sold  property  and  been 
permitted  to  receive  the  price  would  have  a  lien  thereon ;  and  an  insur- 
ance broker  has  a  lien  upon  policies  and  their  proceeds  to  secure  the 
payment  of  his  commissions  and  disbursements  in  procuring  them.60 

These  liens  are  usually  special  or  particular  liens  to  secure  to  the 
agent  his  expenses  and  commissions  with  reference  to  that  particular 
thing ; 61  though  it  is  said  that  by  general  custom  insurance  brokers  have 
a  lien  not  only  for  these  sums  but  also  for  the  general  balance  of  their 
insurance  account  against  the  principal  ;62  stock-brokers  who  act  as 
bankers  and  make  general  advances  to  their  principal  are  held  to  have 
a  general  lien  therefor  upon  his  securities  in  their  possession ; ea  and 
there  may,  of  course,  be  agreements  which  make  liens  general  in  other 
cases.84 

§  2485.  Equitable  liens. — So  also,  as  in  the  case  of  attor- 
neys at  law  already  considered,65  there  may  be,  not  only  legal  assign- 
ments of  funds  or  property  received  or  recovered,  but  also  such  agree- 
ments for  a  share  or  interest  in  the  proceeds  resulting  from  the  brok- 
er's efforts, — as  distinguished  from  a  mere  personal  promise  to  pay 


was  held  to  have  a  lien  upon  them 
for  his  commissions  if  within  a  rea- 
sonable time  he  had  found  a  person 
ready,  willing  and  able  to  make  the 
loan. 

But  in  Arthur  v.  Sylvester,  105  Pa. 
233,  it  was  held  that  where  title  pa- 
pers are  put  into  the  hands  of  a 
real  estate  broker  in  order  that  he 
may  effect  a  sale  of  the  property, 
he  has  no  lien  upon  the  papers  for 
expenses  incurred  in  an  unsuccessful 
effort  to  sell  the  property. 

In  Robinson  v.  Stewart,  97  Mich. 
454,  it  is  held  that  a  real  estate 
broker  has  no  lien  upon  money  or 
papers  put  into  his  hands  to  use  in 
the  purchase  of  land. 

59  Richards  v.  Gaskill,  39  Kan.  428. 

eo  Snook  v.  Davison,  2  Camp,  218; 
Fisher  v.  Smith,  4  App.  Gas.  1; 
Spring  v.  Insurance  Co.,  8  Wheat 
(21  U.  S.)  268,  5'  L.  Ed.  614;  Mo 
Kenzie  v.  Nevius,  22  Me.  138,  38 
Am.  Dec.  291;  Sharp  v.  Whipple,  14 
N.  Y.  Super.  557;  Cranston  v.  Phila. 
Ins.  Co.,  5  Binn.  (Pa.)  638.  Lien 


lost  by  surrender  of  the  policies. 
Sharp  v.  Whipple,  supra.  Lien  not 
lost  by  agreement  for  monthly  state- 
ments and  settlements,  the  broker  re- 
taining the  possession  of  the  policies. 
Fisher  v.  Smith,  supra. 

01  Loan  broker's  Hen  is  special. 
James'  Appeal,  89  Pa.  54;  Carpenter 
v.  Momsen,  92  Wis.  449.  Stock 
broker's  lien  usually  a  special  one, 
and  the  mere  fact  that  the  broker 
has  on  other  occasions  acted  for  the 
same  principal  in  the  purchase  and 
sale  of  stocks,  does  not  give  him  the 
right  to  hold  stock  bought  on  a  par- 
ticular order  as  security  for  the 
general  balance  of  his  account. 
Leahy  v.  Lobdell,  26  C.  C.  A.  75,  80 
Fed.  665. 

62  See  2  Phillips  on  Insurance,  §§ 
1909,     1912;      McKenzie     v.     Nevins, 
supra:  Sharp  v.  Whipple,  supra. 

63  Jones     v.     Peppercorne,     Johns. 
(Eng.)    Ch.    430;    In    re    London    & 
Globe  Finance  Co.,  [1902]  2  Ch.  416. 

a*  Leahy  v.  Lobdell,  supra. 
«o  See  ante,  §  2286. 


132 


2097 


§§    2486,  2487]  THE  LAW  OF  AGENCY  [BOOK    V 

out  of  them, — as  to  amount  to  an  equitable  assignment  of  or  lien  upon 
such  proceeds  which  courts  of  equity  will  enforce.66  Courts  of  equity 
also,  as  in  the  case  of  attorneys,  having  possession  and  distribution  of 
a  fund  produced  by  the  broker's  efforts,  will  often  secure  the  broker's 
compensation  in  ordering  distribution  of  the  fund.87 

§  2486.  No  lien  except  for  debt  due  from  principal. — But  even  if 
the  broker  possessed  a  lien  in  any  case,  the  debt  in  respect  to  which  it 
is  claimed  must  in  general  be  due  from  the  person  whose  property  he 
seeks  to  retain,  and  therefore  if  he  knows  or  has  reason  to  believe  that 
the  person  by  whom  he  is  employed  is  himself  but  the  agent  of  another 
to  whom  the  property  belongs,  he  will  not  be  allowed  to  retain  it  for 
a  debt  due  from  the  agent  only.68 

But  this  rule  does  not  conflict  with  that  which  permits  a  sub-agent 
to  claim  a  lien  against  the  real  principal  in  the  transaction,  in  accord- 
ance with  rules  heretofore  considered,09  because  in  these  cases  the  debt 
is.  in  reality,  the  debt  of  the  principal,  either  from  the  fact  that  he  ex- 
pressly or  impliedly  authorized  it  or  that  he  has  subsequently  ratified 
and  confirmed  it ;  nor  with  the  rule  considered  in  the  same  place,  which 
gives  to  the  broker  a  lien  as  against  an  undisclosed  principal  for  ad- 
vances and  commissions  before  the  interest  of  the  real  principal  was 
discovered. 


VII. 

RIGHTS  OF  BROKER  AGAINST  THIRD  PERSONS. 

I.  In  Contract. 

§  2487.  In  general,  no  right  of  action  on  contracts. — The  broker, 
as  has  been  seen,  ordinarily  contracts  as  such  for  a  principal  named,  or 
acts  merely  as  a  middle-man  to  bring  the  parties  together  to  contract 
for  themselves.  Where  such  is  the  mode  of  dealing  the  broker  assumes 
no  personal  obligations  and  acquires  no  rights  of  action,  the  benefits 
and  obligations  attaching  only  to  his  principals.70 

se  See  Fairbanks  v.  Sargent,  104  N.  67  See    ante,    §   2284;     Leupold    v. 

Y.  108,  58  Am.  Rep.  490,  6  L.  R.  A.  Weeks,  supra. 

475,    (the   case   of   an    attorney    but  °8  Barry  v.  Boninger,  46  Md.  59. 

the  same  doctrine  has  been  held  ap-  69  See     ante,     §_  1705;     Sharp     v. 

plicable     to     brokers.       Leupold     v.  Whipple,  14  N.  Y.  Super.  557. 

Weeks,  infra) ;  Leupold  v.  Weeks,  96  ™  Fairlie   v.   Fenton,   L.   R.   5   Ex. 

Md.  280,  where  the  rule  was  applied  169.     A  broker  cannot  sue  the  other 

to  a  written  contract  with  a  broker  contracting    party    for    breach    of    a 

for  the  sale  of  patents  on  terms  giv-  contract  made  in  behalf  of  his  prin- 

ing  him  a  share  of  the  price  realized.  cipal,   and   this   is   so,   although  the 

2098 


CHAP.    Ill] 


OF   BROKERS 


[§    2488 


§  2488.  When  he  may  sue. — It  has  been  seen  in  an  earlier  portion 
of  this  work  that  an  agent  may  under  many  circumstances  maintain  an 
action  in  his  own  name  against  third  persons  upon  contracts  made  with 
them  for  his  principal.71  These  rules  apply  in  general  to  the  case  of 
brokers  and  it  is  not  necessary  to  repeat  them  here.  The  very  fact  that 
one  deals  as  broker  implies  the  existence  of  a  principal  for  whom  he 
acts ; 72  but,  notwithstanding  this,  he  may  so  act  as  to  make  himself 
the  party  to  the  contract  instead  of  his  principal.  Where  this  is  the 
case,  he  may  maintain  an  action  upon  the  contract  in  his  own  name.73 
This  right,  however,  is  ordinarily  subject  to  the  prior  right  of  the  prin- 
cipal to  intervene  and  claim  performance  to  himself,  the  defendant  be- 
ing then  entitled  to  be  put  in  the  same  situation,  at  the  time  of  the  in- 
tervention of  the  principal,  as  if  the  agent  had  been  the  real  contracting 
party.74 

Where,  however,  the  broker  has  contracted  as  such,  the  name  of  the 
principal  on  whose  account  he  deals  being  disclosed,  the  right  of  ac- 
tion is  in  the  principal  only  and  the  broker  cannot  sue.75 

An  exception  to  this  rule  exists  in  the  case  of  the  insurance  broker. 
Policies  not  under  seal  are  frequently  issued  payable  to  the  broker  for 
the  benefit  of  a  named  principal,  or  "for  the  owners"  or  "for  whom  it 
may  concern/'76  and  actions  upon  such  a  policy  may  be  brought  either 
in  the  name  of  the  broker  to  whom  it  was  made  payable,77  or  of  the 
principal  for  whose  benefit  it  was  effected.78 

says  Putnam,  J.,  "for  the  introduc- 
tion of  the  clause  in  question.  The 
insurance  brokers  might  desire  to 
have  the  loss  paid  to  them  to  indem- 
nify them  for  any  advances  for 
premium  or  otherwise,  which  they 
might  have  against  the  owners;  and 
the  insurance  company  might  desire 
to  have  that  clause,  to  enable  them 
to  set  off  any  legal  claim  which  they 
might  have  against  the  insurance 
brokers."  Farrow  v.  Commonwealth 
Ins.  Co.,  18  Pick.  (Mass.)  53,  29  Am. 
Dec.  564.  But  insurance  company 
cannot  set  off  individual  debt  of 
agent  against  the  principal.  Braden 
v.  Louisiana  State  Ins.  Co.,  1  La.  220, 
20  Am.  Dec.  277. 

77  Farrow  v.  Commonwealth,  supra ; 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend. 
(N.  Y.)  72,  22  Am.  Dec.  567;  Provin- 
cial Ins.  Co.  v.  Leduc,  L.  R.  6  P.  C. 
C.  224. 

78  Farrow    v.    Commonwealth    Ins. 


principal  is  undisclosed.     Davenport 
v.  Ash,  121  La.  209. 

Where  broker  merely  opened  the 
negotiations  through  •  which  his 
principal  made  the  contract,  broker 
cannot  sue  to  enforce  performance 
of  the  contract.  San  Jacinto  Rice 
Co.  v.  Lockett,  — Tex.  Civ.  App.  — , 
145  S.  W.  1046. 

71  See  ante,  §  2024,  et  seq. 

72  Baxter  v.  Duren,  29  Me.  434,  50 
Am.  Dec.  602. 

73  See  ante,  §   2024.     See,  right  of 
broker  to  sue  as  "trustee  of  an  ex- 
press   trust."      Goodfellow    v.    First 
Nat.   Bank,   71  Wash.   554,   44  L.   R. 
A.   (N.  S.)   580 

T*  See  ante,  §  2037. 

75  Fairlie    v.   Fenton,    L.   R.    5   Ex. 
169;     Sharman    v.    Brandt,    L.    R.    6 
Q.  B.  720;  ante,  §  2035. 

See  also,  White  v.  Chouteau,  10 
Barb.  (N.  Y.)  202. 

76  "There     are     obvious     reasons," 


2099 


§§    2489-249!]  THE  LAW  OF  AGENCY  [BOOK    V 

§  2489.  What  defences  may  be  made  when  broker  sues. — The 
question  of  the  defenses  which  may  be  made  when  the  agent  sues  in 
his  own  name  has  also  been  considered  in  the  earlier  chapter,  and  need 
not  be  again  considered  here.  Where  a  stockbroker,  who  has  sold 
stock  for  an  undisclosed  principal  sues  in  his  own  name  it  has  been 
held  that  his  recovery,  so  far  as  it  is  for  the  benefit  of  his  principal,  is 
subject  to  defenses  based  upon  the  fraud  of  the  princi-pal  who  had  con- 
trived a  scheme  to  induce  the  defendant  to  buy  the  stock  from  the 
broker.Tf 

2.  In  Tort. 

§  2490.  May  recover  when  he  sustains  injury  in  the  line  of  his 
business. — The  broker,  not  ordinarily  being  intrusted  with  custody 
or  possession  of  his  principal's  property,  has  usually  little  occasion  or 
necessity  to  sue  in  tort  for  the  protection  of  his  principal's  interests,  as 
other  agents  may  sometimes  do.80  Under  appropriate  circumstances 
he  could  undoubtedly  sustain  such  actions. 

Where,  however,  he  personally  sustains  loss  by  the  wrongful  act 
of  third  persons,  he  may  recover  in  his  own  right.  Thus  where  a 
broker,  employed  to  sell  stock,  and  required  by  the  rules  of  the  stock 
exchange  to  give  personal  guarantees  as  to  its  genuineness,  sent  it  to 
the  proper  office  of  the  corporation  by  which  it  purported  to  be  issued, 
for  inspection,  and  was  assured  by  the  proper  agent  that  it  was  genuine, 
when  in  fact  it  was  not,  and  in  reliance  upon  this  assurance  he  gave  his 
own  guaranty,  and  thereby  incurred  liability,  it  was  held  that  he  might 
recover  from  the  corporation.81 


VIII. 

RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS. 

§  2491.  Same  as  in  other  cases  of  agency. — The  question  of  the 
rights  of  the  principal  against  third  persons  on  contracts  made  by,  or 
through  the  intervention  of  a  broker,  depends  upon  the  same  consider- 
ations which  control  in  the  case  of  similar  contracts  made  by  any  other 

Co.,  supra;  Lazarus  v.  Commonwealth  fraud  as  far  as  his  right  to  recover 
Ins.  Co.,  5  Pick.  (Mass.)  76;  Brown-  to  the  extent  of  his  advances  is  con- 
ing v.  Provincial  Ins.  Co.,  L.  R.  5  P.  cerned. 

C.  C.  263;   Sargent  v.  Morris,  3  B.  &  so  See  ante,  §  2049,  et  seq. 

Aid.  277.  sijarvis  v.  Manhattan  Beach  Co., 

70  Leo  v.  McCormack,  186  N.  Y.  330.  148  N.  Y.  652,  51  Am.  St.  R.  727,  31 

But  an  innocent  broker  is  here  held  L.  R.  A,  776. 
not  to  be  affected  by  his  principal's 

2100 


CHAP.    Ill]  OF    BROKERS  [§§    2492,2493 

agent  and  which  have  already  been  discussed.  In  general  terms,  how- 
ever, the  principal  is  entitled  to  demand,  receive  and  enforce  the  per- 
formance by  the  third  persons,  with  whom  the  broker  deals,  of  all  con- 
tracts and  obligations  made  in  his  name  or  in  his  behalf ;  and  to  have 
the  same  remedies  for  the  protection  of  his  interests  and  the  recovery 
and  preservation  of  his  property  which  he  would  have  if  acting  in  his 
own  proper  person.82 

§  2492.  No  set-off  of  broker's  debts  or  obligations. — As  has  been 
seen,  the  ordinary  broker  has  usually  no  possession  of  the  property 
which  he  is  employed  to  sell,  and  acts  ordinarily  only  in  the  name  of  the 
principal.  His  character  ordinarily  implies  that  he  is  acting  for  an- 
other, and  whether  the  name  of  that  other  is  in  fact  disclosed  or  not, 
it  is  well  settled  that  where  the  broker  has  not  been  permitted  to  appear 
as  the  principal,  by  being  entrusted  with  the  possession  of  the  property 
or  the  usual  indicia  of  ownership,  the  third  persons  with  whom  he 
deals  cannot,  when  called  upon  for  performance  by  the  principal,  set- 
off  against  the  latter  any  payments  made  to  the  broker  by  them,  or  any 
debts  or  obligations  due  to  them  from  the  broker.83 

Of  course  if  the  broker  is  permitted  to  deal  as  principal,  or  if,  in  the 
ordinary  course  of  his  business,  he  deals  for  himself  as  well  as  for 
principals,  the  inference  of  his  character  as  agent  in  a  given  case  may 
be  weakened  or  destroyed. 

§  2493.  Right  to  recover  money  and  property. — The  right  of  the 
principal  to  recover  from  third  persons  his  property  or  money  wrong- 

sa  See  ante,  §§  2052  et  seq.  brokers  to  sell  certain  stocks.    These 

ss  Baring  v.  Corrie,  2  B.  &  Aid.  137;  brokers  made  a  contract  to  sell  the 
Drakeford  v.  Percy,  7  B.  &  S.  515;  stock  to  defendants  who  were  also 
Pearson  v.  Scott,  9  Ch.  Div.  198;  brokers  and  who  did  not  know  that 
Cooke  v.  Eshelby,  12  App.  Gas.  271;  the  first  named  brokers  were  not  act- 
Graham  v.  Duckwall,  8  Bush  (Ky.),  ing  on  their  own  account.  The  con- 
12;  Higgins  v.  Moore,  34  N.  Y.  417;  tract  was  to  be  closed  by  delivery  and 
Crosby  v.  Hill,  39  Ohio  St.  100;  Dela-  payment  on  the  next  day.  Shortly 
field  v.  Smith,  101  Wis.  664,  70  Am.  after  the  sale  was  on  the  same  day, 
St.  Rep.  938  (dictum).  the  selling  brokers  became  insolvent, 

Where  a  broker  sells  goods  for  an  and  so  notified  the  stock  exchange, 

undisclosed  principal,  and  the  buyer  Defendants    thereupon    proceeded    to 

knows    that    the    broker    sometimes  close   out   their   contracts,    including 

acts  on   his  account  and   sometimes  this    one    made    with    the    insolvent 

for  a  principal,  and  has  no  belief  on  brokers.    Next  morning  plaintiff  ten- 

the  subject  as  to  whether  he  is  sell-  dered   the   stock   to   defendants   and 

ing  his  own  goods  in  the  particular  demanded   performance.     Held,   that 

case,  he  can  not  set  off  against  the  the  closing  out  of  the  contract  on  the 

principal     a     demand     against     the  preceding  day,  in  the  usual  way  and 

broker.    Cooke  v.  Eshelby,  supra.  before  defendants  had  any  knowledge 

In   Kent  v.  De   Coppet,  149  N.  Y.  of  plaintiff's  interest  was  a  good  de- 

App.    Div.    589,    plaintiff    instructed  fense.    One  judge  dissented. 

2101 


§  2494] 


THE  LAW  OF  AGENCY 


[BOOK  v 


fully  disposed  of  by  the  broker  depends  upon  the  same  considerations 
as  those  affecting  other  agents  and  discussed  in  a  preceding  chapter.84 
The  right  to  recover  property  must  less  frequently  arise  in  the  case 
of  brokers  than  in  that  of  factors,  for  the  reason  that  the  ordinary 
broker  is  so  rarely  entrusted  with  the  possession  of  the  goods.  The  case 
of  the  stock  broker  furnishes  the  most  frequent  application.88 


IX. 


RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

§  2494.  Same  as  in  other  cases  of  agency. — The  rights  of  third 
persons  against  the  principal  for  the  acts  and  contracts  of  the  broker 
rest  upon  the  same  principles  as  in  other  cases  of  agency.  Where  the 
broker  acting  within  the  limits  of  his  authority  has  bound  his  principal 
to  third  persons,  they  are  entitled  to  the  same  rights  and  remedies 
against  him  as  though  the  same  act  had  been  done  by  him  in  person.88 

As  has  been  seen,87  the  broker  must  usually  act  in  the  name  of  his 
principal,88  but  in  any  case  in  which  the  contract  could  be  deemed  to  be 

84  See  ante,  §  2088  et  seq.:  §  2105      clear,    (Richardson  v.   Shaw,   209  U. 


et  seq. 

ss  In  order  to  enable  the  principal 
to  follow  his  property  or  money, 
some  fiduciary  relation  must  be 
shown  to  exist.  Mere  payment  for 
stock  before  receiving  it  on  an  ordi- 
nary purchase  from  a  stock  broker- 
age firm,  not  employed  as  agent  to 
purchase  it,  creates  no  fiduciary  re- 
lation. Fogg  v.  Tyler,  109  Me.  221. 

Money. delivered  to  a  broker  to  be 
invested  in  stocks  for  the  principal 
is  held  as  a  trust  fund  until  the 
stock  of  the  required  amount  is 
either  delivered  to  the  principal  or 
in  fact  appropriated  to  him.  In  re 
Brown,  189  Fed.  440.  In  the  federal 
courts  in  order  to  follow  a  fund  as  a 
trust  fund,  "there  must  he  some 
identification  of  the  property  sought 
to  be  charged  with  the  trust  funds." 
Re  Mclntyre,  108  C.  C.  A.  543,  185 
Fed.  96;  In  re  Brown,  189  Fed.  24. 

Since  it  is  not  a  conversion  for  a 
broker  to  sell  the  very  certificate  he 
holds  for  his  customer,  if  he  has  that 
amount  of  stock  on  hand  free  and 


S.  365;  Re  Mclntyre,  98  C.  C.  A.  381, 
174  Fed.  627),  a  customer  who  claims 
a  particular  new  certificate  as  his 
must  be  able  to  trace  his  own  Into 
that  one.  In  re  Brown,  183  Fed.  861. 
Where  the  broker  has  sold  his  prin- 
cipal's stock  without  authority  and 
later  has  purchased  more  of  the 
same  sort  with  his  own  money,  there 
is  a  presumption  that  he  intended 
this  to  replace  that  wrongfully  dis- 
posed of.  In  re  Brown,  171  Fed.  254. 

so  See  ante,  §§  1707  et  seq. 

ST  See  ante,  2400. 

ss  Where  a  broker  having  orders  to 
buy  stocks  for  several  principals 
buys  them  in  one  order  for  a  lump 
sum  the  seller  cannot  maintain  an 
action  on  the  contract  against  one  of 
the  principals  for  his  own  share. 
There  was  held  to  be  no  contractual 
relation  between  them  in  such  a  case. 
Beckhuson  v.  Hamblet,  [1900]  2  Q. 
B.  18.  (See  also,  Mollett  v.  Robin- 
son, L.  R.  5  C.  P.  646,  7  C.  P.  84,  7 
H.  L.  802.)  But  see  Scott  v.  Godfrey, 
[1901]  2  K.  B.  726,  where  It  was  held 


2IO2 


CHAP.    Ill] 


OF   BROKERS 


[§    2495 


the  contract  of  the  principal,  though  undisclosed,  he  would  be  liable 
upon  it.89  Where,  on  the  other  hand,  the  broker  has  really  exceeded 
his  authority,  his  principal  is  not  bound ;  nor  can  the  broker  bind  him, 
in  opposition  to  express  instructions,  by  pursuing  his  own  usual  course 
of  dealing,90  except  where  the  instructions  are  to  be  regarded  merely 
as  secret  limitations  upon  an  ostensible  authority. 

§  2495.  No  remedy  if  broker  did  not  act  as  defendant's  agent. — 
It  is  obviously  necessary,  in  order  to  give  a  remedy  to  the  third  person 
against  an  alleged  principal  for  the  act  of  a  broker,  that  the  broker 
shall,  actually  or  ostensibly,  have  been  the  agent  of  the  particular  prin- 
cipal in  that  transaction.  If,  though  he  was  the  agent  of  some  one,  he 
was  not  really  or  ostensibly  the  agent  of  the  principal  sought  to  be 
held  ;  or  if  he  was  not,  in  that  transaction,  acting  as  agent  at  all  but  as  a 
principal  dealing  independently  between  the  plaintiff  and  the  alleged 
principal,  the  latter  cannot  be  held.91 


that  privity  of  contract  was  created, 
and  the  conclusion  in  Beckhuson  v. 
Hamblet,  supra,  was  dissented  from 
by  Bigham,  J.,  in  the  Commercial 
Court. 

so  Anderson  v.  Beard,  [1900]  2  Q. 
B.  260. 

9o  in  Clark  v.  Gumming,  77 
Ga.  64,  4  Am.  St.  Rep.  72,  it 
is  said:  "A  broker  is  a  spec- 
ial agent,  and  derives  his  power  and 
authority  to  bind  his  principal  from 
his  instructions  given  to  him  by  his 
principal.  Code,  sees.  2194,  2196, 
2184;  Story  on  Agency,  32;  1  Esp. 
Ill,  113;  32  Md.  169;  60  111.  237. 
When  definite  instructions  are  given 
by  the  principal  to  the  broker  to  sell 
goods  for  him  at  a  certain  specified 


price  for  a  certain  time  and  day  only, 
this  will  not  authorize  the  broker  to 
contract  and  sell  the  same  kind  of 
goods  for  his  principal  at  a  different 
and  subsequent  time  for  the  same 
price;  his  power  is  limited  by  and 
ceases  with  his  instructions;  and 
this  is  so,  even  though  it  had  been 
usual  in  the  course  of  dealings  be- 
tween the  broker  and  his  principal 
for  the  broker  to  continue  to  sell  at 
the  prices  quoted  last  by  the  princi- 
pal. 32  Md.  179,  180."  As  to  the 
usages  of  the  particular  broker's  of- 
fice, see  Baker  v.  Drake,  66  N.  Y. 
518,  23  Am.  Rep.  80. 

si  Latham    v.    Field,    160    N.    Car. 
335. 


2103 


CHAPTER  IV. 


OP  FACTORS. 


§  2496.  Purpose  of  this  Chapter. 

I.   DEFINITIONS    AND    DISTINCTIONS. 

2497,   2498.  Factor  or   commission 
merchant  defined. 

2499.  Distinction    between    factor 

and  purchaser. 

H.   HOW  APPOINTED. 

2500.  Same  as  other  agents. 

m.   IMPLIED     AUTHORITY     OF     FACTORS. 

2501.  In  general. 

2502.  How  affected  by  usage. 

2503.  To  fix  price  and  terms. 

2504.  To  sell  on  credit. 

2505.  To  sell  in  his  own  name. 
J506.  To  warrant  quality. 

2507.  To  warrant  title. 

2508.  To  receive  payment. 

2509.  2510.  To  pledge. 

2511.  Under  factor's  act. 

2512.  To  pay  his  own  debts. 

2513.  To  barter  or  exchange. 

2514.  To  delegate  his  authority. 

2515.  To  compromise  or  compound 

the  debt. 

2516.  To  submit  to  arbitration. 

2517.  To  rescind  sale. 

2518.  To  extend  time  of  payment. 

2519.  To     receive     anything     but 

money  in  payment. 

2520.  To  make  negotiable  paper. 

2521.  To  insure  property. 

2522.  To  sell  to  himself. 


2525. 
2526. 
2527. 


2528, 
2530. 

2531. 
2532. 
2533. 

2534. 
2535. 

2536. 

2537. 
2538. 
2539. 
2540. 
2541. 
2542. 

2543. 
2544, 

2546. 
2547. 
2548. 
2549. 

2550. 


To  obey  instructions. 

Instructions  to  sell. 

Factor's  right  to  sell,  or 

to  decline  to  sell,  for  his 
his  own  protection. 

2529.  The    measure    of 

damages. 

Instructions  to  sell  for 

cash. 

Instructions  to  insure. 

Duty  to  inform  principal. 
Duty  to  sell  only  to  responsi- 
ble purchaser. 

Del  credere  commission. 

Factor's    duty    to    care    for 

property. 

Unforeseen  contingency 

— Sudden  emergency. 

General  duty  as  to  sales. 

Duty  as  to  place  of  sale. 

Duty  as  to  time  of  sale. 

Duty  as  to  price. 

Duty  in  collecting  price. 

Factor's  duty  in  keeping  ac- 
count 

Not  obliged  to  keep  funds 
separate. 

2545.  Factor's  duty  to  account 
for  money  and  property. 

Set-off. 

Conclusiveness  of  accounts-. 
Duty  in  remitting  money. 
When  principal  may  sue  fac- 
tor. 

Liability  for  acts  of  sub- 
agents. 


V.   EIGHTS    OF    FACTOB    AGAINST    PBINOI- 
PAL. 


IV.   DITTIES    AND   LIABILITIES   TO    PBINOI- 
PAL. 

2523.  To  use   reasonable   care  and 

prudence.  °-  Commissions. 

2524.  To  be  loyal  to  his  principal's         2551.  Factor  entitled  to  compensa- 

interest  tion. 

2IO4 


CHAP.    IV] 


OF  FACTORS 


[§§    2496,2497 


2552.  When  factor  may  have  com- 

missions from  both  parties. 

2553.  When    commission    earned-- 

Upon  what  computed. 

6.  Reimbursement. 

2554.  2555.  Factor  entitled  to  reim- 

bursement. 

2556.  Interest  upon  advances. 

2557.  Conclusiveness     of     ac- 
counts. 

c.  Indemnity. 

2558.  Factor  entitled  to  indemnity 

against  losses. 

d.  Lien. 

2559.  Factor  entitled  to  lien. 

2560.  When  lien  does  not  exist. 

2561.  Nature  of  the  lien. 
2562-2564.  When  lien  attaches. 

2565.  Who  may  confer  lien. 

2566.  How  lien  may  be  lost. 

2567.  How  lien  enforced. 

VI.    BIGHTS     OF    FACTOR    AGAINST    THIRD 
PERSONS. 

a.  In  Contract. 

2568.  2569.  May  sue   for   price  of 

goods  sold. 

2570.  Defences. 

2571.  May  sue  on  contracts  made 

in  his  name. 

6.  In  Tort. 

2572.  May  maintain   trespass,   rep- 

levin or  trover. 

2573.  Actions  against  carriers. 


VH.   RIGHTS       OF       PRINCIPAL      AGAINST 
THIRD   PERSONS. 

a.  In  Contract. 

2574.  May   sue  for  price  of  goods 

sold. 

2575.  What  defenses  principal 

subject  to. 

2576.  2577.  Right  to  follow  proper- 

ty. 

6.  In  Tort. 

2578.  For  injuries  to  or  conversion 

of  the  goods. 

VIII,   RIGHTS  OF  THIRD  PERSONS  AGAINST 
PRINCIPAL. 

2579.  Same  as  in  other  cases. 

2580.  How    when    principal    undis- 

closed. 

2581.  How    when    exclusive   credit 

given  to  the  factor. 

E.   RIGHTS   OF   THIRD   PERSONS   AGAINST 
FACTOR. 

2582.  Same  as  in  other  cases. 

2583.  When  liable  for  conversion. 

2584.  How     in     case     of     foreign 

factor. 

X.   HOW     RELATION     TERMINATED. 

2585.  As  in  other  cases  of  agency- 

Revocation  by  principal. 

2586.  Renunciation  by  agent. 

2587.  Lapse  of  time,  etc. 

2588.  '      War,  death,  bankruptcy, 
etc. 


§  2496.  Purpose  of  this  chapter. — It  is  the  purpose  of  this  chapter, 
as  in  the  preceding  ones  in  Book  V,  to  state  the  most  important  of  the 
general  rules  which  are  applicable  to  the  particular  class  of  agents  now 
being  considered,  so  far  as  it  may  be  necessary  to  supplement  the  dis- 
cussion of  the  general  subject  in  the  earlier  portions  of  the  work. 

I. 

DEFINITIONS  AND  DISTINCTIONS. 

§  2497.  Factor  or  commission  merchant  defined. — As  has  been 
stated  in  the  opening  chapter  of  the  work,  these  terms  are  nearly  or 
quite  synonymous.  The  former  is  the  more  common  in  the  language 

2105 


§    2498]  THE  LAW  OF  AGENCY  [BOOK   V 

of  the  law,  the  latter  in  the  language  of  commerce.  A  factor  is  one 
whose  business  it  is  to  receive  and  sell  goods  for  a  commission.  He 
differs  from  a  broker  in  that  he  is  entrusted  with  the  possession  of  the 
goods  to  be  sold,  and  usually  sells  in  his  own  name.1  He  is  invested 
by  law  with  a  special  property  in  the  goods  to  be  sold  and  a  general 
lien  upon  them,  and  their  proceeds,  for  his  advances ;  and,  unless  there 
be  an  agreement  or  usage  to  the  contrary,  he  may  sell  upon  a  reason- 
able credit.2 

"One  may  be  both  a  factor  and  a  broker,  and  he  may  serve  his  em- 
ployers in  both  of  these  capacities.  When  he  acts  as  a  broker  his  li- 
abilities will  be  governed  by  the  law  applicable  thereto;  and  the  same 
is  true  when  he  acts  as  a  factor.  His  rights  and  liabilities  are  not  gov- 
erned by  the  fact  that  he  acts  oftener  in  one  capacity  than  the  other, 
but  rather  by  the  capacity  in  which  he  acts  in  the  particular  transac- 
tion."8 

§  2498.  Del  credere  commission. — Where,  in  considera- 
tion of  an  increased  commission,  the  factor  guarantees  the  payment  of 
debts  arising  through  his  agency,  he  is  said  to  sell  upon  a  del  credere 
commission.* 

Supercargo.  A  factor  is  called  a  supercargo  when  authorized  to  sell 
a  cargo  which  he  accompanies  on  the  voyage.5 

Consignee.  The  principal  in  these  transactions  is  also  often  called 
the  consignor,  and  the  factor  the  consignee. 

"The  person  to  whom  property  is  consigned  for  sale  is  none  the  less 
a  factor,"  it  is  said,6  "because  he  bestows  labor  upon  it  before  it  is  ready 

i  Sinclair   v.   National    Surety   Co.,  ery  to  him  the  relation  Is  substan- 

132  Iowa,  549.  tially  the  same.     Betts  v.  Southern, 

The  distinction   between  a  broker  etc.,  Exchange,  144  Cal.  402. 
and  a  factor  is  carefully  pointed  out  2  See  post,  §  2504. 
in  Turner  v.  Crumpton,  21  N.  Dak.  z  Green   v.   United   States,  25  App. 
294,    Ann.    Gas.    1913    C,    1015,    with  Gas.  D.  C.  549. 
note,  and  also  in  Hall  v.  Wine  Co.,  *  See  ante,  §  74. 
149  N.  Y.  App.  Div.  609;  J.  M.  Robin-  5  See  ante,  §  74. 
son,  Norton  Co.  v.  Corsicana  Cotton  e  State  v.  Thompson,  120  Mo.  12; 
Factory,  30  Ky.  L.  Rep.  580,  99  S.  W.  First  Nat.  Bank  v.  Schween,  127  111. 
305,  and  it  is  said  to  be  that  the  fac-  573,  n  Am.  St.  Rep.  174. 
tor  has   actual  or  technical   posses-  To   be    a    factor    the   agent   must 
sion  of  the  goods.     To  same  effect:  have   actual   or   constructive   posses- 
People's  Bank  v.  Frick,  13  Okla.  179;  sion  of  the  property.     People's  Bank 
Edgerton   v.    Michels,    66   Wis.    124;  v.  Frick,  13  Okla.  179. 
Beardsley  v.  Schmidt,  120  Wis.  405,  One  may  be  a  factor  though  he  is 
102  Am.  St.  Rep.  991.  to  perform  labor  on  the  goods,  e.  0., 

One   to   whom   goods   are   sent   to  put  wine  sent  him  into  a  marketable 

fulfill  contracts  already  made  is  not  condition.     Lehmann  v.  Schmidt,  87 

technically  a  factor,  yet  after  deliv-  Cal.  15;  or  slaughter  hogs  sent  him, 

2106 


CHAP.    IV]  OF  FACTORS  [§    2499 

for  sale,  and  this  is  true  though  the  character  of  the  property  be  en- 
tirely changed,  as  where  milk  is  converted  into  butter  and  cheese,7  or, 
where  hogs  are  slaughtered  and  manufactured  into  meat."  8 

Although  usually  paid  by  commissions,  he  may  nevertheless  be  a 
factor  and  have  the  rights  of  one,  where  he  is  paid  a  fixed  salary." 

So,  although  a  factor  is  usually  a  selling  agent,  it  is  said  that  he  may 
also  buy,  and  have  the  rights  of  a  factor,  e.  g.}  a  lien,  in  respect  of  his 
purchases.10 

No  separate  consideration  of  the  rights,  duties  and  liabilities  of  com- 
mission merchants  or  consignees  is  here  intended,  but  the  whole  topic 
will  be  treated  under  the  general  title  of  factor. 

§  2499.  Distinction  between  factor  and  purchaser. — It  is  not  at 
all  inconsistent  with  the  factor's  situation  as  an  agent  merely  that  he 
has,  by  special  contract,  undertaken  to  be  personally  responsible  for  the 
payment  of  the  price  of  the  goods  he  sells.  That,  ordinarily,  is  the 
common  case  of  the  del  credere  commission.11  When,  however,  the 
contract  goes  beyond  that,  the  case  is  not  so  clear.  There  comes 
constantly  before  the  courts  for  interpretation,  in  increasing  number, 
a  great  variety  of  contracts,  sometimes  merely  informal  and  meagre, 
sometimes  simply  ambiguous,  but,  more  frequently,  studiously  anom- 
alous and  double-faced,  which  present  some  of  the  aspects  of  an  agency 
and  some  of  the  aspects  of  a  sale,  and  which,  as  has  been  seen  in  an 
earlier  section,12  the  courts,  with  more  or  less  of  consistency,  determine 
in  one  case  to  show  sale  and  in  another  to  indicate  agency,  as  the  char- 
acteristics of  agency  or  sale  may  seem  to  predominate.18  The  event 

G?   ,02 1   .doM   \?>    .tti-\<ifrt;ll    .-.'   v.boY  ?:',r    ,T9tif>>Un>l-  .V   T>y;!r>D  ;.tfiS    .vKl 

and  cure  and   prepare  the  meat  for  out  of  the  proceeds  of  the  business 

sale,  Shaw  v.  Ferguson,  78  Ind.  547;  and  commissions,  and  the  person  em- 

or  make  milk  into  butter  and  cheese  ployed    made    advances    upon    goods 

which  he  is  then  to  sell.     First  Nat.  placed  in  his  hands,  a  jury  was  justi- 

Bank  v.  Schween,  127  111.  573,  11  Am.  fied   in   finding  him   to   be   a   factor 

St.  Rep.  174.  rather  than  a  mere  servant.    Winne 

So  one  may  be  a  factor,  though  he  v.  Hammond,  37  111.  99. 

received  the    goods    in    the    first  in-  1  First  Nat'l  Bank  v.  Schween,  127 

stance  for  the  purpose  of  storage,  and  111.  573,  11  Am.  St.  Rep.  174. 

through   another  party,   if  he  after-  »  Shaw  v.  Ferguson,  78  Ind.  547. 

wards  handles  them  for  sale  by  the  » Winne  v.   Hammond,   37   111.   99; 

authority    of    the    owner.     The    fact  Couturie    v.    Roensch,    —    Tex.    Cit 

that  he  is  to  report  his  proposed  sales  App.  — ,  134  S.  W.  413. 

to  the  principal  for  confirmation  does  lfl  Bryce  v.  Brooks,  26  Wend.    (N. 

not  destroy  his  character  as  factor.  Y.)    367;    Beakley   v.   Rainier    (Tex. 

Beardsley  v.  Schmidt,  120  Wis.  405,  Civ.  App.),  78  S.  W.  702. 

102  Am.  St.  Rep.  991.  "  See  post,  §  2534. 

Where  the  manufacturer  employed  12  See  ante,  §  48. 

one  to  take  care  of  a  store  for  the  *8  Agency   rather    than   sale. — See, 

sale  of  his  goods  to  receive  a  salary  for  example,  Lindsey  Lumber  Co.  v. 

2107 


§  2499] 


THE  LAW  OF  AGENCY 


[BOOK  v 


which  makes  interpretation  necessary  is  usually  the  attempt  by  the  fac- 
tor or  his  creditors  to  apply  the  goods  consigned  to  the  payment  of  the 
factor's  debts. 


Mason,  165  Ala.  194;  Arkansas  Ferti- 
lizer Co.  v.  Banks,  95  Ark.  86;  Romeo 
v.  Martuccl,  72  Conn.  504,  77  Am.  St. 
R.  327,  47  L.  R.  A.  601;  National  Bank 
v.  Goodyear,  90  Ga.  711;  Holleman 
v.  Bradley  Fertilizer  Co.,  106  Ga. 
156;  First  Nat.  Bank  v.  Schween, 
127  111.  573,  11  Am.  St.  Rep.  174; 
Lenz  v.  Harrison,  148  111.  598;  Burt- 
on v.  Goodspeed,  69  111.  237;  Barr  v. 
Am.  Copying  Co.,  142  111.  App.  92; 
Dean  Co.  v.  Lombard,  61  111.  App. 
94;  Pease  v.  Desk  Co.,  100  111.  App. 
244;  Norton  v.  Mellick,  97  Iowa,  564; 
Moline  Plow  Co.  v.  Rodgers,  53  Kan. 
743,  42  Am.  St.  Rep.  317;  McKinney 
v.  Grant,  76  Kan.  779;  Blood  v. 
Palmer,  11  Me.  414;  Sturtevant  Co. 
v.  Dugan,  106  Md.  587;  Planter's  Mut. 
Ins.  Co.  v.  Engle,  52  Md.  468 
(semble);  Eldridge  v.  Benson,  7 
Gush.  (Mass.)  483;  Walker  v.  But- 
terick,  105  Mass.  237;  Weir  Plow  Co. 
v.  Porter,  82  Mo.  23;  Sligh  v.  Kuehne 
Com.  Co.,  135  Mo.  App.  206;  National 
Cordage  Co.  v.  Sims,  144  Neb.  145; 
Cameron  v.  Crouse,  11  N.  Y.  App. 
Dlv.  391;  Col  Iyer  v.  Krakauer,  122 
N.  Y.  App.  Div.  797;  Burr  v.  Koster, 
144  N.  Y.  App.  Div.  31;  Lance  v. 
Butler,  135  N.  Car.  419;  Barteldes 
Seed  Co.  v.  Border  Co.,  26  Okla.  675; 
Balderson  v.  Rubber  Co.,  118  R.  I.  338, 
49  Am.  St.  Rep.  772;  Sioux  Remedy 
Co.  v.  Lindgren,  27  S.  Dak.  123;  Mil- 
burn  Mfg.  Co.  v.  Peak,  89  Tex.  209; 
Barnes  Safe  &  L,  Co.  v.  Bloch  Bros. 
Tohac.  Co.,  38  W.  Va.  158,  45  Am.  St. 
Rep.  846,  22  L.  R.  A.  850;  Williams 
Mower  Co.  v.  Raynor,  38  Wis.  119; 
Metropolitan  Nat  Bank  v.  Benedict 
Co.,  20  C.  C.  A.  377,  74  Fed.  182;  Jos- 
lyn  v.  Cadillac  Auto  Co.,  101  C.  C. 
A.  77,  177  Fed.  863:  In  re  Taft  (C.  C. 
A.),  133  Fed.  511;  Sturm  v.  Boker, 
150  U.  S.  312,  37  L.  Ed.  1093;  Frank- 
lin v.  Stoughton  Wagon  Co.,  94  C. 


C.  A.  269,  168  Fed.  857;  In  re  Gait, 
56  C.  C.  A.  470,  120  Fed.  64;  Ex  parte 
White,  L.  R.  6  Ch.  App.  397. 

Sale  rather  than  agency. — See  for 
example:  Jackson  v.  State,  2  Ala. 
App.  226;  Snelling  v.  Arbuckle,  104 
Ga.  363;  Peoria  Mfg.  Co.  v.  Lyons, 
153  111.  427;  Chickering  v.  Baksess, 
130  111.  206,  17  Am.  St.  Rep.  309; 
Mennis  v.  Manning  Co.,  136  111.  App. 
406;  Aetna  Powder  Co.  v.  Hilde- 
brand,  137  Ind.  462,  45  Am.  St.  Rep. 
194;  Whitman  Agricultural  Co.  v. 
Hornbrook,  24  Ind.  App.  255;  Nor- 
wegian Plow  Co.  v.  Clark,  102  Iowa, 
31;  Alpha  Checkrower  Co.  v.  Brad- 
ley, 105  Iowa,  537;  Hessig-Ellis  Drug 
Co.  v.  Sly,  83  Kan.  60;  McGaw  v. 
Hanway,  120  Md.  197,  87  Atl.  666; 
Granite  Roofing  Co.  v.  Casler,  82 
Mich.  466;  Aspen  wall  Mfg.  Co.  v. 
Johnson,  97  Mich.  531;  Armstrong  v. 
St.  Paul,  etc.,  Co.,  48  Minn.  113;  Co- 
lumbus Buggy  Co.  v.  Turley,  73  Miss. 
529,  55  Am.  St.  Rep.  550,  32  L.  R.  A. 
260  (estoppel) ;  Mack  v.  Tobacco  Co., 
48  Neb.  397,  58  Am.  St.  Rep.  691; 
Yoder  v.  Haworth,  57  Neb.  150,  73 
Am.  St.  Rep.  496;  Conn  v.  Chambers, 
123  N.  Y.  App.  Div.  298,  aff'd,  195  N. 
Y.  538;  Baldwin  v.  Feder,  135  N.  Y. 
App.  Div.  97;  Kellam  v.  Brown,  112 
N.  Car.  451;  Poirer  Mfg.  Co.  v.  Kitts, 
18  N.  Dak.  556;  Hey  wood  v.  Doern- 
becher  Mfg.  Co.,  48  Oreg.  359;  Peek 
v.  Heim,  127  Pa.  500,  14  Am.  St.  Rep. 
865;  Arbuckle  Bros.  v.  Kirkpatrick, 
98  Tenn.  221,  60  Am.  St.  Rep.  854, 
36  L.  R.  A.  285;  Arbuckle  Bros.  v. 
Gates,  95  Va.  802;  Northern  Electri- 
cal Mfg.  Co.  v.  Wagner,  108  Wis.  584; 
Dr.  Miles  Medical  Co.  v.  Park,  164 
Fed.  803,  220  U.  S.  873;  In  re  Lin- 
forth,  4  Sawy.  370,  Fed.  Gas.  No. 
8369;  Ex  parte  Flannagans,  2  Hughes, 
264,  Fed  Cas.  No.  4855;  Nutter  v. 
Wheeler,  2  Low.  346,  Fed.  Cas.  No. 


2108 


•CHAP.    IV]  OF  FACTORS  [§    2500 

In  these  cases,  as  has  often  been  pointed  out,14  names  and  titles  ap- 
plied by  the  parties  are  not  conclusive,  but  the  case  must  be  determined 
by  the  essential  characteristics  of  the  relation  attempted  to  be  created. 

It  is  ordinarily  the  characteristic  of  an  agency  rather  than  of  a  sale 
that  the  principal  retains  the  title  to  the  goods  consigned,  and  to  the 
thing  for  which  they  may  be  exchanged  or  into  which  they  may  be 
transformed,  and  that  the  proceeds  of  them  when  sold  are  to  be  held 
as  such  and  are  to  be  accounted  for  as  his  property ;  that  he  shall  have 
the  right  to  recall  the  goods  or  demand  the  proceeds  at  his  pleasure ; 
that  the  risk  of  their  loss  shall  be  his  unless  specially  assumed  by  the 
other  party ;  that  the  consignor  shall  have  the  right  to  determine  the 
price  and  the  terms  and  conditions  of  sale ;  that  he  shall  not  have  the 
right  to  demand  the  proceeds  until  the  goods  are  sold,  unless  some  other 
special  arrangement  has  been  made ;  that  the  non-payment  of  the  price 
for  which  the  goods  are  sold  shall  be  the  loss  of  the  consignor  unless 
the  other  party  has  specially  agreed  to  indemnify  or  unless  the  loss  can 
be  charged  to  the  neglect  or  default  of  the  other  as  a  selling  agent. 

It  is  not  necessarily  inconsistent  with  the  idea  of  a  present  agency 
that  the  contract  shall  provide  that,  at  the  close  of  the  season  or  the 
happening  of  some  other  event,  the  title  to  the  goods  remaining  unsold 
shall,  at  the  option  of  the  consignor,  or  may,  at  the  option  of  the  con- 
signee, then  vest  in  the  latter  who  shall  thereupon  become  responsible 
for  the  price.15 


II. 

HOW  APPOINTED. 

§  2500.  Same  as  other  agents. — No  formal  mode  of  authorization 
is  requisite  in  the  employment  of  a  factor.  Like  other  agents,  he  may 
be,  and  usually  is,  authorized  by  parol ;  his  appointment  may  be  infer- 
red from  conduct;  and  his  unauthorized  acts  may  be  ratified  by  the 
principal's  subsequent  acquiescence  or  adoption,18 

10384;    In  re  Agnew,  178   Fed.   478;  him  to  recover  the  proceeds  of  a  sale, 

Peale  v.  Marian  Coal  Co.,   190   Fed.  and  it  is  immaterial  whether  a  form- 

376.  al   retainer   is   proved   at   all,   when 

i*  See  Mechem  on  Sales,  §  46.  letters  written  by  him  to  the  plaintiff 

is  Ex  parte  White,  supra;  Norton  show  that  he  received  and  sold  the 

v.  Fisher,  113  Iowa,  595.  property  and  owed  the  plaintiff  for 

ie  See  ante,  §  201  et  seq.  it.     Deshler  v.  Beers,  32  111.  368,  83 

Factor's   retainer   may    be    proved  Am.  Dec.  274. 
by  oral  testimony  in  a  suit  against 

2IO9 


§§    25OI,  2502]  THE  LAW  OF  AGENCY  [BOOK   V 


III. 

IMPLIED  AUTHORITY  OF  FACTORS. 

§  2501.  In  general. — A  factor,  like  other  agents,  possesses  that 
implied  and  incidental  authority  which  is  reasonably  necessary  and 
proper  for  the  execution  of  his  undertaking,  and  which  is  usually  ex- 
ercised by  factors  under  like  circumstances,  and  is  not  forbidden.17 

§  2502.  How  affected  by  usage. — As  in  the  case  of  brokers,  the 
law  regulating  the  transactions  of  factors  is  largely  the  outgrowth  of 
commercial  usage,  and  such  usage  is  constantly  appealed  to  in  inter- 
preting or  defining  their  authority.18  "A  person  who  deals  in  a  par- 
ticular market,"  says  Sheldon,  J.,  "must  be  taken  to  deal  according  to 
the  known,  general  and  uniform  custom  of  that  market;  and  he  who 
employs  another  to  act  for  him  at  a  particular  place  or  market  must 
be  taken  as  intending  that  the  business  will  be  done  according  to  the 
usage  or  custom  of  that  place  or  market,  whether  the  principal  in  fact 
knew  of  the  usage  or  custom  or  not."  19  How  far  this  presumption  of 
knowledge  is  conclusive,  however,  has  been  considered  in  an  earlier 
section.20 

Subject  to  certain  limitations  there  referred  to,  it  is  clear  that  where 
there  are  no  instructions  to  the  contrary,  not  only  does  the  principal 
intend,  but  it  is  the  factor's  duty  to  the  latter,  that  the  factor  shall  con- 
form to  the  regular  and  established  customs  prevailing  in  reference  to 
his  undertaking  at  that  time  and  place.21  So,  on  the  other  hand,  where 
no  instructions  to  the  contrary  are  given,  and  in  the  absence  of  unusual 
exigencies  or  contingencies,  the  factor  has  performed  his  duty  to  his 
principal  when  he  has  performed  his  undertaking  in  the  usual  and  or- 
dinary manner.22 

As  has  often  been  pointed  out,28  however,  no  custom,  not  clearly 
known  and  assented  to,  can  operate  to  change  the  intrinsic  character 

«  See  ante,  §•  715.  v.  Oliver,  130  111.  73;   Kelley  v.  Ma- 
is Phillips  v.  Moir,  69  111.  155;  Ow-  guire,  99  111.  App.  317;  Charlotte  Oil 

ings  v.  Hull,  9  Peters  (U.  S.),  607,  9  Co.  v.  Hartog,  29  C.  C.  A.  56,  85  Fed. 

L.  Ed.  246.  150. 

'»  In  Bailey  v.  Bensley,  87  111.  556,  20  See  ante,  §  716  ct  seq. 

[citing  Story  on  Agency,   §§   60,  96,  21  Phillips    v.    Moir,    69    111.    155; 

199;   1  Chitty  Cont.  llth  Am.  ed.  83;  Kraft  v.  Fancher,  44  Md.  204. 

Sutton   v.   Tatham,   10   A.   &   E.   27;  22  Phillips  v.  Moir,  supra;  Davis  v. 

Bayliffe  v.  Butterworth,  1  Exch.  425;  Kobe,  36  Minn.  214,  1  Am.  St.  Rep. 

Lyon  v.  Culbertson,  83  111.  33,  25  Am.  663. 

Rep.  349;    United  States  L.  Ins.  Co.  23  See  ante,  §  716. 

v.  Advance  Co.,  80  111.  549];  Samuels 

2110 


CHAP.    IV] 


OF  FACTORS 


[§§    2503,2504 


of  the  relation,  or  to  contradict  an  express  contract,  or,  as  between  the 
principal  and  the  factor,  or  the  principal  and  third  persons  charged 
with  notice  of  them,  to  contravene  express  instructions  to  the  con- 
trary.24 

§  2503.  To  fix  price  and  terms. — The  authority  of  the  factor  to  fix 
the  price  and  terms  of  sale  would,  in  general,  be  governed  by  the  same 
considerations  as  those  which  apply  to  other  selling  agents,  and  which 
have  been  dealt  with  in  an  earlier  chapter.25  Limitations  fixed  by  the 
principal  would  ordinarily  be  binding  upon  the  factor,26  and,  so  far  as 
they  had  or  were  charged  with  notice  of  them,  upon  third  persons  also. 
Where  the  goods  were  confided  to  the  factor  without  any  instructions, 
authority  to  exercise  a  fair  and  reasonable  discretion  would  be  im- 
plied.27 

§  2504.  To  sell  on  credit. — It  was  formerly  considered  that  a 
factor  had  no  implied  authority  to  sell  upon  credit,28  but  the  rule  is 
now  well  settled  (although  it  is  undoubtedly  contrary  to  the  ordinary 
rule  respecting  sales  by  agents  29)  that,  in  the  absence  of  instructions 
or  an  usage  to  the  contrary,  the  factor,  if  he  exercises  reasonable  care 
and  prudence  in  the  selection  of  a  responsible  purchaser,30  may  sell  the 
goods  upon  a  reasonable  term  of  credit.31  Where,  however,  he  is  in- 


2*  See  Baxter  v.  Sherman,  73  Minn. 
434,  72  Am.  St.  Rep.  631;  Liebhardt  v. 
Wilson,  38  Colo.  1,  120  Am.  St.  Rep. 
97;  Commonwealth  v.  Cooper,  130 
Mass.  285;  Duguid  v.  Edwards,  50 
Barb.  (N.  Y.)  288;  Bliss  v.  Arnold,  8 
Vt.  252,  30  Am.  Dec.  467;  Hall  v. 
Storrs,  7  Wis.  253;  Britton  v.  Ferrin, 
171  N.  Y.  235. 

25  See  ante,  §  854  et  seq.;  Smart  v. 
Sanders,  3  C.  B.  380. 

26  See  post,  §  2525  et  seq.    Limita- 
tions binding  on   factor  but  not  on 
third   persons   dealing   in    the    usual 
way  without  notice  of  them.     Smith 
v.  Jefferson  Bank,  147  Mo.  App.  461. 

27  Conway  v.  Lewis,  120  Pa.  215,  6 
Am.  St.  Rep.  700. 

28  See    Paley    on    Agency,    26;     2 
Kent's  Com.  622;   Furth  v.  Miller,  67 
Mo.   App.   241;    Babcock   v.   Orbison, 
25  Ind.  75. 

2»  Ordinarily  an  agent  to  sell  has 
no  implied  authority  to  sell  on  cred- 
it. See  ante,  §  893. 

The  rule  respecting  factors  seems  to 


have  been  a  gradual  and  somewhat 
imperceptible  change  from  the  ordu 
nary  rule  that  an  agent  may  sell  on 
credit  if  custom  justifies  it,  to  the 
rule  that  a  factor  may  sell  on  credit 
unless  the  custom  is  not  to  give 
credit.  The  former  statement  of  the 
rule  seems  to  be  the  better  and  safer 
one. 

so  See  post,  §  2533;  Brown  v. 
Funck,  89  Kan.  601. 
•  si  Burton  v.  Goodspeed,  69  111.  237; 
Walker  v.  Dubuque  Fruit  Co.,  113 
Iowa,  428,  53  L.  R.  A.  775;  De  La- 
zardi  v.  Hewitt,  46  Ky.  (7  B.  Mon.) 
697;  Byrne  v  Schwing,  6  B.  Mon. 
(Ky.)  199;  Fisk  v.  Offlt,  3  Mart.  (N. 
S.)  (La.)  553;  Reano  v.  Mager,  11 
Mart.  (O.  S.)  (La.)  636;  Greely  v. 
Bartlett,  1  Greenl.  (Me.)  172,  10 
Am.  Dec.  54;  Pinkham  v.  Crocker,  77 
Me.  563;  Goodenow  v.  Tyler,  7  Mass. 
36,  5  Am.  Dec.  22;  Hapgood  v.  Batch- 
eller,  4  Mete.  (Mass.)  573;  Dwight  v. 
Whitney,  32  Mass.  (15  Pick.)  179; 
Given  v.  Lemoine,  35  Mo.  110;  Day- 


2III 


§§    25°5>  25°6]  THE  LAW  OF  AGENCY  [BOOK   V 

structed  to  sell  for  cash  only,82  or  where  the  custom  is  not  to  grant 
credit,83  a 'factor  has  no  implied  authority  to  sell  upon  credit;  though 
his  secret  instructions  would  not  affect  the  rights  of  a  purchaser  ignor- 
ant of  them  and  dealing  in  reliance  upon  the  customary  authority. 

Upon  a  sale  on  credit,  the  factor  may  take  negotiable  paper  in  his 
own  name  in  payment  and  may  discount  the  same  for  his  principal  or 
surrender  it  up  when  paid.84  But  if  he  discounts  it  for  his  own  ac- 
commodation, he  makes  the  note  his  own,  and  will  be  liable  though 
the  maker  fails.85 

§  2505.  To  sell  in  his  own  name. — In  the  absence  of  instructions 
to  the  contrary,  the  factor  to  whom  the  possession  of  the  goods  is  en- 
trusted has  implied  authority  to  sell  the  goods  in  his  own  name  with- 
out disclosing  that  of  his  principal ; 8e  and  so  well  established  is  this 
custom  that  third  persons  dealing  with  the  factor  in  good  faith  have 
a  right  to  rely  upon  it  until  they  are  notified  to  the  contrary.37 

§  2506.  To  warrant  quality. — A  factor,  like  other  agents  author- 
ized to  sell  goods,38  has,  unless  otherwise  limited,  implied  authority  to 
give  a  warranty  of  the  quality  of  the  goods  sold  if  such  a  warranty  is 
usually  given  on  similar  sales  at  that  time  and  place.39  As  has  often 
been  pointed  out,  the  principal  who  puts  goods  into  the  hands  of  an 

light  Burner  Co.  v.  Odlin,  51  N.  H.  Greely  v.  Bartlett,  1   Greenl.    (Me.) 

36,  12  Am.  Rep.  45;  Van  Alen  v.  Van-  172,  10  Am.  Dec.  64. 

derpool,  6  Johns.   (N.  Y.)   69,  5  Am.  ss  Myers   v.    Entriken,    6   Watts   & 

Dec.   192;    McKinstry   v.   Pearsall,   3  Serg.  (Pa.)  44,  40  Am.  Dec.  538. 

Johns.  (N.  Y.)  319;  Robertson  v.  Liv-  se  Baring  v.  Corrie,  2  B.  &  Aid.  137; 

ingston,  5  Cow.   (N.  Y.)  473;   Leland  Ex  parte  Dixon,  4  Ch.  Div.  133;  Gra- 

v.   Douglass,   1   Wend.    (N.  Y.)    490;  ham  v.  Duckwall,  8  Bush  (Ky.),  12. 

Geyer   v.    Deckler,    1    Yeates    (Pa.),  s* Ex  parte  Dixon,  supra. 

486;    James  v.  McCredie,   1  Bay    (S.  ss  See  ante,  §  880,  et  seq. 

C.),  294  ,  1  Am.  Dec.  617;  McConnico  so  Randall  v.  Kehlor,  60  Me.  37,  11 

v.  Curzen,  2  Call.   (Va.)   358,  1  Am.  Am.  Rep.  169;   Schuchardt  v.  Aliens, 

Dec.  540;    Houghton  v.   Matthews,   3  1  Wall.   (U.  S.)   359,  17  L.  Ed.  642; 

B.  &  P.  485;  Scott  v.  Surman,  Willes,  Andrews  v.  Kneeland,  6  Cow.  (N.  Y.) 

400.  354;     Dingle     v.     Hare,     7     C.     B. 

82  Bliss  v.  Arnold,  8  Vt.  252,  30  Am.  (N.    S.)     145.       See     also,     Pickert 

Dec.  467;   Hall  v.  Storrs,  7  Wis.  253;  v.  Marston,  68  Wis.  465,  60  Am.  Rep. 

Barksdale  v.  Brown,  1  Nott  &  McC.  876;   Herring  v.  Skaggs,  68  Ala.  180, 

(S.  C.)  517,  9  Am.  Dec.  720.  34    Am.    Rep.    4;    Upton    v.    Suffolk 

«»Harbert    v.  Neill,  49    Tex.    143;  Mills,  11  Cush.   (Mass.)   586,  59  Am. 

Neill  v.   Billingsley,   Id.   161;    Kauff-  Dec.  163;  Smith  v.  Tracy,  36  N.  Y.  79; 

man  v.  Beasley,  54  Tex.  563  (holding  Ahern  v.  Goodspeed,  72  N.  Y.  108. 

that  the  rule  in  the  Galveston  cotton  But  see  Argersinger  v.  Macnaugh- 

market  is  not  to  give  credit  unless  ton,  114  N.  Y.  535,  11  Am.  St.  Rep. 

authorized).  687,  where  there  was  no  evidence  of 

s*  Goodenow  v.  Tyler,  7  Mass.  36,  5  any  custom  to  warrant  and  there  was 

Am.   Dec.   22;    West  Boylston  Mnfg.  some  evidence  that  it  was  not  the 

Co.  v.  Searle,  15  Pick.   (Mass.)   225;  custom.    The  factor  gave  a  warranty. 

2112 


CHAP.    IV]  OF  FACTORS 

agent  for  sale  in  the  market  presumptively  intends  that  they  shall  be 
sold  in  the  usual  and  ordinary  way.  This  would  include  giving  the 
usual  warranties,  if  any,  or  a  sale  by  sample  where  that  is  usual.40 

The  same  rule  which  justifies  the  usual  warranties  equally  excludes 
the  unusual  or  extraordinary  ones.41 

§  2507.  To  warrant  title. — A  factor  would  undoubtedly  ordinarily 
be  held  to  have  implied  authority  to  warrant  his  principal's  title  to  the 
goods,  which  the  latter  as  owner  undertakes  to  authorize  the  factor  to 
sell.42  If  the  factor,  without  disclosing  his  principal,  sells  the  goods 
as  though  he  were  himself  the  owner,  he  would  undoubtedly  be  person- 
ally liable  on  such  an  implied  warranty.43 

§  2508.  To  receive  payment. — Being  intrusted  with  the  posses- 
sion of  the  goods  which  he  is  authorized  to  sell  and  deliver,  and  having 
implied  authority  to  sell  in  his  own  name,  the  factor  may  undoubtedly 
receive  so  much  of  the  payment  for  the  goods  sold,  as,  by  the  terms  of 
the  contract,  is  to  be  made  at  the  time  of  the  sale ;  and  also,  where  he 
has  sold  in  his  own  name,  he  may  receive  payment  in  the  ordinary 
course  of  business  and  in  accordance  with  the  terms  of  the  contract  of 
sale.44 

After  his  undertaking  in  the  matter  was  ended  he  would  have  usually 
no  implied  authority  to  receive  deferred  payments  subsequently  falling 
due  upon  the  contract  he  negotiated ; 45  and  his  right  to  receive  or  col- 
lect payment  would  usually  be  subordinate  to  that  of  the  principal  ex- 
cept where  the  factor's  security  for  advances  and  the  like  would  thereby 
be  impaired.46 

Where  he  may  receive  payment,  he  may  give  the  necessary  and  ap- 
propriate receipts  therefor.47 

He  did  not  disclose  the  name  of  his  «  As,  for  example,  upon  a  sale  of 

principal,  though  the   referee  found  corporate  stock.     Smith  v.  Tracy,  36 

that  he  made  the  sale  on  account  of  N.  Y.  79. 

his  principal  and  that  the  buyer  knew  *a  See  ante,  §  891. 

he  was  acting  as  an  agent  for  some  «  Edgerton  v.  Michels,  66  Wis.  124, 

principal.     It  was  held  that  the  war-  25  Am.  L.  Reg.  260. 

ranty  must  be  deemed  to  be  that  of  44  Drinkwater    v.    Goodwin,    Cowp. 

the    factor    personally,  and    he    was  251;   Rice  v.  Groffmann,  56  Mo.  434; 

held    liable.      The    court    said    that  Adams  v.  Fraser,  27  C.  C.  A.  108,  82 

where  nothing  else  appeared  it  must  F.  211. 

be   presumed   that   a   principal   who  *»  See  Adams  v.  Fraser,  supra. 

sent   goods  to   a   factor   for  sale   in-  «  See  ante,  §  2037. 

tended  him  to  ascertain  in  what  con-  47  Corlies  v.  Cumming,  6  Cow.   (N. 

dition  they    were    and    to   sell  them  Y.)   181;   Van  Staphorst  v.  Pearce,  4 

only  as  such.  Mass.  258. 
«  See  Andrews  v.  Kneeland,  supra. 

133  2113 


§  2509] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2509.  To  pledge. — In  the  absence  of  a  statute  protecting  such 
pledges,  the  rule  is  well  established  that  a  factor  has  no  implied  au- 
thority to  pledge  the  principal's  goods  for  the  factor's  own  debt,  or  for 
advances  made  to  himself.48  This  doctrine  results  from  the  fact  that 
the  factor  is  but  an  agent,  and  as  such  can  bind  his  principal  only  when 
his  acts  are  within  the  scope  of  his  authority.  Authority  to  sell  for  the 
benefit  of  his  principal  can  in  no  way  be  stretched  into  authority  to 
pledge  for  his  own  benefit.  Nor  does  it  make  any  difference  that  the 
pledgee  was  ignorant  of  the  extent  of  the  factor's  authority,  or  sup- 
posed him  to  be  the  real  owner  of  the  goods.*9  As  in  the  case  of  other 
agents,  the  person  dealing  with  the  factor  must  ascertain  the  extent  of 
his  authority,  and  omits  to  do  so  at  his  peril.  Mere  local  usages  not 
known  and  assented  to  cannot  change  the  rule.50 


«Bott  v.  McCay,  20  Ala.  578,  56 
Am.  Dec.  223;  Horr  v.  Barker,  11  Cal. 
393,  70  Am.  Dec.  791;  Wright  v.  Solo- 
mon, 19  Cal.  64,  79  Am.  Dec.  196; 
Chicago  Taylor  Printing  Press  Co.  v. 
Lowell,  60  Cal.  454;  Leet  v.  Wads- 
worth,  56  Cal.  404;  Costikyan  v. 
Sloan,  33  App.  D.  C.  420;  First  Nat. 
Bank  v.  Nelson,  38  Ga.  391,  95  Am. 
Dec.  400;  Gray  v.  Agnew,  95  111.  315; 
Berry  v.  Allen,  59  111.  App.  149;  First 
Nat.  Bank  v.  Schween,  127  111.  573, 
11  Am.  St.  Rep.  174;  First  Nat.  Bank 
v.  Boyce,  85  Ky.  42,  39  Am.  Rep.  198; 
Stetson  v.  Gurney,  17  La.  165;  Had- 
win  v.  Fisk,  1  La.  Ann.  43;  Bonniot 
v.  Fuentes,  10  La.  Ann.  70;  Hadwin  v. 
Fisk,  1  La.  Ann.  74;  Holton  v.  Hub- 
bard,  49  La.  Ann.  715;  Miller  v. 
Schneider,  19  La.  Ann.  300,  92  Am. 
Dec.  535;  Young  v.  Scott,  25  La.  Ann. 
313;  Kinder  v.  Shaw,  2  Mass.  397; 
Hoffman  v.  Noble,  6  Mete.  (Mass.)  68, 
39  Am.  Dec.  711;  Thurston  v.  Blan- 
chard,  22  Pick.  (Mass.)  20,  33  Am. 
Dec.  700;  Nowell  v.  Pratt,  59  Mass. 
(5  Cush.)  Ill;  Michigan  State  Bank 
v.  Gardner,  81  Mass.  (15  Gray)  362; 
Clark  v.  Edwards,  44  Miss.  778; 
Benny  v.  Rhodes,  18  Mo.  147,  59  Am. 
Dec.  293;  National  Bank  v.  Ross,  9 
Mo.  App.  399;  Benny  v.  Pegram,  18 
Mo.  191,  59  Am.  Dec.  298;  Hayard  v. 
Fiske,  83  N.  Y.  287;  Kennedy  v. 
Strong,  14  Johns.  (N.  Y.)  128;  Rodri- 
guez v.  Hefferman,  5  Johns.  Ch.  (N. 


Y.)  417;  Bank  v.  Pope,  19  Ore.  35; 
Newbold  v.  Wright,  4  Rawle  (Pa.), 
195;  Bowie  v.  Napier,  1  McCord  (S. 
C.),  1,  10  Am.  Dec.  641;  Merchants' 
Nat.  Bank  v.  Trenholm,  12  Heisk. 
(Tenn.)  520;  McCreary  v.  Gaines,  55 
Tex.  485,  40  Am.  Rep.  818;  Steiger  v. 
Third  Nat.  Bank.  6  Fed.  569;  Halsley 
v.  Bird,  39  C.  C.  A.  638,  99  Fed.  525; 
Van  Amringe  v.  Peabody,  1  Mason 
(U.  S.  C.  C.),  440,  Fed.  Gas.  No. 
16,825;  Allen  v.  St.  Louis  Bank,  120 
U.  S.  20,  30  L.  Ed.  573;  Insurance 
Co.  v.  Kiger,  103  U.  S.  352,  26  L.  Ed. 
433;  Warner  v.  Martin,  11  How.  (U. 
S.)  209,  13  L.  Ed.  667;  Paterson  v. 
Tash,  2  Stra.  1178;  McCombie  v. 
Davies,  6  East,  538;  Pickering  v. 
Busk,  15  East,  38;  Phillips  v.  Huth, 
6  M.  &  W.  572;  Cole  v.  Northwestern 
Bank,  L.  R.  10  C.  P.  354. 

Where  the  factor  may  not  pledge, 
the  situation  is  not  altered  by  the 
fact  that  he  deposits  the  goods  in  a 
warehouse  and  pledges  the  receipt. 
Commercial  Bank  v.  Hurt,  99  Ala. 
130,  42  Am.  St.  Rep.  38,  19  L.  R.  A. 
701;  Soltau  v.  Gerdau,  119  N.  Y.  380, 
16  Am.  St.  Rep.  843. 

«  Wright  v.  Solomon,  19  Cal.  64,  79 
Am.  Dec.  196;  Phillips  v.  Huth,  6  M. 
&  W.  572;  Warner  v.  Martin,  11  How. 
(U.  S.)  209,  13  L.  Ed.  667,  and  many 
other  cases  in  the  preceding  note. 

BO  Newbold  v.  Wright,  4  Rawle 
(Pa.),  195. 


2114 


CHAP.    IV] 


OF  FACTORS 


[§    2510 


This  rule  at  common  law  operates  to  prevent  a  transfer  or  indorse- 
ment of  a  bill  of  lading  or  warehouse  receipt  by  way  of  security  for 
the  factor's  debt,  as  well  as  the  actual  delivery  of  the  goods  themselves 
in  pledge,81  but  the  tendency  of  modern  decisions  and  statutes  is  to 
protect  one  who,  in  good  faith,  has  advanced  money  in  reasonable  re- 
liance upon  documents  which  by  commercial  usage  are  regarded  as 
evidence  either  of  ownership  or  an  unlimited  power  of  disposition.52 

§  2510.  •  But  it  has  been  held  that  a  factor  may  pledge  the 

goods  for  the  payment  of  charges  against  the  goods  themselves,  as  for 
duties  levied  upon  them,53  or  to  meet  a  sight  draft  drawn  by  the  prin- 
cipal against  the  proceeds  before  the  goods  were  sold,  the  factor  hav- 
ing no  other  fund  of  the  principal  in  his  possession  with  which  to  honor 
the  draft.54  So  it  has  been  held  that,  though  a  pledge  by  the  factor 
was  unauthorized,  a  bona  fide  pledgee  will  be  protected  to  the  extent 
of  the  factor's  charge  against  the  principal.65 

Like  other  unauthorized  acts  of  an  agent,  however,  a  pledge  by  the 
factor  may  be  ratified  by  the  principal,  and  if  he  is  content  with  it,  no 
outsider  has  ordinarily  any  right  to  complain.58  The  factor  himself, 
therefore,  can  not  allege  his  own  tortious  act  to  sustain  an  action  in 
his  own  name  against  the  pledgee  for  the  recovery  of  the  goods  or 
their  value.57 


si  Newsom  v.  Thornton,  6  East,  17; 
Phillips  v.  Huth,  6  M.  &  W.  572;  Allen 
v.  St.  Louis  Bank,  120  U.  S.  20,  30  L. 
Ed.  573;  Rice  v.  Cutler,  17  Wis.  351; 
Erie,  etc.,  Co.  v.  St.  Louis  Co.,  6  Mo. 
App.  172. 

Clearly  not  where  the  fact  that  he 
is  only  an  agent  appears  on  the  face 
of  the  document.  Thurber  v.  Cecil 
Nat.  Bank,  52  Fed.  513. 

52  See  Commercial  Bank  v.  Armsby, 
120  Ga.  74,  65  L.  R.  A.  443;  Munroe  v. 
Warehouse  Co.,  75  Fed.  545. 

See  also,  the  Uniform  Bills  of  Lad- 
ing Act;  the  Uniform  Warehouse  Re- 
ceipts Act;  the  Uniform  Sales  Act. 

53  Evans  v.  Potter,  2  Gall.  (U.  S.  C. 
C.)  12,  Fed.  Gas.  No.  4,569. 

Re-pledging. — Factor  may  repledge 
or  transfer  his  claim  and  possession 
to  the  extent  of  his  own  interest  and 
with  notice  of  the  facts  to  another  to 
r-old  for  him.  Silverman  v.  Bush,  16 
111.  App.  437;  Nash  v.  Moshier,  19 
Wend.  (N.  Y.)  431;  Urquhart  v.  Mc- 
Iver,  4  Johns.  (N.  Y.)  103. 


5+  Boyce  v.  Commerce  Bank,  22 
Fed.  53.  But  see  Graham  v.  Dyster, 
2  Stark.  N.  P.  23;  Gill  v.  Kymer,  5 
Moore,  503,  s.  c.  sub  nom.;  Fielding 
v.  Kymer,  2  Brod.  &  B.  639. 

55  First  National  Bank  v.  Boyce,  78 
Ky.  42,  39  Am.  Rep.  198;  Chambers  v. 
Hubbard,  51  La.  Ann.  887;  Warner  v. 
Martin,  11  How.  (U.  S.)  209,  13  L. 
Ed.  667.  Contra,  Merchants'  Bank  v. 
Trenholm,  12  Heisk.  (Tenn.)  520. 
See  also,  Walther  v.  Wetmore,  1  E.  D. 
Smith  (N.  Y.),  7;  Bonito  v.  Mosquera, 
2  Bosw.  (N.  Y.)  401. 

BeBott  v.  McCoy,  20  Ala.  578,  56 
Am.  Dec.  223;  Meyer  v.  Morgan,  51 
Miss.  21,  24  Am.  Rep.  617;  Silverman 
v.  Bush,  16  111.  App.  437. 

As  in  other  cases,  however,  the 
principal  will  not  be  deemed  to  have 
ratified  unless  he  had  knowledge  that 
the  agent  had  exceeded  his  authority. 
Bryant  v.  Moore,  26  Me.  84,  45  Am. 
Dec.  96. 

sTBott  v.  McCoy,  20  Ala.  578,  66 
Am.  Dec.  223. 


2115 


§    2511] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2511.  — Under  Factor's  Acts. — This  rule  which  declares  in- 
valid the  unauthorized  pledge  by  the  factor,  confessedly  works  great 
hardships  to  innocent  parties  who  have,  in  good  faith,  relied  upon  the 
possession  and  apparent  ownership  of  the  factor,  and  courts  have  fre- 
quently, while  declaring  that  the  rule  was  too  well  settled  to  be  shaken, 
expressed  the  opinion  that  it  might  better  originally  have  been  settled 
the  other  way. 

To  remedy  this  hardship,  the  English  Parliament,58  and  the  legis- 
latures of  a  few  of  the  States  have  passed  what  are  ordinarily  known 
as  Factors'  Acts,  for  the  protection  of  those  who  in  good  faith  have 


us  in  a  series  of  statutes  beginning 
in  1824  and  extending  to  1889.  See 
the  most  recent  one,  52  and  53  Vic- 
toria, Chap.  45.  The  important  sec- 
tion of  this  Act  is  the  following: 

"2.  (1)  Where  a  mercantile  agent 
Is,  with  the  consent  of  the  owner,  in 
possession  of  goods  or  of  the  docu- 
ment of  title  to  goods,  any  sale, 
pledge  or  other  disposition  of  the 
goods  made  by  him,  when  acting  in 
the  ordinary  course  of  business  of  a 
mercantile  agent,  shall,  subject  to 
the  provisions  of  this  Act,  be  as  valid 
as  if  he  were  expressly  authorized 
by  the  owner  of  the  goods  to  make 
the  same;  provided  that  the  person 
taking  under  the  disposition  acts  in 
good  faith,  and  has  not  at  the  time 
of  the  disposition  notice  that  the  per- 
son making  the  disposition  has  not 
authority  to  make  the  same.  (2) 
Where  a  mercantile  agent  has,  with 
the  consent  of  the  owner,  been  in  pos- 
session of  goods  or  of  the  documents 
of  title  to  goods,  any  sale,  pledge  or 
other  disposition,  which  would  have 
been  valid  if  the  consent  had  con- 
tinued, shall  be  valid  notwithstand- 
ing the  determination  of  the  consent; 
provided  that  the  person  taking  un- 
der the  disposition  has  not  at  the 
time  thereof  notice  that  the  consent 
has  been  determined.  (3)  Where  a 
mercantile  agent  has  obtained  posses- 
sion of  any  documents  of  title  to 
goods  by  reason  of  his  being  or  hav- 
ing been,  with  the  consent  of  the 
owner,  In  possession  of  the  goods 


represented  thereby,  or  of  any  other 
documents  of  title  to  the  goods,  his 
possession  of  the  first  mentioned 
documents  shall,  for  the  purposes  of 
this  Act,  be  deemed  to  be  with  the 
consent  of  the  owner.  (4)  For  the 
purposes  of  this  Act  the  consent  of 
the  owner  shall  be  presumed  in  the 
absence  of  evidence  to  the  contrary. 

"3.  A  pledge  of  the  documents  of 
title  to  goods  shall  be  deemed  to  be 
a  pledge  of  the  goods. 

"4.  Where  a  mercantile  agent 
pledges  goods  as  security  for  a  debt 
or  liability  due  from  the  pledger  to 
the  pledgee  before  the  time  of  the 
pledge,  the  pledgee  shall  acquire  no 
further  right  to  the  goods  than  could 
have  been  enforced  by  the  pledgor  at 
the  time  of  the  pledge. 

"5.  The  consideration  necessary  for 
the  validity  of  a  sale,  pledge,  or 
other  disposition,  of  goods,  in  pursu- 
ance of  this  Act,  may  be  either  a 
payment  in  cash,  or  the  delivery  or 
transfer  of  other  goods,  or  of  a  docu- 
ment of  title  to  goods,  or  of  a  nego- 
tiable security,  or  any  other  valuable 
consideration;  but  where  goods  are 
pledged  by  a  mercantile  agent  in  con- 
sideration of  the  delivery  or  trans- 
fer of  other  goods,  or  of  a  document 
of  title  to  goods,  or  of  a  negotiable 
security,  the  pledgee  shall  acquire 
no  right  or  interest  in  the  goods  so 
pledged  in  excess  of  the  value  of  the 
goods,  documents,  or  security  when 
so  delivered  or  transferred  in  ex- 
change." 


2116 


CHAP.    IV] 


OF  FACTORS 


[§    2511 


dealt  with  the  factor  in  the  belief  that  he  was  the  true  owner  of  the 
goods.59 

While  these  Acts  vary  in  their  provisions,  they  are  in  general  de- 
signed for  the  protection  of  those  who  in  good  faith,  and  in  ignorance 
of  any  defect  of  title  in  the  pledger,  or  of  the  claims  of  others  to  it,  ad- 
vance money  or  incur  liability  upon  the  faith  of  the  merchandise  arid 
ownership  thereof  by  the  pledger,  as  evidenced  by  the  possession  of 
the  property,  or  the  documentary  evidence  of  title  with  which  he  has 

money  advanced,  or  on  restoration  of 
the  security  given,  on  the  deposit  of 
such  merchandise,  and  upon  satisfy- 
ing such  lien  as  may  exist  thereon  in 
favor  of  the  agent  who  may  have  de- 
posited the  same;  nor  from  recover- 
ing any  balance  which  may  remain 
in  the  hands  of  the  person  with  whom 
such  merchandise  shall  have  been  de- 
posited as  the  produce  of  the  sale 
thereof,  after  satisfying  the  amount 
justly  due  to  such  person  by  reason 
of  such  deposit." 

Statutes  of  this  general  nature,  hut 
varying  more  or  less  in  details,  are 
found  in  Maine,  Rev.  Stats.,  1903, 
Ch.  33;  Maryland,  Rev.  Code  (1904), 
Art.  II;  Massachusetts,  Rev.  L. 
(1902),  Ch.  68;  Ohio,  Rev.  St.  (1906), 
§§  3215-3219;  Pennsylvania,  Purdon's 
Dig.  (1903),  title,  Factors;  Rhode 
Island,  Pub.  St.  (1896),  Ch.  158. 

The  former  act  in  Kentucky  was 
repealed  in  1886>  and  the  Wisconsin 
act  seems  to  have  been  repealed,  per- 
haps inadvertently.  See  note  to 
§  3346,  Wis.  Statutes  (1898). 

In  Missouri  there  seems  to  be  no 
general  Factor's  Act,  the  only  provi- 
sion applicable  being  that  in  regard 
to  warehouse  receipts  and  bills  of 
lading,  §  5054  of  Code  (1899). 

In  Ontario,  see  Revised  Statutes  of 
1897,  Chap.  150. 

Where  goods  are  consigned  by 
plaintiff  in  New  York  to  agents  In 
Washington,  D.  C.,  who  wrongfully 
pledged  them  there,  the  New  York 
statute  affords  the  pledgee  no  protec- 
tion. Costikyan  v.  Sloan,  33  App.  D. 

" 


sfl  The  Factors'  Act  of  New  York 
(see  now  Personal  Property  Law, 
§  43,  Consol.  Laws  of  1909)  after 
which  many  of  those  of  the  other 
states  have  been  modeled,  provides: 

"  §  3.  Every  factor  or  other  agent, 
entrusted  with  the  possession  of  any 
bill  of  lading,  custom-house  permit, 
or  warehouse-keeper's  receipt  for  the 
delivery  of  any  such  merchandise, 
and  every  such  factor  or  agent  not 
having  the  documentary  evidence  of 
title,  who  shall  be  entrusted  with  the 
possession  of  any  merchandise  for 
the  purpose  of  sale,  or  as  a  security 
for  any  advances  to  be  made  or  ob- 
tained thereon,  shall  be  deemed  to 
be  the  true  owner  thereof,  so  far  as 
to  give  validity  to  any  contract  made 
by  such  agent  with  any  other  person, 
for  the  sale  or  disposition  of  the 
whole  or  any  part  of  such  merchan- 
dise, for  any  money  advanced,  or 
negotiable  instrument  or  other  obli- 
gation in  writing,  given  by  such 
other  person  upon  the  faith  thereof. 

"  §  4.  Every  person  who  shall  here- 
after accept  or  take  any  such  mer- 
chandise in  deposit  from  any  such 
agent,  as  a  security  for  any  ante- 
cedent debt  or  demand,  shall  not  ac- 
quire thereby,  or  enforce  any  right  or 
interest  in  or  to  such  merchandise  or 
document,  other  than  possessed  or 
might  have  been  enforced  by  such 
agent  at  the  time  of  such  deposit. 

"  §  5.  Nothing  contained  in  the  two 
last  preceding  sections  of  this  act, 
shall  be  construed  to  prevent  the  ^rue 
owner  of  any  merchandise  so  depos- 
ited, from  demanding  or  receiving 
the  same,  upon  repayment  of  the 

2117 


§    2512] 


THE  LAW  OF  AGENCY 


[BOOK  V 


been  intrusted  by  the  owner.  It  is  the  act  of  the  owner  in  intrusting 
the  factor  with  the  possession  of  the  goods,  or  the  documentary  evi- 
dence of  ownership, — the  apparent  ownership  and  right  of  disposal, — 
in  connection  with  the  fact  that  innocent  third  persons  deal  with  him 
upon  the  faith  of  such  apparent  ownership,  that  estops  the  owner  from 
following  his  property  into  the  hands  of  bona  Me  vendees  or  pledgees, 
and  gives  the  latter  a  better  title  than  their  vendor  or  pledger  had.80 

§  2512.  To  pay  his  own  debts. — For  reasons  similar  to  those 
which  deny  his  authority  to  pledge,  the  factor,  except  where  the  statute 
is  broad  enough  to  cover  it,61  cannot  confer  title,  even  upon  a  bona  Me 
holder,  by  turning  out  the  principal's  goods  in  payment  of  his  own 
debts,62  even  though  the  accounts  between  the  principal  and  the  factor 
may  be  in  the  factor's  favor.63 


«o  Under  the  Massachusetts  statute, 
the  goods  must  be  "intrusted  for 
sale,"  and  consequently  where  the 
factor  obtains  them  by  fraud  or  vir- 
tual larceny,  he  is  not  within  the 
statute.  Prentice  Co.  v.  Page,  164 
Mass.  276.  Same  in  New  York  where 
factor,  having  obtained  goods  by 
fraud,  deposited  them  in  warehouse 
and  pledged  the  warehouse  receipt. 
Soltau  v.  Gerdau,  119  N.  Y.  380,  16 
Am.  St.  Rep.  843. 

Where  a  travelling  salesman,  in- 
trusted with  diamonds  for  sale, 
wrongfully  pledged  them,  through  his 
agent  but  in  a  fictitious  name,  to  one 
who  advanced  money  upon  them  in 
good  faith,  he  was  held  to  be  within 
the  protection  of  the  statute.  Freu- 
denheim  v.  Gutter,  201  N.  Y.  94. 

Same,  where  owner  of  Jewelry  de- 
livered to  a  broker  to  sell  on  com- 
mission and  the  broker  pawned  it  to 
a  6ono  fide  pledgee.  Schmidt  v. 
Simpson,  204  N.  Y.  434,  Ann.  Gas., 
1913,  C,  1288,  with  Note.  See  also, 
Cairns  v.  Page,  165  Mass.  552. 

Same,  where  jewelry  was  delivered 
to  a  retail  dealer  to  be  shown  to  a 
possible  customer,  and  it  appeared 
to  be  the  custom  of  the  trade  that 
such  a  person  had  implied  authority 
to  sell  if  the  customer  desired  to  buy. 


Marsellus  v.  Simpson,  143  N.  Y.  App. 
Div.  383.  But,  contra,  where  there 
was  no  such  implied  authority  to 
sell.  Boston  Supply  Co.  v.  Rubin, 
214  Mass.  ,  101  N.  E.  133. 

01  That  the  ordinary  Factor's  Acts 
are  not  broad  enough  to  justify  this, 
see  Warner  v.  Martin,  11  How.  (U. 
S.)  209,  13  L.  Ed.  667;  Victor  Sew- 
ing Machine  Co.  v.  Heller,  44  Wis. 
265. 

But  in  California  see  Davis  v.  Rus- 
sell, 52  Cal.  611,  28  Am.  Rep.  647. 

ea  Pemberton  v.  Price,  144  Ky.  518; 
Benny  v.  Rhodes,  18  Mo.  147,  59  Am. 
Dec.  293;  Benny  v.  Pegram,  18  Mo. 
191,  59  Am.  Dec.  298;  Holton  v. 
Smith,  7  N.  H.  446;  Hoffman  v. 
Kramer,  123  N.  Car.  566;  Warner  v. 
Martin,  11  How.  (U.  S.)  209,  13  L. 
Ed.  667. 

It  is  no  answer  to  this  rule  to  say 
that  the  factor  might  have  sold  the 
goods,  and  received  and  squandered 
the  money,  thus  passing  the  title  and 
leaving  the  principal  with  no  remedy, 
except  against  the  factor.  "It  has 
been  supposed,"  says  Mr.  Justice 
Wayne  of  the  Supreme  Court  of  the 
United  States,  "that  the  right  of  a 
factor  to  sell  the  merchandise  of  his 
principal  to  his  own  creditor,  in  pay- 
ment of  an  antecedent  debt,  finds  its 


•a  Benny  v.  Pegram,  18  Mo.  191,  59  Am.  Dec.  298. 
2118 


CHAP.    IV] 


OF  FACTORS 


[§    2513 


A  local  custom  among-  the  factors  in  a  given  city  "having  a  sort  of 
weekly  clearance  between  themselves"  to  settle  accounts  among  them- 
selves by  striking  a  balance  "without  regard  to  whether  such  bills  were 
due  to  or  from  them  as  factors  or  principals,"  will  not  affect  the  prin- 
cipal nor  give  the  purchaser  a  right  to  offset  a  debt  due  him  from  the 
factor.64 

An  unauthorized  disposition  of  the  .principal's  property  to  pay  the 
agent's  debt  may  undoubtedly  be  ratified  by  the  principal,  but,  in  order 
to  make  such  ratification  effective,  the  general  requirement  that  the  act 
must  purport  to  have  been  done  on  account  of  the  principal 65  must  be 
satisfied.66 

§  2513.  To  barter  or  exchange. — A  factor  is,  ordinarily,  employed 
to  sell  goods,  and  like  other  "agents  similarly  empowered,67  he  has  no 


sanction  in  the  fact  of  the  creditor's 
belief  that  his  debtor  is  the  owner  of 
the  merchandise,  and  his  ignorance 
that  it  belongs  to  another,  and  if  in 
the  last,  he  has  been  deceived,  that 
the  person  by  whom  the  delinquent 
factor  has  been  trusted  shall  be  the 
loser.  The  principle  does  not  cover 
the  case.  When  a  contract  is  pro- 
posed between  factors,  or  between  a 
factor  and  any  other  creditor,  to  pass 
property  for  an  antecedent  debt,  it  is 
not  a  sale  in  the  legal  sense  of  that 
word  or  in  any  sense  in  which  it  is 
used  in  reference  to  the  commission 
which  a  factor  has  to  sell.  William- 
son v.  Berry,  8  How.  495,  12  L.  Ed. 
1170.  It  is  not  according  to  the  usage 
of  trade.  It  is  a  naked  transfer  of 
property  in  payment  of  a  debt. 
Money,  it  is  true,  is  the  consideration 
of  such  a  transfer,  but  no  money 
passes  between  the  contracting 
parties.  The  creditor  pays  none,  and 
when  the  debtor  has  given  to  him 
the  property  of  another  in  release  of 
his  obligation,  their  relation  has 
only  been  changed  by  his  violation 
of  an  agency  which  society,  in  its 
business  relations,  cannot  do  with- 
out, which  every  man  has  a  right  to 
use,  and  which  every  person  under- 
taking it  promises  to  discharge  with 
unbroken  fidelity.  When  such  a 
transfer  of  property  is  made  by  a 


factor  for  his  debt,  it  is  a  departure 
from  the  usage  of  trade,  known  a* 
well  by  the  creditor  as  it  is  by  the 
factor.  It  is  more;  it  is  the  viola- 
tion of  all  that  a  factor  contracts  to 
do  with  the  property  of  his  principal. 
It  has  been  given  to  him  to  sell.  He 
may  sell  for  cash,  or  he  may  do  so 
upon  credit,  as  may  be  the  usage  of 
trade.  A  transfer  for  an  antecedent 
debt  is  not  doing  one  thing  or  the 
other.  Both  creditor  and  .debtor 
know  it  to  be  neither.  That  their 
dealing  for  such  a  purpose  will  be  a 
transaction  out  of  the  usage  of  the 
business  of  a  factor.  It  does  not 
matter  that  the  creditor  may  not 
know,  when  he  takes  the  property, 
that  the  factor's  principal  owns  it; 
that  he  believed  it  to  be  the  factor's 
in  good  faith."  In  Warner  v.  Martin, 
11  How.  (U.  S.)  209,  13  L.  Ed.  667. 

s*  Baxter  v.  Sherman,  73  Minn.  434, 
72  Am.  St.  Rep.  631,  where  it  was 
said:  "For  the  effect  of  such  a  cus- 
tom would  be  to  permit  an  agent  to 
appropriate  his  principal's  property 
to  the  payment  of  his  own  debt, 
which  would  be  contrary  to  well  es- 
tablished principles  of  law  as  well 
as  good  morals.  Therefore,  such  cus- 
tom would  be  void." 

<••-•  Ante,  §  386. 

co  Pemberton  v.  Price,  144  Ky.  518. 

er  See  ante,  §  895. 


2119 


§§  2514-2516] 


THE  LAW  OF  AGENCY 


[BOOK    V 


implied  authority  to  barter  or  exchange  them,  and  such  a  transaction 
does  not  divest  the  principal  of  his  title.68 

§  2514.  To  delegate  his  authority. — A  factor  is  employed  because 
trust  and  confidence  are  reposed  in  his  ability  and  integrity,  and  the 
execution  of  this  trust  and  confidence  can  not,  in  general,  be  delegated 
to  another.69  Exceptions  to  this  rule  exist,  as  in  other  cases  of 
agency,70  where  the  employment  of  a  subagent  is  justified  by  a  usage 
of  trade,71  or  an  established  course  of  dealing,72  or  where  it  is  required 
by  the  necessities  of  the  transaction.78 

This  general  lack  of  authority  to  delegate  would,  subject  to  the  quali- 
fications mentioned,  include  the  lack  of  authority  to  send  the  goods 
to  other  markets  for  sale.7*  A  purely  local  custom,  not  known  and  as- 
sented to  by  the  principal,  could  not  justify  it.75 

§  2515.  To  compromise  or  compound  the  debt. — So  a  factor  who 
has  sold  goods  for  his  principal  has  ordinarily  no  implied  authority  to 
compromise  or  compound  the  claim  for  the  purchase  price,  or  to  dis- 
charge the  debt  upon  the  receipt  of  a  part  only.76 

§  2516.  To  submit  to  arbitration. — So  a  factor  has  no  implied  au- 
thority to  submit  to  arbitration  a  dispute  arising  out  of  the  transaction, 


ss  Guerreiro  v.  Peile,  3  B.  &  Aid.  616. 
See  also,  Trudo  v.  Anderson,  10  Mich. 
357,  81  Am.  Dec.  795:  Kent.  v.  Born- 
stein,  12  Allen  (Mass.),  342;  Lump- 
kin  v. 'Wilson,  5  Heisk.  (Tenn.)  555; 
Wheeler  &  Wilson  Mnfg.  Co.  v. 
Givan,  65  Mo.  89;  Wing  v.  Neal 
(Me.),  2  Atl.  881;  Potter  v.  Dennison, 
10  111.  590;  Holton  v.  Smith,  7  N.  H. 
446. 

As  to  power  of  factor  to  barter  un- 
der Factor's  Acts,  see  Victor  Sewing 
Machine  Co.  v.  Heller,  44  Wis.  265. 

6»Harralson  v.  Stein,  50  Ala.  347; 
Akron  Cereal  Co.  v.  First  Nat.  Bank, 
3  Cal.  App.  198;  Loomis  v.  Simpson, 
13  Iowa,  532;  Connoy  v.  Parker,  114 
Mass.  331;  Smith  v.  Jefferson  Bank, 
120  Mo.  App.  527;  Furnas  v.  Frank- 
man,  6  Neb.  429;  Gillis  v.  Bailey,  21 
N.  H.  149;  People's  Bank  v.  Frick,  13 
Okla.  179;  Locke's  Appeal,  72  Pa.  491, 
13  Am.  Rep.  716;  CampbelKv.  Reeves, 
3  Head  (Tenn.),  226;  Merchants'  Nat. 
Bank  v.  Trenholm,  12  Heisk. 
(Tenn.)  520;  Smith  V.  Sublett,  28 

2120 


Tex.  163;  Warner  v.  Martin,  11  How. 
(U.  S.)  209,  13  L.  Ed.  667;  Catlin  v. 
Bell,  4  Camp.  183;  Cochran  v.  Irlam, 
2  M.  &  S.  301;  Solly  v.  Rathbone,  Id. 
298;  Schmaling  v.  Thomlinson,  6 
Taunt.  147. 

70  See  ante,  §  314  et  seq. 

71  Trueman  v.  Loder,  11  Ad.  &  El. 
589;   Warner  v.  Martin,  11  How.   (U. 
S.)  209. 

72Blore  v.  Sutton,  3  Meriv.  237; 
Combes'  Case,  9  Coke,  75;  Warner  v. 
Martin,  supra. 

7s  See  McMorris  v.  Simpson,  21 
Wend.  (N.  Y.)  610.  See  also,  John- 
son v.  Cunningham,  1  Ala.  249;  Dor- 
chester, etc.,  Bank  v.  New  England 
Bank,  1  Gush.  (Mass.)  177;  Planters' 
etc.,  Bank  v.  First  Nat.  Bank,  75  N. 
C.  534. 

74  Burke  v.  Frye,  44  Neb.  223.    See 
post,  §  2538. 

75  Burke  v.  Frye,  supra. 

"  Russell  Merc.  Ag.,  (2nd  ed.)  48. 
See  ante,  §§  901-905,  954. 


CHAP.    IV]  OF  FACTORS  [§§    2517-252! 

as  a  claim  for  damages  on  account  of  an  alleged  breach  of  an  implied 
warranty  of  the  quality  of  the  goods  sold.77 

§  2517.  To  rescind  sale. — A  factor  who  has  completed  a  sale  for 
his  principal  has,  thereafter,  ordinarily  no  implied  authority  to  rescind 
the  sale,  or  discha'rge  the  purchaser  from  its  obligations.78 

Where  the  factor  has  dealt  as  apparent  owner,  a  rescission  before 
knowledge  of  the  existence  of  a  principal  would  stand  on  different 
ground.79 

§  2518.  To  extend  time  of  payment. — So,  having  sold  the  goods 
upon  a  credit,  his  undertaking  is  executed,  and  he  has  ordinarily  no  im- 
plied authority  to  extend  the  time  of  payment.80 

§  2519.  To  receive  anything  but  money  in  payment. — Nor  has  the 
factor  implied  authority  to  receive  in  payment  anything  but  money, 
and  the  money  must  be  that  which  is  then  circulating  at  par.81  He  can- 
not receive  payment  in  goods  or  depreciated  bills  or  in  any  other  un- 
usual or  irregular  manner.82 

§  2520.  To  make  negotiable  paper. — Nor  has  the  factor  implied 
authority  to  bind  his  principal  by  making,  accepting  or  indorsing  ne- 
gotiable paper.83 

§  2521.  To  insure  property. — A  factor  having  goods  of  his  prin- 
cipal in  his  possession  may  insure  them,  but  he  is  not  bound  to  do  so 
in  the  absence  of  instructions  to  insure,  or  of  an  usage  to  that  effect,  or 
unless  the  habit  and  course  of  dealing  between  himself  and  his  princi- 
pal imposes  the  duty  upon  him.84  He  has  such  an  interest  in  the  prop- 

"Carnochan  v.  Gould,  1  Bailey  (S.  239;   Sangston  v.  Maitland,  11  Gill  & 

Car.),  L.  179,  19  Am.  Dec.  668.  J.  (Md.)  286. 

TS  Smith  v.  Rice,  1  Bailey  (S.  C.)f          Factor  has  no  authority  to  agree 

648.  that  price  shall  be  credited  upon  a 

But   where  the   principal  consigns  claim  held  by  buyer  against  the  prin- 

goods  to  a  foreign  port  for  sale  where  cipal.     Guy  v.  Oakley,  13  Johns.   (N. 

a  custom  exists  to  allow  cancellation  Y.)  332. 

under  certain  circumstances,  he  can-          83  Hogg   v.   Snaith,   1   Taunt.    347; 

not   hold   the   factor   responsible   for  Murray  v.  East  India  Co.,  5  B.  &  Aid. 

acting   in   accordance   with   the   cus-  204;    Emerson    v.    Providence   Mnfg. 

torn,  there  being  no  instructions  to  Co.,  12  Mass.  237,  7  Am.  Dec.  66. 
the   contrary.     Charlotte   Oil   Co.   v.          s*  Lucena  v.  Crauf urd,  2  B.  &  P.  N. 

Hartog,  29  C.  C.  A.  56,  85  Fed.  150.  R.  268;  Waters  v.  Monarch,  etc.,  Ins. 

™  See  ante,  §  2081.  Co.,    5    El.    &   Bl.    870;    Schaeffer    v. 

so  Douglass    v.    Bernard,    Anthon's  Kirk,     49     111.     251;      Shoenfeld     v. 

N.  P.  (N.  Y.)  278.    See  ante,  §  903,  et  Fleisher,  73  111.  404;    Area  v.  Milli- 

seq.  ken,  35  La.  Ann.  1150;   B.  F.  Sturte- 

si  See    ante,    §  946,    et    seq;    ante,  vant  Co.  v.   Dugan,  106  Md.  587,  14 

§  2504.  Ann.  Cas.  675;  Lee  v.  Adsit,  37  N.  Y. 

sz  Underwood  V.  NJcholls,  17  C.  B.  78;   De  Forest  v.  Fulton  F.  Ins.  Co., 

2121 


§§    2522,  2523]  THE  LAW  OF  AGENCY  [BOOK   V 

erty  that  it  is  held  that  he  may  effect  insurance  in  his  own  name,85  and 
to  the  full  value  of  the  goods.86 

§  2522.  To  sell  to  himself. — Like  other  agents  similarly  situated, 
the  factor  owes  to  his  principal  an  undivided  allegiance  to  his  interests, 
and  may  not  deal  with  himself,  on  his  principal's  account,  without  the 
full  knowledge  and  consent  of  the  principal.87  The  factor  may,  there- 
fore, not  buy  of  himself  the  goods  he  is  authorized  to  sell,  and  if  he 
attempts  to  do  so  without  the  principal's  acquiescence  the  principal  may 
repudiate  the  transaction.88 

i aall >bcx '«srf  *rt  t  ne  ytetoDdx*  :*i "gniTteJiii^jj  atlsiib4«>  &  ooqn 

IV. 
:-.fl  loM^^flrerrr^flq  fit  yanom  r^ne  svia^Jdi  oT  ^ige  % 

DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 

^^ 

§  2523.  To  use  reasonable  care  and  prudence. — Like  other  per- 
sons who  hold  themselves  out  to  the  public  as  specialists  in  any  depart- 
ment of  business,  the  factor  is  bound  to  possess  a  reasonable  degree  of 
skill  and  knowledge,  and  to  exercise  that  skill  and  knowledge  with  rea- 
sonable care  and  prudence.  In  this  respect  his  undertaking  is  similar 
to  that  of  the  attorney.  The  factor  does  not  undertake  for  infallibility, 
or  the  highest  degree  of  judgment,  discretion,  skill  or  diligence,  but  he 
does  undertake  for  that  degree  which  an  ordinarily  discreet,  prudent 
and  diligent  man  would  exercise  in  his  own  business  under  like  circum- 
stances. Exercising  that,  he  is  not  liable,  unless  he  has  expressly  con- 
tracted for  more;  but  if  he  exercises  less  than  that,  and  loss  ensues 

therefrom,  he  will  be  liable  for  it.89 

' 

1  Hall  (N.  Y.),  84;  Brisban  v.  Boyd,  (Me.)    172,  10  Am.  Dec.  54;    Folsom 

4  Paige  (N.  Y.),  17.  v.   Mussey,   8   Greenl.    (Me.)    400,  23 

ss  Brisban  v.    Boyd,  supra.  Am.   Dec.   522;    Roberts  v.   Cobb,  76 

se  Brisban  v.  Boyd,  supra.  Minn.  420;   Benedict  v.  Inland  Grain 

ST  See  post  §  2524.  Co.,   80  Mo.  App.  449;    Ives  v.  Freis- 

ss  Sims  v.  Miller,  37  S.  Car.  402,  34  inger,  70  N.  J.  L.  257;   Van  Alen  v. 

Am.  St.  Rep.  762.  Vanderpool,  6  Johns.    (N.  Y.)    69,   5 

so  Wynne   v.    Schnabaum,   78    Ark.  Am.    Dec.    192;    Knowles   v.    Savage, 

402;      Arkansas     Fertilizer     Co.     V.  140  N.  C.  372;    McCants  v.  Wells,  3 

Banks,  95  Ark.  86;    Gordon  &  Co.  v.  S.  C.  569;   Walker  v.  McCaull,  13  S. 

Cobb,  4  Ga.  App  49;  Phillips  v.  Moir,  D.    512;    Webster   v.   Richardson,    55 

69  111.  155;  Chandler  v.  Hogle,  58  111.  Tex.    Civ.    App.    391;     Drumm-Flate 

46;    Deshler  v.  Beers,  32  111.  368,  83  Com.  Co.  v.  Union  Meat  Co.,  33  Tex. 

Am.  Dec.   274;    Western  Union  Cold  Civ.   App.    587;    Bouldin   v.   Atlantic 

Storage  Co.  v.  Winona  Produce  Co.,  Rice  Mills  Co.    (Tex.  Civ.  App.),  86 

84  111.  App.  878;    Craig  v.  Harrison-  S.  W.  795;    Ernest  v.  Stoller,  5  Dill. 

Switzer  Milling  Co.,  103  111.  App.  486;  (U.  S.  C.  C.)  438,  Fed.  Gas.  No.  4,520; 

Kelly  v.   McGuire,   99   111.   App.   317;  Charlotte  Oil,  etc.,  Co.  v.  Hartog,  29 

Atkinson  v.   Burton,   4   Bush    (Ky.),  C.  C.  A.  56,  85  Fed.  150. 

299;    Greely    v.    Bartlett,    1    Greenl.          In  Foster  v.  Waller,  75  111.  464,  it 

2122 


CHAP.    IV]  OF  FACTORS  [§§    2524,  2525 

Where  the  case  involved  the  question  of  liability  for  not  enforcing 
a  sale  in  a  foreign  port  where  there  was  a  custom  which  gave  the  buyer 
the  right  to  withdraw,  the  court  said :  "If  under  the  circumstances,  the 
agent  acts  in  good  faith,  keeps  his  principal  well  informed,  and  gives 
to  his  service  the  intelligence  and  zeal  commensurate  with  the  require- 
ments of  the  occasion  he  cannot  be  held  responsible  for  not  exacting 
that  which  he  is  powerless  to  enforce."  '90 

The  fact  that  the  factor  was  to  act  without  compensation  would  not 
relieve  him  from  the  consequences  of  his  negligence  or  default  if  he 
accepts  the  goods  and  undertakes  to  act  as  factor  respecting  them.91 

§  2524.  To  be  loyal  to  his  principal's  interests. — Like  other  agents 
in  whom  trust  and  confidence  are  reposed,  the  factor  owes  to  his  prin- 
cipal a  high  degree  of  fidelity  and  good  faith.  Unless  the  principal  ex- 
pressly consents  to  receive  less,  he  has  a  right  to  demand  from  the  fac- 
tor an  undivided  allegiance  to  his  interests,  and  the  factor  will  not  be 
permitted  to  put  himself  in  such  a  position  that  his  own  interests,  or 
those  of  another  client,  will  come  in  conflict  with  those  of  his  princi- 
pal.92 

Without  the  principal's  full  knowledge  and  consent,  therefore,  the 
factor  can  not  represent  both  parties  in  the  same  transaction,93  nor 
may  he  be  himself  the  other  party  as  by  buying  of,  or  selling  to,  him- 
self.94 If,  however,  the  principal  consents,  no  other  person  has  occa- 
sion to  complain,  and  such  consent  may  be  evidenced  as  well  by  a  sub- 
sequent ratification  as  by  a  prior  authorization.95 

§  2525.  To  obey  instructions. — It  is,  in  general,  the  duty  of  the 
factor  to  obey  the  instructions  of  his  principal.  To  the  latter  belong 

is  said  that  a  factor  is  bound  to  exer-  accounting.    Britton  v.  Ferrin,  supra. 

cise  a  "high  degree  of  diligence,"  "all  ™  Bensley  v.  Moon,  7  111.  App.  415. 

reasonable    diligence,"    in    ascertain-  »*  Sims  v.  Miller,  37  S.  Car.  402,  34 

ing  the  pecuniary  responsibility  of  a  Am.  St.  Rep.  762.     Transactions  with 

customer  to  whom  he  makes  a  sale.  the    factor    himself    may    be    repu- 

»o  Charlotte  Oil  Co.  v.  Hartog,  29  C.  diated  by  the  principal  at  his  elec- 

C.  A.  56,  85  Fed.  150.  tion.   If  a  factor  has,  without  author- 

91  Western  Union  Cold  Storage  Co.  ity,  bought  his  principal's  goods,  and 
v.  Winona  Produce  Co.,  197  111.  457.  then  goes  into  the  market  to  replace 

92  Britton  v.  Ferrin,  171  N.  Y.  235;  them   for  the  principal,  he   can   not 
Clarke  v.  Tipping,  9  Beav.  284;  Evans  charge    the    principal    with    the    ex- 
v.  Potter,  2  Gall.    (U.   S.   C.  C.)    12,  penses  Incurred  in  so  doing.    Sims  v. 
Fed.  Gas.  No.  4,569;  Babcock  v.  Orbi-  Miller,  supra. 

son,  25  Ind.  75;    Keighler  v.  Savage          »B  Thus  the  principal  may  elect  to 

Mnfg.  Co.,  12  Md.  383,  71  Am.  Dec.  treat  the  sale  to  the  factor  as  valid 

600.  and  maintain  an  action  against  him 

Factor     cannot     buy     up     claims  for  the  purchase  price.     Wadsworth 

against    his    principal    and    enforce  v.  Gay,  118  Mass.  44. 
them   against   the   latter's  claim   for 

2123 


§    2525]  THE  LAW  OF  AGENCY  [BOOK   V 

the  goods,  and  the  profits  and  advantages  to  be  derived  from  their  sale, 
and  in  him,  therefore,  is  vested  the  power  to  direct  and  control  the 
time,  manner  and  terms  of  their  sale.  Exceptions  to  this  general  rule 
exist  where  the  factor,  by  making  advances  on  them,  has  acquired  a 
special  interest  in  the  goods,96  and  also,  as  in  other  cases,  where  a  sud- 
den emergency  requires  a  deviation  from  the  course  prescribed.97  But 
where  no  one  of  these  exceptions  exists,  the  factor  disregards  his  in- 
structions at  his  peril,  and  if  a  loss  ensues,  he  is  liable  for  it.98  That 
he  acted  in  good  faith  and  with  an  intention  to  benefit  his  principal,  or 
that  he  pursued  the  customary  course  in  such  cases,  will  not  excuse  a 
violation  of  express^  instructions.99 

But  here,  too,  as  in  other  cases,  the  principal  who  wishes  his  instruc- 
tions obeyed  must  couch  them  in  unambiguous  terms,  for  if  they  are 
capable  of  two  constructions  and  the  factor  in  good  faith  and  in  the 
exercise  of  reasonable  care  and  prudence  selects  and  follows  one,  he 

can  not  be  held  liable  because  the  principal,  in  fact,  intended  that  the 

*  *  n   TTJ< 

other  should  be  pursued.1 

Where  goods  are  consigned  to  a  factor  to  be  sold  upon  certain  terms, 
his  acceptance  of  the  consignment  without  dissent  is  sufficient  evidence 
of  his  consent  to  be  bound  by  the  instructions  given.2 

A  violation  of  instructions,  however,  may  in  this  as  in  other  cases  be 
ratified  by  the  principal,  and  the  factor  be  thus  relieved  from  liability.8 

The  losses  for  which  the  factor,  who,  has  disobeyed  instructions, 
would  be  responsible,  must  be  such  as  are  the  natural  and  proximate 
result  of  his  disobedience.*  Thus  where  cotton,  which  had  been  con- 
signed to  factors  with  general  instructions  to  sell,  was  destroyed  by  an 

No   ratification   effective   until   the  31  N.  Y.  676;   Blot  V.  Boiceau,  3  N. 

principal  has  full  knowledge.     Sims  Y.  78,   51   Am.   Dec.   345;    Spruill  v. 

v.  Miller,  supra.  Davenport,  116  N.  C.  34;   Johnson  v. 

»«  See  following  section.  Wade,  2  Baxt.    (Tenn.)    480;    Strong 

»7  See  ante,  §  1262  et  teq.;  post,  §  v.    Stewart,   9    Heisk.    (Tenn.)    137; 

2536.  Courcier   v.   Hitter,   4   Wash.    (U.   S. 

»«Weed   v.   Adams,  37   Conn.   378;  C.  C.)    549,  Fed.  Gas.  No.  3,282;    De 

Day  v.  Crawford,  13  Ga.  508;  Schoen-  Tastett  v.  Crousillat,  2  Wash.   (U.  8. 

feld  v.  Fleisher,  73  111.  404;  Lougarre  C.  C.)    132,  Fed.  Cas.  No.  3,828. 
v.  Haas,  131  La.  871;  Sigerson  v.  Pom-          »»  Hatcher  v.  Comer,  73  Ga.  418. 
eroy,  13  Mo.  620;  Housel  v.  Thrall,  18          *  See  ante,  §  1266  et  seq. 
Neb.  484;   Rundle  v.  Moore,  3  Johns.          »  Heffner  v.  Gwynne-Treadwell  Cot- 

(N.  Y.)  Cas.  36;  Parkist  v.  Alexan-  ton  Go.,  87  C.  C.  A.  606,  160  Fed.  635. 
der,  1  Johns.  (N.  Y.)  Ch.  394;  Bell  s  Rice  v.  Brook,  20  Fed.  611;  Faries 

v.    Palmer,    6    Cow.     (N.    Y.)     128;  v.  Ranger,  35  La.  Ann.  102. 
Evans  v.  Root,  7  N.  Y.  186,  57  Am.          *  See  the  question  of  the  measure 

Dec.  512;    Williams  v.  Littlefield,  12  of    damages    more    fully    discussed, 

Wend.   (N.  Y.)  362;   Scott  v.  Rogers,  post,  §  2528. 

2124 


CHAP.    IV]  OF  FACTORS  [§§2526,2527 

accidental  fire  within  a  reasonable  time  after  the  receipt  of  the  instruc- 
tions, the  factors'  delay  was  held  not  to  be  the  proximate  cause  of  the 
loss.5 

§  2526.  Instructions  to  sell. — These  principles  are  of  fre- 
quent application  to  questions  arising  from  a  violation  of  instructions 
as  to  the  time  or  price  at  which  the  goods  shall  be  sold.  These  instruc- 
tions it  is  the  factor's  general  duty  to  obey,  and  if  a  loss  occurs  because 
of  his  unjustifiable  violation  of  them,  he  will  be  liable  for  it.  Thus,  if 
the  factor  be  instructed  to  sell  the  goods  at  a  certain  time,  as  upon  ar- 
rival,6 or  immediately,7  or  when  they  reach  a  certain  price,8  he  vio- 
lates the  instructions  at  his  peril,  and  neither  usage  nor  a  bona  fide  in- 
tention to  benefit  his  principal,  will  excuse  him.9  So  if  he  is  directed 
not  to  sell  until  directed,  or  not  to  sell  below  a  given  price,  and,  with- 
out sufficient  reason,  sells  without  directions  or  sells  for  less  than  the 
price  limited,  he  will  be  liable  for  the  loss  incurred.10 

§  2527.  Factor's  right  to  sell,  or  to  decline  to  sell,  for  his 

own  protection. — The  fact  that  the  factor  has  made  advances  or  has 
incurred  liabilities  upon  the  goods,  will  not  alone  warrant  him  in  selling 
below  the  stipulated  price,11  but  where  such  advances  have  been  made, 
the  principal  cannot,  by  imposing  an  arbitrary  price,  deprive  the  factor 
of  his  protection,  and  if  the  principal  neglect  or  refuse  to  repay  the 
factor  within  a  reasonable  time  after  a  demand  upon  him  for  repay- 
ment, the  factor  may  sell  sufficient  of  the  goods  to  reimburse  himself, 

5  Lehman  v.  Pritchett,  84  Ala.  512.  sell  the  "total  shipment"  at  a  certain 

« An  instruction  accompanying  the  rate,    he    is    not    authorized    to    sell 

bill  of  lading  to  "please  sell  on  ar-  parts  of  average  quality  either  at  or 

rival"  is  an  explicit  instruction,  and  above  the  limit.     If  he  does  not  fol- 

if  the  factor  disregards  it  he  is  liable  low  instructions,  and  sells  part  only, 

for  a  loss  sustained  through  a  fall  in  he  is  liable  to  the  consignor  for  the 

prices.     Evans  v.  Root,  7  N.  Y.  186,  whole  at  the  price  fixed.     Levison  v. 

57  Am.  Dec.  512.  Balfour,  34  Fed.  382. 

t  Weed   v.    Adams,   37    Conn.    378;  » Hatcher  v.  Comer,  73  Ga.  418. 

Howland  v.  Davis,  40  Mich.  545.  10  Blot  v.   Boiceau,   3  N.  Y.  78,   51 

A  factor  who  has  been  instructed  Am.  Dec.  345;   Dalby  v.  Stearns,  132 

to  sell  and  who  has  not  sold  within  Mass.  230;  Weed  v.  Adams,  37  Conn, 

a  reasonable  time,  is  not  liable  for  378;  Casson  v.  Field,  52  N.  Y.  Super, 

the  value  of  the  goods  which  are  de-  Ct.  196;   Frothingham  v.  Everton,  12 

stroyed   by   an   accidental   fire.     His  N.  H.  239;   George  v.  McNeill,  7  La. 

default  is  not  the  natural  and  proxi-  124,   26   Am.   Dec.   498;    Lougarre   v. 

mate  cause  of  the  loss.     Lehman  v.  Haas,  131  La.  871;  Goesling  v.  Gross, 

Pritchett,  84  Ala.  512.  15  N.  Mex.  721. 

s  Scott  v.  Rogers,  31  N.  Y.  678;  Cas-  «  Blot  v.   Boiceau,  3  N.  Y.  78,  51 

son  v.  Field,  52  N.  Y.  Super.  Ct.  (20  Am.  Dec.  345;    George  v.  McNeill,  7 

Jones  &  S.)  196.  La.  124,  26  Am.  Dec.  498. 

Where  the  factor  is  instructed  to 

2125 


§  2527] 


THE  LAW  OF  AGENCY 


[BOOK    V 


even  though  it  be  for  less  than  the  price  fixed,12  or  before  the  time  lim- 
ited.18 But  having  sold  enough  to  protect  himself,  he  is  bound,  as  to 
the  residue,  to  observe  the  instructions  of  his  principal.14 

So  if,  after  the  factor  has  made  advances  or  incurred  liabilities  upon 
the  goods,  he  is  directed  to  sell  at  a  price  or  at  a  time  which  will  mani- 
festly, or  in  reasonable  probability,  operate  to  deprive  him  of  his  se- 
curity, as  if  a  sale  at  the  price  or  time  fixed  will  yield  less  than  the 
amount  of  his  advances,  the  factor,  acting  in  good  faith  and  with  rea- 
sonable prudence,  may,  unless  the  principal  offers  to  secure  or  reim- 
burse him,  refuse  to  obey  the  instructions  to  sell,  without  liability.15 

But  this  right  of  the  factor  to  sell  for  his  own  reimbursement  may 
be  waived  and  it  will  not  exist  in  contravention  of  an  express  agree- 


v.  Musser,  45  Ind.  115; 
Butterfield  v.  Stephens,  59  Iowa,  596; 
Parker  v.  Brancher,  22  Pick.  (Mass.) 
40;  Dalby  v.  Stearns,  132  Mass.  230; 
Frothingham  v.  Everton,  12  N.  H.  239; 
Marfield  v.  Goodhue,  3  N.  Y.  62;  Hil- 
ton v.  Vanderbilt,  82  N.  Y.  591;  Camp- 
bell v.  Angus,  91  Va.  438;  Brown  v. 
McGran,  14  Pet.  (U.  S.)  479,  10  L. 
Ed.  550;  Heffner  v.  Gwynn-Treadwell 
Cotton  Co.,  87  C.  C.  A.  606,  160  Fed. 
635. 

But  in  Ex  parte  Dalgety,  10  New 
South  Wales  State  Rep.  175,  Brown 
v.  McGran,  supra,  the  leading  case  in 
the  United  States  on  this  subject, 
was  denied,  and  the  doctrine  de- 
clared to  be  contrary  to  the  English 
law  as  laid  down  in  Smart  v.  San- 
ders, 5  C.  B.  855,  and  De  Comas  v. 
Prost,  8  Moo.  P.  C.  (N.  S.)  158. 

"Davis  v.  Kobe,  36  Minn.  214,  1 
Am.  St.  Rep.  663.  "There  can  be  no 
doubt  of  the  proposition  that  in  a 
case  where  the  protection  of  the 
factor  himself  against  loss  becomes 
necessary,  his  discretion  as  to  the 
time,  price  and  place  of  sale  would 
be  complete  and  unlimited  even  by 
positive  instructions."  Phillips  v. 
Scott,  43  Mo.  86,  97  Am.  Dec.  369. 
See  also,  Beadles  v.  Hartmus,  7 
Baxt.  (Tenn.)  476;  Nelson  v.  Chi- 
cago, etc.,  R.  R.  Co.,  2  111.  App.  180. 

11  Weed  v.  Adams,  37  Conn.  378; 
Marfield  V.  Douglass,  1  Sandf.  (3  N. 
Y.  Super.)  360. 

2126 


"Weed  v.  Adams,  37  Conn.  378; 
Gordon  v.  Cobb,  4  Ga.  App.  49;  But- 
terfield v.  Stephens,  59  Iowa,  596; 
Durant  v.  Fish,  40  Iowa,  559;  How- 
land  v.  Davis,  40  Mich.  545;  Davis  v. 
Kobe,  36  Minn.  214,  1  Am.  St.  R.  663; 
Blaisdale  Co.  v.  Lee,  127  N.  C.  365; 
Hornsby  v.  Fielding,  10  Heisk.  (57 
Tenn.)  367;  Blair  v.  Childs,  10  Heisk. 
(Tenn.)  199;  Lockett  v.  Baxter,  3 
Wash.  Ter.  350;  Brown  v.  McGran, 
14  Pet.  (U.  S.)  479,  10  L.  Ed.  550; 
Feild  v.  Farrington,  10  Wall.  (U.  S.) 
141,  19  L.  Ed.  923;  Eichel  v.  Sawyer, 
44  Fed.  845;  Heffner  v.  Gwynne- 
Treadwell  Cotton  Co.,  87  C.  C.  A.  606, 
160  Fed.  635. 

May  refuse  to  sell  on  credit  to  ir- 
responsible buyer.  Durant  v.  Fish, 
40  Iowa,  559,  supra. 

In  most  of  the  cases  that  have 
arisen  the  principal  had  instructed 
the  factor  not  to  sell,  but  the  same 
rule  applies  where  the  factor  has 
been  instructed  to  sell  and  refuses. 
Feild  v.  Farrington,  10  Wall.  (77  U. 
S.)  141,  19  L.  Ed.  923;  Blair  v. 
Childs,  10  Heisk.  (57  Tenn.)  199; 
Weed  v.  Adams,  37  Conn.  378;  Butter- 
field  v.  Stephens,  59  Iowa,  596. 

A  stock  broker,  however,  cannot 
rightfully  refuse  to  obey  instructions 
to  sell,  regardless  of  the  statt;  of 
accounts.  Zimmermann  v.  Heil,  86 
Hun  (93  N.  Y.  Sup.),  114,  affirmed  on 
opinion  below  in  156  N.  Y.  703. 


CHAP.    IV] 


OF  FACTORS 


[§    2527 


ment  to  the  contrary ;  as  where,  at  the  time  the  advances  are  made,  the 
factor  agrees,  or  receives  the  goods  subject  to  express  instructions,  to 
sell  only  at  a  certain  time,  or  at  a  fixed  price.16 

Mere  general  expressions  of  acquiescence  in  the  principal's  instruc- 
tions not  based  upon  any  new  consideration  will  not,  it  is  held,  thus 
bind  the  factor  to  obey  injurious  instructions,  unless  the  principal  of- 


ie  in  Brown  v.  McGran,  14  Pet.  (U. 
S.)  479,  13  L.  Ed.  667,  Judge  Story 
says:  "We  understand  the  true  doc- 
trine on  this  subject  to  be  this: 
wherever  a  consignment  is  made  to 
a  factor  for  sale,  the  consignor  has 
a  right,  generally,  to  control  the  sale 
thereof,  according  to  his  own  pleas- 
ure, from  time  to  time,  if  no  advances 
have  been  made  or  liabilities  incur- 
red on  account  thereof;  and  the  fac- 
tor is  bound  to  obey  his  orders.  This 
arises  from  the  ordinary  relation  of 
principal  and  agent.  If,  however, 
the  factor  makes  advances,  or  incurs 
liabilities  on  account  of  the  consign- 
ment, by  which  he  acquires  a  special 
property  therein,  then  the  factor  has 
a  right  to  sell  so  much  of  the  con- 
signment as  may  be  necessary  to  re- 
imburse such  advances  or  meet  such 
liabilities;  unless  there  is  some  ex- 
isting agreement  between  himself 
and  the  consignor,  which  controls  or 
varies  this  right.  Thus,  for  example, 
if,  contemporaneous  with  the  con- 
signment and  advances  or  liabilities, 
there  are  orders  given  by  the  con- 
signor which  are  assented  to  by  the 
factor,  that  the  goods  shall  not  be 
sold  until  a  fixed  time,  in  such  a  case, 
the  consignment  is  presumed  to  be 
received  by  the  factor  subject  to  such 
orders;  and  he  is  not  at  liberty  to 
sell  the  goods  to  reimburse  his  ad- 
vances or  liabilities,  until  after  that 
time  has  elapsed.  The  same  rule 
will  apply  to  orders  not  to  sell  be- 
low a  fixed  price;  unless,  indeed,  the 
consignors  shall,  after  due  notice  and 
request,  refuse  to  provide  any  other 
means  to  reimburse  the  factors.  And 
in  no  case  will  the  factor  be  at  lib- 


erty to  sell  the  consignment  con- 
trary to  the  orders  of  the  consignors, 
although  he  has  made  advances  or  in- 
curred liabilities  thereon,  if  the  con- 
signor stands  ready  and  offers  to  re- 
imburse and  discharge  such  advances 
and  liabilities. 

"On  the  other  hand,  where  the  con- 
signment is  made  generally,  without 
any  specific  orders  as  to  the  time  or 
mode  of  sale,  and  the  factor  makes 
advances  or  incurs  liabilities  on  the 
footing  of  such  consignment,  there 
the  legal  presumption  is  that  the 
factor  is  intended  to  be  clothed  with 
the  ordinary  rights  of  factors  to  sell 
in  the  exercise  of  a  sound  discretion, 
at  such  time  and  in  such  mode  as  the 
usage  of  trade  and  his  general  duty 
require;  and  to  reimburse  himself 
for  his  advances  and  liabilities  out 
of  the  proceeds  of  the  sale;  and  the 
consignor  has  no  right,  by  any  subse- 
quent orders,  given  after  advances 
have  been  made  or  liabilities  incurr- 
ed by  the  factor,  to  suspend  or  con- 
trol this  right  of  sale,  except  so  far 
as  respects  the  surplus  of  the  con- 
signment, not  necessary  for  the  re- 
imbursement of  such  advances  or  lia- 
bilities. Of  course,  this  right  of  the 
.  factor  to  sell  to  reimburse  himself 
for  his  advances  and  liabilities,  ap- 
plies with  stronger  force  to  cases 
where  the  consignor  is  insolvent,  and 
where,  therefore,  the  consignment 
constitutes  the  only  fund  for  indem- 
nity." 

See  this  language  quoted  and  ap- 
plied in  Gordon  v.  Cobb,  4  Ga.  App. 
49;  Heffner  v.  Gwynne-Treadwell  Cot- 
ton Co.,  87  C.  C.  A.  606,  160  Fed.  635. 


2127 


§    2528] 


THE  LAW  OF  AGENCY 


[HOOK    V 


fcrs  to  reimburse  or  secure  advances  made  or  liabilities  incurred  by  the 


factor  upon  the  security  of  the  goods.1 


§  2528.  The  measure  of  damages  to  be  recovered  of  or  re- 
couped against  the  factor  for  an  unjustifiable  violation  of  his  instruc- 
tions as  to  sale  is,  in  general,  such  a  sum  as  will  compensate  the  princi- 
pal for  the  actual  loss  sustained.18  If  he  sues  for  breach  of  contract, 


IT  Thus  In  Heffner  v.  Gwynne- 
Treadwell  Cotton  Co.,  supra,  where 
the  principal,  already  indebted  to  her 
factors  to  a  greater  amount  than 
the  goods  previously  consigned  would 
secure,  sent  further  goods  in  pursu- 
ance of  the  factors  request  for  fur- 
ther shipments,  also  writing  to  the 
factor  a  letter  of  general  instruc- 
tions, the  court  said:  "It  is  true  that 
the  defendant  made  acknowledgment 
of  this  letter,  noting  her  request  in 
such  fashion  that  the  law  will  impute 
to  it  acquiescence.  Where  such  con- 
sent is  founded  upon  no  new  consid- 
eration, the  law,  ever  instinct,  with 
the  spirit  of  justice,  declares  that  it 
v.as  impliedly  conditioned  with  the 
understanding  that  the  consignor 
stands  ready  and  offers  to  reimburse 
and  discharge  such  advances  and  lia- 
bilities. Brown  v.  McGran,  supra. 
In  other  words,  to  hold  the  crediting 
factor  to  such  assent,  the  consignor 
must  keep  up  the  margins  and  con- 
tinue solvent.  Hornsby  v.  Fielding, 
10  Heisk.  (Tenn.)  367;  Davis  v.  Kobe, 
36  Minn.  214,  1  Am.  St.  Rep.  663." 

is  See  Dalby  v.  Stearns,  132  Mass. 
230;  Frothingham  v.  Everton,  12  N. 
H.  239;  Blot  v.  Boiceau,  3  N.  Y.  78,  51 
Am.  Dec.  345;  Johnson  v.  Wade,  2 
Baxt.  (Tenn.)  480;  Hornsby  v.  Field- 
ins,  10  Heisk.  (Tenn.)  367;  Courcier 
v.  Ritter,  4  Wash.  (U.  S.  C.  C.)  549, 
Fed.  Cas.  No.  3,282. 

Where  goods  are  to  be  sold  at  a 
fixed  price. — Where  goods  consigned 
to  be  sold  at  a  fixed  price  have  been 
wrongfully  sold  at  a  less  price,  the 
measure  of  damages  is  in  some  dis- 
pute. 

In  Dalbyw.  Stearns,  132  Mass.  230, 
supra,  Endicott,  J.,  says:  "In  the  case 


at  bar  the  plaintiff  consigned  goods 
to  the  defendants  for  sale  at  a  lim- 
ited price.  The  defendants  made  ad- 
vances, and  afterwards  sold  the 
goods,  without  sufficient  notice  to  the 
plaintiff  that  they  intended  to  sell 
them,  to  pay  the  advances.  It  is  ex- 
pressly found,  however,  that  the 
goods  were  sold  in  good  faith,  for 
the  best  price  that  could  be  obtained 
for  them  at  the  time  of  the  sale,  and 
that  from  that  time  to  the  date  of 
the  writ,  their  market  value  was  not 
greater  than  the  price  for  which  they 
sold. 

"The  only  question  before  us  is  as 
to  the  rule  of  damages.  The  plain- 
tiff contended  that  he  was  entitled 
to  recover  the  invoice  price  of  the 
goods,  less  the  amount  of  advances, 
returns,  discounts  and  commissions 
due  the  defendants  under  the  con- 
signment. But  the  presiding  judge 
ruled  that  the  plaintiff  was  entitled 
to  recover  the  difference  between  the 
market  value  of  the  goods  when  sold 
and  the  prices  for  which  they  were 
sold  by  the  defendants,  less  the 
amount  of  advances,  returns,  dis- 
counts and  commissions  to  which  the 
defendants  were  entitled.  We  are  of 
opinion  that  this  ruling  was  right. 
The  plaintiff  is  entitled  only  to  in- 
demnity, and  the  fact  that  he  limited 
the  price  cannot  in  itself  increase  his 
damages. 

"In  Frothingham  v.  Everton,  12  N. 
H.  239,  it  was- held  that,  if  a  factor 
sells  at  a  price  below  the  limit  with- 
out notice,  the  consignor  may  have 
an  action  on  the  case  to  recover  dam- 
ages, or  may  have  the  amount  of 
damages  allowed  in  a  suit  by  the 
factor  to  recover  his  advances;  and 


2128 


CHAP.    IV] 


OF  FACTORS     !HT 


[§    2528 


the  measure  of  damages,  under  the  ordinary  rule  applicable  to  con- 
tracts generally,19  will  be  compensation  for  such  losses  as  are  either: 


the  measure  of  damages  In  such  case 
is  the  amount  of  the  injury  sustained 
by  the  sale,  contrary  to  the  orders  of 
the  principal.  That  case  closely  re- 
sembles the  case  at  bar,  and  Is  di- 
rectly in  point.  It  was  said  by  Chief 
Justice  Parker  in  delivering  the  opin- 
ion: 'Had  these  goods  been  destroyed 
by  the  negligence  of  the  plaintiffs, 
they  would  have  been  answerable  for 
the  value,  and  the  damages  could  not 
have  been  extended  beyond  that, 
merely  because  the  defendant  had 
ordered  them  to  sell  at  a  certain 
price,  and  not  for  less.  If,  instead 
of  a  loss  by  negligence,  the  loss  be 
by  disobedience  of  orders,  without 
fraud,  the  result  must  be  the  same.' 
12  N.  H.  243.  In  either  case  the  dam- 
ages cannot  exceed  the  amount  of  in- 
jury sustained  by  the  consignor.  The 
case  of  Frothingham  v.  Everton  is 
cited  in  Blot  v.  Boiceau,  3  Comst.  78, 
51  Am.  Dec.  345,  with  approval,  as 
laying  down  the  sound  and  proper 
rule  upon  this  subject.  It  was  there 
held  that  where  a  factor  sells,  below 
the  price  named  in  his  instructions, 
the  measure  of  damages  is  only  the 
amount  of  injury  actually  sustained 
by  the  consignor;  and  that  it  was 
competent  to  show,  in  reduction  of 
damages,  that  the  goods  were  sold 
at  their  full  market  value.  'If  the 
market  price  of  such  goods  had  risen 
after  the  sale  made  by  the  defend- 
ants, they  would  have  been  liable  to 
pay  according  to  such  increased 
value.  A  factor  thus  selling  goods 
in  violation  of  his  instructions  takes 
upon  himself  the  hazard  of  loss  from 
the  fluctuations  in  the  market  with- 
out the  possibility  of  gain;  and  this 
is  practically  a  sufficient  security 
against  the  disobedience  of  his  prin- 
cipal's order.  There  is  no  need  of 
subjecting  him  to  a  higher  penalty.' 
3  Comst.  85."  See  also,  Rollins  v. 
Duffy,  18  111.  App.  398;  Hinde  v. 
Smith,  6  Lans.  (N.  Y.)  464;  Taylor 


v.  Ketchum,  5  Robt.  (N.  Y.)  507; 
Ainsworth  v.  Partillo,  13  Ala,  461. 

Compare  Pugh  v.  Porter,  118  Cal. 
628,  where  the  contract  was  that  the 
goods  should  bring  a  certain  price. 

On  the  other  hand,  in  Switzer  v. 
Connett,  11  Mo.  88,  it  was  held,  that 
where  the  factor  disposes  of  the 
goods  at  less  than  the  price  fixed  by 
the  principal,  he  should  be  regarded 
as  a  purchaser  at  the  price  fixed  and 
not  as  a  mere  stranger  guilty  of  a 
conversion. 

When  a  factor  is  directed  not  to 
sell  for  less  than  a  certain  price,  and 
he  violates  this  instruction,  the  meas- 
ure of  damages  is  not  the  price  fixed 
by  the  principal,  but  the  price  at 
which  the  goods  might  have  been  sold 
during  the  season.  Austill  v.  Craw- 
ford, 7  Ala.  335. 

A  factor  with  orders  not  to  sell 
below  a  certain  price  is  not  liable  for 
a  sale  at  a  lower  price,  where  a 
higher  price  than  that  at  which  the 
sale  was  made  could  not  have  been 
obtained  at  any  time  between  the  time 
of  sale  and  the  commencement  of  the 
suit.  George  v.  McNeill,  7  La.  124, 
26  Am.  Dec.  498.  Where  there  is  evi- 
dence of  the  value  of  the  goods  at 
the  date  of  shipment  and  of  subse- 
quent sale  at  that  rate,  the  court  held 
it  was  enough,  in  the  absence  of  any 
proof  to  the  contrary,  that  the  same 
price  could  have  been  obtained  in  the 
interval.  Rowland  v.  Davis,  40  Mich. 
545. 

Instructions  to  hold  until  a  certain 
time. — Where  a  factor  who,  for  a 
consideration,  had  agreed  to  hold 
goods  until  the  opening  of  the  next 
year,  sold  them  before  that  time  it 
was  held  that  the  principal  was  en- 
titled to  recover  the  difference  be- 
tween the  market  price  on  the  day 
of  sale  and  the  time  fixed.  Fordyce 
v.  Peper,  16  Fed.  516.  See  also,  Lou- 
garre  v.  Haas,  131  La.  871. 

i»  See  Hadley  v.  Baxendale,  9  Ex. 


134 


2129 


§    2529]  THE  LAW  OF  AGENCY  [BOOK   V 

First,  the  ordinary  and  usual  consequences  of  such  a  breach  of  such 
a  contract;  or, 

Second,  the  peculiar  or  unusual  consequences  of  the  breach  of  the 
particular  contracts  in  question,  if,  under  the  circumstances,  it  can 
fairly  be  said  that  both  parties  had  those  consequences  in  their  contem- 
plation at  the  time  the  contract  was  made,  as  a  probable  result  of  its 
breach ;  and  if  those  unusual  consequences  are  neither  uncertain  in 
their  nature  nor  remote  as  to  their  cause. 

§  2529.  •  In  many  cases,  as  has  been  seen  in  an  earlier  sec- 

tion,20 the  principal  may  treat  the  unauthorized  sale  not  merely  as  a 
breach  of  contract,  but  as  a  conversion  of  the  goods.  The  ordinary 
rule  of  damages  for  a  conversion  is  the  value  of  the  goods  at  the  time 
and  place  at  which  the  conversion  took  place.21  Where,  however,  the 
parties  were  dealing  with  reference  to  stocks,  bonds,  commercial  se- 
curities and  other  property,  the  market  value  of  which  is  liable  to  fre- 
quent and  great  fluctuations  caused  by  the  depression  and  inflation  of 
prices  in  the  market,  a  wider  range  has  been  allowed  and  the  principal 
has  been  permitted  to  some  extent  to  avail  himself  of  these  fluctuations 
in  value. 

There  has  been,  in  such  cases,  some  tendency  to  hold  that  the  meas- 
ure of  damages  for  the  conversion  of  such  securities  should  be  the 
highest  market  price  between  the  time  of  the  conversion  and  the  trial  ;22 
but  the  weight  of  authority,  following  the  later  cases  in  New  York, 
permits  the  recovery  only  of  the  highest  market  value  which  the  goods 
have  reached  between  the  date  of  the  conversion  and  a  reasonable  time 
thereafter  within  which  the  plaintiff  might  have  supplied  himself  with 

341;  Griffin  v.  Colver,  16  N.  Y.  489,  69  Md.  64;  Kennedy  v.  Whitwell,  4  Pick. 

Am.   Dec.   718;    2   Mechem   on   Sales,  (Mass.)    466;    Jellett  v.  St.  Paul  Ry. 

§  1757  et  seq.  Co.,   30   Minn.   265;    Beede  v.  Lamp- 

20  Ante,   §   1253   et  seq.     See   also,  rey,  64  N.   H.  510,   10  Am.  St.  Rep. 

Laverty  v.  Snethen,  68  N.  Y.  522,  23  426;   Griggs  v.  Day,  136  N.  Y.  152,  32 

Am.  Rep.  184;  Coleman  v.  Pearce,  26  Am.   St.  Rep.   704,  18  L.  R.  A.  120; 

Minn.  123.  Crompton  v.  Marble  Co.,  60  Vt.  291, 

2>  See    Terry    v.    Birmingham    Na-  1  L.  R.  A.  120;  Ingram  v.  Rankin,  47 

tional  Bank,  93  Ala.  599,  30  Am.  St  Wis.  406,  32  Am.  Rep.  762;  Arkansas 

Rep.  87;   Jones  v.  Horn,  51  Ark.  19,  Valley  L.  &  C.  Co.  v.  Mann,  130  U.  S. 

14  Am.  St.  Rep.  17;  Sturges  v.  Keith,  69,  32  L.  Ed.  854. 

57  111.  451,  11  Am.  Rep.  28;  Brewster  22  gee   Romaine   v.   Van   Allen,    26 

v.  Van  Liew,  119  111.  554,  59  Am.  Rep.  N.   Y.   309;    Markham   v.   Jaudon,   41 

823;    Thew  v.   Miller,   73   Iowa,   742;  N.  Y.  235,  now  overruled  by  the  later 

Simpson  v.  Alexander,  35  Kan.  225;  New   York   cases   cited   in   the   next 

Wing  v.  Milliken,  91  Me.  387,  64  Am.  note. 
St.  Rep.  238;    Hopper  v.  Haines,  71 

2130 


CHAP.    IV] 


OF  FACTORS 


[§§    2530,2531 


other  goods  of  the  same  kind.23  The  rule  prevailing  in  New  York  has 
been  adopted  by  the  Supreme  Court  of  the  United  States.24 

§  2530. —  Instructions  to  sell  for  cash. — So  if  the  factor  is 

instructed  to  sell  for  cash  only,  he  sells  upon  credit  at  the  peril  of  pay- 
ing for  the  goods  himself.25  A  sale  for  cash  ordinarily  means  cash 
upon  the  delivery  of  the  goods,  and  a  sale  upon  'a  short  credit  where 
the  instructions  were  to  sell  for  cash  cannot  be  justified  by  usage  not 
known  and  assented  to  by  the  principal.26 

§  2531.  Instructions  to  insure. — As  has  been  seen,  a  fac- 
tor, in  the  absence  of  a  custom,  promise  or  instruction  to  insure,  is  not 
bound  to  insure  the  goods  of  his  principal  in  the  factor's  possession.27 

But  where  the  factor  is  instructed  or  has  agreed,  to  insure,  and  ne- 
glects to  do  so,  or  does  so  so  defectively  that  the  insurance  is  of  no 
avail,  he  is  liable  as  an  insurer.23  By  neglecting  to  place  the  risk  else- 

28  Baker  v.  Drake,  53  N.  Y.  211',  13  North  v.  Phillips,  89  Pa.  250;    Work 


Am.  Rep.  507;  Baker  v.  Drake,  66  N. 
Y.  518,  23  Am.  Rep.  80;  Gruman  v. 
Smith,  81  N.  Y.  25;  Colt  v.  Owens,  90 
N.  Y.  368;  Wright  v.  Bank  of  Me- 
tropolis, 110  N.  Y.  237,  6  Am.  St.  Rep. 
356,  1  L.  R.  A.  289;  Galigher  v.  Jones, 
129  U.  S.  193,  32  L.  Ed.  658;  Andrews 
v.  Clark,  72  Md.  396;  Fosdick  v. 
Greene,  27  Ohio  St.  484,  22  Am.  Rep. 
328;  Freeman  v.  Harwood,  49  Me. 
195;  Fisher  v.  Brown,  104  Mass.  259, 
6  Am.  Rep.  235;  Walker  v.  Borland, 
21  Mo.  289;  Brewster  v.  Van  Liew, 
119  111.  554,  59  Am.  Rep.  823;  Galena, 
etc.,  R.  Co.  v.  Ennor,  123  111.  505; 
Hill  v.  Smith,  32  Vt.  433;  Ingram  v. 
Rankin,  47  Wis.  406,  32  Am.  Rep.  762; 
Coffman  v.  Williams,  51  Tenn.  233; 
Jackson  v.  Evans,  44  Mich.  510; 
Chadwick  v.  Butler,  28  Mich.  349; 
Bates  v.  Stansell,  19  Mich.  90. 

In  Alabama,  see  Burks  v.  Hubbard, 
69  Ala.  379. 

In   Iowa,  see  Oilman  v.  Andrews, 
66  Iowa,  116. 

In    Indiana,   see    Citizens'    St.   Ry. 
Co.  v.  Robbins,  144  Ind.  671. 

In  Louisiana,  see  Faraldo  v.  Gum- 
bel,  128  La.   287, 

In  Texas,  see  Heilbroner  v.  Doug- 
lass, 45  Tex.  402. 

In  Pennsylvania,  see  Huntingdon, 
etc.,  Coal  Co.  v.  English,  86  Pa.  247; 


v.  Bennett,  70  Pa.  484;  Neiler  v. 
Kelley,  69  Pa.  403. 

2*  Galigher  v.  Jones,  129  U.  S.  193, 
32  L.  Ed.  658.  The  court  adopted  the 
New  York  rule  because  "more  trans- 
actions of  this  kind  arise  in  the  State 
of  New  York  than  in  all  other  parts 
of  the  country." 

25  Bliss  v.  Arnold,  8  Vt.  252,  30  Am. 
Dec.  467;  Hall  v.  Storrs,  7  Wis.  253. 

2«  Bliss  v.  Arnold,  supra;  Hall  v. 
Storrs,  supra;  Barksdale  v.  Brown,  1 
Nott.  &  McC.  (S.  C.)  517,  9  Am.  Dec. 
720.  Contra,  Clark  v.  Van  Northwick, 
1  Pick.  (Mass.)  343.  Compare  Nor- 
ton v.  Nevills,  174  Mass.  243. 

2?  See  ante.  §  2521. 

28  Gordon  v.  Wright,  29  La.  Ann. 
812;  Shoenfeld  v.  Fleisher,  73  111. 
404;  De  Tastett  v.  Crousillat,  2  Wash. 
(U.  S.  C.  C.)  132,  Fed  Gas.  No.  3,828; 
Perkins  v.  Washington  Ins.  Co.,  4 
Cow.  (N.  Y.)  645;  Thome  v.  Deas, 
4  Johns.  (N.  Y.)  84;  Gray  v.  Murray, 
3  Johns.  (N.  Y.)  Ch.  167;  Beardsley 
v.  Davis,  52  Barb.  (N.  Y.)  159;  Bur- 
bridge  v.  Gumbel,  72  Miss.  371;  Park 
v.  Hamond,  4  Camp.  344;  Callander 
v.  Oelrichs,  5  Bing.  N.  C.  58;  Tickel 
v.  Short,  2  Vesey,  239. 

A  letter  issued  by  factors  inviting 
consignments  of  goods  and  stating 
that  the  goods  "will  be  covered  by  in- 


2131 


§  2532] 


THE  LAW  OF  AGENCY 


[BOOK  v 


where,  or  to  promptly  notify  the  principal  of  his  inability  to  insure,  so 
as  to  give  him  an  opportunity  to  do  it,  the  factor  assumes  the  risk 
himself.  And  so  where  it  is  the  custom  to  insure  under,  like  circum- 
stances, the  factor  must  pursue  the  custom  or  bear  the  loss.29 

§  2532  Duty  to  inform  principal. — It  is  the  duty  of  the  factor  to 
inform  his  principal  of  every  fact  in  relation  to  his  agency  which  comes 
to  his  knowledge,  and  which  may  reasonably  be  deemed  important  for 
the  principal  to  know  in  order  to  the  protection  or  promotion  of  his  in- 
terests; and  a  factor  who  negligently  omits  to  give  such  information 
will  be  liable  for  a  resulting  loss.30 

Thus,  if  he  has  been  instructed  to  insure  his  principal's  goods  and 
is  unable  to  do  so,  he  should  at  once  give  his  principal  notice  of  this 


su ranee  as  soon  as  received  in  store,"      for  the  principal's  protection  and  not 


does  not,  it  was  held,  "import  that 
they  personally  were  to  be  the  insur- 
ers. ...  It  was  merely  a  promise 
that  the  goods  shall  he  insured,"  and 
is  performed  if  they  obtain  reason- 
able and  proper  insurance.  Johnson 
v.  Campbell,  120  Mass.  449. 

29  Where  the  factor  has  been  in  the 
habit  of  insuring  his  principal's 
gocds,  and  the  principal  has  thus 
come  to  rely  upon  his  doing  so,  the 
factor  will  be  liable  for  omitting  to 
insure  without  giving  the  principal 
notice  of  the  omission.  Area  v.  Mil- 
liken,  35  La.  Ann.  1150. 

Where  consignees  had  been  accus- 
tomed to  insure  the  property  of  the 
consignor  only  when  ordered  to  do  so 
by  letter,  a  promise  by  an  agent  of 
the  consignees  to  write  to  them  to 
obtain  insurance,  which  he  failed  to 
do,  does  not  render  the  consignees 
liable  for  not  insuring.  Randolph  v. 
Ware,  3  Cranch  (U.  S.),  503,  2  L.  Ed. 
512. 

Where  there  is  a  general  custom 
and  duty  to  keep  the  goods  insured, 
but  the  principal  has  directed  the  fac- 
tor not  to  insure,  it  is  competent  to 
show  that  it  was  customary  to  con- 
strue the  instruction  as  applying  to 
that  season  only,  and  to  hold  the  fac- 
tor for  not  insuring  thereafter  ac- 
cording to  the  general  custom.  Bur- 
bridge  v.  Gumbel,  72  Miss.  371. 

The  custom  must  be  one  to  insure 


merely  for  the  factor's  benefit. 
Kingston  v.  Wilson,  4  Wash.  C.  C. 
310,  Fed.  Gas.  7,823. 

so  Harvey  v.  Turner,  4  Rawle 
(Pa.),  223;  Arrott  v.  Brown,  6  Whart. 
(Pa.)  9;  Devall  v.  Burbridge,  4 
Watts  &  Serg.  (Pa.)  305;  Brown  v. 
Arrott,  6  W.  &  S.  (Pa.)  402;  Moore 
v.  Thompson,  9  Phila.  164;  Howe  v. 
Sutherland,  39  Iowa,  484;  Greely  v. 
Bartlett,  1  Greenl.  (Me.)  172,  10  Am. 
Dec.  54;  Railey  v.  Porter,  32  Mo.  471, 
82  Am.  Dec.  141;  Dowler  v.  Swift  & 
Co.,  113  N.  Y.  App.  Div.  260;  Western 
Union  Cold  Storage  Co.  v.  Winona 
Produce  Co.,  197  111.  457.  Where  a 
factor  sells  grain  to  parties  who, 
while  ordinarily  responsible,  were 
known  to  him  to  be  creating  and 
running  a  "corner"  in  such  grain, 
which  to  be  successful  must  be  main- 
tained for  at  least  thirty-two  days 
without  requiring  a  margin,  and 
without  advising  his  principal  as  to 
the  persons  to  whom  he  sold,  or  of 
what  they  were  doing,  or  of  his  right 
to  demand  a  margin,  there  is  evi- 
dence to  sustain  a  verdict  that  he 
was  negligent.  Howe  v.  Sutherland, 
supra. 

Factor  who  refuses  to  disclose 
name  of  purchaser  so  that  principal 
may  have  recourse  to  him  is  person- 
ally liable  to  the  principal  for  the 
price.  Mobile  Fruit  Co.  v.  Potter,  78 
Minn.  487. 


2132 


CHAP.    IV] 


OF  FACTORS 


[§    2533 


fact  that  the  latter  may  effect  the  insurance;81  if  he  has  been  in  the 
habit  of  insuring  and  determines  no  longer  to  do  so,  he  should  advise 
his  principal  of  his  determination  ;32  if  the  goods  of  his  principal  in  his 
possession  are  seized  by  attachment  or  otherwise,  he  should  give  his 
principal  notice  of  this  fact;83  if  having  sold  goods  upon  credit,  the 
purchaser  does  not  pay  when  due,  the  factor  must  inform  his  principal 
within  a  reasonable  time  or  he  will  be  held  to  have  assumed  the  debt.84 
These  and  many  other  cases  afford  illustrations  of  the  scope  of  this 
duty. 

When  necessary  for  the  protection  of  the  principal's  interest,  as,  for 
example,  to  enable  him  to  sue  the  buyer,  it  is  the  duty  of  the  factor  to 
disclose  the  name  and  identity  of  the  person  to  whom  he  sells.35 

§  2533.  Duty  to  sell  only  to  responsible  purchaser. — It  is  the  duty 
of  the  factor,  even  in  the  absence  of  any  instructions,  to  exercise  rea- 
sonable care,  prudence  and  diligence  in  selling  only  to  responsible 
parties,  and,  if  he  neglects  to  do  so,  he  will  be  liable  for  a  loss  that  may 
ensue  ;36  but  he  is  not  ordinarily  a  guarantor  of  payments,  and  if,  hav- 
ing exercised  due  diligence,  a  loss  occurs,  the  principal  must  bear  it, 
and  not  the  factor.37  He  may,  however,  make  himself  a  guarantor  by 

16^1     ;?i; 

bear  It.  But  he  Is  not  authorized  to 
give  credit,  except  to  such  persons 
as  prudent  people  would  trust  with 
their  own  property.  He  may  receive 
securities  in  his  own  name  for  goods 
sold,  without  subjecting  himself  to 
liability  merely  by  so  doing.  But  he 
must  deliver  such  securities  to  his 
principal,  if  he  demand  them,  or,  in 
case  of  loss,  he  will  be  answerable  as 
for  a  breach  of  trust,  though  in  such 
case  the  principal  should  pay  him  his 
usual  commissions. 


si  Callander  v.  Oelrichs,  5  Bing.  N. 
C.  58;  Smith  v.  Lascelles,  2  T.  R.  187. 

33  Area  v.  Milliken,  35  La.  Ann. 
1150. 

33  Moore  v.  Thompson,  supra;  De- 
vall  v.  Burbridge,  supra. 

34  Harvey  v.  Turner,  supra;  Arrott 
v.  Brown,  supra. 

35  Western  Union  Cold  Storage  Co. 
v.  Winona  Produce  Co.,  197  111.  457; 
Mobile  Fruit  Co.  v.  Potter,  78  Minn. 
487.    Compare  Cushman  v.  Snow,  186 
Mass.  169. 

se  Foster  v.  Waller,  75  111.  464; 
Brown  v.  Funck,  89  Kan.  601;  Pink- 
ham  v.  Crocker,  77  Me.  563;  Housel 
v.  Thrall,  18  Nebr.  484. 

37  The  rule  upon  this  subject  is 
well  stated  by  Mellen,  C.  J.,  as  fol- 
lows: "By  the  law-merchant,  a  factor 
may  sell  the  goods  of  his  principal 
on  a  reasonable  credit,  unless  he  is 
restrained  from  so  doing,  either  by 
his  instructions  or  by  the  usage  of 
the  trade  to  which  the  transaction 
relates.  A  sale  made  under  such  cir- 
cumstances is  at  the  risk  of  the  prin- 
cipal, and  if  a  loss  happens,  he  must 


"If  through  carelessness  or  want  of 
proper  examination  and  Inquiry,  he 
give  credit  to  a  man  who  is  insolvent, 
should  a  loss  happen,  he  must  indem- 
nify the  principal.  And  if  a  debt  be 
lost  by  the  inattention  of  the  factor 
in  omitting  to  collect  it  when  in  his 
power  to  do  so,  he  will  be  liable  for 
it.  He  must  be  honest  and  faithful, 
and  must  give  his  principal  all  neces- 
sary or  useful  information  respecting 
the  concerns  of  his  agency."  Greely 
v.  Bartlett,  1  Greenl.  (Me.)  172,  10 
Am.  Dec.  54. 

In  Housel  v.  Thrall,  18  Neb.  484,  an 


2133 


§  2534] 


THE  LAW  OF  AGENCY 


[BOOK  v 


an  express  agreement.  One  form  of  such  an  undertaking  is  that  of 
the  factor  who  sells  upon  a  del  credere  commission.88  Another  is  that, 
now  common,  of  a  factor  who  is  authorized  to  sell  on  credit,  but  who 
agrees,  or  is  instructed,  that  he  will  sell  only  to  persons  of  known  re- 
sponsibility, or  only  upon  securities  of  undoubted  collectibility.  Often 
he  agrees  to  collect  the  debts  made  or  to  endorse  the  securities  taken. 
The  extent  of  the  undertaking  in  these  cases  depends,  of  course,  upon 
the  language  used  in  each  particular  case,  but  under  such  instructions 
or  agreements  as  those  named,  the  factor  stands  ordinarily  in  the  po- 
sition of  a  guarantor.39 

§  2534.  •  Del  credere  commission. — A  factor  is  said  to  act 

under  a  del  credere  commission  when,  in  consideration  of  an  additional 
commission,  he  guarantees  the  payment  to  the  principal  of  debts  that 
become  due  through  his  agency.40  The  nature  and  extent  of  his  obli- 
gation have  been  much  disputed,  some  English  41  and  some  Ameri- 
can42 cases  holding  that  he  is  liable  as  a  surety  merely ;  but  the  weight 


instruction  to  a  jury  "that  a -factor 
or  commission  man,  while  he  cannot 
be  held  as  a  guarantor  of  the  respon- 
sibility of  the  persons  to  whom  he 
sells  in  the  ordinary  course  of  busi- 
ness, and  in  accordance  with  the  us- 
ages of  the  market  where  the  sale 
takes  place,  must,  nevertheless,  use 
all  reasonable  effort  and  resort  to  all 
reasonably  available  sources  of  infor- 
mation, to  learn  the  pecuniary  liabil- 
ity of  the  purchaser,  and  if  he  does 
not  do  so,  and  any  loss  occurs  by 
reason  thereof,  he  will  be  liable  for 
such  loss,"  was  held  to  be  a  correct 
statement  of  the  rule.  See  also, 
Wynne  v.  Schnabaum,  78  Ark.  402; 
Arkansas  Fertilizer  Co.  v.  Banks,  95 
Ark.  86. 

as  See  following  section. 

sa  Clark  v.  Roberts,  26  Mich.  506. 

In  many  cases  the  agent  agrees  to 
endorse  all  notes  taken  from  pur- 
chasers. See  Springfield  Fertilizer 
Co.  v.  Tompkins,  16  Ind.  App.  403. 

*°  Contracts  of  this  sort  may,  of 
course,  take  on  a  great  variety  of 
forms,  and  impose  a  greater  or  less 
or  different  liability  from  that  im- 
posed by  the  ordinary  del  credere 
commission.  Thus  in  First  Nat. 
Bank  v.  Schween,  127  111.  573,  11  Am. 

2134 


St.  Rep.  174,  it  is  said:  "The  princi- 
pal may,  by  contract,  require  the 
agent  or  factor  to  guarantee  the  col- 
lection of  the  price  of  all  goods  sold, 
and  the  factor  may  guarantee  that 
the  property  of  his  principal  shall 
realize  a  certain  sum."  In  that  case 
a  deed  of  trust  was  given  to  secure 
the  performance  of  the  contract. 

While  such  undertakings  are  spec- 
ial, i.  e.,  outside  the  ordinary  em- 
ployment of  factors,  the  fact  that  the 
factor  in  a  given  case  had  assumed 
the  responsibility  of  a  del  credere 
agent  may  be  shown  by  a  course  of 
conduct,  the  charges  made,  etc.  Shaw 
v.  Woodcock,  7  B.  &  C.  73. 

41  Morris  v.  Cleasby,  4  M.  &  S.  566; 
Hornby  v.  Lacy,  6  M.  &  S.  166.     [But 
see  Couturier  v.  Hastie,  8  Exch.  40; 
Sutton  v.   Grey,    [1894]   1  Q.  B.  285, 
and  cases  therein  cited.]    The  earlier 
cases  were  contra;  Grove  v.  Dubois, 
1  T.  R.  112;  Bize  v.  Dickason,  Id.  285. 

42  In  a  number  of  cases  it  is  said 
that  he  is  liable  as  a  surety  merely. 
Thompson  v.   Perkins,   3  Mason    (U. 
S.  C.  C.),  232,  23  Fed.  Cas.  1066,  Fed. 
Cas.  No.  13,972;   In  re  Taft,  66  C.  C. 
A.  385,  133  Fed.  511;  Gindre  v.  Kean, 
7  N.  Y.  Misc.  582. 

--1  "if;l--il    23i'I    i>    11    bllK   ,\&qi-J 


CHAP.    IV] 


OF   FACTORS 


[§    2534 


of  authority  in  the  United  States  is  undoubtedly  in  support  of  the  rule 
that  a  factor  who  sells  by  virtue  of  his  employment,  under  a  del  credere 
commission  is  liable  not  collaterally  merely,  but  absolutely  as  a  prin- 
cipal, and  that  if  the  debt  be  not  paid  when  due,  indebitatus  as- 
sumpsit  will  lie  against  him  at  once  for  the  amount.43  As  such  prin- 
cipal debtor,  his  contract  is  not  within  the  statute  of  frauds  as  a  prom- 
ise to  answer  for  the  debt,  default  or  miscarriage  of  another.44  But 
where  the  goods  are  sold  upon  an  authorized  credit,  the  factor  cannot 
be  required,  because  of  a  del  credere  commission,  to  account  to  the 
principal  before  the  expiration  of  the  credit  given  to  the  buyer.*6 


« Wolff  v.  Koppel,  5  Hill,  458,  2 
Denio  (N.  Y.),  368,  43  Am.  Dec.  751; 
Swan  v.  Nesmith,  7  Pick.  (Mass.) 
220,  19  Am.  Dec.  282;  Lewis  v. 
Brehme,  33  Md.  412,  3  Am.  Rep.  190; 
Sherwood  v.  Stone,  14  N.  Y.  267; 
Blakely  v.  Jacobson,  9  Bosw.  (N.  Y.) 
140;  Cartwright  v.  Greene,  47  Barb. 
(N.  Y.)  9;  Leverick  v.  Meigs,  1  Cow. 
(N.  Y.)  645;  Balderston  v.  National 
Rubber  Co.,  18  R.  'I.  338,  49  Am.  St. 
Rep.  772;  Tustin  Fruit  Ass'n  v.  Earl 
Fruit  Co.  (Cal.),  53  Pac.  693. 

See  Pugh  v.  Porter,  118  Cal.  628, 
where  the  same  rule  is  said  to  apply 
to  a  contract  on  the  part  of  the  fac- 
tor that  the  goods  shall  bring  a  cer- 
tain price. 

**  Wolff  v.  Koppel,  supra;  Swan  v. 
Nesmith,  supra;  Sherwood  v.  Stone, 
supra;  Bradley  v.  Richardson,  23  Vt. 
720;  Suman  v.  Inman,  6  Mo.  App. 
384.  The  English  cases  now  agree  in 
this.  Button  v.  Grey,  [1894]  1  Q.  B. 
285;  Couturier  v.  Hastie,  8  Exch.  40; 
Fitzgerald  v.  Dresler,  7  C.  B.  (N.  S.) 
374. 

In  Sutton  v.  Grey,  supra,  it  is 
pointed  out  that  the  liability  of  the 
factor  in  these  cases  does  not  arise 
merely  from  some  engagement  which 
he  has  entered  into  collateral  to  the 
engagement  of  the  buyer,  but  it  is  an 
obligation  growing  out  of  the  terms 
of  his  employment  and  entered  into 
at  that  time,  before  the  sale  was 
made,  the  subsequent  sale  being 
simply  the  occasion  on  which  the  ob- 
ligation comes  into  effect. 

*">  Lewis  v.  Brehme,  33  Md.  412, 
' 


3  Am.  Rep.  190,  supra.  In  this 
it  appeared  that  a  del  credere  agent 
collected  a  bill  of  goods  due  his  prin- 
cipal from  a  customer,  and  placed 
the  amount  to  his  own  account  with 
his  bankers,  and  purchased  of  them 
a  gold  draft,  which  he  caused  to  be 
made  payable  to  his  own  order  with- 
out reference  to  his  character  as 
agent,  and,  after  indorsing  it  to  his 
principals  or  their  order,  transmitted 
it  to  them  in  payment  not  only  for 
the  price  of  the  goods  sold  to  the 
customer,  but  also  of  a  balance  due 
from  himself.  The  draft  was  dishon- 
ored and  returned  to  the  agent,  who 
treated  the  loss  as  his  own,  and 
promised  to  send  another  draft,  and 
in  the  meantime  unsuccessfully  so- 
licited payment  of  the  draft  from  the 
drawers  to  himself  and  then  caused 
himself  to  be  made  a  preferred  credit- 
or of  the  drawers,  who  had  failed.  In 
an  action  by  the  principals  against 
the  agent  to  recover  the  amount  of 
the  draft.  Held— 

1.  That     the     contract     resulting 
from  the  del  credere  character  of  the 
agent  was  not  entirely  discharged  in 
the    payment    of   the   money    by    the 
customer  to  the  agent. 

2.  That     the    agent    was     further 
liable,  after  the  receipt  of  the  money, 
either  by  virtue   of  the  del   credere 
commission,  or  by  his  indorsement  of 
the  draft,  although  he  had  used  or- 
dinary diligence  in  transmitting  the 
money. 

3.  That  the  promise  of  the  agont  to 
assume  the  debt,  after  the  dishonor 

2135 


§  2535]  THE  LAW  OF  AGENCY  [BOOK  v 

The  del  credere  commission,  of  course,  does  not  mean  that  the  factor 
agrees  that  he  will  sell  the  goods ;  or  that  he  will  either  sell  them  or  pay 
for  them,  or  that  he  will  pay  for  those  which  he  does  not  sell, — though 
special  contracts  of  that  sort  are  sometimes  made ; — but  merely  that, 
if  he  does  sell  them,  the  owner  shall  get  his  pay  for  them. 

A  factor  acting  del  credere,  is  not  on  that  account  relieved  from  any 
of  the  duties  which  attach  to  other  factors,  nor  is  he  clothed  with  any 
greater  authority.*6 

Neither  does  the  factor  by  acting  under  a  del  credere  commission 
cease  to  be  an  agent,  nor,  does  the  principal  lose  his  title  to  the  goods 
or  their  proceeds  or  the  right  to  pursue  the  purchaser  for  the  price.*7 

§  2535.  Factor's  duty  to  care  for  property. — It  is  the  privilege  of 
the  principal  or  consignor,  to  give  such  reasonable  directions  in  re- 
gard to  the  manner  and  place  in  which  his  property  shall  be  stored  and 

cared  for,  as  he  deems  desirable,  and  it  is  the  duty  of  the  factor,  con- 

f 

signee  or  commission  merchant,  if  he  accepts  the  consignment,  to  fol- 
low these  directions,  unless  prevented  by  sufficient  excuse.*8  If  he  fails 
to  do  this,  and  the  property  is  lost  or  destroyed,  the  factor  will  be  re- 
sponsible, and  he  cannot  exempt  himself  by  showing  a  local  custom 
among  factors  to  store  or  care  for  property  differently.49 

Where  no  instructions  or  directions  are  so  given  it  is  still  the  fac- 
tor's duty  to  exercise  reasonable  care,  prudence  and  diligence  in  storing 
and  caring  for  the  property  consigned  to  him ;  and  for  a  breach  of  this 
duty,  he  will  be  liable  for  the  resulting  loss.50  In  such  cases,  if  he 
pursues  the  usual  and  regular  course  which  custom  and  experience 

of  the  draft  was  not  valid  unless  he  becomes  the  owner  of  the  goods,  etc., 

had  full  knowledge  of  the  neglect  of  but  the  modern  cases  are  to  the  effect 

his    principals    in    making    demand,  stated  in  the  text, 

and  in  giving  notice  of  the  dishonor  «  Vincent  v.  Rather,  31  Tex.  77,  98 

of  the  draft.  Am.  Dec.  516. 

4.  That  the  relation  of  a  del  credere  4£>  Vincent  v.  Rather,  supra. 

agent  to  his  principal,  is  that  of  debt-  "o  ives  v.  Fresinger,  70  N.  J.  L.  257; 

or  and  creditor,  and  he  is  bound  abso-  Vincent    v.    Rather,    supra.      Where 

lutely   to   see   that   his   principal   is  commission  merchants  advertise  that 

paid.  goods    consigned    to    them    will    be 

•JG  Morris  v.  Cleasby,  4  M.  &  S.  566;  stored     In     a     fire-proof    warehouse, 

Thompson  v.  Perkins,  3  Mason,  232;  and  in  reliance  thereon  the  principal 

Graham  v.  Ackroyd,  10  Hare,  192.  consigns    them    goods,  e.    g.,    cotton, 

47  Cushman  v.  Snow,  186  Mass.  169;  they  will  be  liable  if  they  store  them 

Balderston  v.   National   Rubber   Co.,  in  a  wooden  warehouse  which  is  less 

18  R.  I.  338,  49  Am.  St.  Rep.  772.  safe,    and    afterwards    burned;     and 

There    are,    undoubtedly,    in    the  this     will     be     true     even     though, 

earlier  cases  statements  to  the  con-  through   the  mistake  of  the  carrier, 

trary,  as,  for  example,  that  the  factor  the  goods  were  first  shipped  to  and 

as  between  himself  and  the  principal  stored  in  a  less  safe  warehouse  if, 

2136 


CHAP.    IV ] 


OF  FACTORS 


[§    2536 


have  adopted  as  proper  and  prudent  under  like  circumstances,  he  could 
not,  in  the  absence  of  some  exceptional  circumstance  reasonably  ex- 
empting that  case  from  the  general  rule,  be  deemed  negligent.51 

§  2536.  Unforeseen    contingency — Sudden    emergency. — 

So  though  the  factor  may  properly  be  held  responsible  for  a  neglect 
to  provide  against  the  risks  or  perils  to  which  the  property  entrusted 
to  his  care  may,  in  the  ordinary  course  of  business,  be  exposed,  he  can- 
not be  held  liable  for  not  anticipating  a  danger  altogether  out  of  the 
ordinary  course  of  business  or  of  natural  events.52  .And  even  though 
his  authority  be  otherwise  limited,  the  factor  may,  in  the  event  of  some 
unforeseen  contingency  or  some  extraordinary  peril,  where  commun- 
ication with  the  principal  cannot  be  had,  be  justified  in  assuming  ex- 
traordinary authority  if  he  acts  with  the  view  of  benefiting  the  prin- 
cipal and  of  protecting  his  property  from  ruin,  and  goes  no  further 
than  reasonable  prudence  and  good  judgment  would  sanction  as  nec- 
essary and  proper  under  the  circumstances.58 

J  f       V 


after  the  discovery  of  the  mistake 
by  the  real  consignees,  they  allow  the 
goods  to  remain  in  such  warehouse. 
Idem. 

Where  factors,  who  charged  for 
storage  as  well  as  selling,  stored  salt 
in  their  warehouse  but  did  not  ex- 
amine it  for  several  weeks  or  find 
out  that  a  plank  had  been  torn  off 
and  on  about  ten  different  occasions 
lots  of  from  20  to  25  barrels  were 
stolen,  until  240  barrels  were  thus 
lost,  it  was  held  they  were  guilty  of 
negligence  though  there  was  evi- 
dence of  a  general  custom  in  the 
place  to  pile  up  salt  in  open  places. 
The  court  thought  it  would  have  been 
more  safe  if  stored  in  open  but  vis- 
ible places  than  in  the  warehouse  un- 
der these  circumstances.  Chenowith 
v.  Dickinson,  47  Ky.  156. 

BI  Davis  v.  Kobe,  36  Minn.  214,  1 
Am.  St.  Rep.  663;  Phillips  v.  Moir,  69 
111.  155.  "A  factor  or  commission 
merchant  to  whom  wheat  is  con- 
signed for  storage  in  an  elevator,  not 
a  private  warehouse,  and  for  sale, 
may  store  it  in  a  mass  with  other 
wheat  of  the  same  grade  and  quality, 
in  the  absence  of  instructions  from 
the  consignor  to  the  contrary."  Davis 
v.  Kobe,  supra. 


A  sewing  machine  factor,  not  ap- 
pointed for  any  definite  time,  gave 
up  the  agency,  and  gave  the  company 
reasonable  notice  to  take  back  the 
unsold  machines.  Before  they  were 
removed,  they  were  destroyed  with- 
out his  fault.  Held,  that  after  the 
notice  to  remove  them  he  would  be 
liable  only  for  gross  negligence,  and 
hence  was  not  liable  for  the  loss. 
Barrows  v.  Cushway,  37  Mich.  481. 

Where  the  goods  are  forcibly  taken 
from  the  factor  by  the  military  au- 
thorities in  time  of  war,  the  factor  is 
excused.  Wilkinson  v.  Williams,  35 
Tex.  181. 

A  factor  who  placed  cotton  on  a 
wharf,  because  on  account  of  a  fire 
which  destroyed  several  warehouses 
in  the  city  there  was  not  warehouse 
room  to  be  had,  and  allowed  it  to  re- 
main there  only  until  other  storage 
could  be  secured,  is  not  liable  for 
damage  to  the  cotton  from  exposure 
to  the  weather.  Foster  v.  Bush,  104 
Ala.  662. 

62  Johnson  v.  Martin,  11  La.  Ann. 
27,  66  Am.  Dec.  193. 

68  Foster  v.  Smith,  2  Cold.  (Tenn.) 
474,  88  Am.  Dec.  604;  Joslin  v.  Cowee, 
52  N.  Y.  90;  Drummond  v.  Wood,  2 
Caines  (N.  Y.),  310;  Judson  Y. 


2137 


§§  2537,2538] 


THE  LAW  OF  AGENCY 


[BOOK    V 


§  2537.  General  duty  as  to  sales. — Where  goods  are  consigned  to 
a  factor  for  sale,  but  with  no  instructions  as  to  the  time,  price  or  man- 
ner of  sale,  he  is  bound,  and  bound  only,  to  the  exercise  of  a  fair  and 
reasonable  discretion  under  the  circumstances.54  By  consigning  them 
without  instructions,  the  principal  is  presumed  to  be  willing  to  rely 
upon  the  sound  discretion  of  the  factor,  and  if  this  is  exercised,  fairly 
and  in  good  faith,  the  factor  discharges  his  duty.55  A  fortiori  is  this 
so  where  the  factor  is  instructed  to  deal  with  the  goods  as  with  his 

Qwn  50  Jk.   i* 

Following  this  general  duty  into  details  as  to  time,  place  and  price, 
we  have  : — • 

§  2538.  Duty  as  to  place  of  sale. — Where  no  instructions  are 
given  to  the  contrary,  it  is  presumed  that  a  principal,  who  consigns 
goods  for  sale,  to  a  factor  residing  at  a  certain  place,  intends  that  the 


Sturges,  5  Day  (Conn.),  556;  Jervis 
v.  Hoyt,  5  Thorn.  &  C.  (N.  Y.)  199,  2 
Hun,  637;  Lippmann  v.  Brown,  43 
N.  Y.  Misc.  632. 

Where  oranges,  shipped  to  the  fac- 
tor under  instructions,  that  if  a  satis- 
factory price  could  not  be  obtained 
he  should  put  them  in  cold  storage, 
arrived  in  a  decayed  and  unsound 
condition,  unfit  for  storage,  the  fac- 
tor was  held  to  be  justified,  as  the 
only  method  of  saving  a  total  loss, 
In  reasserting  and  selling  them  at 
once,  and  may  recover  the  difference 
between  the  proceeds  and  his  ad- 
vances and  expenses.  Lippmann  v. 
Brown,  43  N.  Y.  Misc.  632. 

Where  &  fantor,  going  with  the 
goods,  and  clothed  with  large  discre- 
tion, found  it  impossible  to  land  the 
goods  at  the  port  intended  and  the 
master  of  the  ship,  which  brought 
them,  refused  to  go  elsewhere,  and 
freight  rates  were  very  high  because 
of  war,  he  was  held  justified  in  buy- 
ing a  ship  to  carry  the  goods  to  an- 
other part.  Judson  v.  Sturges,  £  Day 
(Conn.),  556. 

Where  a  factor  had  been  induced 
by  the  buyer's  fraud  to  sell  the  goods 
to  an  insolvent,  but  before  thtf 
discovery  of  the  fraud,  the  goods- 
were  in  such  a  situation  that  it  would 
have  been  difficult  or  impossible  to 
follow  and  reclaim  them,  the  factor, 


acting  in  good  faith,  was  held  justi- 
fied in  taking  what  was  believed  to 
be  good  security  for  the  price,  and 
thus  affirming  the  sale,  even  though 
the  security  proved  bad.  Joslin  v. 
Conell.  52  N.  Y.  90. 

Factors  held  justified  in  disposing 
of  perishing  property  to  the  best  ad- 
vantage, though  not  according  to  in- 
structions. Said  the  court:  "Emer- 
gencies may  arise  in  which  the  factor 
may,  from  the  necessities  of  the  case, 
be  justified  in  assuming  extraordi- 
nary powers,  and  his  act,  fairly  done 
under  such  circumstances,  bind  the 
principal.  Amongst  other  emergen- 
cies, acts  done  in  the  ftona  fide  effort 
to  save  perishing  property  is  one." 
Jervis  v.  Hoyt,  2  Hun  (N.  Y.),  637. 

54  See    Wynne    v.    Schnabaum,    78 
Ark.  402;   Arkansas  Fertilizer  Co.  v. 
Banks,  95  Ark.  86. 

55  Liotard     v.     Graves,     3     Caines 
(N.   Y.),   226;    Marfield   v.   Goodhue, 
3  N.  Y.   62  r  Milbank  v.   Dennistoun, 
1    Bosw.    (N.    Y.)     246;     Conway    v. 
Lewis,  120  Pa.   215,   6  Am.  St.  Rep. 
700.     Fact  that  he  had  written   for 
instructions    but    sold     before    they 
were    received    does   not   necessarily 
deprive  him  of  his  right  to  sell  ac- 
cording   to    sound    discretion.      Con- 
way  v.  Lewis,  supra. 

oe  Adams  v.  Capron,  21  Md.  186,  83 
Am.  Dec.  566;  McMorris  v.  Simpson, 


CHAP.    IVJ 


OF  FACTORS 


[§    2539 


good's  shall  be  sold  at  that  place,  and  the  factor  has  no  implied  author- 
ity to  ship  them  elsewhere  to  be  sold.87  For  any  loss  naturally  and 
proximately  resulting  from  so  doing,  the  factor  will  be  liable  to  his 
principal.58  Any  usage  to  the  contrary  should  be  so  general  and  well 
established  as  to  warrant  the  presumption  that  the  consignment  was 
made  in  reference  to  it,  or  the  principal  must  be  shown  to  have  had 
knowledge  of  it.89 

§  2539.  Duty  as  to  time  of  sale. — A  factor  to  whom  goods  are 
consigned  for  sale,  with  no  instructions  as  to  the  time  at  which  they 
shall  be  sold,  is  bound  to  exercise  reasonable  discretion  and  judgment 
in  reference  to  their  sale.  If,  for  example,  he  delays  the  sale  for  an 
unreasonable  time  and  the  goods  depreciate  in  value,  he  is  liable  for 
the  loss  ;60  but  on  the  other  hand,  if  he  sells  within  a  reasonable  time 
and  in  the  exercise  of  a  sound  discretion  he  could  not  be  held  liable 

been  submitted  to  the  jury  to  deter- 
mine whether  the  act  was  justified. 
McMorris  v.  Simpson,  21  Wend.  (N. 
Y.)  610. 

Where  the  factor  is  authorized  to 
sell  in  other  markets  and  is  not  neg- 
ligent, he  is  not  liable  for  loss  from 
reshipment.  Webster  v.  Richardson, 
55  Tex.  Civ.  App.  391. 

68  Comer  v.  Way,  and  cases,  supra^ 

09  Phillips  v.  Scott,  supra. 

Unknown  local  usage  of  factors  to 
vary  place  of  sale,  not  binding  on 
principal.  Wallace  v.  Morgan,  23  Ind. 
399;  Burke  v.  Frye,  supra. 

eo  Atkinson  v.  Burton,  4  Bush 
(Ky.),  299;  Roberts  v.  Cobb,  76  Minn. 
420;  Benedict  &  Co.  v.  Inland  Grain 
Co.,  80  Mo.  App.  449  (holding  that 
the  question  should  have  been  sub- 
mitted to  the  jury  whether  factor 
was  negligent  in  holding  hay  from 
January  until  August,  on  a  falling 
market,  and  until  new  crop  came  in); 
Usborne  v.  Stephenson,  36  Ore.  328, 
48  L.  R.  A.  432  (same  where  factor 
held  hops  for  almost  a  year  and  until 
they  were  consumed  by  fire). 

Where  factor  agrees  not  to  sell  un- 
til he  received  orders  to  do  so,  his 
sale  without  such  orders  and  without 
excuse,  held  a  conversion.  Pugh  v. 
Porter,  118  Cal.  C28. 


21  Wend.  (N.  Y.)  610,  (where  the 
person  acting  as  factor  was  expressly 
requested  to  do  with  the  goods  as 
though  they  were  his  own.  He  sold 
his  own  goods  on  same  terms  and 
conditions  and  at  same  time  and 
place). 

ST  Comer  v.  Way,  107  Ala.  300,  54 
Am.  St.  Rep.  93;  Betts  v.  Southern 
Cal.,  etc.,  Exchange,  144  Cal.  402; 
Wallace  v.  Bradshaw,  6  Dana  (Ky.), 
382;  Phy  v.  Clark,  35  111.  377;  Wal- 
lace v.  Morgan,  23  Ind.  399;  Phillips 
v.  Scott,  43  Mo.  86,  97  Am.  Dec.  369; 
Housel  v.  Thrall,  18  Neb.  484;  Kauff- 
man  v.  Beasley,  54  Tex.  563. 

Where  cattle  were  shipped  from 
Idaho  to  factors  in  Omaha  for  sale 
and  the  factors  not  being  able  to  sell 
them  in  two  days,  sent  them  on  to 
Chicago,  where  they  were  sold  at  a 
loss,  the  factors  were  held  liable. 
Burke  v.  Frye,  44  Neb.  223.  Same, 
where  apples  consigned  to  a  New 
York  factor  were  forwarded  by  him 
to  Hamburg.  Weidner  v.  Olivit,  108 
N.  Y.  App.  Div.  122. 

Where  butter  was  placed  in  the 
hands  of  a  factor  who  was  going  to 
New  York,  to  sell  "as  if  it  were  your 
own,"  and  he,  finding  the  market 
there  dull,  shipped  both  his  own  and 
plaintiff's  goods  to  the  south,  it  was 
held  that  the  matter  should  have 


2139 


§    2540]  THE  LAW  OF  AGENCY  [BOOK   V 

because,  if  he  had  held  the  goods  longer,  he  might  have  realized 
more;61  nor  is  he  liable  because  the  goods  are  lost  by  an  accidental 
fire,  where  he  has  not  delayed  the  sale  for  an  unreasonable  time.62 

Obviously,  he  is  not  liable  where  the  delay  complained  of  was  the 
result  of  the  principal's  directions.03 

§  2540.  Duty  as  to  price. — In  the  absence  of  special  instructions 
as  to  the  price,  it  is  the  duty  of  the  factor  to  sell  for  the  fair  value  or 
market  price.8*  If  he  sells  in  good  faith,  with  reasonable  prudence 
and  at  the  fair  market  price,  he  will  not  be  liable,  even  though  he  may 
not  realize  the  full  value  of  the  goods  or  though  subsequent  events 
prove  that  by  waiting  longer  he  might  have  realized  more.65  But  if, 
in  disregard  of  this  duty  and  without  sufficient  excuse,  he  sells  at  an 
underprice,  or  if  he  falsely  accounts  for  them  at  an  underprice,  he  is 
liable  for  the  difference.68  So  if  he  be  instructed  to  sell  when  the  goods 
reach  a  certain  price,  or  if  he  be  instructed  or  agree  not  to  sell  for  less 
than  a  certain  price,  it  is  his  duty  to  comply,  unless  there  is  a  legal  rea- 
son to  the  contrary.  If  he  does  not,  he  will  be  liable  for  the  loss.67 

He  may  also  undertake  that  the  goods  shall  bring  a  certain  price. 
Where  he  does  this,  it  is  said  that  his  obligation  is  similar  in  nature 
to  that  of  the  factor  selling  under  a  del  credere  commission,88  that  is 
to  say,  his  liability  for  the  amount  fixed  becomes  absolute  upon  a  sale 
for  cash,  or  if  upon  credit,  upon  the  expiration  of  the  credit.09 

•i  See   Given   v.   Lemoine,  35    Mo.  contract  to  sell  at  "highest  market 

110.  price." 

«2  Lehman  v.  Prltchett,  84  Ala.  512;  ««  Bigelow  v.  Walker,  supra. 

Prokop  v.  Gourlay,  65  Neb.  504.  67  See    Weed    v.    Adams,  37    Conn. 

«3  Charlotte  Oil,  etc.,  Co.  v.  Hartog,  378;    Wood    v.    Jones,    10    Ga.    App. 

29  C.  C..A.  56,  85  Fed.  150.  735;   George  v.  McNeill,  7  La.  124,  26 

e*  Wynne   v.    Schnabaum,    78   Ark.  Am.  Dec.  498;   Dalby  v.  Stearns,  132 

402.  Mass.  230;    Frothingham  v.  Bverton, 

BO  Bigelow  v.  Walker,  24  Vt.  149,  58  12  N.  H.  239;  Goesling  v.  Gross,  15  N. 

Am.  Dec.  156;  Davis  v.  Bessemer  City  Mex.  721;  Blot  v.  Bolceau,  3  N.  Y.  78, 

Cotton  Mills,  102   C.  C.  A.   232,   178  51  Am.  Dec.  345. 

Fed.  784;    Go  van  v.  Gushing,  111  N.  es  See  ante,  §  2534. 

Car.  458.  «»  Pugh  v.  Porter,  118  Cal.  628. 

An  agreement  to  sell  "for  the  high-  In  Mackenzie  v.  Hodgkin,  126  Cal. 

est  obtainable  price"  held  to  impose  591,  77  Am.  St.  Rep.  209,  the  contract 

no    greater    duty    than    to  "exercise  was   not   to   sell   the   goods,   raisins, 

reasonable   and   diligent   effort"   and  "below  prices  named  by  the  associa- 

this  was  what  the   law  would  have  tion"  of  raisin  growers, 

required  in  the  absence  of  the  agree-  In   Dalton   v.   Goddard,    104   Mass. 

ment.     Craig  v.  Milling  Co.,  103  111.  497,  the  factors  guaranteed  that  the 

App.  486.  goods  would  realize  eighty  per  cent. 

See  also,  Mackenzie  v.  Hodgkin,  126  of  invoice  prices.     Held,  that  prlnci- 

Cal.  591,  77  Am.  St.  Rep.  209,  as  to  a  pal  was  not  bound  to  pay  factors  any 

2140 


CHAP.    IV] 


OF  FACTORS 


[§§    2541,2542 


§  2541.  Duty  in  collecting  price. — A  factor  who  has  made  an  au- 
thorized sale  upon  credit,  and  has  expressly  or  impliedly  undertaken 
the  collection  of  the  price,  is  bound  to  the  exercise  of  reasonable  care 
and  diligence  in  such  undertaking-.  If  he  has  done  so,  and  the  debt 
remains  uncollected,  he  is  not,  except  where  he  sells  del  credere,  liable 
for  the  debt,  but  if,  by  the  exercise  of  such  care  and  diligence,  the 
debt  might  have  been  collected  and  is  not,  the  factor  must  respond.70 
He  should  not,  under  ordinary  circumstances,  it  is  said,  sue  for  the 
debt  upon  his  principal's  account  without  the  latter's  instructions, 
where  there  is  no  reasonable  probability  of  benefiting  the  principal.71 

§  2542.  Factor's  duty  in  keeping  accounts. — It  is  the  duty  of  the 
factor  to  keep  and  preserve  true  and  regular  accounts  and  records  of 
all  of  his  receipts,  disbursements  and  other  transactions  for  and  on  ac- 
count of  his  principal,  and  to  render  the  same  to  him  within  a  reason- 
able time.72  Where  the  factor  represents  several  principals,  the  ac- 
counts of  each  should  in  general  be  kept  separate.73 


charges  which  would  reduce  the  price 
to  a  lower  amount. 

In  Rollins  v.  Duffy,  18  111.  App.  398, 
the  contract  was  not  to  sell  below  a 
certain  price.  Principal  held  entitled 
to  damages  for  a  violation. 

TO  Folsom  v.  Mussey,  8  Greenl. 
(Me.)  400,  23  Am.  Dec.  522;  Greely  v. 
Bartlett,  1  Greenl.  (Me.)  172,  10  Am. 
Dec.  54;  McConnico  v.  Curzen,  2  Call 
(Va.),  358,  1  Am.  Dec.  540. 

TI  Forrestier  v.  Bordman,  1  Story 
(U.  S.  C.  C.),  43,  Fed.  Gas.  No.  4,945. 

72  Story  on  Agency,  §  203;  Haas  v. 
Damon,  9  Iowa,  589;  Keighler  v.  Sav- 
age Mnfg.  Co.,  12  Md.  383,  71  Am. 
Dec.  600;  Boston  Carpet  Co.  v.  Jour- 
neay,  36  N.  Y.  384;  Everinghan  v. 
Halsey,  108  Iowa,  709. 

No  demand  is  necessary  where  a 
factor  waits  two  years  before  render- 
ing an  account.  Langley  v.  Sturte- 
vant,  7  Pick.  (24  Mass.)  214. 

A  factor  who  neglected  for  five 
years  to  render  an  account  of  his 
sales  was  held  chargeable  with  their 
amount  in  Deanes  v.  Scriba,  2  Call 
(Va.),  416. 

Where  the  factor,  being  asked  to 
return  the  goods,  claimed  a  lien, 
and  then,  when  principal  demanded 
a  statement  of  the  account  and 


amount  of  lien,  refused  it,  the  lien 
was  held  to  be  forfeited.  Terwilliger 
v.  Beals,  6  Lans.  (N.  Y.)  403. 

In  Armour  v.  Gaffey,  30  N.  Y.  App. 
Div.  121,  the  factor,  after  allowing 
the  principal  to  examine  part  of  the 
accounts,  refused  further  examina- 
tion and  destroyed  the  books.  Held, 
a  factor  owes  the  duty  to  render  or 
allow  an  examination  of  the  accounts, 
and  that  where  he  had  thus  destroyed 
the  evidence  it  was  fair  to  compute 
the  selling  price  of  the  goods  not 
accounted  for  by  that  of  those  ac- 
counted for;  and  that  where  the  fac- 
tor had  admitted  that  the  entries  on 
the  accounts  examined  were  not  true 
a  corresponding  allowance  will  be  al- 
lowed on  the  goods  not  accounted  for. 

73  Story  on  Agency,  §  204a. 

Thus  in  Roosevelt  v.  Doherty,  129 
Mass.  301,  37  Am.  Rep.  356,  was  held 
that  where  a  factor  made  a  single 
contract  for  the  sale  of  goods,  part 
of  which  belonged  to  himself  and 
part  to  his  principal,  the  latter  could 
not  maintain  an  action  against  the 
purchaser  for  his  part  of  the  price. 

So  where  a  broker,  having  orders 
from  various  principals,  made  a 
etc.,  Bank,  60  N.  Y.  40;  Newland  v. 
Woodruff,  60  N.  Y.  73. 


2141 


§§    2543»  2544]  THE  LAW  OF  AGENCY  [BOOK    V 

Though  the  factor  may,  as  has  been  seen,  take  from  a  purchaser  to 
whom  he  sells  upon  credit  the  latter's  note  payable  to  the  factor,74  he 
should  not  take  one  note  for  the  goods  sold  for  different  principals.75 
And  where  a  factor  procured  a  note  so  taken  to  be  discounted,  it  was 
held  that  he  had  made  it  his  own,  and  was  liable  to  the  principal,  al- 
though the  maker  had  failed.76 

§  2543.  Not  obliged  to  keep  funds  separate. — It  has  been  seen  to 
i>e  the  general  duty  of  an  agent  to  keep  his  principal's  funds  separate 
from  his  own.77  In  the  case  of  the  factor,  however,  custom  seems  to 
have  established  a  different  rule.78  Thus  in  a  leading  case  upon  this 
subject,  it  is  said:  "In  the  usual  and  ordinary  course  of  business,  a 
factor  does  not  and  is  not  required  to  keep  the  money  received  upon 
the  sale  of  goods  of  different  consignors  in  separate  and  distinct  par- 
cels, but  mingles  all  in  a  common  mass,  and  with  the  like  funds  of  his 
own,  from  whatever  source  derived.  In  such  cases,  he  becomes  at 
once  a  debtor  to  his  principal  and  is  liable  to  an  action  for  the  balance 
shown  to  be  due  by  his  account  of  sales,  immediately  after  its  rendi- 
tion and  without  any  previous  demand."  79 

§  2544.  Factor's  duty  to  account  for  money  and  property. — It  is 
also  the  duty  of  the  factor  to  account  to  his  principal  for  all  goods, 
property  and  money  of  the  principal,  which  come  into  his  hands  as 

lump  contract    with    the    vendor,  it  Moody,   17  Mass.   145.     Approved   in 

was  held    that    one    of    them    alone  Rice  v.  Winslow,  supra. 

could   not,  as  an   undisclosed  princi-  See  also,  Snell  v.  Georgia,  50  Ga. 

nal,  SUP  the  vendor  for  failure  to  de-  219. 

liver.   Widwood's  Sons  Co.  v.  Alaska,  in  Vail  v.  Durant,  supra,  the  fac- 

etc.,  Ass'n,  28  R.  I.  303.  tors   had   made   advances   for  which 

T*  See  ante,  §  2504.  they  had   a   lien   upon   the   funds  in 

"  See    Story    on    Agency,    §  204a;  their  hands. 

Corlies  v.  Gumming,  6  Cow.   (N;  Y.)  Deposit    of    consignor's    funds    in 

181,  to  the  contrary  has  not  been  gen-  bank  by  factor  in  his  own  name  with- 

erally     approved.       See     Story     on  out  directions  makes  the  factor  liable 

Agency,  §  179,  note.     See  also,  Jack-  In  case  of  the  failure  or  insolvency  of 

son  v.  Baker,  1  Wash.   (U.  S.  C.  C.)  the  bank.    Cartmell  v.  Allard,  70  Ky. 

394,  Fed.  Cas.  No.  7,129.  (7  Bush)    482.     If  he  mixes  it  with 

™  Johnson     v.     O'Hara,     5     Leigh  his  own  or  uses  it  in  his  business,  he 

(Va.),  456;   Myers  v.  Entriken,  6  W.  becomes   liable   for   it.     Pinckney   v. 

&  S.   (Pa.)   44,  40  Am.  Dec.  538.  Dunn,  2  S.  Car.  314. 

7*  See  ante,  §  1335.  Factor  stands  in  a  fiduciary  char- 

*8  In    Rice    v.    Winslow,  180    Mass.  acter  to   the  principal.     Banning  v. 

500,  it  is  said  that  authority  to  min-  Bl^akley,   27   La.   Ann.   257,   21   Am. 

gle  the  proceeds  of  sales  of  different  Rep.  554. 

principals,     and     to     substitute     his  Factor  who  receives  money  for  his 

credit  for  those  proceeds  is  derived  principal  and  retains  it  without  no- 

from  the  necessities  of  the  business  tice  to  the  principal  until  it  depre- 

of  the  agent  ciates   (e.  g.,  Confederate  funds)   b«- 

'» Vail  v.  Durant,  7  Allen   (Mass.),  comes    liable.      Pinckney    v.    Dunn, 

408,  83  Am.  Dec.  695;  citing  Clark  v.  supra. 

2142 


CHAP.    IV]  OF  FACTORS  [§    2545 

factor,  after  deducting  his  own  proper  advances  and  commissions.80 
If,  by  the  terms  of  his  employment,  any  time  has  been  fixed  for  this  ac- 
counting, the  factor  should  account  at  that  time;81  where  no  such 
period  has  been  fixed,  it  is  the  duty  of  the  factor  to  account  within  a 
reasonable  time,  and  in  all  events  upon  a  reasonable  demand.82  Where 
from  the  circumstances  of  the  case,  a  demand  is  impracticable  or  highly 
inconvenient,  as  in  the  case  of  a  foreign  factor,  it  is  said  to  be  the  duty 
of  the  factor  to  account  within  a  reasonable  time  without  a  demand.83 
The  fact  that  the  transaction  was  illegal  as  between  the  principal  and 
the  purchaser,  ordinarily  furnishes  no  excuse  to  the  factor  for  not  ac- 
counting.8* 

§  2545.  The  duty  of  the  factor  to  account  covers  not  only 

the  profits  made  by  the  factor  in  the  pursuit  of  his  duty,  but  those  made 
by  him  while  exceeding  or  violating  his  authority  so  long  as  they  are 
the  fruits  of  the  agency.88  He  may  not,  without  his  principal's  con- 
sent, purchase  any  of  the  goods  which  he  is  employed  to  sell,  and  if 
he  does,  the  principal  may,  at  his  election,  disaffirm  the  sale  and  recover 
the  goods,86  or  he  may  affirm  the  sale  and  recover  the  price  from  the 
factor.87  He  will  not  be  permitted  to  make  any  secret  or  hidden  profit 
for  himself  out  of  the  transaction,  but  will  be  compelled  to  account  for 
all  such  to  his  principal.88  Neither  will  he  be  permitted,  when  called 
upon  by  his  principal  for  an  accounting,  to  dispute  his  principal's  title 
to  the  goods.89  The  factor  may,  however,  show  that  he  has  been  di- 
vested of  the  goods  by  a  superior  title.90 

»o  Terwilllger  v.  Deals,  6  Lans.  (N.  46   Vt.   403;    and   many   other   cases 
Y.)    403;    Keighler  v.   Savage   Mnfg.  cited  in  section  referred  to. 
Co.,   12    Md.    383,    71    Am.    Dec.    600;  85  See  ante,  §  1224  et  seq. 
Curtis  v.  Gibney,  59  Md.  131;  Warri-  «»  Keighler  v.  Savage  Mnfg.  Co.,  12 
Her  v.  People,  74  111.  346.  Md.    383,    71    Am.    Dec.    600;    Wads- 
Joint    principals. — Where    two    or  worth  v.  Gay,  118  Mass.  44. 
more  principals,  not  partners,  unite  87  Wadsworth  v.  Gay,  supra. 
In  one  consignment,  it  is  said  that  ss  Hidden  v.  Waldo,  55  N.  Y.  294; 
one  of  them  only  can  not  maintain  Payne  v.  Waterston,  16  La.  Ann.  239; 
an  action  for  the  proceeds.     Deshler  Fish  v.  Seeberger,  47  111.  App.  580. 
V.  Beers,  32  111.  368,  83  Am.  Dec.  274.  so  Ante.  §  1331;  Marvin  v.  Ellwood, 
si  Leake  v.  Sutherland,  25  Ark.  219.  11   Paige    (N.   Y.),   365;    Barnard  v. 
sa  See    Cooley    v.    Betts,  24    Wend.  Kobbe,    54    N.    Y.    516;     Alvord    v. 
(N.  Y.)   203;   Topham  v.  Braddick,  1  Latham,  31  Barb.   (N.  Y.)    294;   Ken- 
Taunt.    572;    Burns    v.    Pillsbury,  17  nedy   v.    Strong,   14   Johns.    (N.   Y.) 
N.   H.   66;    Wright  v.  People,   61   111.  128;    Brown  v.  Combs,  63  N.  Y.  598; 
382.  Bain  v.  Clarke,  39  Mo.  252. 

as  Eaton  v.  Welton,  32  N.  H.  352;  The   factor   cannot   set   up   that   a 

Clark  v.  Moody,  17   Mass.  145.    But  third   party  is  equitably  entitled   to 

see  Cooley  v.  Betts,  24  Wend.  (N.  Y.)  the  proceeds   of  the  goods.     Aubery 

201;  Lyle  v.  Murray,  4  Sandf.  (N.  Y.)  v.  Fiske,  36  N.  Y.  47. 

590;    Green  v.  Williams,  21  Kan.  64.  oo  Ante,  §  1331. 
s*  Ante,  §  1332;   Baldwin  v.  Potter, 

2143 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2546.  Setoff. — By  express  agreement  to  account  specifi- 
cally for  the  proceeds,  the  factor  may  cut  off  his  right  of  setoff,  or  of 
applying  the  proceeds  upon  prior  claims.01  The  factor,  moreover,  is 
so  much  of  a  fiduciary,  relied  upon  in  the  ordinary  case  to  account  for 
the  very  proceeds  received,  that  he  will  not  be  permitted  to  buy  up  a 
claim  against  his  principal  and  offset  it  against  the  principal's  demand 
for  an  accounting  for  the  proceeds  of  his  goods.92 

§  2547.  Conclusiveness  of  accounts. — The  principal  is  not,  of 
course,  bound  merely  by  the  accounts  as  furnished  by  the  factor ;  but 
where  the  account  is  evidently  submitted  for  the  principal's  approval 
or  disapproval,  or  where  it  is  submitted  as  a  final  statement  of  the  ac- 
count between  them,  the  long  continued  acquiescence  of  the  principal, 
or  his  failure  to  object  within  a  reasonable  time,  raises  an  inference, 
more  or  less  strong  under  the  circumstances,  that  it  is  correct,  and 
may  be  sufficient  to  establish  it  as  an  account  stated  between  the  par- 
ties.03 


91  Gutchess  v.  Daniels,  49  N.  Y.  605; 
Zacharie  v.  Rogers,  19  La.  223;  Bank 
v.  Burke,  4  Rob.  (La.)  440. 

92  Britton  v.  Ferrin,  171  N.  Y.  235. 
See  also,  Moffatt  v.  Fulton,  132  N.  Y. 
507. 

Cannot  buy  claims  at  a  discount 
and  set  off  at  face  value.  Alexander 
v.  Morris,  3  Call  (Va.),  89. 

SB  Acceptance  of  and  acquiescence 
in  the  factor's  accounts  rendered  will 
usually  prevent  later  objection  by  the 
principal  as  to  the  responsibility  of 
the  buyers  to  whom  the  factor  sold 
on  credit,  etc.  Rion  v.  Gilly,  6  Mart. 
(La.)  417,  12  Am.  Dec.  483;  Blood- 
worth  v.  Jacobs,  2  La.  Ann.  24; 
Keighler  v.  Savage  Mfg.  Co.,  12  Md. 
383,  71  Am.  Dec.  600. 

In  Charlotte  Oil  Co.  v.  Hartog,  29 
C.  C.  A.  56,  85  Fed.  150,  it  is  said: 
"The  mere  rendering  of  an  account 
does  not,  of  itself,  make  it  a  stated 
one.  It  may  become  so  by  the  silence 
of  the  party  receiving  it,  and  long 
acquiescence  may  raise  an  implica- 
tion of  law  that  the  party  admits  its 
correctness;  the  underlying  principle 
being  that  the  silence  of  the  party 
to  whom  the  account  is  sent  warrants 
the  inference  of  an  admission  of  its 
correctness,  which  inference  is  more 


or  less  strong,  according  to  circum- 
stances. 'Between  merchants  at 
home,  an  account  which  has  been 
presented,  and  no  objection  made 
thereto,  after  the  lapse  of  several 
posts,  is  treated,  under  ordinary  cir- 
cumstances as  being,  by  acquiescence, 
a  stated  account.'  Story,  Eq.  Jur. 
§  526.  When  the  facts  are  clear  it  is 
always  a  question  of  law  whether  a 
party  is  concluded  by  the  admission 
implied  from  his  silence,  but  he  is 
not  estopped  from  proving  fraud, 
omission,  or  mistake.  Toland  v. 
Sprague,  12  Pet.  (N.  Y.)  300;  Wig- 
gins v.  Burkham,  10  Wall.  (U.  S.) 
129;  Standard  Oil  Co.  v.  Van  Etten, 
107  U.  S.  326,  27  L.  Ed.  319.  The 
law  does  not  favor  the  claim  of  those 
whose  silence  gives  assurance  of  ac- 
quiescence In  a  given  state  of  things, 
or  who,  after  the  knowledge  of  the 
committal  of  an  unauthorized  act, 
fail  to  actively  condemn  or  seek  judi- 
cial redress  therefor.  The  cases  in 
which  these  principles  have  been  ap- 
plied are  very  numerous,  and  the  cir- 
cumstances which  the  law  endows 
with  the  power  of  creating  obliga- 
tions, or  effecting  estoppels,  are  of 
such  variety  that  it  will  not  be  profit- 
able to  do  more  than  cite  a  few  of 


2144 


CHAP.    IV] 


[§    2548 


After  accounts  have  once  been  settled,  courts  are  reluctant  to  re-open 
them,  in  the  absence  of  strong  evidence  of  fraud  or  unexplained  mis- 
take.94 

§  2548.  Duty  in  remitting  money. — A  factor  who  has  received  the 
proceeds  of  goods  sold  by  him  and  has  notified  the  principal  of  that 
fact,  may,  unless  a  different  course  has  been  established  by  instructions 
or  usage,  await  the  principal's  instructions  as  to  the  mode  of  remitting 
the  money.95  If  he  remits  without  instructions,  it  is  ordinarily  at  his 
own  risk.96  Having  received  instructions,  the  factor  should  pursue 
them,  for  if  he  remits  in  a  different  manner  and  the  money  is  lost,  the 

ffiii  .brians-g  ni  Jon  zi'ioi^&\  R  08 

them.  In  Chappedelaine  v.  Deche-  hold,  for  all  the  authorities  agree 
naux,  4  Cranch  (U.  S.  C.  C.),  309, 
Chief  Justice  Marshall  says:  'No 
practice  could  be  more  dangerous 
than  that  of  opening  accounts,  which 
the  parties  themselves  have  adjusted, 
on  suggestion  supported  by  doubtful 
or  by  only  probable  testimony.  The 
whole  labor  of  proof  lies  upon  the 
party  objecting  to  the  account,  and 
errors  which  he  does  not  plainly  es- 
tablish cannot  be  supposed  to  exist.' 
Richmond  Mfg.  Co.  v.  Starke,  4  Mason 
(U.  S.  C.  C.),  296,  Fed.  Gas.  No. 
11,802;  Meyer  v.  Morgan,  51  Miss.  21, 
24  Am.  Rep.  617;  Cairnes  v.  Lord 
Bleecker,  12  Johns.  (N.  Y.)  304; 
Leather  Mf'rs.  Bank  v.  Morgan,  117 
U.  S.  96,  29  L.  Ed.  811;  Bessent  v. 
Harris,  63  N.  C.  542;  Suttle  v.  Dog- 
gett,  87  N.  C.  205. 

"We  have  examined  the  numerous 
cases  cited  by  the  learned  counsel  for 
the  plaintiff  in  error,  such  as  Lock- 
wood  v.  Thome,  18  N.  Y.  285;  Wittich 
v.  Allison,  6  C.  C.  A.  135,  56  Fed.  796, 
and  Baxter  v.  Waite,  2  Wash.  Ter.  228, 
wherein  most  of  the  leading  cases  on 
the  subject  are  reviewed.  These 
cases  are  cited  in  support  of  the  view 
that  a  stated  account  is,  at  most,  a 
mere  admission  that  the  account  is 
correct,  and  that  its  effect  is  to  es- 
tablish prima  facie  the  accuracy  of 
the  items,  without  other  proof.  These 
cases  would  be  in  point,  if  it  were 
contended  that  a  mere  stated  account 
created  an  estoppel.  We  do  not  so 


all 

that  it  is  open  to  impeachment  for 
fraud  or  mistake.  The  force  and  ef- 
fect of  the  implied  admission  of  the 
correctness  of  an  account  stated,  and 
the  strength  of  evidence  necessary  to 
overcome  it,  must  always  depend 
upon  the  circumstances  of  each  case. 
In  this  case  we  have  not  merely  an 
account  stated.  It  is  an  account 
stated  and  settled." 

94  See  ante,  §  1352. 

95  Ferris  v.  Paris,  10  Johns.  (N.  Y.) 
285;   Halden  v..  Crafts,  4  E.  D.  Smith 
(N.    Y.),  490;     Cooley    v.    Betts,    24 
Wend.  (N.  Y.)  203;  Brink  v.  Dolsen,  8 
Barb.   (N.  Y.)   337. 

»e  Clark  v.  Moody,  17  Mass.  145; 
Henbach  r.  Rather,  2  Duer  (N.  Y.), 
227.  See  ante,  §  1336  et  seq. 

The  whole  matter  of  remitting  by 
factors,  demand,  interest  and  statute 
of  limitation  seems  to  be  in  a  con- 
fused state.  Many  of  the  older  cases 
lay  down  rules  based  upon  conditions 
for  communication  and  dangers  of 
transmission  which  have  long  since 
passed  away. 

In  the  case  of  foreign  factors,  It 
seems  often  to  be  contemplated  that 
the  principal  will  use  the  money 
abroad,  will  order  others  goods  to  be 
there  bought  with  it,  etc. 

In  Lyle  v.  Murray,  4  Sandf.  (N.  Y.) 
590,  the  case  of  the  factor  is  said  to 
be  different  from  that  of  other 
agents,  in  that  he  may  wait  for  in- 
structions. 


135 


2145 


•  ..    •     r  »p 


§  2549] 


THE  LAW  OF  AGENCY 


[BOOK  v 


loss  will  fall  upon  the  factor.97  If,  however,  the  principal's  instructions 
are  so  uncertain  and  ambiguous  as  to  be  fairly  open  to  two  construc- 
tions, and  the  factor,  in  good  faith  and  with  reasonable  care  adopts  one, 
he  can  not  be  held  liable  because  the  principal  intended  that  the  other 
should  be  pursued.98 

§  2549.  When  principal  may  sue  factor. — No  action  can  ordinarily 
be  maintained  by  the  principal  against  the  factor,  to  recover  the  pro- 
ceeds of  goods  sold  by  the  latter,  until  after  a  demand  has  been  made 
upon  the  factor  for  payment,  or  until  he  has  been  instructed  to  remit, 
and  he  has  failed  or  refused  to  comply.99 

So  a  factor  is  not,  in  general,  liable  for  interest  upon  the  proceeds  in 
his  hands,  until  after  a  demand  made  upon  him  for  payment  or  he  has 
been  instructed  to  remit,  unless  he  has  unreasonably  failed  to  render 
his  account  of  it,  or  unless,  after  an  account  stated  and  settled  he  re- 
tains the  money  in  his  own  hands,  or  unless  the  payment  of  interest  is 
required  by  usage.1 


»T  Foster  v.  Preston,  8  Cow.  (N.  Y.) 
198;  Leverick  v.  Meigs,  1  Cow.  (N. 
Y.)  645;  Kerr  v.  Cotton,  23  Tex.  411. 
See  ante,  §  1310. 

See  also,  Smith  v.  Ward,  3  La.  Ann. 
76,  where  the  factor  sent  the  money 
in  specie,  by  the  clerk  of  a  steam- 
boat, without  any  advice  to  or  from 
his  principal.  Held,  liable  for  loss. 
Parker  v.  Harrison,  26  La.  Ann.  751, 
where  principal  directed  money  to  be 
sent  by  a  certain  steamboat.  Factor 
sent  his  clerk  with  the  money  to  the 
boat;  on  the  way  clerk  was  robbed. 
Held,  loss  fell  on  factor. 

Factor  who  remits  in  ordinary  way 
by  bank  draft  purchased  with  due 
care  is  not  liable  for  loss  caused  by 
failure  of  the  bank.  Chandler  v. 
Hogle,  58  111.  46. 

Liable  if  he  did  not  use  due  care. 
Leverick  v.  Meigs,  1  Cow.  (N.  Y.) 
645. 

See  also,  Goldsmith  v.  Manheim, 
109  Mass.  187. 

as  See  ante,  §  1268;  Hays  v.  War- 
ren, 46  Mo.  189. 

A  factor  had  two  principals  of  the 
same  name.  He  supposed  both  to  be 
one.  He  sent  money  due  one  to  the 
other  which  was  lost  on  the  way. 
Held,  that  the  former  principal  could 


recover  of  the  factor.  Yon  v.  Blan- 
chard,  75  Ga.  519. 

99  Burns  v.  Pillsbury,  17  N.  H.  66; 
Cooley  v.  Betts,  24  Wend.  (N.  Y.) 
203;  Ferris  v.  Paris,  10  Johns.  (N. 
Y.)  285;  Halden  v.  Crafts,  4  E.  D. 
Smith  (N.  Y.),  490;  Brink  v.  Dolsen, 
8  Barb.  (N.  Y.)  337;  Baird  v.  Walker, 
12  Barb.  (N.  Y.)  298;  Martin  et  al.  \. 
Webb,  5  Ark.  72,  39  Am.  Dec.  363; 
Burton  v.  Collin,  3  Mo.  315;  Hall 
et  al.  v.  Peck,  10  Vt.  474;  Topham  v. 
Braddick,  1  Taunt.  572.  Contra  see 
Clark  v.  Moody,  17  Mass.  145;  Dodge 
v.  Perkins,  9  Pick.  (Mass.)  368; 
Eaton  v.  Welton,  32  N.  H.  352.  See 
these  cases  criticised  in  Cooley  v. 
Betts,  supra. 

See  also,  ante,  §  1339,  for  a  fuller 
discussion. 

Where  the  factor  did  not  render  an 
account  for  two  years  he  cannot  set 
up  lack  of  a  demand.  Langley  .v. 
Sturtevant,  7  Pick.  (24  Mass.)  214. 

The  statute  of  limitations  does  not 
begin  to  run  until  there  is  an  ac- 
count rendered,  or  a  demand  made. 
Kane  v.  Cook,  8  Cal.  449;  Fulkerson 
v.  White,  22  Tex.  674. 

iTyree  v.  Parham,  66  Ala.  424; 
Ellery  v.  Cunningham,  1  Mete. 
(Mass.)  112;  Brown  et  al.  v.  Clayton, 


2146 


CHAP.    IV]  OF  FACTORS  [§§    2550,255! 

§  2550.  Liability  for  acts  of  subagent. — It  has  been  seen  to  be  the 
general  rule  that  the  factor  has  no  implied  power  to  delegate  his  au- 
thority to  another.2  Where  such  is  the  case,  if  the  factor  employs  a 
subagent  to  assist  him,  he  is  liable  to  the  principal  for  the  subagent's 
acts.3  So  he  would  be  also  where  he  is  authorized  to  employ  a  subagent 
but  on  his  own  account.4  Where,  however,  the  factor  is  expressly  or 
impliedly  authorized  to  appoint  a  subagent  for  his  principal,  and  uses 
due  care  in  his  selection,  he  is  not  so  liable.5 

V. 


a.  Commissions. 

§  2551.  Factor  entitled  to  compensation. — Like  the  broker,  the 
factor,  who  has  performed  his  undertaking,  is  entitled  to  compensation 
for  his  services.  This  compensation  is  usually  a  commission  upon  the 
price  of  the  goods  sold,  which  commission  is  either  fixed  by  the  agree- 
ment between  the  parties,  or  by  the  usages  of  trade,  or  upon  a  quantum 
meruit.  As  has  been  seen,  however,  one  may  be  a  factor  though  his 
compensation  takes  the  form  of  a  fixed  salary  rather  than  a  commis- 
sion.9 

But  a  factor  who  is  guilty  of  fraud  or  gross  negligence  in  his  deal- 
ings with  his  principal ; 7  or  who  knowingly  renders  false  and  fraudu- 
lent accounts ; 8  or  who  neglects  to  keep  true  and  correct  books  and  ac- 
counts of  his  transactions ; 9  or  who,  having  sold  the  goods,  converts  the 

12   Ga.   564;    Sentell  v.  Kennedy,  29      Couturie   v.    Roensch,  Tex.    Civ. 

La.  Ann.  679.  App.  ,  134  S.  W.  413. 

For  rule  in  case  of  del  credere  fac-  7  Norman   v.   Peper,   24   Fed.   403; 

tor,  see  Blakely  v.  Jacobson,  22  N.  Y.  Fordyce  v.  Peper,  16  Fed.  516. 

Slip.  Ct  140.  s  Smith  v.  Crews,  2  Mo.  App.  269; 

For  a  fuller  discussion,  see  ante,  Talcott  v.  Chew,  27  Fed.  273;   Brack 

§  1341.  v.  Hart  Commission  Co.,  57  Mo.  App. 

2  See  ante,  §  2514.  605. 

3  See   ante,    §§  332,   333;  Foster   v.  8  Smith  v.  Crews,  supra. 
Preston,  8  Cow.   (N.  Y.)   198;   Camp-  Where  a  factor  conceals  from  the 
bell  v.  Reeves,  3  Head   (Tenn.),  226.  principal  the  fact  that  the  goods  have 

4  See  Loomis  v.  Simpson,  13  Iowa,  been  damaged    by    fire    and    that  he 
532.  has  collected  insurance,  and  fraudu- 

5  See  ante,  §§  332,  333;   McCants  v.  lently  refuses  to  render  an  account, 
Wells,  3  S.  C.  569;  Barnard  v.  Coffin,  he  forfeits  all  commissions.     Fish  v. 
141  Mass.  37,  55  Am.  Rep.  443;   Darl-  Seeberger,  154  111.  30;  but  not  for  an 
ing  v.   Stan  wood,  14  Allen    (Mass.),  honest  mistake.    Everingham  v.  Hal- 
504.  sey,  108  Iowa,  709. 

aWinne   v.    Hammond,   37   111.   99; 

2147 


§§    2552,  2553]  THE  LAW  OF  AGENCY 

money  to  his  own  use ; 10  or  who  violates  his  instructions  in  regard  to 
the  sale,11  may  forfeit  his  commissions  and  be  held  liable  to  compensate 
his  principal  for  the  loss  and  injury  sustained.12 

So  if  the  principal,  in  order  to  secure  his  claims  against  a  fraudulent 
factor  is  compelled  to  resort  to  litigation,  it  is  held  that  the  factor  will 
not  be  allowed  commissions.18 

So  a  factor  is  not  entitled  to  compensation  where  its  payment  would 
reduce  the  amount  of  the  proceeds  below  the  sum  guaranteed  by  the 
factor  to  the  principal.14 

§  2552.  When  factor  may  have  commissions  from  both  parties. — 
Like  the  broker,15  the  factor  can  recover  commissions  from  both  par- 
ties to  the  transaction  only  when  his  double  agency  was  fully  under- 
stood and  assented  to  by  each.16 

§  2553.  When  commission  earned — Upon  what  computed. — As 
has  been  seen,  the  compensation  of  the  factor  ordinarily  takes  the  form 
of  a  commission  upon  his  sales,  and  in  the  absence  of  an  agreement  to 
the  contrary  it  is  well  settled  that  he  is  entitled  to  his  commissions  only 
upon  the  amount  of  the  goods  actually  sold  by  him.17  Unlike  the  case 
of  the  broker,  who  is  usually  a  mere  negotiator,  the  ordinary  contract 


10  Brannan  v.  Strauss,  75  111.  234. 

11  Zurn    v.    Noedel,    113    Pa.  336; 
Larminie  v.  Carley,  114  111.  196. 

No  commissions  can  be  recovered 
where  the  sale  was  not  made  as  au- 
thorized and  was  later  rescinded. 
Miller  v.  Price  (Cal.),  39  Pac.  781. 

!2  The  neglect  of  the  factor  may  be 
shown  in  mitigation  or  bar  of  his 
claim  to  commissions.  Dodge  v. 
Tileston,  12  Pick.  (Mass.)  328. 

If  the  principal  instructs  the  factor 
to  sell  goods  consigned  to  him  and 
apply  on  a  debt  due  the  factor  by  the 
principal  and  the  factor  fail  to  do  so, 
the  principal  may  recoup  the  dam- 
ages in  a  suit  on  the  debt.  Hatcher 
v.  Comer,  73  Ga.  418. 

Long  and  unexcused  delay  in  In- 
forming principal  of  sale  or  in  pay- 
ing him  the  proceeds  will  forfeit 
commissions.  Segar  v.  Parrish,  20 
Gratt.  (Va.)  672. 

is  Vennum  v.  Gregory,  21  Iowa,  326. 

i*Dalton  v.  Goddard,  104  Mass. 
497,  where  the  factor  guaranteed  the 
principal  eighty  per  cent  of  the  in- 
voice and  sold  the  goods  for  a  sum 


which  would  not  pay  the  eighty  per 
cent,  and  the  factor's  commissions. 

is  See  ante,  §  2474. 

16  Talcott  v.  Chew,  27  Fed.  273. 

IT  Sawyer  v.  Lorillard,  48  Ala.  332. 

The  factor's  commission  is  pre- 
sumptively to  be  estimated  in  money 
and  he  has  no  implied  authority  to 
take  as  commission  a  part  of  the 
goods;  e.  g.,  gold  dust,  which  had  no 
fixed  value  as  money  and  was  dealt 
with  only  as  a  mere  commodity.  Mc- 
Cune  v.  Erfort,  43  Mo.  134. 

Where  the  factor  was  to  get  a  cer- 
tain commission  on  goods  sold  and 
a  less  commission  on  goods  taken 
back  by  the  principal,  he  is  entitled 
to  the  smaller  commission  only  where 
insured  goods  were  damaged  and 
taken  over  by  the  insurance  company 
under  the  terms  of  the  policy,  since 
this  was  not  a  "sale"  within  the 
meaning  of  the  contract.  Wertheimer 
V.  Talcott,  118  N.  Y.  App.  Div.  840. 

Where  factors  were  to  received  a 
commission  on  goods  "sold,"  and  the 
principal,  after  delivering  the  goods 
to  the  factors,  made  the  sale  in  per- 


2148 


CHAP.    IV] 


OF  FACTORS 


[§    2553 


with  the  factor  respecting  "sales"  is  construed  to  require  actual  sales, 
and  not  merely  the  finding  of  a  purchaser  ready,  willing  and  able  to 
purchase.18  It  is  entirely  possible,  of  course,  for  the  parties  by  express 
agreement  to  enlarge  or  limit  his  right  in  this  respect.  Thus  the  prin- 
cipal may  agree  that  he  will  supply  the  factor  with  a  certain  quantity 
of  goods  for  sale  and  that  the  factor  shall  have  commissions  upon  such 
an  amount  whether  the  goods  are  actually  supplied  or  sold  or  not.19 
So,  on  the  other  hand,  it  may  be  expressly  agreed  that  the  factor  shall 


son,  but  the  factors  on  request  deliv- 
ered the  goods  to  the  vendee,  they 
were  held  entitled  to  the  full  com- 
mission. Briggs  v.  Boyd,  65  Barb. 
(N.  Y.)  197. 

Where  the  factor,  without  the  prin- 
cipal's authority,  sends  the  goods  to 
another  factor  to  sell,  only  one  com- 
mission can  be  charged.  Vandyke  v. 
Brown,  8  N.  J.  Eq.  657;  Burton  v. 
Blin,  23  Vt.  151.  A  local  custom  for 
both  factors  to  charge  is  not  binding 
on  the  principal  who  has  not  assented 
to  it  in  some  way.  Burton  v.  Blin, 
supra. 

is  So  held  in  Hall  v.  French-Ameri- 
can Wine  Co.,  149  N.  Y.  App.  Div. 
609.  Accord:  Creveling  v.  Wood,  95 
Pa.  152;  Garnhart  v.  Rentchler,  72 
111.  535. 

See  also,  Meriden  Coal  Min.  Co.  v. 
Van  de  Water,  112  C.  C.  A.  319,  191 
Fed.  805. 

But  if  goods  sold  and  delivered  are 
returned  through  the  principal's 
fault,  the  factor's  right  is  not  af- 
fected. Garnhart  v.  Rentchler,  supra. 

10  Where  a  factor  has  made  ad- 
vances to  a  planter  upon  the  condi- 
tion that  the  planter  will  consign  his 
entire  crop  to  the  factor  for  sale,  but 
the  planter  violates  this  by  putting 
part  of  the  crop  into  the  hands  of  an- 
other factor,  the  first  factor  may  re- 
cover commissions  as  for  a  sale  of 
the  entire  crop.  Thornhill  v.  Picard, 
24  La.  Ann.  159. 

Where  the  principal  agreed  to  send 
all  his  cotton,  to  be  not  less  than  200 
bales,  to  the  factor,  and  he  sent  200 
bales  but  not  all  the  cotton,  it  was 
held  that  the  factor  was  entitled  to 


damages  for  the  breach  of  the  agree- 
ment, and  an  allowance  equal  to  the 
commissions  on  that  not  sent  would 
not  be  disturbed.  Local  customs 
could  not  change  the  contract.  Moore 
v.  Lawrence,  16  Fed.  87. 

Where  there  was  an  agreement  to 
consign  500  bales  of  cotton  to  the  fac- 
tor, though  only  260  bales  were  in 
fact  consigned,  and  these  were  later 
withdrawn,  but  the  contract  respect- 
ing commissions  was  that  commis- 
sions should  be  estimated  upon  all 
goods  delivered  to  him,  even  though 
the  principal  should  afterwards  with- 
draw a  portion  of  them,  it  was  held 
that  the  factor  was  entitled  to  com- 
missions as  such  only  upon  the  260 
bales  delivered  and  not  upon  500 
bales.  Horst  v.  Lovdal,  113  N.  Y. 
App.  Div.  277. 

Under  an  agreement  to  pay  the  fac- 
tor a  certain  commission  per  head 
for  selling  two  car  loads  of  cattle, 
but  all  the  cattle  then  contemplated 
were  shipped  In  one  car  load  and  the 
commission  paid,  the  factor  is  not 
entitled  to  the  commission  on  a  sec- 
ond car  load,  shipped  direct  to  the 
buyer  of  the  first  and  only  because 
he  would  not  take  that  car  load  with- 
out getting  an  agreement  to  have  a 
second  load.  Taylor  v.  Johnston 
(Tex.  Civ.  App.),  70  S.  W.  1022. 

Where  the  factor  agrees  to  sell  for 
a  certain  percentage,  which  should 
"include  commission,  labor,  cartage, 
insurance,  .  .  .  and  every  ex- 
pense whatever,"  no  recovery  can  be 
had  for  services  In  delivering  to 
other  factors  the  goods  received,  but 
not  sold,  where  this  delivery  was 


2149 


§  2554] 


THE  LA\y  OF  AGENCY 


[BOOK  v 


have  commissions  only  for  those  goods  which  are  "actually  sold,  de- 
livered, and  actually  paid  for."  20 

In  the  case  of  the  del  credere  commission,  however,  it  is  held  that  the 
commission  is  earned  when  the  guaranty  is  given,  in  the  absence  of 
some  provision  to  the  contrary.21 

i        n     •      T. 

b.  Reimbursement. 

§  2554.  Factor  entitled  to  reimbursement. — The  factor  is  also  en- 
titled to  be  reimbursed  by  his  principal  for  all  advances  and  disburse- 
ments made  to  the  principal,  or  on  his  account,  in  the  due  and  proper 
performance  of  the  agency  and  which  are  not  covered  by  his  commis- 
sions.22 As  will  be  seen,  the  factor  has  a  lien  upon  the  goods  for  these 
advances,23  but  unless  he  has  agreed  to  look  to  the  goods  alone,  such 
lien  does  not  deprive  the  factor  of  his  personal  claim  against  the  prin- 
cipal.2* The  exact  relation,  however,  of  his  claim  upon  the  principal 
personally  and  his  claim  upon  the  goods,  seems  to  be  involved  in  some 
uncertainty.  According  to  certain  of  the  cases,  the  factor,  unless  he 
has  agreed  to  do  so,  is  not  obliged  to  wait  until  the  goods  are  sold,  but, 
if  they  are  not  sold  within  a  reasonable  time  at  least,  may  demand  and 
recover  reimbursement  for  his  advances.25  According  to  other  cases, 


made  at  the  first  factor's  request  and 
for  the  purpose  of  terminating  the 
agency  with  which  he  had  become  dis- 
satisfied. Ware  v.  Hayward  Rubber 
Co.,  3  Allen  (85  Mass.),  84. 

20  West        Coast        Manufacturers' 
Agency    v.    Oregon    Condensed    Milk 
Co.,  54  Wash.  247;    Merriman  v.  Mc- 
Cormick   Harvester  Machine   Co.,  96 
Wis.  660. 

See  Hockanum  Co.  v.  Lincoln,  16 
Daly  (N.  Y.),  325,  where  the  factor 
was  to  have  commission  only  on  the 
sales  remitted  for. 

21  Sprinsrville  Mfg.  Co.  v.  Lincoln, 
16  Daly  (N.  Y.),  318. 

22Corlies  v.  Cumming,  6  Cow.  (N. 
Y.)  181;  Beckwith  v.  Sibley,  11  Pick. 
(Mass.)  482;  Upham  v.  Lefavour,  11 
Mete.  (Mass.)  174;  Dolan  v.  Thomp- 
son, 126  Mass.  183;  Brown  v.  Clay- 
ton, 12  Ga.  564;  Kelley  v.  Maguire,  99 
111.  App.  317;  Blandford  v.  Wing 
Flour  Mill  Co.,  24  111.  App.  596; 
Blakely  v.  Frazier,  11  S.  Car.  122. 

In  Greely  v.  Bartlett,  1  Me.  172,  10 
Am.  Dec.  54,  the  factor  advanced 
money  to  the  principal.  To  meet  this, 


the  factor  sold  the  goods  on  credit 
and  took  buyer's  note  to  himself. 
This  he  endorsed  and  sold,  but  the 
maker  failing,  the  factor  had  to  take 
up  the  note.  Held,  he  was  entitled  to 
reimbursement  from  the  principal. 

Where  the  factor  had  made  con- 
tracts for  the  sale  of  a  fixed  amount, 
but  the  principal  was  later  unable 
to  supply  that  quantity  and  the  fac- 
tor procured  the  necessary  amount  in 
the  market  and  thus  enabled  the 
principal  to  save  his  contracts,  it  was 
held  that  the  factor  was  entitled  to 
reimbursement.  Albion  Phosphate 
Min.  Co.  v.  Wyllie,  23  C.  C.  A.  278, 
77  Fed.  541. 

23  See  post,  §  2559. 

2*  Martin  v.  Pope,  6  Ala.  532,  41 
Am.  Dec.  66;  Burrill  v.  Phillips,  1 
Gall.  (U.  S.  C.  C.)  360,  Fed.  Cas.  No. 
2,200;  Peisch  v.  Dickson,  1  Mason 
(U.  S.  C.  C.),  9,  Fed.  Cas.  No.  10,911; 
Graham  v.  Ackroyd,  10  Hare,  192. 

25  Beckwith  v.  Sibley,  11  Pick.  482;. 
Upham  v.  Lefavour,  11  Mete.  (Mass.) 
174;    Dolan  v.  Thompson,  126  Mass. 
183;     Graham    v.    Ackroyd,    supra; 


2150 


CHAP.    IV] 


OF  FACTORS 


[§§    2555,2556 


the  factor,  unless  there  is  an  agreement  to  the  contrary,  presumptively 
is  looking  primarily  to  the  goods,  and  can  make  no  personal  claim  until 
the  proceeds  of  the  goods  have  been  accounted  for  or  it  is  shown  that 
for  some  reason  they  can  not  be  made  available.26  The  weight  of  au- 
thority is  with  the  latter  view. 

If,  after  the  sale  of  the  goods,  or  their  loss  by  fire  or  otherwise,  a 
deficit  remains,  without  the  fault  or  neglect  of  the  factor,  he  may  re- 
cover it  of  the  principal.27 

§  2555  That  the  factor  acts  under  a  del  credere  commis- 
sion does  not  affect  his  right  to  reimbursement  or  defeat  his  personal 
claim  against  the  principal,  except  that,  where  such  a  factor  has  sold 
the  goods,  he  cannot  sue  the  principal  for  advances  which  are  covered 
by  the  price  of  the  goods,  that  price  being  warranted  to  the  principal 
by  the  guarantee  arising  from  the  del  credere  commission.28 

§  2556.  Interest  upon  advances, — The  express  contract  be- 


Cowie  v.  Apps,  22  U.  C.  C.  P.  589; 
Stewart  v.  Lowe,  24  U.  C.  Q.  B.  434. 

See  also,  Mertens  v.  Nottebohms,  4 
Gratt.  (Va.)  163. 

28  See  Corlies  v.  Gumming,  6  Cow. 
(N.  Y.)  181;  Gihon  v.  Stanton,  9  N. 
Y.  476;  Frothingham  v.  Bverton,  12 
N.  H.  239;  Balderston  v.  National 
Rubber  Co.,  18  R.  I.  338,  49  Am.  St. 
Rep.  772;  Murphy  Company's  Estate, 
214  Pa.  258,  6  Ann.  Cas.  308,  5  L.  R. 
A.  (N.  S.)  1147.  See  also,  Hay  v. 
Reade,  31  N.  Y.  Super.  626,  where  the 
cases  were  approved  as  to  an  agency 
to  sell,  but  said  to  be  inapplicable  in 
the  case  of  an  agency  to  buy.  See 
also,  Kraft  v.  Fancher,  44  Md.  204. 

The  question  seems  to  be  whether 
an  advance  by  the  factor  is  primar- 
ily a  loan  to  the  principal  with  se- 
curity upon  the  goods,  but  with  full 
capacity  as  in  other  cases  of  enforc- 
ing the  personal  claim  without  re- 
gard to  the  security;  or,  on  the  other 
hand,  as  a  means  of  anticipating  the 
sale  of  the  goods  by  obtaining  a  por- 
tion of  the  expected  price  from  the 
factor  who  is  willing,  unless  the  con- 
trary appears,  to  wait  until  the  goods 
are  sold  for  his  reimbursement.  That 
•the  latter  is  the  true  interpretation 
of  the  transaction,  see  the  argument 


of  Selden,  J.,  in  Gihon  v.  Stanton, 
supra. 

In  Balderston  v.  Rubber  Co.,  supra, 
it  was  held  that  a  factor  who  had 
made  advances  upon  goods,  could  not, 
in  .the  case  of  the  principal's  insolv- 
ency, prove  for  the  entire  amount  of 
the  advances,  but  only  for  the  amount 
remaining  due,  if  any,  after  deduct- 
ing the  proceeds  of  the  goods.  The 
court  discussed  the  general  question 
and  expressed  the  opinion  that  the 
better  reason,  as  well  as  the  weight 
of  authority,  was  with  the  view  of 
Gihon  v.  Stanton,  supra. 

The  same  question  was  before  the 
court  in  the  case  of  Murphy  Com- 
pany's Estate,  supra,  where  the  same 
conclusion  was  reached  as  in  Balder- 
ston v.  Rubber  Co.,  and  the  court 
strongly  supports  the  view  of  the 
New  York  cases. 

So  also,  Matter  of  Atwood,  3  N.  Y. 
App.  Div.  578,  40  id.  272. 

27  Duffy  v.  England,  176  Ind.  575; 
Strong  v.  Stewart,  9  Heisk.   (Tenn.) 
137;   Frothingham  v.  Everton,  12  N. 
H.  239;   Gordon  &  Co.  v.  Cobb,  4  Ga. 
App.  49;   Murphy  Company's  Estate, 
214  Pa.  258,  6  Ann.  Cas.  308,  5  L.  R. 
A.  (N.  S.)  1147. 

28  Graham    v.    Ackroyd,    10    Hare, 
192. 


2151 


§    2557]  THE  LAW  OF  AGENCY  [BOOK    V 

tween  the  factor  and  his  principal  not  infrequently  provides  that  the 
factor  shall  have  interest  upon  his  advances  and  at  what  rate.  It  is 
also  frequently  provided  that  the  commission  stipulated  for  shall  cover 
the  matter  of  compensation  for  advances.  Such  stipulations,  subject 
to  the  provisions  of  the  statutes  against  usury,  are  lawful ;  though  the 
courts  in  several  cases  have  said  that  they  would  not  be  deceived  by 
names  into  allowing  what  were  really  usurious  rates.29  In  the  absence 
of  express  agreement,  it  has  been  held  in  several  cases  that  the  factor 
is  entitled  to  interest  upon  advances  made  to  or  for  his  principal,  either 
upon  the  ground  of  usage  or  of  an  implied  contract  to  pay  it.30  The 
statutes  in  a  number  of  states  also  provide  for  interest  upon  money  ad- 
vanced. 

§  2557-  •  Conclusiveness    of    accounts. — Whether    the    ac- 

count as  rendered  by  the  factor  is  conclusive,  depends  in  large  measure 
upon  the  intention  of  the  parties  and  the  circumstances  of  the  case. 
Where  such  an  account  was  expressly  made  final,  and  the  factor  had 
charged  himself  with  the  price,  not  yet  paid,  of  goods  sold,  it  was  held 
that  he  was  bound,  though  the  purchaser  failed  to  pay.81  But  the  mere 
giving  credit  to  the  principal  for  debts  not  yet  due,  or  giving  notes 
payable  out  of  the  proceeds  of  the  goods,  is  not  a  conclusive  assump- 
tion of  the  debts  by  the  factor,  and  he  may  charge  back  against  the 
principal  the  debts  that  are  not  paid,  or  defeat  a  recovery  by  the  prin- 
cipal upon  notes  so  given.32  So  ordinary  accounts  current  rendered 

29  See  Burton  v.  Blin,  23  Vt.  151,  risk  and  trouble,  was  held  not  to  be 

where   the   contract   provided   for   a  illegal. 

commission   for   making  sales,   legal          Compare  Cheesborough  v.  Hunter, 

interest  on  the  advances  and  also  five  1  Hill    (S.  C.  L.),  400;    Kennedy  v. 

per    cent,    commission    on    the    ad-  Gibbs,  15  111.  406. 
vances.    Held,  usurious  as  to  the  five          so  Rogers  v.  Yarnell,  51  Ark.  198; 

per  cent.  Howard  v.  Behn,  27  Ga.  174;  Harvey 

In  Mills  v.  Johnston,  23  Tex.  309,  v.  Drew,  82  111.  606;  Snell  v.  Warner, 

it   was   held   that   the   factor   might  58  111.  42;    Sollee  v.  Meugy,  1  Bailey 

charge  not  only  interest,  but  a  com-  (S.  C.),  620;  Cheesborough  v.  Hunter, 

mission  for  making  the  advances.    It  1  Hill   (S.  C.  Law),  400;   Walters  v. 

was  even  said  that  he  might  charge  a  McGirt,   8    Rich.    (S.    C.    Law)    287; 

commission  for  accepting  a  draft  and  Couturie   v.   Roensch,  Tex.   Civ 

a  further  commission  for  advancing  App.  ,  134  S.  W.  413. 

the  money   to   pay   it,  together   with          See  also,  Woerz  v.  Schumacher,  161 

legal  interest  on  the  money.  N.  Y.  530;  Trotter  v.  Grant,  2  Wend. 

In  Swilley  v.  Lyon,  18  Ala.  552,  a  (N.  Y.)  413. 

charge  by  a  factor  of  five  per  cent.          81  Oakley  v.  Crenshaw,  4  Cow.   (N. 

in  addition  to  legal  interest,  for  ad-  Y.)  250. 

vancing  money  to  meet  a  draft  drawn          32  Robertson  v.  Livingston,  5  Cow. 

by  his  principal  when  there  were  no  (N.  Y.)  473;   Hapgood  v.  Batcheller,- 

funds  in  hand  to  meet,  if  regarded  4  Mete.  (Mass.)  573. 
merely  as  a  fair  compensation  for  the          In  Everingham  v.  Halsey,  108  Iowa, 

2152 


CHAP.    IV] 


OF  FACTORS 


[§    2558 


by  the  factor  are  usually  regarded  as  provisional,  and  subject  to  cor- 
rection.88 

Acquiescence  in  the  account  and  in  charges  made  therein  by  the 
factor  may  be  presumed  from  the  principal's  knowledge  of  them  and 
his  failure  to  object.8* 

c.  Indemnity. 

§  2558.  Factor  entitled  to  indemnity  against  losses. — So  if  the 
factor  while  acting  lawfully,  in  the  due  and  proper  discharge  of  his 
duty,  and  as  a  legal  consequence  of  the  agency,  and  without  fault  of 
his  own,  sustains  loss  or  satisfies  liabilities  to  third  persons,35  on  his 
principal's  account,  he  is  entitled  to  be  indemnified  by  his  principal. 
Thus  if  the  factor,  by  direction  of  his  principal,  incurs  obligations  to  a 
third  person  on  the  principal's  account,  which  the  latter  neglects  or  re- 
fuses to  meet,  and  the  factor  is  compelled  to  do  so,  he  may  recover  of 
the  principal ; 8e  if,  by  the  principal's  instructions,  he  sells  goods  with  a 

Sage,  1  Conn.  519;  Hill  v.  Packard,  5 
Wend.  (N.  Y.)  375;  Rogers  v.  Knee- 
land,  10  Id.  219. 

No  indemnity  if  not  a  legal  conse- 
quence of  the  agency,  or  if  business 
unlawful. — Where  a  principal  ships 
goods,  properly  described,  to  a  factor 
or  agent  in  a  foreign  country,  and  a 
forwarding  agent  on  the  way,  with 
out  the  knowledge  or  consent  of  the 
principal,  but  after  consultation  with 
the  consul  of  the  foreign  country, 
changes  the  description  of  the  goods 
so  as  to  conceal  their  true  character 
(alleged  gambling  machines),  In  con- 
sequence of  which  the  consignee  is 
required  to  pay  extra  duties  and  a 
fine  or  penalty,  the  principal  is  not 
obliged  to  reimburse  him  for  these 
expenses.  They  were  not  a  proper 
expense  of  the  agency,  and,  so  far  as 
a  violation  of  the  law  was  involved, 
no  action  will  lie  by  a  participating 
agent  to  recover  expenses  incurred. 

Mills  Novelty  Co.  v.  Dupouy,  C. 

C.  A.  ,  203  Fed.  254,  45  L.  R.  A. 

(N.  S.)  788,  citing  ante,  §  1611 
(§  654  in  1st  Ed.);  Monnet  v.  Merz, 
127  N.  Y.  161;  Buck  v.  Albee,  26  Vt. 
184,  62  Am.  Dec.  564;  Harvey  v.  Mer- 
rill, 150  Mass.  1,  15  Am.  St.  Rep.  159, 
5  L.  R.  A.  200.  See  also,  ante,  Book 
I,  Chapter  III. 

so  As  where  the  factor  by  the  prin- 


709,  where  on  settlement  the  princi- 
pal gave  the  factor  a  note  for  the 
balance  then  shown  to  be  due,  the 
court  refused  to  permit  the  factor  to 
add  other  items  later. 

33  Wood  Mow.  &  Reap.  Co.  v. 
Thayer,  50  Hun  (N.  Y.),  516;  Witt- 
kowski  v.  Harris,  64  Fed.  712.  Not 
so  where  principal  has  acted  upon  it. 
Vantries  v.  Richey,  8  W.  &  Serg. 
(Pa.)  87. 

3*Ledoux  v.  Porche,  12  Rob.  (La.) 
543;  Archer  v.  Dunn,  2  W.  &  Serg. 
(Pa.)  327;  Bruen  v.  Hone,  2  Barb. 
(N.  Y.)  586;  Dows  v.  Durfee,  10  Barb. 
(N.  Y.)  213;  Sentell  v.  Kennedy,  29 
La.  Ann.  679;  Eichel  v.  Sawyer,  44 
Fed.  845. 

Failure  to  object  within  a  reason- 
able time  evidence  of  approval.  Aus- 
tin v.  Ricker,  61  N.  H.  97. 

Principal's  retention  of  proceeds  of 
a  settlement  made  by  the  factor,  with 
full  knowledge  of  the  facts,  amounts 
to  a  ratification.  Dowagiac  Mfg.  Co. 
v.  Hellekson,  13  N.  Dak.  257. 

Settlements  made  are  not  to  be 
lightly  impeached.  Gore  v.  Campbell, 
4  111.  App'.  661;  Keighler  v.  Savage 
Mfg.  Co.,  12  Md.  383,  71  Am.  Dec.  600; 
Bevan  v.  Cullen,  7  Pa.  281. 

35  Ramsay  v.  Gardner,  11  Johns. 
(N.  Y.)  439;  Powell  v.  Trustees  of 
Newburgh,  19  Id.  284;  Stocking  v. 


2153 


§  2559] 


THE  LAW  OF  AGENCY 


[BOOK  v 


warranty  which  fails,  and  he  is  compelled  to  answer  for  it,  he  may 
claim  indemnity  from  the  principal;37  if,  at  the  principal's  request,  he 
sells  goods  as  the  property  of  the  principal,  and  is  obliged  to  respond 
to  the  purchaser  who  is  divested  by  a  title  superior  to  that  of  the  prin- 
cipal, or  if  he  sells  as  sound  or  valid,  goods  or  securities  which  prove 
to  be  otherwise  and  is  compelled  to  make  good  the  loss,  the  principal 
must  indemnify  him.38 

d.  Lien. 

§  2559.  Factor  entitled  to  lien. — By  the  common  law,  a  factor  has 
a  general  lien  upon  all  of  the  goods  of  his  principal  in  his  possession, 
and  upon  the  price  of  such  as  are  lawfully  sold  by  him,  and  upon  the 
securities  taken  therefor,  to  secure  the  payment  of  the  general  balance 
of  the  accounts  between  himself  and  his  principal,  as  well  as  for  the 
advances,  charges  and  disbursements  made  upon  or  in  reference  to 
those  particular  goods.89  This  lien  secures  not  only  payments,  ad- 
vances and  disbursements  actually  made,  but  those  also  which  have 


cipal's  directions,  sold  wheat  for  fu- 
ture delivery  and,  the  wheat  having 
advanced,  the  principal  refused  to 
stand  by  the  contract,  leaving  the 
factor  to  settle  with  the  purchaser. 
Searing  v.  Butler,  69  111.  575. 

37  AS  where  the  factor  was  obliged 
to  make  good,  losses  occasioned  by 
defective  packing.  Beach  v.  Branch, 
57  Ga.  362;  or  by  defective  quality. 
Randall  v.  Kehlor,  60  Me.  37,  11  Am. 
Rep.  169;  Johnston  v.  Usborne,  11  • 
Ad.  &  El.  549. 

Where  the  factor  was  compelled  to 
take  back  goods  as  defective  after 
remitting  the  proceeds  to  his  princi- 
pal, it  was  held  that  he  should  have 
notified  his  principal  and  demanded 
repayment  before  again  selling  the 
goods  at  a  price  less  than  that  fixed 
by  the  principal.  Maxwell  v.  Audin- 
wood,  15  Hun  (N.  Y.),  111. 

ss  As  where  a  factor  innocently 
sold  repudiated  securities.  Maitland 
v.  Martin,  86  Pa.  120. 

ss  Martin  v.  Pope,  6  Ala.  532,  41 
Am.  Dec.  66;  Schiffer  v.  Feagin,  51 
Ala.  335;  Sawyer  v.  Lorillard,  48 
Ala.  332;  Weed  v.  Adams,  37  Conn. 
378;  Warren  v.  First  Nat.  Bank,  149 
111.  9;  Winne  v.  Hammond,  37  111. 

2154 


99;  Eaton  v.  Truesdail,  52  111.  307; 
Johnson  v.  Clark,  20  Ind.  App.  247; 
Patterson  v.  McGahey,  8  Mart.  (La.) 
486,  13  Am.  Dec.  298;  Lambeth  v. 
Turnbull,  5  Rob.  (La.)  264,  39  Am. 
Dec.  536;  Quitman  v.  Packard,  22  La. 
Ann.  70;  McKenzie  v.  Nevins,  22  Me. 
138,  38  Am.  Dec.  291;  Hodgson  v.  Pay- 
son,  3  H.  &  J.  (Md.)  339,  5  Am.  Dec. 
439;  Vail  v.  Durant,  7  Allen  (Mass.), 
408,  83  Am.  Dec.  695;  Winter  v.  Colt, 
7  N.  Y.  288,  57  Am.  Dec.  522;  Knapp 
v.  Alvord,  10  Paige  (N.  Y.),  205,  40 
Am.  Dec.  241;  Brown  v.  Combs,  63  N. 
Y.  598;  Jordan  v.  James,  5  Ohio,  88; 
Gage  v.  Allison,  1  Brev.  (S.  C.)  495, 
2  Am.  Dec.  682;  Couturie  v.  Roensch, 
—  Tex.  Civ.  App.  — ,  134  S.  W.  413; 
McGraft  v.  Rugee,  60  Wis.  406,  50 
Am.  Rep.  378;  Matthews  v.  Men- 
edger,  2  McLean  (U.  S.  C.  C.),  145, 
Fed.  Gas.  No.  9,289;  Gibson  v.  Stev- 
ens, 8  How.  (U.  S.)  384,  12  L.  Ed. 
1123;  Peisch  v.  Dickson,  1  Mason  (U. 
S.  C.  C.),  9,  Fed.  Cas.  No.  10,911;  Bur- 
rill  v.  Phillips,  1  Gall.  (U!  S.  C.  C.) 
360,  Fed.  Cas.  No.  2,200;  Plattner 
Implement  Co.  v.  International  Harv. 
Co.,  66  C.  C.  A.  438,  133  Fed.  376. 

This    lien    attaches    to    insurance 
payable  upon  goods  lost.    Johnson  v. 


CHAP.    IV] 


OF  FACTORS 


[§    2560 


been  lawfully  incurred,  as  where  the  factor  has  accepted  drafts  drawn 
in  anticipation  of  the  proceeds  of  the  goods.40  It  also  secures  the 
factor  for  obligations  which  he  has  incurred  either  upon  the  strength 
of  the  consignment  or  as  the  result  of  the  agency,  as  surety  for  his 
principal.41  But  it  does  not  protect  independent  debts  contracted  be- 
fore and  without  reference  to  the  agency.42 

Statutes  have  been  enacted  in  several  of  the  States  declaring  or  ex- 
tending this  lien,  and  providing  means  for  its  enforcement. 

No  express  agreement  is  necessary  to  create  the  factor's  lien ;  it 
arises  by  implication  of  law,  and  operates  although  there  was  a  written 
agreement  between  the  parties,  if  the  writing  contains  nothing  incon- 
sistent with  a  lien.43 

§  2560.  When  lien  does  not  exist. — This  lien  being  given  to  se- 
cure the  factor  for  the  balance  due  him,  the  factor  can  have  no  lien 
when  the  balance  of  account  is  against  him  and  in  the  principal's  favor. 


Campbell,  120  Mass.  449.  Also  to  a 
bonus  agreed  to  be  paid  by  the  pur- 
chaser to  the  principal  to  be  released 
from  a  contract  to  take  undelivered 
goods,  even  though  the  goods  had 
never  been  in  the  possession  of  the  fac- 
tor. Lafferty  v.  Hall,  19  Ky.  L.  Rep, 
1777,  44  S.  W.  426.  Factor  who  buys 
goods  for  his  principal  has  a  lien,  like 
factor  who  sells.  Bryce  v.  Brooks,  26 
Wend.  (N.  Y.)  367;  Beakley  v.  Rain- 
ier (Tex.  Civ.  App.),  78  S.  W.  702. 

*o  Lambeth  v.  Turnbull,  5  Rob. 
(La.)  264,  39  Am.  Dec.  536;  Eaton  v. 
Truesdail,  52  111.  307;  Vail  v.  Durant, 
7  Allen  (Mass.),  408,  83  Am.  Dec. 
695;  Nagle  v.  McFeeters,  97  N.  Y. 
196;  Nesmith  v.  Dyeing  Co.,  1  Curt. 
130,  18  Fed.  Cas.  p.  6,  No.  10,124. 

«•  Drinkwater  v.  Goodwin,  Cowp. 
251;  Hidden  v.  Waldo,  55  N.  Y.  294; 
Stevens  v.  Robins,  12  Mass.  180. 

The  fact  that  the  factor  was  paid 
a  commission  for  his  indorsement 
does  not  deprive  him  of  his  lien. 
Hodgson  v.  Payson,  3  H.  &  J.  (Md.) 
339,  5  Am.  Dec.  439. 

The  fact  that  the  factor  is  under 
special  instructions  from  his  princi- 
pal to  sell  the  goods  at  a  particular 
price,  and  to  sell  in  the  principal's 
name,  does  not  impair  his  right  of 
lien.  Stevens  v.  Biller,  25  Ch.  D.  31. 


*2  Drinkwater  v.  Goodwin,  supra; 
Houghton  v.  Matthews,  3  Bos.  &  Pul. 
485;  Stevens  v.  Robins,  12  Mass.  180; 
Olive  v.  Smith,  5  Taunt.  56. 

Factor  can  have  no  lien  upon  goods 
for  anything  except  mercantile  ad- 
vances, and  therefore  not  for  dam- 
ages for  previous  conversion  of  fac- 
tor's property  by  principal.  Thacher 
v.  Hannahs,  27  N.  Y.  Super.  (4  Robt.) 
407. 

Where  the  principal  wrongfully  re- 
fused to  take  goods  which  the  factor 
had  contracted  to  buy,  on  account  of 
which  the  factor  is  subjected  to  dam- 
ages, the  factor  has  no  lien  for  these 
damages  upon  another  lot  purchased 
for  the  principal.  Beakley  v.  Rainier 
(Tex.  Civ.  App.),  78  S.  W.  702. 

In  order  to  give  the  factor  a  lien 
upon  the  property  of  his  principal,  the 
possession  of  it  "must  have  been  ac- 
quired lawfully  and  in  good  faith." 
People's  Bank  v.  Frick,  13  Okla.  179. 

Factor  can  not  apply  proceeds  of 
sale  to  .debt  due  him  not  growing  out 
of  his  agency  and  for  winch  he  has 
no  lien.  Owen  v.  Iglanor,  44  Tenn. 
(4  Cold.)  15. 

43  Haebler  v.  Luttgen,  61  Minn. 
315;  Couturie  v.  Roensch,  —  Tex. 
Civ.  App. ,  134  S.  W.  413. 


2155 


§    2561]  THE  LAW  OF  AGENCY  [BOOK   V 

In  such  a  case  the  factor's  advances  will  be  presumed  to  have  been 
made  in  liquidation  of  such  balance.4*  Neither  can  a  factor,  who  is 
then  indebted  to  his  principal  on  account  of  previous  sales,  acquire  a 
particular  lien,  upon  goods  subsequently  sent  to  him  for  sale,  for  ex- 
penses incurred  on  account  of  them,  unless  such  expenses  exceed  the 
amount  of  his  indebtedness,  and  then  only  for  the  balance.46  The  lien 
of  the  factor  for  specific  expenses,  does  not  exist  where  the  general 
balance  of  account  is  against  him,  since  he  already  has  the  principal's 
fund  in  his  hand  with  which  to  pay  them.46 

So  the  lien  will  not  attach  if  it  would  be  in  violation  of  the  agreement 
of  the  parties,  as  where  it  is  expressly  stipulated  that  it  shall  not  exist, 
or  where  the  factor  agrees,  or  accepts  the  goods  subject  to  an  instruc- 
tion, to  make  an  application  of  the  proceeds  inconsistent  with  the  exis- 
tence of  a  lien.47 

§  2561.  Nature  of  the  lien. — The  lien  of  the  factor  is  but  a  special 
interest,  and  does  not  amount  to  a  general  ownership  of  the  goods, 
even  though  he  has  made  advances  equal  to  or  exceeding  their  value. 
The  principal  does  not  lose  his  ownership  by  committing  the  custody  of 
the  goods  to  the  factor  and  receiving  advances  upon  them.  He  may  at 
any  time,  before  the  factor  has  sold  the  goods,  reclaim  them  upon  pay- 
ing the  advances  made,  with  interest  and  expenses;  and  he  is  still  en- 
titled to  the  proceeds  of  any  sale  made  by  the  factor,  subject  only  to  the 
latter's  charge  upon  them.48 

The  lien  of  the  factor  is  a  privilege  personal  to  himself,  and  can  not 
be  set  up  by  a  third  person  as  a  defense  to  an  action  by  the  principal.49 
So  it  can  not  be  transferred,  and  no  question  can  arise  in  reference  to 
it  except  between  the  factor  and  his  principal.50 

§  2562.  When  lien  attaches. — The  lien  of  the  factor  will  ordi- 
narily not  attach  until  the  goods  are  in  his  possession,51  and  lawfully. 

44McGraft  v.  Rugee,   60  Wis.  406,  v.  Brewer,  4  Daly  (N.  Y.),  136;  Will- 

50  Am.  Rep.  378;  Weed  v.  Adams,  37  lams  v.  Tilt,  36  N.  Y.  319;   Jordan  v. 

Conn.  378;   Jordan  v.  James,  5  Ohio,  James,  5  Ohio,  88;   Hall  v.  Hinks,  21 

88;  Enoch  v.  Wehrkamp,  3  Bosw.  (N.  Md.  406. 

Y.)  398;  Beebe  v.  Mead,  33  N.  Y.  587;  « Holly     v.     Huggeford,     8     Pick. 

Godfrey    v.    Furzo,  3    P.   Wms.   185;  (Mass.)   73,  19  Am.  Dec.  303;   Jones 

Zinck  v.  Walker,  2  W.  Bl.  1154;  Hoi-  v.  Sinclair,  2  N.  H.  321,  9  Am.  Dec. 

lingworth    v.   Tooke,    2   H.    Bl.    501;  75;   Daubigny  v.  Duval,  5  T.  R.  604. 

Walker  v.  J3irch,  6  T.  R.  258.  «>  Ames  v.  Palmer,  42  Me.  197,  66 

•*5McGraft    v.    Rugee,    supra;    Ed-  Am.  Dec.  271;   Barnes  Safe  Lock  Co. 

wards,  Factors,  §  72;  Enoch  v.  Wehr-  v.  Bloch,  38  W.  Va.  158,  45  Am.  St 

kamp,  supra.  Rep.  846,  22  L.  R.  A.  850. 

4e  Idem.  si  Byers    v.    Dauley,    27    Ark.    77; 

47  Schiffer  v.  Feagin,  51  Ala.  335.  Strahom  v.  Union  Stock  Yards  Co., 

48  United    States   v.   Villalonga,    23  43  111.  424,  92  Am.  Dec.  142;   Hamil- 
Wall.  (U.  S.)  35,  23  L.  Ed.  64;  Heard  ton  v.  Campbell,  9  La.  Ann.  531;  Rice 

2156 


CHAP.    IV] 


OF  FACTORS 


[§    2563 


He  has  no  lien  on  goods  the  possession  of  which  he  acquired  by  an 
illegal  act  or  in  bad  faith.52  Actual  possession  is  of  course  sufficient,53 
and  delivery  to  the  factor's  own  servant  or  agent  will  suffice.5*  So 
putting  the  goods  upon  the  factor's  dray  to  be  drawn  to  his  warehouse, 
is  a  sufficient  delivery.55 

§  2563.  •  When  advances  made  on  goods. — Where,  how- 

ever, before  the  goods  have  come  actually  into  his  possession,  the  fac- 
tor has  made  advances  upon  them,  or  incurred  liabilities  in  respect  to 
them  it  becomes  an  important  question  to  determine  what  constructive 
possession  is  sufficient  to  sustain  his  lien  against  purchasers  from,  or 
creditors  of,  the  principal.56  It  has  most  frequently  arisen  where  the 
principal  has  shipped  goods  to  the  factor  but,  before  they  have  reached 
him,  the  principal  has  attempted  to  divert  them  or  they  have  been  seized 
by  the  principal's  creditors.  Where  there  has  been  dealing  with  a  bill 
of  lading  as  a  symbol  of  the  goods,  and  as  a  document  of  title,  and  the 


v.  Austin,  17  Mass.  197;  Allen  v. 
Williams,  12  Pick.  (Mass.)  297; 
Baker  v.  Fuller,  21  Pick.  (Mass.) 
318;  Valle  v.  Cerre,  36  Mo.  575,  88 
Am.  Dec.  181;  Brown  v.  Wiggin,  16 
N.  H.  312;  Winter  v.  Coit,  7  N.  Y. 
288,  57  Am.  Dec.  522;  Bank  of 
Rochester  v.  Jones,  4  N.  Y.  497,  5* 
Am.  Dec.  290;  Marine  Bank  v. 
Wright,  48  N.  Y.  1;  Garrison  v.  Ver- 
mont Mills,  152  N.  Car.  643;  Oliver 
v.  Moore,  12  Heisk.  (Tenn.)  482; 
Woodruff  v.  Nashville,  etc.,  R.  R.  Co., 
2  Head  (Tenn.),  87;  Elliot  v.  Brad- 
ley, 23  Vt.  217;  Ryberg  v.  Snell,  2 
Wash.  (U.  S.  C.  C.)  403,  Fed.  Cas. 
No.  12,190;  Ryttenberg  v.  Schefer,  131 
Fed.  313;  Ommen  v.  Talcott,  112  C. 
C.  A.  239  (with  note),  188  Fed.  401. 
No  lien  on  goods  which  have  never 
come  into  factor's  possession  at  all, 
but  have  been  shipped  by  the  princi- 
pal directly  to  the  buyer.  Warren  v. 
First  Nat.  Bank,  149  111.  9. 

52  Bank    of   Rochester  v.   Jones,   4 
N.  Y.  497,  55  Am.  Dec.  290;  Taylor  v. 
Robinson,  8  Taunt.  648;    Kinloch  v. 
Craig,  3  T.  R.  119. 

53  A    factor    who    has    accepted    a 
draft  drawn  specifically  upon  goods 
in  his  possession  and  in  pursuance  of 
an  arrangement  to  pay  out  of  pro- 
ceeds   has    a    lien    superior    to    the 


claims  of  subsequent  purchasers  or 
creditors.  Eaton  v.  Truesdail,  52  111. 
307. 

s*  Bonner  v.  Marsh,  10  S.  &  M. 
(Miss.)  376,  48  Am.  Dec.  754;  Rosen- 
baum  v.  Hayes,  8  N.  Dak.  461,  10  N. 
Dak.  311  (good  discussion  in  this  last 
report  of  the  kind  of  delivery  which 
will  sustain  the  lien). 

•r>5  Burrus  v.  Kyle,  55  Ga.  24,  [citing 
Elliott  v.  Cox,  48  Ga.  39;  Hardeman 
v.  DeVaughn,  49  Ga.  596;  Clark  v. 
Dobbins,  52  Ga.  656.] 

See  also,  Rosenbaum  v.  Hayes, 
supra;  Warren  v.  First  Nat.  Bank, 
149  111.  9. 

56  In  Elwell  v.  Coon  (N.  J.),  46  Atl. 
580,  it  was  held  that  the  factor  had 
no  lien  for  advances  upon  goods 
agreed  to  be  shipped  but  which  were 
in  fact  never  shipped.  In  National 
Bank  v.  Porter,  73  Cal.  430,  it  was 
held  that  a  factor  who  had  made  no 
advances  on  the  specific  goods  could 
get  no  lien  for  his  general  balance 
where,  though  goods  were  shipped,  he 
was  notified  before  they  were  received 
that  they  had  been  sold  before  ship- 
ment. 

A  consignee  can  acquire  no  lien  on 
property  consigned  to  him  for  prior 
advances  as  against  a  transferee  of 
the  bill  of  lading  who  has  made  ad- 


2157 


§  25631 


THE  LAW  OF  AGENCY 


[BOOK  v 


factor  has  made  his  advances  in  reliance  thereon,  his  rights  are  not 
dependent  merely  upon  the  common  law  right  of  lien  upon  the  goods.07 
But  where  the  dealing  is  with  the  goods  rather  than  with  documents 
of  title,  the  authorities  are  not  in  harmony,  certain  cases  holding  that 
his  lien  will  not  attach  until  the  goods  are  actually  in  his  possession,58 
while  others  maintain  the  doctrine  that  where  advances  have  been  pre- 
viously made  in  reliance  upon  a  promise  to  subsequently  consign  goods, 


vances  thereon  in  good  faith.  First 
Nat.  Bank  v.  Ege,  109  N.  Y.  120,  4 
Am.  St.  Rep.  431. 

Factor  can  acquire  no  lien  by  mak- 
ing advances  after  the  possession  of 
the  goods  has  passed  to  a  purchaser. 
Ermeling  v.  Canning  Co.,  105  111.  App. 
196. 

57  Upon    the    general    subject,    see 
Mechem  on  Sales,  §§  792,  1194;   Wil- 
liston  on  Sales,  §  405  et  seq;  Skill- 
ing  v.  Bollman,  6  Mo.  App.  76,  73  Mo. 
665,  39  Am.  Rep.  537. 

In  Peters  v.  Elliott,  78  111.  321, 
goods  were  shipped  by  rail  from  a 
town  in  Illinois,  without  any  pre- 
vious arrangement,  to  a  factor  in  St. 
Louis  for  sale.  A  shipping  bill  was 
taken  and  attached  to  a  draft  on  the 
factor  for  the  expected  proceeds,  and 
sent  on  through  a  local  bank  to  St. 
Louis  to  be  delivered  to  the  factor 
upon  payment  of  the  draft.  After  de- 
livery to  the  carrier  but  before  they 
had  actually  left  the  town  of  ship- 
ment, the  goods  were  attached  by  a 
creditor  of  the  consignor.  When  the 
•draft  was  presented,  it  was  paid  by 
the  factor  in  ignorance  of  the  prior 
attachment.  The  factor  was  protected 
to  the  extent  of  his  advance.  The 
case  is  not  altogether  satisfactory  in 
its  reasoning,  though  the  result 
seems  desirable.  While  such  a  sym- 
bol of  the  goods  is  out,  the  goods 
themselves  ought  not  to  be  subject 
to  levy  without  impounding  the  bill 
of  lading.  The  American  Sales  of 
Goods  Act,  §  39,  so  provides 

58  Saunders   v.    Bartlett,  .59    Tenn. 
(12  Heisk.)  316;  Oliver  v.  Moore,  Id. 
482    (a  bill  of  lading  had  also  been 
delivered    to    the     factor     in    these 
cases);    Woodruff  v.  Nashville,  etc., 

2158 


R.  R.  Co.,  2  Head  (Tenn.),  87;  Baker 
v.  Fuller,  21  Pick.  (Mass.)  318;  Clem- 
son  v.  Davidson,  5  Binn.  (Pa.)  392; 
Bruce  v.  Andrews,  36  Mo.  593  (where 
by  the  agreement  the  proceeds  of  the 
goods  were  to  be  remitted  to  con- 
signor. Valle  v.  Cerre,  36  Mo.  575, 
88  Am.  Dec.  161,  cited  post,  was  dis- 
tinguished); Elliott  v.  Bradley,  23 
Vt.  217  (distinguished  in  Davis  v. 
Bradley,  28  Vt.  118,  65  Am.  Dec.  226, 
cited  post);  Hodges  v.  Kimball,  49 
Iowa,  577,  31  Am.  Rep.  158  (following 
Elliott  v.  Bradley,  supra,  and  distin- 
guishing Davis  v.  Bradley,  supra) ; 
First  Nat.  Bank  v.  McAndrews,  5 
Mont.  325,  51  Am.  Rep.  51  (approving 
Hodges  v.  Kimball,  supra,  but  distin 
guishing  on  the  ground  that  in  the 
case  at  bar  there  had  been  transfer 
of  bill  of  lading) ;  Rosenbaum  v. 
Hayes,  5  N.  Dak.  476  (where  there 
was  evidence  that  it  was  not  the  in- 
tention to  put  the  property  unre- 
servedly in  factor's  hands). 

Goods  not  yet  shipped  but  held  for 
factor. — No  lien  exists  where  the 
goods  are  not  yet  shipped,  even 
though  an  agent  of  the  consignor, 
without  authority,  had  undertaken  to 
hold  the  goods  for  the  factor.  Gar- 
rison v.  Vermont  Mills,  152  N.  Car. 
643.  But  where  by  agreement  of  the 
parties,  when  the  goods  were  ready 
to  be  shipped,  invoices  of  them  were 
made  out  to  the  factor,  and  were  then 
held  in  the  principal's  warehouse, 
subject  to  the  factor's  order,  and 
were  to  be  shipped  as  he  directed,  it 
was  held  that  he  had  at  least  an 
equitable  lien  as  against  the  credi- 
tors of  the  principal.  Brown  Co.  V. 
Harris,  88  S.  Car.  558. 


CHAP.    IV]  OF  FACTORS  [§    2564 

a  delivery  to  a  common  carrier  consigned  to  the  factor  is  sufficient 50 
In  reference  to  this  latter  doctrine  it  is  said  by  a  learned  judge,60  that 
"The  mere  agreement  to  ship  goods  in  satisfaction  of  antecedent  ad- 
vances, will  not,  in  general,  give  the  factor  or  consignee  a  lien  upoit 
them  for  his  general  balance,  until  they  come  to  his  actual  possession : 
but  if  there  is  a  specific  pledge  or  appropriation  of  certain  ascertained 
goods,  accompanied  with  the  intention  that  they  shall  be  a  security,  or 
the  proceeds  as  a  payment,  and  they  are  deposited  with  a  bailee,  then 
the  property  is  changed,  and  vests  in  the  individual  to  whom  they  are 
to  be  delivered  by  the  depositary." 

§  2564  •  In  still  other  cases  it  is  held  that,  in  order  to  the 

attaching  of  the  lien  it  is  necessary  that  the  advances  should  be  made 
in  reliance  upon  this  particular  consignment.  In  a  Vermont  case61 
often  cited  upon  this  subject,  Judge  Redfield  lays  down  the  rule  "that 
to  give  a  factor  a  lien  upon  goods  consigned  but  not  actually  received, 
these  incidents  must  concur:  I.  The  consignment  must  be  in  terms  to 
the  factor.  *  *  *  2.  To  the  collusiveness  of  such  a  contract 
against  creditors  and  subsequent  purchasers,  it  is  requisite  that  the  con- 
signee should  have  made  advances  or  .acceptances  upon  the  faith  of 
these  particular  consignments."  In  this  case  there  was,  in  addition  to 
the  incidents  mentioned,  the  further  fact  that  the  consignors  had  de- 
livered to  the  factor  the  carrier's  receipt  or  bill  of  lading,  but  the  court 

59  Nisbet    v.    Siegel-Campion,    etc.,  which  the  principal  induced  the  car- 
Co.,  21  Colo.  App.  494;  Elliott  v.  Cox,  rier  to  withhold  delivery);  Harrison 

48  Ga.   39;    Hardeman  v.  DeVaughn,  v.    Mora,    150    Pa.    481   (where    after 

49  Ga.  596  (there  were  express  agree-  goods   had    been   shipped   to    factors 
ments  respecting  specific  property) ;  and    bill    of    lading    taken    in  their 
Wade  v.  Hamilton,  30  Ga.  450;   Nel-  name  and  sent  to  them,  a  creditor  of 
son  v.  Chicago,  etc.,  R.  R.  Co.,  2  111.  principal     levied     on     the     goods); 
App.  180   (in  this  case  the  wheat  in  Haille  v.   Smith,   1   Bos.   &  Pul.   563 
question  had  been  put  into  cars,  un-  (where  there    was    a    general  agree- 
der   the   supervision   of   the   factor's  ment  to  consign  goods  on  account  of 
agent,  for    shipment    to    the    factor,  advances;    goods    were    shipped    but 
later    the    consignors    attempted    to  consignor    became    insolvent    before 
change    the    destination) ;    Bailey    v.  arrival  and  fell  into  hands  of  his  as- 
H-ddson    River    R.  Co.,  49    N.    Y.  70  signee);  Grosvenor  v.  Phillips,  2  Hill 
(where  it  is    said    that    if    the  con-  (N.   Y.),   147    (similar   to    Haille   v. 
signer  delivers  the  bill  of  lading  to  Smith,  supra,  except  that  goods  were 
the  factor,  or,  though  retaining  that,  sized     on     execution     against     con- 
notifies  the  factor  by  letter  that  he  signer). 

has  shipped  the  goods  to  him,  it  will  co  Goldthwaite,     J.,     in     Desha     v. 

suffice);    Anderson  v.  Clark,  2  Bing.  Pope,  6  Ala.  690,  41  Am.  Dec.  76. 

20    (where   the   goods   were   shipped  6l  Davis  v.  Bradley,  28  Vt.  118,  65 

and  bill  of  lading  sent  to  factor,  after  Am.  Dec.  226. 

2159 


§    2564]  THE   LAW  OF  AGENCY  [BOOK   V 

did  not  consider  this  essential  and  appioved  of  Holbrook  v.  Wight/12 
where  this  fact  did  not  exist. 

In  a  leading  case  in  Missouri,83  it  is  said  "Where  acceptances  have 
actually  been  given  upon  the  faith  of  a  consignment  by  bill  of  lading, 
there  can  be  no  doubt  that  the  consignee  acquires  such  a  lien  or  prop- 
erty in  the  goods  as  no  subsequent  act  of  conveyance  can  divest ;  such 
an  acceptance  is  held  to  be  an  advance  upon  the  particular  shipment. 
Where  there  has  been  no  advance  or  acceptance  expressly  made  upon 
the  particular  consignment,  and  the  question  is  only  of  a  general  bal- 
ance of  account  for  previous  advances,  the  case  differs  not  so  much  in 
principle  as  in  the  evidence  required  to  establish  the  lien.  It  matters 
not  whether  the  lien  for  a  balance  of  account  arises  by  operation  of 
law  from  the  usage  of  trade,  or  from  the  positive  and  special  agree- 
ment and  understanding  of  the  parties ;  64  and  it  may  extend  to  all  sums 
for  which  a  factor  has  become  liable  as  surety  or  otherwise  for  his 
principal,  whenever  the  suretyship  has  resulted  from  the  nature  of  tlit- 
agency,  or  the  express  arrangement  of  the  parties,  or  it  has  been  un- 
dertaken upon  the  footing  of  such  a  lien.65  Whether  or  not  the  given 
consignment  is  to  be  considered  as  made  to  cover  a  general  balance  of 
account,  will  depend  upon  the  special  arrangements,  agreement,  and 
understanding  of  the  parties ;  but  where  such  an  arrangement  exists, 
and  the  consignment  is  made  in  pursuance  of  it,  and  there  is  nothing 
else  in  the  case  which  is  inconsistent  with  the  hypothesis,  the  case  would 
be  governed  by  the  same  principle,  and  a  delivery  to  the  carrier  will 
be  considered  as  a  constructive  delivery  to  the  consignee.06  In  such 
case  the  shipment  and  delivery  of  the  goods  to  the  carrier,  under  the 
bill  of  lading,  amounts  to  a  specific  appropriation  of  the  property  with 
an  intention  that  it  shall  be  a  security  or  a  payment  to  the  consignee 
for  the  advances  he  has  made." 

In  an  Illinois  case  it  was  held  that  a  consignor  who  had  put  goods 
into  the  possession  of  a  common  carrier  to  be  carried  and  delivered 
to  a  factor  in  pursuance  of  a  preceding  arrangement  and  to  apply  on 
prior  advances,  and  had  taken  a  bill  of  lading  in  the  factor's  name, 
had,  before  the  shipment  of  the  goods  and  before  the  delivery  of  the 

«*  Holbrook  v.  Wight,  24  Wend.  (N.  «*  Idem. 

Y.)  169,  35  Am.  Dec.  607.  ««  Citing  Russell  on  Factors,   203; 

See  also,  Grosvenor  v.  Phillips,  2  Clark  v.  Mauran,  3  Paige  (N.  Y.),  373; 

Hill  (N.  Y.),  147.  Bryans   v.   Nix,    4   Mees.    &   W.    791; 

63  Valle   v.   Cerre,   36   Mo.    575,    88  Desha  v.  Pope,  6  Ala.  690,  41  Am.  Dec. 

Am.  Dec.  161.  76;  3  Parsons  on  Contracts,  261,  note 

«*  Citing  Story  on  Agency,  §  375.  w. 

2l6o 


CHAP.    IV]  OF  FACTORS  [§    2565 

bill  of  lading  to  the  factor,  the  right  to  change  the  destination  of  the 
goods,  and  that  the  carrier  was  bound  to  obey  such  directions.67 

§  2565.  Who  may  confer  lien. — As  has  been  seen  in  an  earlier 
portion  of  the  work,  the  possession  upon  which  a  lien  is  based  must 
have  been  acquired  from  one  having  a  lawful  right  to  confer  it.  Hence 
if  the  factor  acquired  possession  from  one  who  had  no  power  to  create 
a  lien,  or  who  was  a  mere  wrongdoer,  or  who  exceeded  his  authority, 
or  whose  possession  was  tortious,  he  can  in  general  acquire  no  right 
of  lien.68 

On  the  other  hand,  however,  a  factor  who  makes  advances  upon 
goods  in  good  faith  is  to  be  deemed  a  bona  fide  purchaser  for  value, 
and  if  the  consignor  had  a  title,  though  defeasible  for  fraud,  the  factor 

will  be  protected  against  the  claims  of  the  person  defrauded  by  his 

«o 
consignor.69 

To  prevent  hardship  in  the  case  of  factors  who  have  received  goods, 
in  good  faith  and  in  the  usual  course  of  business,  from  one,  who  the 
factor  had  no  notice  was  not  the  true  owner  thereof,  and  in  whose 
name  the  goods  were  shipped,  it  is  provided,  in  several  of  the  States, 
that  the  person  in  whose  name  the  goods  are  consigned  shall  be  deemed 
to  be  the  owner  so  as  to  entitle  the  consignee  thereof  to  a  lien.70 

These  acts,  however,  apply  only  where  a  shipment  of  property  has 
been  made  with  the  consent  of  the  real  owner  in  the  name  of  another, 
thus  conferring  upon  the  latter  the  apparent  ownership  and  right  of 
control,  and  where  innocent  parties  on  the  faith  of  the  evidence  thus 
furnished  have  made  advances  on  the  property.71 

67  Lewis  v.  Galena,  etc.,  R.  R.,  40  111.  person  In  whose  name  such  shipment 

281;   same  point.     Strahorn  v.  Union  shall  have  been  made;  and 

Stock  Yard  Co.,  43  111.  424,  92  Am.  2.  For    any    money    or    negotiable 

Dec.  142.  security   received   by   the   person   in 

es  Fitch     v.     Newberry,     1     Doug.  whose    name    such    shipment    shall 

(Mich.)  1,  40  Am.  Dec.  33;  Robinson  have  been  made,   to  or  for  the  use 

v.  Baker,  5  Gush.  (Mass.)  137,  51  Am.  of  such  consignee. 

Dec.  54.  §  2.  The  lien  provided  for  in  the 

»» Williams  v.  Tilt,  36  N.  Y.  319.  preceding    section,    shall    not    exist 

TO  Thus   the   statute   of   New  York  where  such  consignee  shall  have  not- 

provides  as  follows: —  ice,  by  the  bill  of  lading  or  otherwise, 

"§  1.  After     this     act     shall    take  at   or   before  the   advancing  of   any 

effect,  every  person  in  whose  name  money    or    security    by    him,    or    at 

any    merchandise    shall    be    shipped,  or    before     the     receiving    of    such 

shall    be    deemed    the    true    owner  money  or  security  by  the  person  in 

thereof,  so  far  as  to  entitle  the  con-  whose  name  the  shipment  shall  have 

signee  of  such  merchandise  to  a  lien  been  made,  that  such  person  is  not 

thereon.  the  actual  and  bona  fide  owner  there- 

1.  For    any    money    advanced,    or  of."    Rev.  Stat.  1882,  p.  2257. 

negotiable    security    given    by    such  71  Kinsey  v.  Leggett,  71  N.  Y.  387; 

consignee,  to  or  for  the  use  of  the  Merchants',    etc.,   Bank   v.   Farmers', 
136                                     2161 


§  2566] 


THE  LAW  OF  AGENCY 


[BOOK  v 


§  2566.  How  lien  may  be  lost. — When  the  lien  of  the  factor  has 
once  attached,  it  can,  like  other  liens,  only  be  lost  or  destroyed  by  some 
act  of  the  factor.  It  is  superior  to  the  claims  of  subsequent  purchasers, 
and  cannot  be  defeated  by  a  levy  of  an  attachment  or  execution  against 
the  principal,  or  by  summoning  the  factor  in  garnishment.72 

The  factor  may  waive  his  lien  by  voluntarily  parting  with  the  pos- 
session of  the  goods,73  but  a  temporary  change  of  custody  for  a  spe- 
cial purpose, — the  factor  still  retaining  his  control  over  them, — will 
not  amount  to  a  waiver.74  If  he  is  wrongfully  deprived  of  the  goods, 
he  has  such  an  interest  as  will  entitle  him  to  recover  them.75 

If  the  factor  wrongfully  sells,  pledges  or  disposes  of  the  property 
or  suffers  it  to  be  taken  for  his  debt,  or  denies  the  principal's  rights 
therein,  he  loses  his  lien,76  and  it  will  be  deemed  to  be  waived,  if,  when 
called  upon  to  state  his  claim  or  disclose  his  interest  in  the  property, 
he  refuses  to  state  it  or  conceals  or  denies  his  lien,  or  bases  his  right 
of  detention  upon  other  grounds.77 


72  Eaton  v.  Truesdail,  52  111.  307; 
Winne     v.     Hammond,     37     111.     99; 
Muller   v.    Pondir,    55   N.   Y.    325,    14 
Am.  Rep.  259;   Grosvenor  v.  Phillips, 
n  Hill  (N.  Y.),  147;  Bard  v.  Stewart, 
3  T.  B.  Mon.  (Ky.)  72;   White  Moun- 
tain Bank  v.  West,  46  Me.  15;    Bar- 
nett  v.  Warren,  82  Ala.   557;    Harri- 
son v.  Mora,  150  Pa.  481. 

Factor  who  has  made  advances  to 
his  principal  may  proceed  to  sell  not- 
withstanding the  service  of  an  at- 
tachment sued  out  by  a  creditor  of 
the  principal.  The  attaching  credit- 
or stands  in  no  better  position  than 
the  principal,  and  cannot  arrest  a 
sale  without  tendering  to  the  factor 
the  amount  of  his  advances.  Baugh 
v.  Kirkpatrick,  54  Pa.  84,  93  Am. 
Dec.  675. 

73  Voluntary   surrender    of    posses- 
sion operates  as  a  waiver.    Rowland 
v.   Dolby,   100   Md.   272,   3   Ann.   Gas. 
643;  Rosenbaum  v.  Hayes,  8  N.  Dak. 
461;    Robinson   v.    Larrabee,    63    Me. 
116;  Byers  v.  Danley,  27  Ark.  77. 

7*  Matthews  v.  Menedger,  2  Mc- 
Lean (U.  S.  C.  C.),  145,  Fed.  Gas.  No. 
9,289;  Winne  v.  Hammond,  37  111.  99; 
Gator  v.  Merrill,  16  La.  Ann.  137; 
Gragg  v.  Brown,  44  Me.  157;  Baker 
v.  Fuller,  21  Pick.  (Mass.)  318; 


Archer  v.  McMechan,  21  Mo.  43;  Bull 
v.  Sigerson,  24  Mo.  53;  Jordan  v. 
James,  5  Ohio,  88. 

75Holbrook  v.  Wight,  24  Wend. 
(N.  Y.)  169,  35  Am.  Dec.  607. 

79Lehmann  v.  Schmidt,  87  Gal.  15; 
Walker  v.  Dubuque  Fruit  Co.,  113 
Iowa,  428,  53  L.  R.  A.  775;  Larminie 
v.  Carley,  114  111.  196,  (loses  lien  by 
disobedience  to  instructions);  Jarvia 
v.  Rogers,  15  Mass.  389;  Holly  v. 
Huggeford,  8  Pick.  (Mass.)  73,  19 
Am.  Dec.  303. 

Although  the  factor  may  re-pledge 
or  transfer  the  goods  of  his  princi- 
pal to  the  extent  of  his  lien,  if  he 
gives  notice  of  his  interest,  (ante, 
§  2510,  note  53),  if  he  pledges  them 
as  his  own,  the  pledge  is  tortious 
and  the  principal  may  recover  them 
without  previous  demand.  Silver- 
man  v.  Bush,  16  111.  App.  437. 

The  factor's  lien  is  waived  where, 
having  consented  that  the  owner 
may  sell  the  goods  and  after  learn- 
ing of  such  a  sale,  he  then  sells  them 
himself,  both  the  owner  and  the  pur- 
chaser being  willing  to  pay  his 
charges.  Walker  Co.  v.  Dubuque 
Produce  Co.,  106  Iowa,  245. 

77  McPherson  v.  Neuffer,  11  Rich. 
(S.  C.)  L.  267;  Holbrook  v.  Wight, 


2162 


CHAP. 


OF  FACTORS 


[§    2567 


His  lien  may  also  be  waived  by  a  special  agreement  inconsistent  with 
the  continuance  of  the  lien,  such  as  an  extension  of  time  of  payment 
beyond  the  period  when  the  lien  would  naturally  terminate;  or  by  an 
intentional  waiver,  such  as  an  acceptance  of  other  security  with  intent 
to  rely  upon  it  exclusively,  or  an  agreement  to  look  to  the  personal 
responsibility  of  the  debtor.78  Waivers  of  lien,  however,  are  not  lightly 
to  be  inferred.79 

§  2567.  How  lien  may  be  enforced. — As  has  been  seen  in  an  earlier 
section  a  factor,  who  has  made  advances  upon  his  principal's  goods, 
may,  if  the  principal  neglect  to  repay  the  same  within  a  reasonable 
time  after  a  demand  for  repayment,  sell  enough  of  the  goods  to  satisfy 
his  claim,  even  though  such  sale  be  in  contravention  of  his  principal's 
instructions.80 


24  Wend.  (N.  Y.)  169,  35  Am.  Dec. 
607;  Winter  v.  Coit,  7  N.  Y.  288,  57 
Am.  Dec.  522;  Mexal  v.  Dearborn,  12 
Gray  (Mass.),  336;  Hudson  v.  Swan, 
83  N.  Y.  552;  Gragg  v.  Brown,  44  Me. 
157. 

This  rule  of  waiver  by  claims  of 
ownership  operates  by  way  of  estop- 
pel and  in  order  to  be  operative  it 
must  have  misled  the  other  party. 
Rosenbaum  v.  Hayes,  8  N.  Dak.  461. 

A  promise  made  by  factors  to  the 
principal  to  deliver  bills  of  lading  to 
bankers,  who  advanced  money  on  the 
principal's  draft  on  the  faith  of  the 
promise,  is  not  a  binding  contract 
since  it  lacks  consideration,  and  does 
not  estop  the  factors  as  they  did  not 
know  that  the  bankers  would  rely  on 
their  promise,  and  does  not  waive 
their  lien.  Hollums  v.  Hubbard,  165 
N.  Y.  534. 

Where  the  factor  refuses  to  state 
the  amount  of  the  lien  it  is  held  t^ 
be  waived.  Terwilliger  v.  Deals,  6 
Lans.  (N.  Y.)  403;  Thatcher  v.  Har- 
lan,  2  Houst.  (Del.)  178;  Munson  v. 
Porter,  63  Iowa,  456. 

The  factor's  statutory  lien  is  not 
waived  by  taking  a  note  for  the  ad- 
vances. Story  v.  Flournoy,  55  Ga. 
56;  a  factor  does  not  waive  his  lien 
by  holding  out  his  principal  as  the 
owner  of  the  goods.  Seymour  v. 
Hoadley,  9  Conn.  418,  nor,  where  his 


advances  exceed  the  value,  does  he 
lose  his  lien  by  certifying,  in  good 
faith,  in  attachment  proceedings 
against  his  principal,  that  he  holds 
no  goods  for  the  benefit  of  the  latter. 
Bank  v.  Sturgis,  9  Bosw.  (N.  Y.)  660. 
But  taking  a  judgment  note  has  been 
held  to  be  a  waiver  of  the  lien.  Dar- 
lington v.  Chamberlain,  20  111.  App. 
443. 

TS  Rosenbaum  v.  Hayes,  10  N.  Dak. 
311. 

Where  the  factor  agreed  to  deliver 
the  property  for  a  consideration, 
which  was  paid,  the  lien  was  waived. 
Sawyer  v.  Lorillard,  48  Ala.  332. 

79  In  Harrison  v.  Mora,  150  Pa. 
481,  where  it  was  contended  that  the 
factors  had  waived  their  lien,  it  was 
said:  "The  right  to  their  general 
lien  to  protect  their  advances  was 
too  important  a  matter  to  be  fritter- 
ed away  by  an  inference  from  a  cor- 
respondence which  gave  no  intima- 
tion of  such  a  purpose." 

Factors  who  merely  express  a 
willingness  to  hold  the  property  in 
anticipation  of  a  rise  in  price,  there 
being  no  consideration  therefor,  are 
not  to  be  deemed  to  have  thereby 
waived  their  lien.  Stebbins  v. 
Walker,  46  Mich.  5. 

so  See  ante,  §  2526.  A  del  credere 
factor,  having  a  lien  upon  goods  in 
excess  of  their  value,  may  accept  a 


§    2568]  THE  LAW  OF  AGENCY  [BOOK   V 

Where  no  such  instructions  were  given,  the  time  and  circumstances 
of  the  sale  rest  largely  in  the  factor's  discretion,  to  be  exercised  in  ac- 
cordance with  the  usages  of  the  business.81  "It  is  only  when  there  are 
special  instructions  with  respect  to  price  or  time  of  sale,  or  the  like, 
that  notice  is  required  before  the  property  may  be  disposed  of  on  dif- 
ferent terms  or  at  an  earlier  date."82 

The  authority  to  sell  to  repay  advances  is  a  power  coupled  with  an 
interest  which  the  principal  cannot  revoke  and  which  is  not  terminated 
by  his  death.83 

The  factor's  authority  to  sell  to  enforce  his  lien  differs  from  that  of 
other  common-law  lien-holders.  He  is  employed  to  sell  in  the  first 
instance,  and  his  authority  to  sell  to  enforce  his  lien  seems  to  arise 
out  of  the  nature  of  the  case  and  the  usages  of  the  business. 

The  method  and  conditions  of  sale  may,  of  course,  be  regulated  by 
express  contract  between  the  parties.84 

•  !st       £1  ,nrcwfifi9<I  .v  Icx'jK   ;£Sc  .ogd  .raA 

VI. 

"pr/lBW  lo  9lm  atriT 

RIGHTS  OF  FACTOR  AGAINST  THIRD  PERSONS. 

bflfi   fsq 

a.  In  Contract. 

§  2568.  May  sue  for  price  of  goods  sold. — A  factor  who  has  sold 
goods  for  his  principal,  may  maintain  an  action  in  his  own  name  to  re- 
cover the  price.85  No  special  authority  is  necessary  for  this:  it  re- 
sults from  the  agency.86  It  is  immaterial  whether  the  factor  has  or 

i    .'V-rt  fru»  i  -| 

bill  of  sale  of  the  goods  from  an  in-  435,  8  L.  R.  A.   (N.  S.)   474;    Miller 

solvent   principal,   in   absence  of  ac-  v.  Lea,  35  Md.  396,  6  Am.  Rep.  417;  Ils- 

tual    fraud,    and    such    transactions  ley  v.  Merriam,  7  Gush.  (Mass.)   242, 

will   be   treated   as  a   foreclosure  of  54  Am.  Dec.  721;   Toland  v.  Murray, 

the     lien.       Fourth     Nat.     Bank     v.  18  Johns.    (N.   Y.)    24;    Ladd  v.  Ar- 

American  Mills  Co.,  29  Fed.  611.  kell,  37  N.  Y.   Super.  Ct.   35;    White 

si  Willingham  v.  Rushing,  105  Ga.  v.  Chouteau,  10  Barb.    (N.  Y.)    202; 

72;    Whigham   v.   Fountain,   132   Ga.  Whitehead  v.  Potter,  26  N.  Car.  257; 

277.  Beardsley  v.  Schmidt,  120  Wis.  405, 

82  Walker    v.    Dubuque    Fruit    Co.,  102  Am.  St.  Rep.  991. 
113  Iowa,  428,  53  L.  R.  A.  775.  Factor  is  a  trustee  of  an  express 

wPost,  §2585;  Willingham  v.  Rush-  trust  within  meaning  of  statute  au- 

ing,   supra;  Gordon   v.   Cobb,   4   Ga.  thorizing    such    a    trustee    to    sue. 

App.  49.  Beardsley    v.    Schmidt,    supra.      To 

8*  Whigham  v.  Fountain,  supra.  same  effect:    Grinnell  v.   Schmidt,   4 

sBpiummer   Merc.    Co.    v.    Heuder-  N.  Y.  Super.   (2  Sandf.)   706;   Wolfe 

son,   37   Colo.   93;    Graham   v.    Duck-  v.  Missouri  Pac.  Ry.  Co.,  97  Mo.  473, 

wall,  8  Bush   (Ky.),  12;    Robinson  v.  10  Am.  St.  Rep.  331,  3  L.  R.  A.  539. 
Corsicana    Cotton    Factory,    124    Ky.          se  Whitehead  v.  Potter,  supra. 

2164 


CHAP.    IV]  OF    FACTORS  [§    2569 

has  not  already  paid  the  amount  to  his  principal,87  or  whether  or  not 
he  disclosed  the  name  of  his  principal.88  If  he  has,  upon  the  sale, 
taken  the  note  or  other  obligation  of  the  purchaser  payable  to  himself, 
he  may  recover  upon  it  in  his  own  name.89 

This  right  of  the  factor  to  sue  for  the  price  is,  in  general,  (sealed 
and  negotiable  instruments  excepted),  subordinate  to  the  principal's 
right  to  interpose  and  recover  the  price  himself.90  But  where  the  fac- 
tor has  a  lien  upon  the  goods  or  their  proceeds,  equal  to  or  greater 
than  their  value,  the  principal  can  not  cut  off  the  factor's  right  to 
sue.91 

.  So,  as  has  been  seen,92  the  factor  has  a  lien  not  only  upon  the  goods, 
but  upon  their  proceeds,  and  if,  before  the  purchaser  has  paid  the  prin- 
cipal, the  factor  gives  notice  of  his  lien  to  the  purchaser,  no  subsequent 
payment  by  the  purchaser  to  the  principal  will  prevent  the  factor  from 
recovering  to  the  extent  of  his  lien  from  the  purchaser.98 

§  2569.  It  has  been  considered  that  the  factor  must,  in 

such  a  case,  indemnify,  or  offer  to  indemnify,  the  purchaser  against 
an  adverse  suit  by  the  principal.  "Whether  such  indemnity,  however, 
is  essential,  is,"  says  Mr.  Wharton,  "a  matter  of  dispute.  Lord 
Mansfield's  authority,  in  the  case  last  cited,  is  to  the  affirmative,  and 
such  is  the  view  of  Mr.  Paley.94  On  the  other  hand  Mr.  Russell 95 
says :  'It  appears  to  be  taken  for  granted  that  in  such  cases  third  per- 
sons are  entitled  to  an  offer  of  indemnity  from  the  factor ;  and  it  is  be- 
lieved that  in  practice  such  indemnity  is  usually  offered;  although 
whether  this  be  absolutely  essential  in  order  to  the  security  of  the  fac- 
tor's rights  may  admit  of  question.'  And  Judge  Story  °6  speaks  even 

ST  Plummer    Merc.    Co.    v.   Render-  a  settlement  of  accounts  between  de- 
son,  supra.  fendant    and    the   factor's   assignees, 
ss  Beardsley    v.     Schmidt,     supra;  the  defendant  allowed  credit  for  the 
Ilsley   v.   Merriam,   7  Gush.    (Mass.)  price   of  the   goods   and   proved   his 
242,  54  Am.  Dec.  721.  claim    for    the    balance    against    the 
89  Van  Staphorst  v.  Pearce,  4  Mass.  factor's   estate.     The   plaintiffs,  who 
258.  were    the    original    owners    of    the 
If  the  instrument  were  under  seal  goods,  brought   suit  against  the  de- 
or  negotiable  the  agent,  or  his  trans-  fendant  for  the  price;   but  the  court 
feree,  only  could  sue.  held  that  as  the  factor  had  a  lien  on 
»o  See  post,  §  2574.  the  whole  price  of  the  goods,  the  set- 
si  Hudson  v.  Granger,  5  B.  &  Aid.  tlement  between  defendant  and  the 
27.     In  this  case  the   owner  of  the  assignees  was  a  bar  to  the  action, 
goods  being  indebted  to  the  factor  in  »2  Ante,  §  2649. 
an    amount    exceeding    their    value,  »s  Drinkwater    v.    Goodwin,    Cowp. 
consigned  them  to  him  for  sale.    The  251;  Paley's  Agency,  365,  6. 
factor  who  was  also  indebted  to  the  94  Paley's  Agency,  365,  6. 
defendant    sold    the    goods    to    him.  »s  Factors  and  Brokers,  247. 
The  factor  became  bankrupt  and  on  96  Agency,  §  409. 


§§    2570-2572]  THE   LAW  OF   AGENCY  [BOOK  V 

more  doubtfully :  'It  seems  at  least  a  questionable  point  whether  there 
is  any  principal  of  law  which  positively  requires  such  indemnity  or 
order  of  indemnity.'  "  9T 

§  2570.  Defences. — Where  the  action   is  brought  by  the 

factor  in  his  own  name,  the  defendant  may  avail  himself — 

1.  Of  any  defenses  which  he  has  against  the  factor  who  is  the  plain- 
tiff in  the  suit ; 88  and 

2.  Of  any  defenses  which  he  has  against  the  principal,"  except  that 
such  defenses  can  not  defeat  the  factor's  action  to  the  extent  of  his 
lien.1 

§  2571.  May  sue  on  contracts  made  in  his  name. — So  where  the 
factor  has  entered  into  contracts  with  third  persons  in  his  own  name 
in  reference  to  the  goods,  he  may  sue  upon  the  same.  Thus  cotton  fac- 
tors, who  have  sold  goods  consigned  to  them,  may,  in  their  own  names, 
recover  the  damages  resulting  from  a  breach  of  the  contract  by  the 
buyer  although  they  may  be  bound  to  pay  such  damages  when  recov- 
ered to  the  consignor.  They  have  a  special  property  in  the  cotton,  and 
a  lien  upon  it  for  their  commissions  which  attaches  on  the  very  dam- 
ages recovered  and  would  be  increased  thereby.2  So  a  factor  may  sue 
a  third  person  for  the  breach  of  a  contract  of  storage  ;3  or  carriage.* 

The  factor's  right  in  this  case,  as  in  others,  is  ordinarily  subject  to 
the  paramount  right  of  the  principal  to  enforce  the  contract  in  his  own 
name  when  it  was  made  on  his  account. 

b.  In  Tort. 

§  2572.  May  maintain  trespass,  replevin  or  trover. — The  factor 
in  possession  has  such  a  special  interest  in  the  goods  that  he  may  main- 
tain trespass,  trover  or  replevin  against  one  who  injures  them,  or  de- 
prives him  of  their  possession.5  As  against  a  mere  stranger  he  could 

07  Wharton  on  Agents,  §  777.  souri  Pac.  Ry.  Co.,  97  Mo.  473,  10  Am. 

"8  See  ante,  §  2045;   Ewell's  Evans  St.  Rep.  331,  3  L.  R.  A.  539. 
on  Agency,  387;   Gibson  v.  Winter,  5          •"  See  ante,  §  2050;    Beyer  v.  Bush, 

B.  &  Ad.  96;   Bauerman  v.  Radenius,  50  Ala.  19;   Roberts  v.  Burr,  135  Cal. 

7  T.  R.  663.  156;    Illinois  Cent.  R.  Co.  v.  Schenk, 

aa  See  ante,  §  2045;  Atkyns  v.  Am-  64  111.  App.  24;  Robinson  v.  Webb,  11 

ber,  2  Esp.  493;   Grice  v.  Kenrick,  L.  Bush   (Ky.),  464;    Fowler  v.  Cooper, 

R.  5  Q.  B.  340.  3  La.  215;  Gorum  v.  Carey,  1  Abb.  (N. 

iDrinkwater    v.    Goodwin,    Cowp.  Y.)    Pr.  285;    Porter  v.  Schendel,  25 

251.  N.  Y.  Misc.  779;  Adams  v.  Bissell,  28 

2  Groover  v.  Warfield,  50  Ga.  644.  Barb.   (N.  Y.)  382. 

3  Allen  v.  Steers,  39  La.  Ann.  586.          In  Wood  v.  Orser,  25  N.  Y.  348,  it 
*  See  Grinnell  v.  Schmidt,  4  N.  Y.  was  held  that  the  factor  who  had  a 

Super.  (2  Sandf.)  706;  Wolfe  v.  Mis-      lien  and  was  entitled  to  the  posses- 

2l66 


CHAP.    IV]  OF  FACTORS  [§§    2573,  2574 

recover  the  full  value  of  the  goods  ;6  but  as  against  the  principal  or  one 
claiming  under  him,  he  can  recover  only  to  the  extent  of  his  interest.7 

So  a  factor  under  a  del  credere  commission,  having  a  lien  for  ad- 
vances made  by  him  upon  goods  consigned  to  him  and  delivered  to  an- 
other to  hold  for  him,  may  maintain  replevin  against  the  bailee  for 
their  non-delivery.8 

Where  third  persons  take  property  on  which  the  factor  had  a  right 
of  lien,  with  notice  of  it,  he  may  follow  the  property  into  their  hands.9 

§  2573.  Actions  against  carriers. — The  right  of  an  agent  like  a 
factor  to  maintain  actions  in  tort  against  common  carriers  for  loss, 
injury  or  delay  to  goods  consigned  to  him,  has  been  considered  in  an 
earlier  chapter,10  and  the  discussion  need  not  be  repeated  here. 

Where  the  factor  is  himself  the  shipper,  his  special  interest  will  or- 
dinarily sustain  an  action.11 

VII. 

RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS. 
,       _  )  JurfJ 

a.  In  Contract. 

§  2574  May  sue  for  price  of  goods  sold. — Except  in  those  cases 
in  which  the  factor  has  a  lien  equal  to  or  exceeding  the  value  of  the 
goods,12  the  principal  may  sue  for  and  recover  in  his  own  name  the 
price  of  the  goods  sold  for  him  by  the  factor,  even  though  the  principal 
was  not  disclosed  and  the  factor  acted  as  the  ostensible  principal.13 
The  fact  that  the  factor  acted  under  a  del  credere  commission  does  not 
change  the  rule.14  Where  the  factor,  having  a  lien  upon  the  proceeds, 

sion  was  the  only  one  who  could  Roosevelt  v.  Doherty,  129  Mass.  301, 

maintain  a  possessory  action.  37  Am.  Rep.  356;  Learned  v.  Johns, 

«See  ante,  §  2050.  9  Allen  (Mass.),  419;   Ilsley  v.  Merri- 

7  Heard  v.  Brewer,  4  Daly  (N.  Y.),  am,  7  Cush.  (Mass.)  242,  54  Am.  Dec. 

136.  Jci7/"  721;  Hnntington  v.  Knox,  7  Cush. 

s  Holbrook  v.  Wight,  24  Wend.  (N.  (Mass.)  371;  Locke  v.  Lewis,  124 

Y.)  169,  35  Am.  Dec.  607.  Mass.  1,  26  Am.  Rep.  631;  Ladd  v. 

a  Beebe  Stave  Co.  v.  Austin,  92  Ark.  Arkell,  40  N.  Y.  Super.  Ct.  150;  Gir- 

248.  ard  v.  Taggart,  5  S.  &  R.  (Pa.)  19, 

10  See  ante,  §  2050.  9  Am.  Dec.  327;  Parker  v.  Donaldson, 

11  See  Atlantic  Coast  Line  R.  Co.  v.  2   W.    &    Serg.    (Pa.)    9;    Stewart    v. 
Partridge,  58  Fla.  155.  Woodward,   50  Vt.    78,   28   Am.   Rep. 

12  Hudson  v.  Granger,  5  B.  &  Aid.  488. 

is  Burton  v.  Goodspeed,  69  111.  237;  The    rule   applies    in   the    case    of 

Brooks  v.   Doxey,   72   Ind.   327;    Gra-      a  foreign  principal.     Barry  v.  Page, 
ham  v.  Duckwall,  8  Bush  (Ky.),  12;       10  Gray   (76  Mass.),  398. 
Brewster  v.   Saul,  8  La.  296;    Miller          n  Thus  in   Cushman  v.   Snow,  186 
v.  Lea,  35  Md.  396,  6  Am.  Rep.  417;       Mass.   169,  the  court,  by  Braley,  J., 

2167 


§  2575] 


THE  LAW  OF  AGENCY 


[BOOK  v 


has  given  notice  to  the  purchaser  not  to  pay  the  amount  of  it  to  the 
principal,  the  latter  may  recover  the  surplus ;  or,  by  satisfying-  the  fac- 
tor's claim,  can  recover  the  whole.15  In  other  cases,  the  right  of  the 
principal  to  sue  is  paramount  to  that  of  the  factor,  and  the  principal, 
although  previously  undisclosed,  may  intervene  at  any  time  before  the 
payment  to  the  factor  and,  by  notice  to  the  purchaser,  require  payment 
to  himself.16  The  fact  that  the  factor  has  taken  a  note  payable  to  him- 
self, will  not  defeat  the  principal's  right  of  action  for  the  price,  except 
where  the  note  constitutes  payment  or  has  been  negotiated.17  But 
where  the  factor,  in  selling  the  goods  of  several  principals,  takes  a 
note  payable  to  himself  for  the  entire  price,  no  one  of  the  principals 
can  sue  for  his  proportion  of  the  price,  nor  can  he,  though  no  note  was 
given,  sue  for  his  proportion,  where  the  goods  of  himself  and  other 
principals,  or  of  himself  and  the  factor  personally,  were  sold  for  a 
gross  price.18 

§  2575-  

purchaser  knew,1 


What  defenses  principal  subject  to. — Where  the 
or  had  reasonable  grounds  to  believe,20  that  the  fac- 


said:  "But  if  it  is  true  that  the  firm 
can  be  considered  del  credere  factors 
and  become  debtors  as  argued  by  the 
defendant,  the  title  to  the  property 
did  not  pass  to  them  but  remained  in 
the  plaintiffs,  who  still  retained  the 
right  to  resort  to  the  original  pur- 
chasers for  payment,  and  this  rests 
on  the  ground  of  the  right  of  the 
principals  to  enforce  a  contract  made 
by  an  agent  even  if  at  the  time  of 
sale  they  were  undisclosed  to  the  pur- 
chaser, while  any  defense  which  the 
latter  could  have  raised  against  the 
agent  is  open  in  such  a  suit.  Kelley 
v.  Munson,  7  Mass.  319,  5  Am.  Dec. 
47;  Barry  v.  Page,  10  Gray,  398; 
Locke  v.  Lewis,  124  Mass.  1,  26  Am. 
Rep.  631;  Foster  v.  Graham,  166 
Mass.  202;  See  Pub.  Sts.  c.  71,  §  1. 
In  such  a  case,  moreover,  the  guar- 
anty does  not  transform  the  essen- 
tial character  of  the  relation,  for  the 
principal  retains  title  to  the  goods 
until  sold,  and  may  pursue  both 
agent  and  purchaser  until  he  has  ob- 
tained satisfaction  of  his  debt 
Denston  v.  Perkins,  2  Pick.  (Mass.) 
86";  Chesterfield  Manuf.  Co.  v.  Dehon, 
5  Pick.  (Mass.)  7,  16  Am.  Dec.  367; 
Merrill  v.  Bank  of  Norfolk,  19  Pick. 
(Mass.)  32;  Vail  v.  Durant,  7  Allen 


(Mass.),  408,  83  Am.  Dec.  695; 
Rhoades  v.  Blackiston,  106  Mass.  334, 
8  Am.  Rep.  332;  Robinson  v.  Talbol, 
121  Mass.  513;  Titcomb  v.  Seaver,  4 
Greenl.  542;  Thompson  v.  Perkins,  3 
Mason  (U.  S.  C.  C.),  232,  Fed.  Cas. 
No.  13.972.  See  Roosevelt  v.  Doherty, 
129  Mass.  301,  37  Am.  Rep.  356."  See 
also,  Ryttenberg  v.  Schefer,  131  Fed. 
313. 

i5  Story  on  Agency,  §  410;  Merrill 
v.  Thomas,  7  Daly  (N.  Y.),  393. 

is  Kelley  v.  Munson,  7  Mass.  319,  5 
Am.  Dec.  47;  Golden  v.  Levy,  1  Car. 
L.  Rep.  527,  6  Am.  Dec.  555. 

IT  See  ante,  §  2072;  Edmond  v. 
Caldwell,  15  Me.  340;  West  Boylston 
Mfg.  Co.  v.  Searle,  15  Pick.  (Mass.) 
225;  Roosevelt  v.  Doherty,  129  Mass. 
301,  37  Am.  Rep.  356.  (Not  upon  the 
note  but  for  the  price.) 

is  Roosevelt  v.  Doherty,  supra. 

i»  Darlington  v.  Chamberlln,  120 
111.  585;  St.  Louis  Bank  v.  Ross,  9 
Mo.  App.  399;  Miller  v.  Lea,  infra; 
Guy  v.  Oakley,  13  Johns.  (N.  Y.)  331; 
Parker  v.  Donaldson,  2  W.  &  Serg. 
(Pa.)  9;  Catterall  v.  Kindle,  L.  R.  1 
C.  P.  186;  Dresser  v.  Norwood,  17  C. 
B.  (N.  S.)  466. 

20  Miller  v.  Lea,  35  Md.  396,  6  Am. 
Rep.  417;  Ladd  v.  Arkell,  40  N.  Y. 


2l68 


CHAP.    IV] 


OF  FACTORS 


[§    2576 


tor  was  acting  as  agent  for  a  principal,  he  will  not  be  permitted  to  avail 
himself,  in  an  action  brought  by  the  principal,  of  set-offs  or  other  de- 
fenses which  he  may  have  against  the  agent.  But  mere  knowledge  that 
the  seller  was  a  factor  is  not  enough,  as  he  may  sell  his  own  goods.21 

Where,  however,  the  principal  has  permitted  the  factor  to  sell  as  the 
apparent  principal  in  the  transaction,  the  real  principal,  if  he  inter- 
venes, must  take  the  contract  subject  to  such  defenses  as  the  pur- 
chaser, who  did  not  know  or  have  reason  to  believe  that  the  factor  was 
but  an  agent,  and  who  has  acted  in  good  faith,  has  acquired  up  to  the 
time  when  the  principal  intervenes  and  demands  performance  to  him- 
self.22 

§  2576.  Right  to  follow  property. — Notwithstanding  the  consign- 
ment to  the  factor  or  his  advances  upon  them,  the  goods  still  remain 
the  property  of  the  principal,  and  so  continue  until  lawfully  sold  by 
the  factor.23  They  cannot  be  taken  for  the  factor's  debts,24  nor  appro- 
priated by  him  to  their  payment,25  nor,  except  by  virtue  of  a  statute, 
can  they  be  pledged  as  security  for  his  private  demands.28  Neither, 


Super.  150;  Stewart  v.  Woodward,  50 
Vt.  78,  28  Am.  Rep.  488. 

21  Schell  v.  Stephens,  50  Mo.  375; 
Graham  v.  Duckwall,  8  Bush   (Ky.), 
12. 

22  Roosevelt  v.  Doherty,  129  Mass. 
301,  37  Am.  Rep.  356;  Locke  v.  Lewis, 
124  Mass.  1,  26  Am.  Rep.  633;   Hunt- 
ington  v.  Knox,  7  push.  (Mass.)  371; 
Barry  v.  Page,  10  Gray  (Mass.),  398; 
Hogan  v.   Shorb,   24  Wend.    (N.  Y.) 
458;     Merrick's    Estate,    5    W.    &    S. 
(Pa.)   9;    Parker  v.  Donaldson,  2  id. 
9;    Winslow   v.    Staton,   150   N.   Car. 
264. 

A  foreign  factor  sold  merchandise 
to  the  defendant  in  his  own  name 
and  without  disclosing  his  principal 
and  received  his  own  check  in  part 
payment  therefor.  Held,  in  an  action 
by  the  principal  to  recover  the  price 
of  the  merchandise  thus  sold,  that, 
in  the  absence  of  proof  that  the  de- 
fendant knew  of  the  representative 
character  of  the  factor,  the  principal 
could  not  recover.  Traub  v.  Milliken, 
57  Me.  63,  2  Am.  Rep.  14. 

23  Drovers  &  Mechanics  Nat.  Bank 
V.  Roller,  85  Md.  495,  60  Am.  St.  Rep. 


fll 

344,  36  L.  R.  A.  767.  This  is  true,  as 
has  been  seen,  even  though  the  factor 
acts  under  a  del  credere  commission. 
Cushman  v.  Snow,  186  Mass.  169. 

Pork,  consigned  to  a  factor  who 
has  on  hand  a  quantity  of  similar 
pork,  does  not  lose  its  identity  by  be- 
ing stowed  in  a  warehouse  with  the 
factor's  quantity,  and  the  factor  can- 
not dispose  of  it  on  his  own  account, 
and  substitute  other  pork  for  the 
principal.  Seymour  v.  Wychoff,  10 
N.  Y.  213. 

24Loomis  v.  Barker,  69  111.  360; 
Ellsner  v.  Radcliff,  21  111.  App.  195; 
Holly  v.  Huggeford,  8  Pick.  (Mass.) 
73,  19  Am.  Dec.  303;  Blood  v.  Palmer, 
11  Me.  414,  26  Am.  Dec.  547;  Moore, 
v.  Hillabrand,  16  Abb.  N.  Gas.  (N.  Y.) 
477;  Britton  v.  Ferrin,  171  N.  Y.  235; 
Moffatt  v.  Fulton,  132  N.  Y.  507. 

25  Stewart  v.  Woodward,  50  Vt.  78, 
28  Am.  Rep.  488:    Benny  v.  Rhodes, 
18  Mo.  147,  59  Am.  Dec.  293;   Benny 
v.  Pegram,  18  Mo.  191,  59  Am.  Dec. 
298;   Childs  v.  Waterloo  Wagon  Co., 
37   App.   Div.    (N.   Y.)    242,  affirmed 
in  167  N.  Y.  576. 

26  See  ante,  §  2509. 


2169 


§ 


THE  LAW  OF  AGENCY 


[BOOK  v 


as  in  other  like  cases,  can  the  factor,  without  his  principal's  consent, 
be  permitted  to  sell  to  himself,  or  to  a  third  person  in  trust  for  him- 
self.27 Property  so  disposed  of,  or  its  value,  may  be  recovered  by  the 
principal. 

So  the  factor  stands  in  the  situation  of  a  trustee  for  his  principal,28 
and  if  the  principal  can  trace  his  property,  whether  it  be  the  identical 
article  which  first  came  into  the  factor's  possession,  or  other  property 
purchased  for  the  principal  by  the  factor  with  the  proceeds,  or  if, 
upon  the  sale,  the  factor  has  taken  notes  or  other  securities  for  the 
price,  the  principal  may  follow  and  recover  the  property  or  its  pro- 
ceeds either  in  the  hands  of  the  factor  or  of  his  legal  representatives, 
or  of  his  assignee  if  he  should  become  insolvent  or  bankrupt,  or  in 
the  hands  of  a  third  person  who  has  taken  it  with  notice  of  the  trust 
or  without  consideration.20 


2?  See  ante,  §  2524. 

28  See  Britton  v.  Ferrin,  171  N.  Y. 
235;  Moffat  v.  Fulton,  132  N.  Y.  507.  • 

In  Bills  v.  Schliep,  62  C.  C.  A.  103, 
127  Fed.  103,  it  is  said:  "The  debt  of 
a  factor  for  moneys  received  on  sale 
of  a  principal's  goods  has  been  held 
not  to  be  a  debt  created  by  one  acting 
in  a  fiduciary  capacity,  within  the 
meaning  of  the  bankrupt  law.  Chap- 
man v.  Forsyth,  2  How.  202,  11  L.  Ed. 
236;  Re  Swift,  3  Nat.  Bank  v.  N.  307. 
But  the  obligation  of  a  factor  for 
goods  intrusted  to  him  is  of  a  fidu- 
ciary character,  and,  before  sale,  the 
principal  may  restrain  an  unauthor- 
ized disposition  of  such  property  or 
compel  observance  of  the  conditions 
of  such  trust;  and,  after,  the  princi- 
pal may  equitably  follow  the  moneys 
received  from  the  sale  of  such  goods 
into  the  hands  of  any  person  who 
receives  them  with  knowledge  of 
their  trust  character.  Union  Stock 
Yards  Bank  v.  Gillispie,  137  U.  S.  411, 
34  L.  Ed.  724.  The  money  is  held  by 
such  person  subject  to  the  disposition 
of  the  question:  To  whom  in  equity, 
does  it  beneficially  belong?  National 
Bank  v.  Insurance  Company,  104  U. 
S.  54,  26  L.  Ed.  693;  Manhattan  Bank 
of  Memphis  v.  Walker,  130  U.  S.  267, 
32  L.  Ed.  958." 


20  Potter  v.  Dennison,  10  111.  590; 
Fabnestock  v.  Bailey,  3  Mete.  (Ky.) 
48,  77  Am.  Dec.  161;  Taylor  v.  De  Gio- 
couria,  20  La.  Ann.  30;  Drovers  & 
Mechanics'  Bank  v.  Roller,  85  Md. 
495,  60  Am.  St.  Rep.  344,  36  L.  R.  A. 
767;  Chesterfield  Mnfg.  Co.  v.  Dehon, 
5  Pick.  (Mass.)  7,  16  Am.  Dec.  367; 
Holly  v.  Huggeford,  8  Pick.  (Mass.) 
73,  19  Am.  Dec.  303;  Kelley  v.  Mun- 
son,  7  Mass.  319,  5  Am.  Dec.  47;  St. 
Louis  Bank  v.  Ross,  9  Mo.  App.  399; 
Ferchen  v.  Arndt,  26  Oreg- 121,  46  Am. 
St.  Rep.  603,  29  L.  R.  A.  664;  Price 
v.  Ralston,  2  Dall.  (Penn.)  60,  1  Am. 
Dec.  260;  Sheffer  v.  Montgomery,  65 
Pa.  329;  Farmers',  etc.,  Bank  v.  King. 
57  Pa.  202,  98  Am.  Dec.  215;  Black- 
man  v.  Green,  24  Vt.  17;  Veil  v. 
Mitchel,  4  Wash.  (U.  S.  C.  C.)  105; 
Thompson  v.  Perkins,  3  Mason  (U.  S. 
C.  C.),  232,  Fed.  Gas.  No.  13,972; 
Tooke  v.  Hollingworth,  5  T.  R.  215; 
Scott  v.  Surman,  Willes,  400;  Bryson 
v.  Wylie,  1  Bos.  &  Pul.  83,  foot  note; 
Horn  v.  Baker,  9  East,  215;  Hamilton 
v.  Bell,  10  Ex.  545;  Whitfield  v. 
Brand,  16  Mees  &  W.  282. 

An  insolvent  firm  of  factors  openeu 
an  account  in  a  bank  in  their  name 
as  "agents"  in  order  to  protect  their 
principal,  which  purpose  the  bank 
knew.  The  factors  deposited  the 


2170 


CHAP.    IV]  OF  FACTORS  [§§    2577,2578 

§  2577-  Where  the  factor  sells  the  goods  for  cash  and 

mixes  it  indiscriminately  with  his  own,  the  principal,  as  has  been 
seen,30  may  often  have  a  lien  upon  the  fund  or  treat  it  as  a  trust  fund, 
to  the  extent  that  he  has  contributed  to  it.  If  the  money  has  been 
wholly  dissipated  and  lost,  there  is  usually  nothing  to  which  a  lien  or 
trust  can  attach.31  And  money  cannot  usually  be  followed  which  is 
paid  away  in  due  course  of  business  without  any  notice  of  the  trust.32 

A  factor,  however,  who  has  sold  goods,  has  no  implied  authority  to 
sell  a  debt  existing  in  the  form  of  an  open  account  and  arising  out  of 
the  sale,  so  as  to  transfer  the  title  to  the  debt,  where  the  principal  was 
not  in  default,  and  had  not  been  called  upon  to  repay  the  factor  his  ad- 
vances.33 

But  if  the  factor,  having  sold  the  goods,  lends  the  money  to  a  third 
person,  who  knows  that  it  belongs  to  the  principal,  the  principal  may 
recover  it  of  the  borrower.3*  Where,  however,  the  factor  loans  the 
money  of  his  principal  to  one  having  no  knowledge  that  it  did  not  be- 
long to  the  factor,  the  borrower  may  apply  it  to  a  debt  owing  to  him 
by  the  factor  and  the  principal  can  not  recover  it.85 

b.  In  Tort. 

§  2578.  For  injuries  to  or  conversions  of  the  goods. — For  all  in- 
juries to,  or  conversions  of  the  goods,  the  principal,  notwithstanding 
the  consignment  to  the  factor  or  his  lien  upon  them,  may  maintain 

proceeds  of  their  principal's  goods  in  factors'  commissions  will  not  preven-. 

this  account  and  on  settlement  gave  the  principal  from  following  it,  nor 

him  a  check  to  balance.     Held,  that  enable  the  factors'  creditors  to  reach 

the  bank  might  not  charge  to  that  it.      Richardson    v.    St.    Louis    Nat. 

account  a  debt  of   the  agents,   even  Bank,  10  Mo.  App.  246. 

with   their   consent.     Baker   v.  New  so  See    ante,    §§  2090-94;     compare 

York  National  Bank,  100  N.  Y.  31,  53  Drovers   &   Mechanics   Nat.    Bank   v. 

Am.  Rep.  150.  Roller,  85  Md.  495,  60  Am.   St.  Rep. 

The  proceeds   of   a    sale    of  goods,  344,  36  L.  R.  A.  767;  Price  v.  Ralston, 

made  by  a  factor  for  his  principal  2  Ball.  (Pa.)  60,  1  Am.  Dec.  260. 

were   deposited   by   the   factor   in   a  si  See   Ferchen   v.   Arndt,    26   Ore. 

bank.     This   bank  had   such    knowl-  121,  46  Am.  St.  Rep.  603,  29  L.  R.  A. 

edge  as  to    have    known     that  this  664,  supra. 

money  was   beneficially  that   of  the  32  Price  v.  Ralston,  supra;  Veil   v. 

principal.    Held,  that  the  bank  could  Mitchel,  4  Wash.    (U.  S.  C.  C.)   105, 

not   hold   this   deposit  to   pay   off   a  Fed.  Gas.  No.  16,908;    Fahnestock  v. 

general  balance  owed  to  the  bank  by  Bailey,  3  Mete.  (Ky.)  48,  77  Am.  Dec. 

the  factor.    Union  Stock  Yards  Bank  161. 

v.  Gillespie,  137  U.  S.  411,  34  L.  Ed.  33  Commercial    National    Bank    v. 

724.  Heilbronner,  108  N.  Y.  439. 

Where  the  proceeds  are  so  depos-  34  Sheffer   v.    Montgomery,    65    Pa. 

ited  in  a  separate  account  the   fact  329. 

that   the   account   also   includes   the  35  Lime  Rock  Bank  v.  Plimpton,  17 

2171 


§§    2579~258l]  THE  LAW  OF  AGENCY  [BOOK    V 

such  appropriate  actions  against  third  persons  as  are  based  upon  the 
general  ownership  of  the  goods.86  The  principal  may  also  maintain 
all  actions  which  are  based  upon  the  right  of  possession  where  this 

right  is  still  in  him. 

b'jjftl'i&M) 

VIII. 

RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

§  2579.  Same  as  in  other  cases. — The  factor  is  ordinarily  a  gen- 
eral agent,  pursuing  a  vocation  to  which,  in  the  absence  of  known  lim- 
itations, certain  implied  powers  are  incidental.  What  these  powers  are 
has  already  been  seen.  The  principal  may,  however,  extend  the  scope 
of  these  powers,  either  by  express  authority,  or  by  holding  the  factor 
out  as  possessing  the  extended  authority.  Wherever,  therefore,  the 
factor,  acting  within  the  scope  of  his  authority,  has  incurred  obliga- 
tions on  the  part  of  his  principal  to  third  persons,  the  principal  is  liable 
as  in  other  cases,  although  the  factor  may  have  violated  his  private  in- 
structions.37 

§  2580.  How  when  principal  undisclosed. — Even  although  the 
principal  was,  at  the  time  of  making  the  contract,  undisclosed,  he  may 
yet  be  held  liable  upon  it  when  discovered.88  This  general  doctrine, 
with  its  application  and  limitations,  has  already  been  considered.89 

§  2581.  How  when  exclusive  credit  given  to  the  factor. — But 
where  the  other  party,  knowing  the  principal,  has  seen  fit  to  give  ex- 
clusive credit  to  the  factor,  he  cannot  afterwards  resort  to  the  prin- 
cipal, even  though  the  factor  becomes  insolvent.40 

Pick.   (Mass.)   159,  28  Am.  Dec.  286.  Peabody,  1  Mason  (IT.  S.  C.  C.),  440, 

See  Thacher  v.  Pray,  113  Mass.  291,  Fed.  Gas.  No.  16,825;  Steiger  v.  Third 

18  Am.  Rep.  480.  Nat'l  Bank  (C.  C.),  6  Fed.  569;   Sil- 

3«  See  ante,  §  2132;  Holly  v.  Hugge-  verman  v.  Bush,  16  111.  App  437. 

ford,  8  Pick.  (Mass.)  73,  19  Am.  Dec.  ST  Lobdell      v.      Baker,      1      Mete. 

303.  (Mass.)   193,  35  Am.  Dec.  358;   Day- 

When  goods  are  wrongfully  taken  light  Burner  Co.  v.  Odlin,  51  N.  H.  56, 

from    the    factor    the   principal  may  12  Am.  Rep.  45;   Dias  v.  Checkering, 

bring  an   action   of   trover   and   the  64  Md.  348,  54  Am.  Rep.  770;  Higgins 

factor's  lien  can  not  be  set  up  by  the  v.  McCrea,  116  U.  S.  671,  29  L.  Ed. 

wrong-doer.     Jones  v.  Sinclair,  2  N.  764. 

H.  319.  ssTaintor   v.    Prendergast,   3   Hill 

In  Holly    v.    Huggeford,  supra,  it  (N.  Y.),  72,  38  Am.  Dec.  618;   Prentz 

•was    held    that    the    principal    may  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25 

maintain  trespass  against  an  officer  Am.   Dec.   558;    Raymond   v.   Crown, 

for   a   wrongful   attachment  of   the  etc.,  Mills,  2  Mete.  (Mass.)  319. 

goods  as  the  property  of  the  factor,  39  See  ante,  §  1729  et  seq. 

and  the  factor's  lien   cannot  be  set  *opaige'v.  Stone,  10  Mete.  (Mass.) 

up  in  defense.    See  Van  Amringe  v.  160,  43  Am.  Dec.  420;  McCullough  v. 

2172 


IV] 


OF  FACTORS 


[§§  2582,2583 


IX. 


RIGHTS  OF   THIRD   PERSONS   AGAINST  FACTOR. 

§  2582.  Same  as  in  other  cases. — The  liability  of  the  factor  to  the 
other  party  rests  upon  the  same  principles  as  in  other  cases.  Thus  if 
the  factor  conceals  his  principal,*1  or  pledges  his  own  personal 
•credit,*2  or  violates  his  implied  warranty  of  authority,43  he  is  liable  as 
in  the  case  of  any  other  agent. 

§  2583.  When  liable  for  conversion. — A  factor  who  has  received 
goods  from  one  not  the  owner,  or  from  one  having  no  authority  to 
dispose  of  them,  and  who,  after  notice  of  his  consignor's  lack  of  au- 
thority and  without  the  authority  of  the  true  owner,  proceeds  to  sell 
the  goods,  or  refuses  to  recognize  the  owner's  title  to  them  or  their 
proceeds,  or  who  sells  them  as  the  principal,  may  be  held  liable  to  the 
owner  as  for  a  conversion  of  them.4*  Where  the  factor,  acting  in  good 
faith  and  in  the  regular  course  of  business,  has  sold  the  goods  as  agent 
merely,  and  has  paid  over  the  proceeds  to  his  consignor  without  notice 


Thompson,  45  N.  Y.  Super  Ct.  449; 
Chapman  v.  Durant,  10  Mass.  47; 
Tudor  v.  Whiting,  12  Mass.  212; 
French  v.  Price,  24  Pick.  (Mass.)  13; 
James  v.  Bixby,  11  Mass.  34.  See 
ante,  §  1750  et  seq. 

41  See  Cobb  v.  Knapp,  71  N.  Y.  348, 
27  Am.  Rep.  51;   Raymond  v.  Crown, 
etc.,  Mills,  2  Mete.  (Mass.)  3J9;  Nix- 
on v.  Downey,  49  Iowa,  166;  Baldwin 
v.  Leonard,  39  Vt.  260,  94  Am.  Dec. 
324;  Dale  v.  Commission  Co.,  160  Mo. 
App.  314. 

42  McCullough  v.  Thompson,  45  N. 
Y.    Super.    449;     Nixon    v.    Downey, 
supra. 

Factors  who,  though  in  good  faith, 
sell  stolen  property,  confided  to  them 
by  the  thief,  as  though  they  were 
the  owners,  may  be  held  liable  to  the 
purchaser  upon  an  implied  warranty 
of  title.  Edgerton  v.  Michels,  66  Wis. 
124. 

In  Argersinger  v.  Macnaughton, 
114  N.  Y.  535,  11  Am.  St.  Rep.  687, 
factors  who  had  been  given  property 
to  sell  as  it  was,  but  who  gave  a 
warranty  of  quality,  were  held  per- 
sonally liable  upon  the  warranty. 


A  letter  from  the  principal  advis- 
ing the  factor  of  a  draft  drawn  by 
the  principal  on  the  factor  for  sum 
payable  to  a  third  person  out  of  the 
proceeds  of  goods  when  the  same 
should  be  sold,  is  held  to  be  a  spe- 
cific appropriation  to  the  use  of  the 
latter,  and  binds  the  factor  who  has 
consented  to  it,  to  retain  so  much  of 
the  proceeds  as  is  necessary  to  meet 
the  draft;  and  the  obligation  of  the 
factor  to  the  payee  is  not  discharged 
by  the  failure  of  the  payee  to  pre- 
sent the  draft  for  payment  for  sever- 
al months,  and  an  agreement  in  the 
meantime  between  the  principal  and 
factor  for  a  new  appropriation  of  the 
fund  for  the  benefit  of  the  latter. 
Lowery  v.  Steward,  25  N.  Y.  239,  82 
Am.  Dec.  346. 

«  See  ante,  §  1362  et  seq. 

**  See  Roach  v.  Turk,  9  Heisk. 
(Tenn.)  708,  24  Am.  Rep.  360;  Led- 
oux  v.  Anderson,  2  La.  Ann.  558; 
Evans,  etc.,  Co.  v.  First  Nat.  Bank, 
15  Tex.  Civ.  App.  163;  Saltus  v.  Ev- 
erett, 20  Wend.  (N.  Y.)  267,  32  Am. 
Dec.  541;  Hollina  v.  Fowler,  L.  R.  7 
H.  L.  757. 


2173 


§  2584] 


THE  LAW  OF  AGENCY 


[BOOK  v 


that  he  was  not  the  owner,  it  is  held  in  some  cases  that  he  can  not  sub- 
sequently be  held  liable  to  the  owner  for  a  conversion  ;w  but,  by  the 
weight  of  authority,  he  is  liable  in  this  case  also.46 

Of  course,  where  the  factor  knows  the  true  situation  and  sells  or 
otherwise  disposes  -of  the  goods  in  an  unauthorized  manner,  he  is 
liable.47 

§  2584.  How  in  case  of  foreign  principal. — It  was  formerly  held 
that  where  the  factor  acts  for  a  foreign  principal,  he  is  personally  liable 
upon  all  contracts  made  by  him  for  such  principal,  and  this  without 
any  distinction  whether  the  factor  describes  himself  in  the  contract 
as  agent  or  not.  This  rule  rested  upon  the  presumption  that  credit 
was  given  to  the  factor  personally.48 

In  modern  cases,  however,  this  arbitrary  presumption  does  not  pre- 
vail, and  while  the  fact  that  the  principal  is  a  foreigner  may  properly 
be  taken  into  consideration,  the  true  rule  seems  to  be  that  it  is  in  all 


*5  Roach  v.  Turk,  9  Heisk.  (Tenn.) 
708,  24  Am.  Rep.  360,  overruling 
Taylor  v.  Pope,  5  Cold.  (Tenn.)  413; 
followed  in  Frizzell  v.  Rundle,  88 
Tenn.  396,  17  Am.  St.  Rep.  908;  (but 
compare  Hughes  v.  Abston,  105  Tenn. 
70:  Moore  v.  Hill  (Tenn.),  38  Fed. 
330) ;  Leuthold  v.  Fairchild,  35  Minn. 
99;  McLennan  v.  Minneapolis  Ele.  Co. 
57  Minn.  317  (but  compare  Johnson 
v.  Martin,  87  Minn.  370,  94  Am.  St. 
Rep.  706,  59  L.  R.  A.  733);  Abernathy 
v.  Wheeler,  92  Ky.  320,  36  Am.  St. 
Rep.  593;  Fields  v.  Blane,  18  Ky.  L. 
Rep.  675,  37  S.  W.  850. 

46  See  Johnson  v.  Martin,  87  Minn. 
370,  94  Am.  St.  Rep.  593,  59  L.  R.  A. 
733;  Dolliff  v.  Robbins,  83  Minn.  498, 
85  Am.  St.  Rep.  466;  Moore  v.  Hill, 
38  Fed.  330  (one  judge  dissenting); 
Swim  v.  Wilson,  90  Cal.  126,  25  Am. 
^r.  Rep.  110,  13  L.  R.  A.  605  (stock- 
broker) ;  Robinson  v.  Bird,  158  Mass. 
357,  35  Am.  St.  Rep.  495  (auction- 
eer). 

Where  two  brothers  were  separate- 
ly consigning  goods  to  the  same  fac- 
tor, and  the  agent  of  one  of  them 
marked  his  goods  inadvertently  as 
the  property  of  the  other  to  whom 
the  factor  in  good  faith  paid  the  pro- 


ceeds, he  is  not  liable  to  the  true 
owner.  Hays  v.  Warren,  46  Mo.  189. 

But  where  plaintiff  owning  an  in- 
terest in  goods  permitted  his  co-owner 
to  ship  to  the  factor  in  his  sole  name 
and  the  factor  merely  credited  the 
proceeds  on  a  debt  due  by  the  co- 
owner,  the  plaintiff  may  maintain  an 
action  for  the  proceeds  of  his  inter- 
est. This  crediting  on  account  did 
not  amount  to  a  settlement  or  pay- 
ment or  otherwise  prejudice  the  fac- 
tor's claim.  Phelps  v.  Barkley,  19 
Ky.  L.  Rep.  346,  40  S.  W.  384.  Same 
where  the  goods  were  by  the  mistake 
of  a  clerk,  marked  as  the  goods  of 
a  third  person  and  the  factor  credit- 
ed the  proceeds  on  an  antecedent 
debt  due  by  such  third  person.  Byers 
v.  Johnson,  etc.,  Bank,  64  111.  App. 
168. 

The  true  owner  (semble)  may  re- 
quire an  account  of  the  proceeds,  un- 
less the  factor  has  paid  or  credited 
the  proceeds  to  his  consignor.  Bull- 
Itt  v.  Walker,  12  La.  Ann.  276. 

*i Webster  v.  Bear,  141  Mo.  App. 
531. 

43  See  New  Castle  Mfg.  Co.  v.  Red 
River  R.  Co.,  1  Rob.  (La.)  145,  36  Am. 
Dec.  686;  McKenzie  v.  Kevins,  22  Me. 
138,  38  Am.  Dec.  291. 


2174 


CHAP.    IVJ 


OF  FACTORS 


[§  2585 


cases  a  question  of  fact,  to  be  determined  from  the  terms  of  the  par- 
ticular contract  and  the  surrounding-  circumstances  of  the  case,  whether 
the  credit  was  given  to  the  factor  personally  or  not.49 

A  principal  residing  in  another  state  of  the  United  States  than  that 
in  which  the  factor  resides,  is  not  a  foreign  principal  in  contemplation 
of  this  rule.50 
• 


X. 


HOW  RELATION  TERMINATED. 

§  2585.  As  in  other  cases  of  agency — Revocation  by  principal. — 

The  authority  of  the  factor  to  sell  the  goods  may  be  revoked,  like  that 
of  any  other  agent,  if  no  advances  have  been  made  upon  them,  at  any 
time  before  the  sale  is  made.51  Where,  however,  the  factor  has  made 
advances  or  incurred  liabilities  in  respect  of  the  goods,  the  principal 
can  not,  as  has  been  seen,  deprive  the  factor  of  his  right  to  sell  enough 
to  reimburse  himself,  without  first  paying  or  tendering  to  the  factor 
the  amount  due  to  him.52 

The  factor's  power  to  sell  for  his  own  reimbursement  is  a  power 
coupled  with  an  interest,  and  is  therefore  not  revoked  by  the  princi- 
pal's death  or  other  disability.53 


o  Maury  v.  Ranger,  38  La.  Ann. 
485,  58  Am.  Rep.  197;  Bray  v.  Kettell, 
1  Allen  (Mass.),  80;  Goldsmith  v. 
Manheim,  109  Mass.  187;  Rogers  v. 
March,  33  Me.  106;  Oelricks  v.  Ford, 
23  How.  (U.  S.)  49,  16  L.  Ed.  534; 
Kaulback  v.  Churchill,  59  N.  H.  296; 
Kirkpatrick  v.  Stainer,  22  Wend.  (N. 
Y.)  244. 

sovawter  v.  Baker,  23  Ind.  63. 

si  Farmer  v.  Robinson,  2  Camp.  339, 
note;  Scott  v.  Rogers,  31  N.  Y.  676; 
Pam  v.  Vilmar,  54  How.  Pr.  (N.  Y.) 
235;  Outerbridge  v.  Campbell,  87  N. 
Y.  App.  Div.  597. 

Undertakings  to  consign  goods,  not 
made  for  a  definite  time,  are  usually 
terminable  at  the  will  of  either  party. 
Ower>sboro  Wagon  Co.  v.  Riggan,  151 
N.  Car.  303. 

Where  there  is  a  contract  of  em- 
ployment for  a  definite  time,  its 
breach  subjects  the  party  breaking  it 
to  liability  for  damages.  Hollweg  v. 


Schaefer  Brokerage  Co.,  117  C.  C.  A. 
83,  197  Fed.  689. 

Where  factor  sells  and  delivers  the 
property  before  notice  of  the  revoca- 
tion of  his  authority,  he  is  not  liable 
for  conversion.  Jones  v.  Hodgkins, 
61  Me.  480. 

52  See  ante,  §  2526  et  seq.  If  the 
principal  tenders  reimbursement  he 
may  of  course  revoke.  Pam  v.  Vil- 
mar, 54  How.  Pr.  (N.  Y.)  235;  Outer- 
bridge  v.  Campbell,  87  N.  Y.  App. 
Div.  597. 

•'•3  Gordon  v.  Cobb,  4  Ga.  App.  49; 
Willingham  v.  Rushing,  105  Ga.  72; 
Knapp  v.  Alvord,  10  Paige  (N.  Y.), 
205,  40  Am.  Dec.  241;  Bergen  v.  Ben- 
nett, 1  Caines  Gas.  (N.  Y.)  1,  2  Am. 
Dec.  281;  Raymond  v.  Squire,  11 
Johns.  (N.  Y.)  47;  Hunt  v.  Rousman- 
ier,  8  Wheat.  (U.  S.)  174,  5  L.  Ed. 
589;  Roberts  v.  Andrews,  15  Pa. 
Super.  311. 

Where   the   lien   of   the   factor   at- 


2175 


§§    2586-2588]  THE  LAW  OF  AGENCY  [BOOK   V 

§  2586.  Renunciation  by  factor. — So  the  factor  being  un- 
der no  obligation  to  accept  the  agency,  is  under  no  obligation  to  con- 
tinue it,  and  may  in  general  renounce  the  agency  at  any  time.8*  But 
this  right  must  be  exercised  with  due  regard  to  the  interests  of  the 
principal,  and  the  factor  having  accepted  the  goods  can  not  arbitrarily 
and  summarily  relieve  himself  of  the  responsibility  for  their  custody 
and  care.  If  he  desires  to  terminate  the  agency  he  must  give  to  the 
principal  reasonable  notice  to  that  effect,  and  must  afford  to  the  latter 
reasonable  time  and  opportunity  to  resume  possession  or  to  make  other 
arrangements.56 

The  factor's  special  interest  in  the  goods  by  reason  of  his  advances 
upon  them  is  not  terminated  by  his  death  or  disability,58  although  his 
general  authority,  as  in  other  cases,  would  be.57 

§  2587.  Lapse   of   time,   etc. — A   factor's   authority,    like 

that  of  other  agents,  is  terminated  by  the  completion  of  his  undertak- 
ing, or  by  the  expiration  of  the  time,  if  any,  fixed  for  its  continuance.58 
§  2588.  War,  death,  bankruptcy,  etc. — The  relation  be- 
tween the  factor  and  principal  may  also  be  terminated  by  the  happening 
of  any  of  the  events,  like  war,  death,  insanity,  bankruptcy,  and  the  like, 
which  would  operate  to  terminate  the  relation  with  any  other  agent. 
What  these  events  are,  and  their  consequences,  are  matters  which  have 
been  so  fully  considered  in  the  chapter  upon  Termination  of  the  Re- 
lation that  it  is  unnecessary  to  discuss  the  subject  here.  . 

taches  before  the  principal's  death,  solvency.     Audenried  v.  Betteley,  90 

that  event  does  not  defeat  it.    Ham-  Mass.   (8  Allen)  302. 

monds  v.  Barclay,  2  East,  227.  Where  a  factor  receives  goods,  and, 

s*  DuPeirat  v.  Wolfe,  29  N.  Y.  436.  in  his  own  name,  ships  them  to  an- 

55  Edwards  on  Factors  &  Brokers,  other  market  to  be  sold  by  a  subagent, 

§  90.  the  death  of  the  factor  is  a  revocation 

se  Hammonds    v.    Barclay,  2    East,  of  his  authority;  and  if  his  adminis- 

227.  trator  receives  the  proceeds  from  the 

57  See  ante,  §§  671,  672.  subagent,   he   is   answerable   for  the 

Authority    of    factor,    not    having  amount  to  the  principal.  Jackson  Ins. 

made  advances,  terminated  by  his  in-  Co.  v.  Partee,  9  Heisk.   (Tenn.)  296. 

58  See  ante,  §§  550-552. 
2176 


,  'tfi-  •'• '.  /•> 


APPENDIX 

'?. 
.  , 

•  ••  1K1 

STATUTORY  PROVISIONS 

u  ioJ  ' 

In  several  of  the  States,  the  law  of  agency  has  been,  to  a  greater  or  less 
extent,  made  the  subject  of  statutory  enactment.  The  most  important 
of  these  provisions  are  here  appended. 

.;  ed  xlno  O.BO  sniiiiw  nl  ed  oj 
CALIFORNIA,  NORTH  AND  SOUTH  DAKOTA,  AND  MONTANA. 

The  provisions  of  the  North  and  South  Dakota  codes  and  that  of  Mon- 
tana are  substantially  copied  from  those  of  California.  The  California 
sections  are  here  given.  The  corresponding  sections  for  North  Dakota 
will  be  found  in  Revised  Code,  1899,  §§  4303-4355;  for  South  Dakota  in 
Revised  Code,  1903,  §§  1656-1708;  and  for  Montana  in  Code  of.  1907, 
§§  5413-5465.  The  California  sections  are  taken  from  Civil  Code  of  1906, 
§§  2295-2369. 

CALIFORNIA. 

u  ed  HBO  iae  bssriorfJ 
ARTICLE  I.     DEFINITION  OF  AGENCY,     juodilf) 

§  2295.  Agency,  what.  An  agent  is  one  who  represents  another 
called  the  principal,  in  dealings  with  third  persons.  Such  representation 
is  called  agency. 

§  2296.  Who  may  appoint,  and  who  may  be  an  agent.  Any  person, 
having  capacity  to  contract,  may  appoint  an  agent;  and  any  person  may  be 
an  agent. 

§  2297.  Agents,  general  or  special.  An  agent  for  a  particular  act  or 
transaction  is  called  a  special  agent.  All  others  are  general  agents. 

§  2298.  Agency,  actual  or  ostensible.  An  agency  is  either  actual  or 
ostensible. 

§  2299.  Actual  agency.  An  agency  is  actual  when  the  agent  is  really 
employed  by  the  principal. 

§  23OO.  Ostensible  agency.  An  agency  is  ostensible  when  the  prin- 
cipal intentionally,  or  by  want  of  ordinary  care,  causes  a  third  person  to 
believe  another  to  be  his  agent,  who  is  not  really  employed  by  him. 

ARTICLE  II.    AUTHORITY  OF  AGENTS. 

••'Wri  • );  ' 

§  2304.  What  authority  may  be  conferred.  An  agent  may  be  author- 
ized to  do  any  acts  which  (Ms)  principal  might  do,  except  those  to  which 
the  latter  is  bound  to  give  his  personal  attention. 

§  2305.     Agent  may  perform  acts  required  of  principal  by  code.     Every 
act  which,  according  to  this  Code,  may  be  done  by  or  to  any  person,  may 
137  2177 


APPENDIX 

be  done  by  or  to  the  agent  of  such  person  for  that  purpose,  unless  a  con- 
trary intention  clearly  appears. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal.  An  agent 
can  never  have  authority,  either  actual  or  ostensible,  to  do  an  act  which 
is,  and  is  known  or  suspected  by  the  person  with  whom  he  deals  to  be, 
a  fraud  upon  the  principal. 

§  2307.  Creation  of  agency.  An  agency  may  be  created,  and  an  au- 
thority may  be  conferred,  by  a  precedent  authorization  or  a  subsequent 
ratification. 

§  2308.  Consideration  unnecessary.  A  consideration  is  not  necessary 
to  make  an  authority,  whether  precedent  or  subsequent,  binding  upon  the 
principal.  ^7«s 

§  2309.  Form  of  authority.  An  oral  authorization  is  sufficient  for  any 
purpose,  except  that  an  authority  to  enter  into  a  contract  required  by  law 
to  be  in  writing  can  only  be  given  by  an  instrument  in  writing. 

§  2310.  Ratification  of  agent's  act.  A  ratification  can  be  made  only 
In  the  manner  that  would  have  been  necessary  to  confer  an  original  au- 
thority for  the  act  ratified,  or,  where  an  oral  authorization  would  suffice, 
by  accepting  or  retaining  the  benefit  of  the  act,  with  notice  thereof. 

§  2311.  Ratification  of  part  of  a  transaction.  Ratification  of  part  of 
an  indivisible  transaction  is  a  ratification  of  the  whole. 

§  2312.  When  ratification  void.  A  ratification  is  not  valid  unless,  at 
the  time  of  ratifying  the  act  done,  the  principal  has  power  to  confer  au- 
thority for  such  an  act. 

§  2313.  Ratification  not  to  work  injury  to  third  persons.  No  unau- 
thorized act  can  be  made  valid,  retroactively,  to  the  prejudice  of  third 
persons,  without  their  consent. 

§  2314.  Rescission  of  ratification.  A  ratification  may  be  rescinded 
when  made  without  such  consent  as  is  required  in  a  contract,  or  with 
an  imperfect  knowledge  of  the  material  facts  of  the  transaction  ratified, 
but  not  otherwise. 

§  2315.  Measure  of  agent's  authority.  An  agent  has  such  authority 
as  the  principal,  actually  or  ostensibly,  confers  upon  him. 

§  2316.  Actual  authority,  what.  Actual  authority  is  such  as  a  prin- 
cipal intentionally  confers  upon  the  agent,  or  intentionally  or  by  want  of 
ordinary  care  allows  the  agent  to  believe  himself  to  possess. 

§  2317.  Ostensible  authority,  what.  Ostensible  authority  is  such  as 
a  principal  intentionally,  or  by  want  of  ordinary  care,  causes  or  allows 
a  third  person  to  believe  the  agent  to  possess. 

§  2318.  Agent's  authority  as  to  persons  having  notice  of  restrictions 
upon  it.  Every  agent  has  actually  such  authority  as  is  defined  by  this 
title,  unless  specially  deprived  thereof  by  his  principal  and  has  even  then 
such  authority  ostensibly,  except  as  to  persons  who  have  actual  or  con- 
structive notice  of  the  restriction  upon  his  authority. 

§  2319.    Agent's  necessary  authority.     An  agent  has  authority: 

1.  To   do   everything   necessary  or   proper   and   usual   in   the   ordinary 
course  of  business  for  effecting  the  purpose  of  his  agency;  and, 

2.  To  make  a  representation  respecting  any  matter  of  fact  not  includ- 
ing the  terms  of  his  authority,  but  upon  which  his  right  to  use  his  au- 

J'j;> 

2178 


APPENDIX 

thority  depends,  and  the  truth  of  which  cannot  be  determined  by  the  use 
of  reasonable  diligence  on  the  part  of  the  person  to  whom  the  represen- 
tation is  made. 

§  2320.  Agent's  power  to  disobey  instructions.  An  agent  has  power 
to  disobey  instructions  in  dealing  with  the  subject  of  the  agency  in  cases 
where  it  is  clearly  for  the  interest  of  his  principal  that  he  should  do  so, 
and  there  is  riot  time  to  communicate  with  the  principal. 

§  2321.  Authority  to  be  construed  by  its  specific  rather  than  by  its 
general  terms.  When  an  authority  is  given  partly  in  general  and  partly 
in  specific  terms,  the  general  authority  gives  no  higher  powers  than  those 
specifically  mentioned. 

§  2322.  Exceptions  to  general  authority.  An  authority  expressed  in 
general  terms,  however  broad,  does  not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of  business  to 
do  so; 

2.  To  define  the  scope  of  his  agency;   or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by  article  two  of 
chapter  one  of  the  last  title. 

§  2323.  What  included  in  authority  to  sell  personal  property.  An 
authority  to  sell  personal  property  includes  authority  to  warrant  the  title 
of  the  principal,  and  the  quality  and  quantity  of  the  property. 

§  2324.  What  included  in  authority  to  sell  real  property.  An  author- 
ity to  sell  and  convey  real  property  includes  authority  to  give  the  usual 
covenants  of  warranty. 

§  2325.     Authority  of  general  agent  to  receive  price  of  property.  ;I,^, 
general  agent  to  sell,  who  is  intrusted  by  the  principal  with  the  possession 
of  the  things  sold,  has  authority  to  receive  the  price. 

§  2326.  Authority  of  special  agent  to  receive  price.  A  special  agent 
to  sell  has  authority  to  receive  the  price  on  delivery  of  the  things  sold,, 
but  not  afterwards. 

ARTICLE  III.    MUTUAL  OBLIGATIONS  OF  PRINCIPALS  AND  THTLBD  PERSONS. 

§  2330.  Principal,  how  affected  by  acts  of  agent  within  the  scope  of 
his  authority.  An  agent  represents  his  principal  for  all  purposes  within 
the  scope  of  his  actual  or  ostensible  authority  and  all  the  rights  and  lia- 
bilities which  would  accrue  to  the  agent  from  transactions  within  such 
limit,  if  they  had  been  entered  into  on  his  own  account,  accrue  to  the 
principal. 

§  2331.  Principal,  when  bound  by  incomplete  execution  of  authority. 
A  principal  is  bound  by  an  incomplete  execution  of  an  authority  when  it 
is  consistent  with  the  whole  purpose  and  scope  thereof,  but  not  otherwise. 

§  2332.  Notice  to  agent,  when  notice  to  principal.  As  against  a  prin- 
cipal, both  principal  and  agent  are  deemed  to  have  notice  of  whatever 
either  has  notice  of,  and  ought,  in  good  faith  and  the  exercise  of  ordinary 
care  and  diligence,  to  communicate  to  the  other. 

§  2333.  Obligation  of  principal  when  agent  exceeds  his  authority. 
When  an  agent  exceeds  his  authority,  his  principal  is  bound  by  his  au- 
thorized acts  so  far  only  as  they  can  be  plainly  separated  from  those  which 
are  unauthorized. 

2179 


APPENDIX 

§  2334.  For  acts  done  under  a  merely  ostensible  authority.  A  prin- 
cipal is  bound  by  acts  of  his  agent,  under  a  merely  ostensible  authority, 
to  those  persons  only  who  have  in  good  faith  and  without  (want  of  ordi- 
nary care),  incurred  a  liability,  or  parted  with  value,  upon  the  faith 
thereof.  In  the  South  Dakota,  North  Dakota,  and  Montana  Codes,  "or- 
dinary negligence"  is  substituted  for  "want  of  ordinary  care." 

§  2335.  When  exclusive  credit  is  given  to  agent.  If  exclusive  credit 
is  given  to  an  agent  by  the  person  dealing  with  him,  his  principal  is  ex- 
onerated by  payment  or  other  satisfaction  made  by  him  to  his  agent,  in 
good  faith,  before  receiving  notice  of  the  creditor's  election  to  hold  him 
responsible. 

§  2336.  Rights  of  person  who  deals  with  agent  without* knowledge  of 
agency.  One  who  deals  with  an  agent,  without  knowing  or  having  reason 
to  believe  that  the  agent  acts  as  such  in  the  transaction,  may  set  off, 
against  any  claim  of  the  principal  arising  out  of  the  same,  all  claims  which 
he  might  have  set  off  against  the  agent  before  notice  of  agency. 

§  2337.  Instrument  intended  to  bind  principal  does  bind  him.  An 
instrument  within  the  scope  of  his  authority,  by  which  an  agent  intends 
to  bind  his  principal,  does  bind  him,  if  such  intent  is  plainly  inferable 
from  the  instrument  itself. 

§  2338.  Principal's  responsibility  for  agent's  negligence  or  omission. 
Unless  required  by  or  under  the  authority  of  law  to  employ  that  particu- 
lar agent,  a  principal  is  responsible  to  third  persons  for  the  negligence 
of  his  agent  in  the  transaction  of  the  business  of  the  agency,  including 
wrongful  acts  committed  by  such  agent  in  and  as  a  part  of  the  transaction 
of  such  business,  and  for  his  willful  omission  to  fulfill  the  obligations  of 
the  principal. 

§  2339.  Principal's  responsibility  for  wrongs  willfully  committed  by 
the  agent.  A  principal  is  responsible  for  no  other  wrongs  committed  by 
his  agent  than  those  mentioned  in  the  last  section,  unless  he  has  author- 
ized or  ratified  them,  even  though  they  are  committed  while  the  agent 
is  engaged  in  his  service. 

• 
ARTICLE  IV.     OBLIGATIONS  OF  AGENTS  TO  THIBD  PERSONS. 

§  2342.  Warranty  of  authority.  One  who  assumes  to  act  as  an  agent, 
thereby  warrants,  to  all  who  deal  with  him  in  that  capacity,  that  he  has 
the  authority  which  he  assumes. 

§  2343.  Agent's  responsibility  to  third  persons.  One  who  assumes  to 
act  as  an  agent  is  responsible  to  third  persons  as  a  principal  for  his  acts 
in  the  course  of  his  agency,  in  any  of  the  following  cases,  and  in  no  others: 

1.  When,   with   his   consent,   credit   is   given   to  him   personally   in   a 
transaction; 

2.  When  he  enters  into  a  written  contract  in  the  name  of  his  princi- 
pal, without  believing,  in  good  faith,  that  he  has  authority  to  do  so;  or, 

3.  When  his  acts  are  wrongful  in  their  nature. 

§  2344.  Obligation  of  agent  to  surrender  property  to  third  person. 
If  an  agent  receives  anything  for  the  benefit  of  his  principal,  to  the  pos- 
session of  which  another  person  is  entitled,  he  must,  on  demand,  sur- 
render it  to  such  person,  or  so  much  of  it  as  he  has  under  his  control 

2l8o 


APPENDIX 

at  the  time  of  demand,  on  being  indemnified  for  any  advance  which  he 
has  made  to  his  principal  in  good  faith,  on  account  of  the  same;  and  is 
responsible  therefor,  if,  after  notice  from  the  owner,  he  delivers  it  to  his 
principal. 

§  2345.  Code  provisions  governing.  The  provisions  of  this  article  are 
subject  to  the  provisions  of  part  one  of  the  first  division  of  this  Code. 

ARTICLE  V.     DELEGATION  OF  AGENCY. 

§  2349.  Agent's  delegation  of  his  powers.  An  agent,  unless  specially 
forbidden  by  his  principal  to  do  so,  can  delegate  his  powers  to  another 
person  in  any  of  the  following  cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  subagent  can, 
lawfully  perform; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers;  or, 

4.  When  such  delegation  is  specially  authorized  by  the  principal. 

§  235O.  Agent's  unauthorized  employment  of  subagent.  If  an  agent 
employs  a  subagent  without  authority,  the  former  is  a  principal  and  the 
latter  his  agent,  and  the  principal  of  the  former  has  no  connection  with 
the  latter. 

§  2351.  Subagent  rightfully  appointed,  represents  principal.  A  sub- 
agent,  lawfully  appointed,  represents  the  principal  in  like  manner  with 
the  original  agent;  and  the  original  agent  is  not  responsible  to  third  per- 
sons for  the  acts  of  the  subagent. 

ABTICLE  VI.     TERMINATION  OF  AGENCY. 

§  2355.  Termination  of  agency.  An  agency  is  terminated,  as  to  every 
person  having  notice  thereof,  by: 

1.  The  expiration  of  its  term; 

2.  The  extinction  of  its  subject; 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agent  to  act  as  such. 

§  2356.  Same.  Unless  the  power  of  an  agent  Is  coupled  with  an  In- 
terest in  the  subject  of  the  agency,  it  is  terminated  as  to  every  person 
having  notice  thereof,  by: 

1.  Its  revocation  by  the  principal; 

' 

2.  His  death;   or, 

.. 

3.  His  incapacity  to  contract. 

PARTICULAR  AGENCIES. 

ARTICLE  I.    AUCTIONEERS. 

.'••••'  i  >.•  •  '  I 
§  2362.     Auctioneer's  authority  from  the  seller.     An  auctioneer,  In  the 

absence  of  special  authorization  or  usage  to  the  contrary  has  authority 
from  the  seller  only  as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually  sold  on 
credit  at  auction; 

2181 


APPENDIX 

3.  To  warrant  In  Hke  manner  with  other  agents  to  sell,  according  to 
section  2323; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  thing  sold  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To   do   whatsoever  else  is  necessary,  or  proper  and  usual,   in  the 
ordinary  course  of  business  for  effecting  these  purposes. 

§  2363.  Auctioneer's  authority  from  the  bidder.  An  auctioneer  has 
authority  from  a  bidder  at  the  auction,  as  well  as  from  the  seller,  to  bind 
both  by  a  memorandum  of  the  contract  as  prescribed  in  the  title  on  sale. 

ARTICLE  II.    FACTOBS. 

§  2367.  Factor,  what.  A  factor  is  an  agent,  as  defined  in  section  2026. 
Montana  as  California;  but  North  Dakota  and  South  Dakota  insert  after 
"agent,"  as  follows: — "who  is  employed  to  buy  or  sell  property  in  his  own 
name,  and  who  is  intrusted  by  his  principal  with  possession  thereof." 

§  2368.  Actual  authority  of  factor.  In  addition  to  the  authority  of 
agents  in  general,  a  factor  has  actual  authority  from  his  principal,  unless 
specially  restricted: 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,   anything  intrusted  to  him  for  sale,  except  such 
things  as  it  is  contrary  to  usage  to  sell  on  credit;  but  not  to  pledge,  mort- 
gage, or  barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but  not  to  any 
person  in  an  independent  employment. 

§  2369.  Ostensible  authority.  A  factor  has  ostensible  authority  to 
deal  with  the  property  of  his  principal  as  his  own,  in  transactions  with 
persons  not  having  notice  of  the  actual  ownership. 

GEORGIA. 

Code  of  1911. 

»dJ  lo  aoi)<:h>uimd-i  aiH  .t 

ARTICLE  I.    RELATION  OF  PRINCIPAL  AND  AGENT  AMONG  THEMSELVES. 

§  3569.  How  it  arises.  The  relation  of  principal  and  agent  arises 
wherever  one  person,  expressly  or  by  implication,  authorizes  another  to 
act  for  him,  or  subsequently  ratifies  the  acts  of  another  in  his  behalf. 

§  3570.  Words  of  description.  An  instrument  signed  by  one  as  agent, 
trustee,  guardian,  administrator,  executor,  or  the  like,  without  more,  is 
the  individual  undertaking  of  the  maker,  such  words  being  generally 
words  of  description. 

§  3571.  What  may  be  done  by  agent.  Whatever  one  may  do  himself 
may  be  done  by  an  agent,  except  such  personal  trusts  in  which  special 
confidence  is  placed  on  the  skill,  discretion,  or  judgment  of  the  person 
called  in  to  act;  so  an  agent  may  not  delegate  his  authority  to  another 
unless  specially  empowered  to  do  so. 

§  3572.  Executors,  etc.,  may  convey  by  attorney  in  fact.  Executors, 
administrators,  guardians  and  trustees  are  authorized  to  sell  and  convey 
property  by  attorneys  in  fact,  in  all  cases  where  they  may  lawfully  sell 
and  convey  in  person. 

2182 


APPENDIX 

§  3573.  Who  may  be  agent.  Any  person  may  be  appointed  an  agent 
who  is  of  sound  mind;  so  a  principal  is  bound  by  the  acts  of  his  infant 
agent,  but  a  feme  covert  cannot  be  an  agent  for  another  than  her  husband 
except  by  his  consent,  in  which  case  he  is  bound  by  her  acts. 

§  3574.  Agency  created,  how — agents  of  corporations.  The  act  cre- 
ating the  agency  must  be  executed  with  the  same  formality  (and  need 
have  no  more)  as  the  law  prescribes  for  the  execution  of  the  act  for  which 
the  agency  is  created.  A  corporation  may  create  an  agent  in  its  usual 
mode  of  transacting  business,  and  without  its  corporate  seal. 

§  3575.  Revocation.  1.  Generally,  an  agency  is  revocable  at  the  will 
of  the  principal.  The  appointment  of  a  new  agent  for  the  performance 
of  the  same  act,  or  the  death  of  either  principal  or  agent,  revokes  the 
power.  If,  however,  the  power  is  coupled  with  an  interest  in  the  agent 
himself  it  is  not  revocable  at  will;  and  in  all  cases  the  agent  may  recover 
from  the  principal,  for  an  unreasonable  revocation,  any  damages  he  may 
have  suffered  by  reason  thereof. 

2.  But  every  creditor  or  other  person  advancing  money  upon  the  pledge 
of  a  certificate  of  stock,  or  other  script  representing  an  ownership  or 
interest  in  corporations  in  Georgia,  shall  have  such  an  irrevocable  inter- 
est in  such  certificate  of  stock  or  other  script  as  not  to  be  affected  by 
the  death,  insanity,  or  legal  disability  thereafter  of  the  person  in  whose 
name  such  stock  or  other  script  stands  upon  the  books  of  any  corporation 
in  Georgia;  but  such  pledgee  or  holder  of  such  stock  or  script  assigned 
in  blank,  coupled  with  the  power  of  attorney,  shall  have  the  same  right 
after  the  death,  insanity  or  legal  disability  of  the  person  in  whose  name 
said  stock  stands  upon  the  books  of  said  corporation,  as  before  the  death, 
insanity,  or  legal  disability  of  such  person. 

§  3576.  Agent  limited  by  his  authority.  The  agent  must  act  within 
the  authority  granted  to  him,  reasonably  interpreted;  if  he  exceeds  or 
violates  his  instructions,  he  does  it  at  his  own  risk,  the  principal  having 
the  privilege  of  affirming  or  dissenting,  as  his  interest  may  dictate.  In 
cases  where  the  power  is  coupled  with  an  interest  in  the  agent,  unreason- 
able instructions,  detrimental  to  the  agent's  interest,  may  be  disregarded. 

§  3577.  Money  deposited  by  agent.  A  principal  may  follow  his  money 
deposited  by  an  agent  in  the  latter's  name,  and  recover  the  same  wherever 
found,  unless  the  rights  of  innocent  third  parties  have  intervened. 

§  3578.  Payment  to  agent  failing  to  produce  obligation.  Where 
money  is  due  on  a  written  evidence  of  debt,  payment  to  an  agent  of  the 
creditor  who  fails  to  produce  the  obligation  is  at  the  risk  of  the  debtor. 
Non-production  of  the  security  rebuts  the  implication  of  authority  arising 
from  the  agent's  employment,  and  it  must  be  otherwise  established. 

§  3579.  Agents  and  fiduciaries  to  keep  accounts.  It  is  the  duty  of 
agents,  trustees,  administrators,  guardians,  receivers,  and  all  other  fidu- 
ciaries to  keep  their  accounts  in  a  regular  manner,  and  to  be  always 
ready  with  them  supported  by  proper  vouchers;  neglect  of  this  duty  is 
ground  for  charging  them  with  interest  on  balances  on  hand,  and  with 
costs. 

§  3580.  Deposit  by  agent,  bank  failing.  If  the  money  of  a  principal 
is  deposited  by  a  private  agent,  in  the  name  of  the  principal,  in  the  hands 

2183 


APPENDIX 

of  a  banker  of  good  credit,  and  such  deposit  is  according  to  the  common 
usage  of  the  place,  the  agent  will  not  be  responsible  for  any  loss  arising 
from  the  failure  of  the  banker. 

§  3581.  Diligence  of  an  agent.  An  agent  for  hire  is  bound  to  exer- 
cise, about  the  business  of  his  principal,  that  ordinary  care,  skill,  and  dili- 
gence required  of  a  bailee  for  hire.  A  voluntary  agent,  without  hire  or 
reward,  is  liable  only  for  gross  neglect. 

§  3582.  Agent  cannot  buy  or  sell  for  himself.  Without  the  express 
consent  of  the  principal,  after  a  full  knowledge  of  all  the  facts,  an  agent 
employed  to  sell  cannot  be  himself  the  purchaser;  and  an  agent  to  buy 
cannot  be  himself  the  seller. 

§  3583.  Personal  profit.  The  agent  must  not  make  a  personal  profit 
from  his  principal's  property;  for  all  such  he  is  bound  to  account. 

§  3584.  Estoppel.  An  agent  cannot  dispute  his  principal's  title,  ex- 
cept in  such  cases  where  legal  proceedings,  at  the  instances  of  others, 
have  been  commenced  against  him. 

§  3585.  Agent  of  several.  Where  several  persons  appoint  an  agent  to 
do  an  act  for  their  joint  benefit,  the  instructions  of  one,  not  inconsistent 
with  the  general  directions,  shall  protect  the  agent  in  his  act. 

§  3586.  Commission  and  expenses.  An  agent  who  has  discharged  his 
duty  is  entitled  to  his  commission  and  all  necessary  expenses  incurred 
about  the  business  of  his  principal.  If  he  has  violated  his  engagement, 
he  is  entitled  to  no  commission. 

§  3587.  Broker's  right  to  commission.  The  fact  that  property  is 
placed  in  the  hands  of  a  broker  to  sell  does  not  prevent  the  owner  from 
selling,  unless  otherwise  agreed.  The  broker's  commissions  are  earned 
when,  during  the  agency,  he  finds  a  purchaser  ready,  able,  and  willing  to 
buy,  and  who  actually  offers  to  buy  on  the  terms  stipulated  by  the  owner. 
§  3588.  Suit  on  breach  of  contract.  When  the  contract  is  for  a  year, 
and  the  employer  wrongfully  discharges  the  agent  before  the  end  of  the 
year,  the  agent  may  either  sue  immediately  for  any  special  injury  from 
the  breach  of  the  contract,  or,  treating  the  contract  as  rescinded,  may 
sue  for  the  value  of  the  services  rendered,  or  he  may  wait  till  the  expira- 
tion of  the  year  and  sue  for  and  recover  his  entire  wages. 

§  3589.  Subsequent  earnings  in  mitigation.  When  an  agent  has  been 
improperly  dismissed  before  the  expiration  of  his  time,  earnings  which 
were  realized  or  might  have  been  realized  by  him  up  to  the  end  of  the 
term  should  go  in  mitigation  of  damages. 

§  3590.  Illegal  purpose.  No  rights  can  arise  to  either  party  out  of 
an  agency  created  for  an  illegal  purpose. 

§  3591.  Effect  of  ratification.  A  ratification  by  the  principal  relates 
back  to  the  act  ratified,  and  takes  effect  as  if  originally  authorized.  A 
ratification  may  be  express,  or  implied  from  the  acts  or  silence  of  the  prin- 
cipal. A  ratification  once  made  cannot  be  revoked. 

§  3592.  Of  mingling  goods.  An  agent,  by  willfully  mingling  his  own 
goods  with  those  of  his  principal,  does  not  create  a  tenancy  in  common, 
but  if  incapable  of  separation  the  whole  belongs  to  the  principal. 

2184 


APPENDIX 

ABTICLE  II.    RIGHTS  AND  LIABILITIES  OF  PRINCIPAL  AS  TO-THIBD  PERSONS. 

.[fliiiinim  aid  jRnt*s£  TM  10}  •• 
§  3593.     Principal,  how  far  bound.      The  principal  is  bound  by  all  the 

acts  of  his  agent  within  the  scope  of  his  authority;  if  the  agent  exceeds 
his  authority,  the  principal  cannot  ratify  in  part  and  repudiate  in  part; 
he  must  adopt  either  the  whole  or  none. 

§  3594.  Forms  immaterial.  The  form  in.  which  the  agent  acts  is  im- 
material; if  the  principal's  name  is  disclosed,  and  the  agent  professes  to 
act  for  him,  it  would  be  held  to  be  the  act  of  the  principal. 

§  3595.  Extent  of  authority.  The  agent's  authority  will  be  construed 
to  include  all  necessary  and  usual  means  for  effectually  executing  it. 
Private  instructions  or  limitations  not  known  to  persons  dealing  with  a 
general  agent  cannot  affect  them.  In  special  agencies  for  a  particular 
purpose,  persons  dealing  with  the  agent  should  examine  his  authority. 

§  3596.  Failing  to  disclose  principal.  If  an  agent  falis  to  disclose  his 
principal,  yet,  when  discovered,  the  person  dealing  with  the  agent  may 
go  directly  upon  the  principal,  under  the  contract,  unless  the  principal 
shall  have  previously  accounted  and  settled  with  the  agent. 

§  3597.  Credit  given  to  agent.  If  the  credit  is  given  to  the  agent  by 
the  choice  of  the  seller,  he  cannot  afterward  demand  payment  of  the  prin- 
cipal. 

§  3598.  Representations  by  agent.  The  principal  is  bound  by  all  rep- 
resentations made  by  his  agent  in  the  business  of  his  agency,  and  also  by 
his  willful  concealment  of  material  facts,  although  they  are  unknown  to 
the  principal,  and  known  only  by  the  agent.  ' 

§  3599.-  Notice  to.  Notice  to  the  agent  of  any  matter  connected  with 
his  agency  is  notice  to  the  principal. 

§  3600.  Notice  to  agent  not  bind  principal,  when.  Where  an  agent 
conspires  with  the  other  party,  his  principal  is  not  bound  thereby,  nor 
charged  with  knowledge  of  facts  thus  acquired  by  his  agent. 

§  3601.  Principal  bound  for  neglect  and  fraud.  The  principal  is  bound 
for  the  care,  diligence,  and  fidelity  of  his  agent  in  his  business,  and  hence 
he  is  bound  for  the  neglect  and  fraud  of  his  agent  In  the  transaction  of 
such  business. 

§  3602.  Injuries  by  another  agent.  The  principal  is  not  liable  to  one 
agent  for  injuries  arising  from  the  negligence  or  misconduct  of  other 

agents  about  the  same  business;  the  exception  in  case  of  railroads  has 
,  ,  ,  , 

been  previously  stated. 

§  3603.  Trespass  of  agent.  The  principal  is  not  liable  for  the  willful 
trespass  of  his  agent,  unless  done  by  his  command  or  assented  to  by  him. 

§  3604.  Benefit  of  contract  to  principal.  The  principal  shall  have  ad- 
vantage of  his  agent's  contracts  in  the  same  manner  as  he  is  bound  by 
them,  so  far  as  they  come  within  the  scope  of  his  agency.  If,  however, 
the  agency  has  been  concealed,  the  party  dealing  with  him  may  set  up 
any  defense  against  the  principal  which  he  has  against  the  agent. 

§  3605.  Money  illegally  paid,  etc.  The  principal  may  recover  back 
money  paid  illegally,  or  by  mistake  of  his  agent  or  goods  wrongfully  trans- 
ferred by  the  agent,  the  party  receiving  the  goods  having  notice  of  the 

agent's  want  of  authority  or  willful  misconduct. 

-::iT  ali  •! //      .7 j;vi>!i ••  ••  -  .       Y      .>  l<>5:    f 


APPENDIX 

§  3606.  Agent  is  a  competent  witness.  The  agent  In  a  competent  wit- 
ness either  for  or  against  his  principal.  His  interest  goes  to  his  credit. 
The  declarations  of  the  agent  as  to  the  business  transacted  by  him  are 
not  admissible  against  his  principal,  unless  they  were  a  part  of  the  ne- 
gotiation, and  constituting  the  res  gestce,  or  else  the  agent  be  dead. 

ARTICLE  III.     RIGHTS  AND  LIABILITIES  or  AGENT  AS  TO  THIRD  PERSONS. 

§  3607.  Agent  may  act  under  this  Code,  for  principal.  Any  act  au- 
thorized or  required  to  be  done  under  this  Code,  by  any  person  in  the 
prosecution  of  his  legal  remedies,  may  be  done  by  his  agent;  and  for  this 
purpose  he  is  authorized  to  make  an  affidavit  and  execute  any  bond  re- 
quired, though  his  agency  be  created  by  parol.  In  all  such  cases,  if  the 
principal  repudiate  the  act  of  the  agent,  the  agent  shall  be  personally 
bound,  together  with  his  sureties. 

§  3608.  Money  paid  by  mistake  may  be  recovered.  If  money  be  paid 
to  an  agent  by  mistake,  and  he  in  good  faith  pays  it  over  to  his  principal, 
he  shall  not  thereafter  be  personally  liable  therefor.  In  all  other  cases, 
he  is  liable  for  its  repayment.  If  money  be  paid  by  an  agent  by  mistake 
he  may  recover  it  back  in  his  own  name. 

§  36O9.  When  he  has  a  right  of  action.  Generally  an  agent  has  no 
right  of  action  on  contracts  made  for  his  principal.  The  following  are 
exceptions: 

1.  A  factor  contracting  on  his  own  credit. 

2.  Where  promissory  notes  or  other  evidences  of  debt  are  made  payable 
to  an  agent  of  a  corporation  or  joint  stock  company. 

3.  In  all  cases  where  the  contract  is  made  with  the  agent  in  his  indi- 
vidual name,  though  his  agency  be  known. 

4.  Auctioneers  may  sue  in  their  own  name  for  goods  sold  by  them. 

5.  In  cases  of  agency  coupled  with  an  interest  in  the  agent,  known  to 
the  party  contracting  with  him.     In  all  these  cases,  payment  to  the  prin- 
cipal before  notice  of  the  agent's  claim  is  a  good  defense. 

§  3610.  For  interference  with  his  possession.  An  agent  having  pos- 
session, actual  or  constructive,  of  the  property  of  his  principal,  has  a  right 
of  action  for  any  interference  with  that  possession  by  third  persons. 

§  3611.  When  responsible  for  credit  given.  Where  the  agency  is 
known,  and  the  credit  is  not  expressly  given  to  the  agent,  he  is  not  per- 
sonally responsible  upon  the  contract.  The  question  to  whom  the  credit 
is  given  is  a  question  of  fact  to  be  decided  by  the  jury  under  the  circum- 
stances of  each  case. 

§  3612.  Public  agents.  Public  agents  contracting  in  behalf  of  the 
public,  are  not  individually  liable  on  such  contracts. 

§  3613.  Liability  for  excess  of  authority.  All  agents,  by  an  express 
undertaking  to  that  effect,  may  render  themselves  individually  liable. 
And  every  agent  exceeding  the  scope  of  his  authority  is  individually  liable 
to  the  person  with  whom  he  deals;  so,  also,  for  his  own  tortious  act, 
whether  acting  by  command  of  his  principal  or  not,  he  is  responsible;  for 
the  negligence  of  his  under-servant,  employed  by  him  in  behalf  of  his 
principal,  he  is  not  responsible. 

§  3614.     Where  agent  exceeds  authority.     When  the  agent  exceeds  his 

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APPENDIX 

authority,  so  that  the  principal  is  not  bound,  the  agent  cannot  enforce  the 
contract  in  his  own  name  against  the  person  with  whom  he  deals,  unless 
the  contract  has  been  fully  executed  upon  the  part  of  the  agent,  or  the 
credit  was  originally  given  to  the  agent. 

LOUISIANA. 

The  References  are  to  Merrick's  Revised  Civil  Code  of  1900. 

oT 
CHAPTER  I. 

ART.  2985. — A  mandate,  procuration  or  letter  of  attorney  is  an  act  by 
which  one  person  gives  power  to  another  to  transact  for  him  and  in  his 
name,  one  or  several  affairs. 

ART.  2986. — The  mandate  may  take  place  in  five  different  manners:  for 
the  interest  of  the  person  granting  it  alone;  for  the  joint  interest  of  both 
parties;  for  the  interest  of  a  third  person;  for  the  interest  of  such  third 
person  and  that  of  the  party  granting  it;  and  finally,  for  the  interest  of 
the  mandatary  and  a  third  person. 

ABT.  2987. — The  object  of  the  mandate  must  be  lawful,  and  the  power 
conferred  must  be  one  which  the  principal  himself  has  a  right  to  exercise. 

ABT.  2988. — The  contract  of  mandate  is  completed  only  by  the  accept- 
ance of  the  mandatary. 

ART.  2989. — A  power  of  attorney  may  be  accepted  expressly  in  the  act 
itself,  or  by  a  posterior  act. 

It  may  also  be  accepted  tacitly;  and  this  tacit  acceptance  is  inferred, 
either  from  the  mandatary  acting  under  it,  or  from  his  keeping  silence 
when  the  act  containing  his  appointment  is  transmitted  to  him. 

ART.  2990. — If  the  proxy  or  attorney  in  fact  pleads  that  he  has  not  ac- 
cepted or  acted  under  the  power,  it  is  incumbent  on  the  principal  to  prove 
he  has. 

ART.  2991. — The  procuration  is  gratuitous  unless  there  has  been  a  con- 
trary agreement. 

ART.  2992. — A  power  of  attorney  may  be  given,  either  by  a  public  act 
or  by  a  writing  under  private  signature,  even  by  letter. 

It  may  also  be  given  verbally,  but  of  this  testimonial  proof  is  admitted 
only  conformably  to  the  title:  Of  Conventional  Obligations. 

ART.  2993. — A  blank  may  be  left  for  the  name  of  the  attorney  in  fact 
in  the  letter  of  attorney. 

In  that  case,  the  bearer  of  it  is  deemed  the  person  empowered. 

ART.  2994. — It  may  be  either  general  for  all  affairs,  or  special  for  one 
affair  only. 

ART.  2995. — It  may  vest  an  indefinite  power  to  do  whatever  may  appear 
conducive  to  the  interest  of  the  principal,  or  it  may  restrict  the  power 
given  to  the  doing  of  what  is  specified  in  the  procuration. 

ART.  2996. — A  mandate  conceived  in  general  terms,  confers  only  a 
power  of  administration. 

If  it  be  necessary  to  alienate  or  give  a  mortgage,  or  do  any  other  act 
of  ownership,  the  power  must  be  express. 

2187 


ART.  2997. — Thus  the  power  must  be  express  and  special  for  the  fol- 
lowing purposes: 

To  sell  or  to  buy. 

To  incumber  or  hypothecate. 

To  accept  or  reject  a  succession. 

To  contract  a  loan  or  acknowledge  a  debt. 

To  draw  or  indorse  bills  of  exchange  or  promissory  notes. 

To  compromise  or  refer  a  matter  to  arbitration. 

To  make  a  transaction  in  matters  of  litigation;  and  in  general  where 
things  to  be  done  are  not  merely  acts  of  administration,  or  such  as  facili- 
tate such  acts. 

ART.  2998. — A  power  to  compromise  on  a  matter  in  litigation  does  not 
include  that  of  submitting  or  referring  to  arbitrators. 

ART.  2999. — A  power  to  receive  includes  that  of  giving  a  receipt  in  ac- 
quittance. 

ART.  3000. — Powers  granted  to  persons,  who  exercise  a  profession,  or 
fulfil  certain  functions,  of  doing  any  business  in  the  ordinary  course  of 
affairs  to  which  they  are  devoted,  need  not  be  specified,  but  are  inferred 
from  the  functions  which  these  mandataries  exercise. 

ART.  3001. — Women  and  emancipated  minors  may  be  appointed  attor- 
neys; but,  in  the  case  of  a  minor,  the  person  appointing  him  has  no  ac- 
tion against  him,  except  according  to  the  general  rules  relative  to  the  ob- 
ligations of  minors;  and  in  the  case  of  a  married  woman,  who  has  ac- 
cepted the  power  without  authority  from  her  husband,  she  can  only  be 
sued  in  the  manner  specified  under  the  title:  Of  Marriage  Contract,  and 
the  Respective  Rights  of  the  Parties  in  Relation  to  their  Property. 

CHAPTER  II.     OF  THE  OBLIGATIONS  OF  A  PERSON  ACTING  UNDER  A  POWER  OF 

ATTORNEY. 

ART.  3002. — The  attorney  in  fact  is  bound  to  discharge  the  functions  of 
the  procuration,  as  long  as  he  continues  to  hold  it,  and  is  responsible  to 
his  principal  for  the  damages  that  may  result  from  the  non-performance  of 
his  duty. 

He  is  bound  even  to  complete  a  thing  which  had  been  commenced  at 
the  time  of  the  principal's  death,  if  any  danger  result  from  delay. 

ART.  3003. — The  attorney  is  responsible,  not  only  for  unfaithfulness  in 
his  management,  but  also  for  his  fault  or  neglect. 

Nevertheless,  the  responsibility  with  respect  to  faults,  is  enforced  less 
rigorously  against  the  mandatary  acting  gratuitously,  than  against  him 
who  receives  a  reward. 

ART.  3004. — He  is  obliged  to  render  an  account  of  his  management, 
unless  this  obligation  has  been  expressly  dispensed  with  in  his  favor. 

ART.  3005. — He  is  bound  to  restore  to  his  principal  whatever  he  has 
received  by  virtue  of  his  procuration,  even  should  he  have  received  It 
unduly. 

ABT.  3006. — In  case  of  an  indefinite  power,  the  attorney  can  not  be 
sued  for  what  he  has  done  with  good  intention. 

The  judge  must  have  regard  to  the  nature  of  the  affair,  and  the  difficulty 
of  communication  betweea  the  principal  and  the  attorney. 

2188 


APPENDIX 

ART.  3007.  —  The  attorney  is  answerable  for  the  person  substituted  by 
him  to  manage  in  his  stead,  if  the  procuration  did  not  empower  him  to 
substitute. 

ART.  3008.  —  He  is  also  answerable  for  his  substitute,  if,  having  the 
power  to  appoint  one,  and  the  person  to  be  appointed  not  being  named  in 
the  procuration,  he  has  appointed  for  his  substitute  a  person  notoriously 
incapable,  or  of  suspicious  character. 

ART.  3009.  —  Even  where  the  attorney  is  answerable  for  his  substitute, 
the  principal  may,  if  he  thinks  proper,  act  directly  against  the  substitute. 

ART.  3010.  —  The  attorney  can  not  go  beyond  the  limits  of  his  procura- 
tion; whatever  he  does  exceeding  his  power  is  null  and  void  with  regard 
to  the  principal,  unless  ratified  by  the  latter,  and  the  attorney  is  alone 
bound  by  it  in  his  individual  capacity. 

ART.  3011.  —  The  mandatary  is  not  considered  to  have  exceeded  his  au- 
thority, when  he  has  fulfilled  the  trust  confided  to  him,  in  a  manner  more 
advantageous  to  the  principal,  than  that  expressed  in  his  appointment. 

ART.  3012.  —  The  mandatary,  who  has  communicated  his  authority  to  a 
person  with  whom  he  contracts  in  that  capacity,  is  not  answerable  to  the 
latter  for  anything  done  beyond  it,  unless  he  has  entered  into  a  personal 
guarantee. 

ART.  3013.  —  The  mandatary  is  responsible  to  those  with  whom  he  con- 
tracts, only  when  he  has  bound  himself  personally  or  when  he  has  ex- 
ceeded his  authority  without  having  exhibited  his  powers. 

ART.  3014.  —  When  there  are  several  attorneys  in  fact  empowered  by 
the  same  act,  they  are  not  responsible  in  solido  for  the  acts  of  each,  unless 
such  responsibility  be  expressed  in  the  procuration. 

ART.  3015.  —  The  attorney  is  answerable  for  the  interest  of  any  sum  of 
money  he  has  employed  to  his  own  use,  from  the  time  he  has  so  employed 
it;  and  for  that  of  any  sum  remaining  in  his  hands  from  the  day  he  be- 
comes a  defaulter  by  delaying  to  pay  it  over. 


edT  —  .T20S 
CHAPTER  III.     OF  THE  MANDATARY  OR  AGENT  OF  BOTH  PARTIES. 

ABT.  3016.  —  The  broker  or  intermediary  is  he  who  is  employed  to  ne- 
gotiate a  matter  between  two  parties,  and  who,  for  that  reason,  is  con- 
sidered as  the  mandatary  of  both. 

ART.  3017.  —  The  obligations  of  a  broker  are  similar  to  those  of  an  or- 
dinary mandatary,  with  this  difference,  that  his  engagement  is  double, 
and  requires  that  he  should  observe  the  same  fidelity  towards  all  parties, 
and  not  favor  one  more  than  another. 

ART.  3018.  —  Brokers  are  not  responsible  for  events  which  arise  in  the 
affairs  in  which  they  are  employed;  they  are  only,  as  other  agents,  an- 
swerable for  frauds  or  faults. 

ART.  3019.  —  Brokers,  except  in  case  of  fraud,  are  not  answerable  for 
the  insolvency  of  those  to  whom  they  procure  sales  or  loans,  although 
they  receive  a  reward  for  their  agency  and  speak  in  favor  of  him  who 
buys  or  borrows. 

ART.  3020.  —  Commercial  and  money  brokers,  besides  the  obligations 
which  they  incur  in  common  with  other  agents,  have  their  duties  pre- 
scribed by  the  laws  regulating  commerce. 

2189 


APPENDIX 

CHAPTER  IV.     OF  THE  OBLIGATIONS  OF  THE  PRINCIPAL  WHO  ACTS  BY  HIS  AT- 
TORNEY IN  FACT. 

ABT.  3021. — The  principal  is  bound  to  execute  the  engagements  con- 
tracted by  the  attorney,  conformably  to  the  power  confided  in  him. 

For  anything  further  he  is  not  bound,  except  in  so  far  as  he  has  ex- 
pressly ratified  it. 

ABT.  3022. — The  principal  ought  to  reimburse  the  expenses  and  charges 
•which  the  agent  has  incurred  in  the  execution  of  the  mandate,  and  pay  his 
commission  where  one  has  been  stipulated. 

If  there  be  no  fault  imputable  to  the  agent,  the  principal  can  not  dis- 
pense with  this  reimbursement  and  payment,  even  if  the  affair  has  not  suc- 
ceeded; nor  can  he  reduce  the  amount  of  reimbursement,  under  pretense 
that  the  charges  and  expenses  ought  to  have  been  less. 

ABT.  3023. — The  mandatary  has  a  right  to  retain  out  of  the  property  of 
the  principal  in  his  hands,  a  sufficient  amount  to  satisfy  his  expenses  and 
costs. 

He  may  even  retain,  by  way  of  offset,  what  the  principal  owes  him,  pro- 
vided the  debt  be  liquidated. 

ABT.  3024. — The  attorney  must  also  be  compensated  for  such  losses  as 
he  has  sustained  on  occasion  of  the  management  of  his  principal's  affairs, 
when  he  can  not  be  reproached  with  imprudence. 

ABT.  8025. — If  the  attorney  has  advanced  any  sum  of  money  for  the 
affairs  of  the  principal,  the  latter  owes  the  interest  of  it,  from  the  day  on 
which  the  advance  is  proved  to  have  been  made. 

ABT.  3026. — If  the  attorney  has  been  empowered  by  several  persons  for 
an  affair  common  to  them,  every  one  of  these  persons  shall  be  bound 
in  solido  to  him  for  all  the  effects  of  the  procuration. 

CHAPTER  V.     How  THE  PROCURATION  EXPIRES. 

ABT.  3027. — The  procuration  expires: 

By  the  revocation  of  the  attorney. 

By  the  attorney's  renunciation  of  the  power. 

By  the  change  of  condition  of  the  principal. 

By  the  death,  seclusion,  interdiction  or  failure  of  the  agent  or  principal. 

But  powers  of  attorney  by  public  act  or  by  writings  under  private  sig- 
nature, or  by  letter,  to  transfer  on  the  books  of  stock  corporations,  bonds 
or  shares  of  stock  in  said  corporations,  shall  be  irrevocable,  and  shall 
not  expire  by  the  death,  seclusion,  interdiction  or  failure  of  the  princi- 
pals, where  the  said  bonds  or  shares  of  stock  have  been  previously  sold  to 
the  persons  holding  the  said  powers  of  attorney,  for  value  received,  and 
said  facts  are  set  forth  in  such  powers  of  attorney. 

ABT.  3028. — Except  in  the  case  of  irrevocable  powers  of  attorney,  as 
prescribed  in  the  preceding  article,  the  principal  may  revoke  his  power 
of  attorney  whenever  he  thinks  proper,  and,  if  necessary,  compel  the  agent 
to  deliver  up  the  written  instrument  containing  it,  if  it  be  an  act  under 
private  signature. 

ABT.  3029. — If  the  principal  only  notifies  his  revocation  to  the  attorney, 
and  not  to  the  persons  with  whom  he  has  empowered  the  attorney  to  trans- 

2190 


APPENDIX 

act  for  him,  such  persons  shall  always  have  the  right  of  action  against  the 
principal  to  compel  him  to  execute  or  ratify  what  has  been  done  by  the 
attorney;  the  principal  has,  however,  a  right  of  action  against  the  attor- 
ney. 

ART.  3030. — The  appointment  of  a  new  attorney  to  transact  the  same- 
business  produces  the  same  effect  as  a  revocation  of  the  first,  from  the 
day  such  appointment  is  notified  to  the  first  attorney. 

ABT.  3031. — The  attorney  may  renounce  his  power  of  attorney  by  noti- 
fying to  the  principal  his  renunciation. 

Nevertheless,  if  this  renunciation  be  prejudicial  to  the  principal,  he' 
ought  to  be  indemnified  by  the  agent,  unless  the  latter  should  be  so  situ- 
ated that  he  can  not  continue  the  agency  without  considerable  injury. 

ABT.  3032. — If  the  attorney,  being  ignorant  of  the  death  or  of  the  cessa- 
tion of  the  rights  of  his  principal,  should  continue  under  his  power  of 
attorney,  the  transactions  done  by  him,  during  this  state  of  ignorance,  are 
considered  as  valid. 

ABT.  3033. — In  the  cases  above  enumerated,  the  engagements  of  the 
agent  are  carried  into  effect  in  favor  of  third  persons  acting  in  good  faith. 

ABT.  3034. — In  case  of  the  death  of  the  attorney,  his  heir  ought  to  in- 
form the  principal  of  it,  and  in  the  meantime,  attend  to  what  may  be. 
requisite  for  the  interest  of  the  principal. 

2191 


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IQIS 


.J-T 


TABLE  OF  CASES 


nl  .R 


nr«>    to  section.:   gg  1-1705,   Vol.  I;   §§   1703-2588,   Vol.  II.] 

v.    Weiller:   741,  861,  869. 
Abrams  v.  Cureton:  2023. 

v.  Wingo:  1216,  1218,  1219. 
Abrohams  v.  Revillon:  908. 
Accident  Ass'n  v.  Jacobs:   1350. 
Ach  v.  Barnes:   907. 
Acheson  v.  Chase:  2002,  2003. 
Ackburg  v.  McCool:   1225. 
Acker  v.  Ledyard :  2156.  rtoteo 
Ackerly  v.  Parkinson:  1494. 
Ackerman  v.  Rubens:  29. 
Ackerson  v.  Erie  R.  Co.:  2015. 
Ackert  v.  Barker:   2237,  2239. 
Ackley  v.  Kellogg:  1248. 
Acton  v.  Woodgate:   581.  7  .v  a 
Adams  v.  Albert:  1768,  2129. 


.v  833A 
Aaron  v.  United  States:  2305. 

v.  United  States,  et  al.:  2152. 
Aarons  v.  Klein:   169. 
Aas  v.  Benham:   1213. 
Abbe  v.  Rood :   463.  >  janl 
Abbey   v.    Chase:    1099,    1108,    1166, 

1396,  1397,  1398. 

Abbott  v.  Atlantic  Refining  Co.:  2020, 
2024,  2070. 

v.Creal:    134. 

v.  Dutton:    2156. 

v.  Hapgood:   380. 

v.  Hunt:    233. 

v.  Lee:  2430,  2437. 

v.May:   441. 

v.  McKinley:   167.  abghWoft-.T  " 

v.Rose:   710. 

v.  Shawmut  Ins.  Co.:  1125. 


pi  A 


v.  Smith:   1315. 

Abel  v.  Delaware,  etc.,  C.  Co.:  1635. 
v.  Hansen:   2230. 
v.  Jarratt  &  Co.:   285. 
Abeles  v.  Cochran:   1367,  1386,  1396, 

1397,  1422. 

Abell  v.  Howe:  1808,  1814,  2176. 
Abell  Note  Co.  v.  Kurd :  2023,  2028. 
Abell,  State  for  use,  v.  Western  Md. 

R.  Co.:   1657. 
A.  B.,  Estate  of:   2195. 
Abend  v.  Commissioners:  2284. 
v.  Endowment  Fund:  2286. 
v.  Terre  Haute,  etc.,  R.  Co.:  1657. 
Abernathy  v.  Black:   1577. 

v.  Wheeler:   2583. 

A.  B.  Frank  Co.  v.  Waldrup:  1601. 
Able  v.  Southern  R.  Co.:   1459,  1461, 

2011. 
Abraham  v.  Bullock:  1861. 

v. North   German   Ins.   Co.:    300, 

2369. 
Abrahams  v.  Deakin:  1010,  1974. 

138  2193 


v.  Bissell:    2572. 

v.  Boies:  916. 

v.  Bourne:   742. 

v.  Capron:    2537. 

V.Clark:  1696. 

v.  Cost:    1912,  19x4. 

v.  Decker:  2435. 

v.  Fitzpatrick :    605. 

v.Flanagan:  977. 

v.  Fort  Plain  Bank:  2261,  2262. 

v.  Fraser:  865,  869,  902,  2405. 

v.  Freeman:   507,  2222. 

v.  Grand  Rapids  Refrigerator  Co. : 

1619. 

v.  Hackensack  Imp.  Co.:  281. 
v.  Hannibal,    etc.,    R.    Co.:    1783, 

1794,  1796,  1798. 
V.Hopkins:   2217. 
V.Humphreys:  1783. 
v.  Iron    Cliffs   Co.:    1654. 
v.  Manufacturers'  &  B.  Ins.  Co.: 

2368. 

v.  McMillan:    2320,  2356. 
v.  Milling  Co.:    2286. 
v.  Nellis:    2314. 
v.  Pittsburgh  Ins.  Co.:  716. 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:  g§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Adams  v.  Power:  212,  215,  424. 

v.Robinson:     1245,     1253,     1265, 

2174. 

v.  Roller:   2163. 
v.Sayre:  1200,  1219. 


Aetna  Life  Ins.  Co.  v.  Fallow:  1058, 

1054,  1064,  1065. 
v.  Frierson:   1067. 
v.  Nexsen:   1552. 
v.  Sellers:  134. 


v.  Scales:  2320. 


V.  Southern  R.  Co.:   994. 
Adams  County  v.  Hunter:  119. 
Adams  Exp.  Co.  v.  Berry:  1779,  2001. 
v.  Byers:  1046. 
v.  Carnahan:   1046. 
v.Harris:  1780. 
v.  Schlessinger:  710. 
v.Trego:   395,  407,  608,  609,  783, 

1229. 
Adams    Mining   Co.    v.    Senter:    178, 

1592,  2398. 
Adamson  v.  Hartman:  213. 

v.Jarvis:   1606,  2345,  2349. 
v.Morton:  1399. 

Addicks  v.  Chistoph:  1619,  1670. 
Addis  v.  Gramophone  Co.:  1557. 
Addison  v.  Gandaseqiii:  1182,  1422, 

1717,  1750. 

v.  Wanamaker :  2426. 
Addoms  v.  Weir:  1046. 
Adkins  v.  Brewer:  1494. 
Adlard  v.  Muldoon:   992. 
Adler  v.  Hellman:   2302. 
Adlets  v.  Progressive  Shoe  Co.:  1584. 
Adolff  v.  Lynch:  1731. 
Adrian  v.  Lane:  902. 
Adriance    v.    Rutherford:     593,    671, 

1543. 
Advertiser  &  Tribune  Co.  v.  Detroit: 

1805. 

Adsit  v.  Brady:  1501. 
Advance  Thresher  Co.  v.  Curd:  903. 
Aerne  v.  Gostlow:  285. 
Aetna,    etc.,    Ins.    Co.    v.    Olmstead: 

1066. 
Aetna   Indemnity   Co.   v.   Ladd,   287, 

291. 

v.  Schroeder:  1803,  1834. 
Aetna  Ins.  Co.  v.  Alton  City  Bank: 

331,  1314. 
v.  Church:  1231. 
v.  Maguire:   756,  1077. 
v.  Northwestern    iron    Co. :     395, 

412. 

v.  Sabine:  491. 

v.  Stambaugh-T  h  o  m  p  s  o  n  Co.: 
519,  628. 

2194 


Aetna  Powder  Co.  v.  Hildebrand:  48, 


1350:  2499. 

African  Farms,  In  re:  125. 
Aga  v.  Harbach:  278,  1042. 
Agawam  Nat.  Bank  v.  South  Hadley: 

465. 

Aggs  v.  Nicholson:  1136. 
Agnew,  In  re:  2499. 
Agnew  v.  Walden:  2188,  2244,  2249. 
Agricultural     Bank     v.     Commercial 

Bank:    1313,  1314. 
Agricultural  Ins.  Co.  v.  Potts:  1780. 
Ahern  v.  Amoskeal  Mfg.  Co.  1635. 
v.  Baker:    195,  554,  619,  625,  631, 

902,  2446,  2456. 
v.  Goodspeed:  881,  882,  885,  2403, 

2506. 

Ahlhauser  v.  Butler:   2194,  2195. 
Ah  Yup,  In  re:  2147. 
Aigler  v.  Land  Co.:  2430,  2443. 
Aiken  v.  Holyoke   St.  R.  Co.:    1953, 

1960,  1968. 
v.Robinson:  169. 
v.  Taylor:   616. 

Aikins  v.  Thackara  Mfg.  Co.:  1537. 
Ainsworth  v.  Partillo:  2528. 

v.  Wilding,  2299. 
Akers  v.  Rowan:   18814,  1831. 
Akron  Cereal  Co.  v.  First  'Nat.  Bank: 

2514. 

Alabama,  etc.,  R.  Co.  v.  Hawk:   1798. 
v.  South,  etc.,  R.  Co.:   219,  246. 
v.Vail:   1654. 
v.  Waller:   1632. 
Alabama  Great  South.  R.  Co.  v.  Hill: 

1043. 

V.Thompson:   2011. 
Alaimo  v.  E.  J.  Marrin  Co. :  1861. 
Alba  v.  Moriarity :  605. 
Albans  v.  Bush:  2156. 
Albany  &  Rensselaer  I.  &  S.   Co.  v. 

Lundberg:  2024,  2026,  2028,  2031. 
Albany  Fire  Ins.  Co.  v.  Bay:  813. 
Albany  Land  Co.  v.  Rickel:  198,  435. 
Albers  v.  Phoenix  Ins.  Co. :  1054. 
Albert  v.  Mutual  Life  Ins.  Co..   285, 
1782. 


TABLE   OF    CASES    CITED 


[Reference  are  to  sections:   §§  1-1705,  Vol.  I;  §§  170«-2588,  Vol.  II.] 


Albertson  v.  Fellows:  1215. 

v.  Goldsby:   2184. 

v.  Laughlin:  2094. 
Albion  Phospnate  Min.  Co.  v.  Wyllle: 

2554. 

Albitz  v.  Minnesota,  etc.,  R.  Co.:  411. 
Albrecht  v.  Chicago,  etc.,  R.  Co.:  1631. 

1200. 

Albright  v.   Phoenix  Ins.  Co.:    1199, 
Albro  v.  Jacquith:   1483. 
Alcorn  v.  Buschke:  800,  801,  815,  849, 
2108. 

v.  Gieseke:  816. 
Alden  v.  Ayers:  2168. 

v.  Dyer:  2161. 

v.  Earle:  1533,  2472. 
Alderman  v.  People:  2308. 
Alderson  v.  Houston:  1557,  1558,  1563. 
Aldons  v.  Grundy:   2451. 
Alclrich  v.  Collins:  359,  367. 

v.  Equitable  Safety  Ins.  Co.:  2371. 

v.  Ilinois  Cent.  R.  Co. :  1650. 

v.  Jackson:  2364. 

v.Kinney:  2157. 

v.  New  York  L.  Ins.  Co.:  1532. 
Aldridge  v.  Aetna  Life  Ins.  Co.:  1778, 
1798. 

v.  Great  Western  R.  Co. :  1046. 
Alemany  v.   Daly:  805. 
Alexander  v.  Alexander:  965,  1088. 

v.  Bane:  1516. 

v.  Barker:  90. 

v.  Burns:  963. 

v.  Culbert  Irrigation  Co.:  463. 

v.Gibson:   882,  886. 

v.  Grand  Ave.  R.  Co. :  2243. 

v.  Haskins:    134. 

V.Hoffman:  1577. 

v.  Jones:  463,  473,  814. 

V.Mackenzie:   707. 

v.  Morris:  2546. 

v.  Munroe:  2283. 

v.  Northwestern  University:   178, 
2398,  2412,  2474,  2475. 

v.Oneida  County:  239. 

v.  Perkins:  171. 

v.  Potts:    610. 

v.  Sizer:  1124. 

v.  Smith:  2438,  2447. 

v.  Sou  they:    1457. 

v.  Swackhamer:  2110. 

V.Taylor:  2141. 


Alexander  v.  United  States:   2303. 

v.  University:  1592. 

v.  Wade:  446,  447. 

v.Walter:  811. 
Alexander  &  Edgar  Lumber  Co.  v.  Mc- 

Geehan:  1410,  1413,  1422. 
Alger  v.  Anderson:  1984. 

v.Keith:  49,  284,  1803,  1988. 

v.  Turner:  2307. 
Alie  v.  Nadeau:  1556. 
Allaire  v.  Ouland:  1611,  2349. 
Allaire  Works  v.  Guion:  1596. 
Allard  v.  Lamirande:  2234,  2236. 
Allcroft  v.  Adams:  606. 
Allen  v.  Addington:  2132. 

v.  Aguire:  2377. 

v.  Allen:  1515. 

v.  Bennett:  601. 

v.  Bryson:  1516,  1517. 

V.  Colliery  Engineers'  Co.:  1554. 

v.  Confederate  Pub.  Co. :  966. 

v.  Duncan:   1789. 

v.  Garrison:  169,  170,  1808. 

v.  German-American      Ins.      Co. : 
2368,  2369. 

v.  Ham:  1684. 

V.Harrison:    2305. 

v.  Kenyon:  296. 

v.  London,  etc.,  R.  Co.:  1973, 1974, 
1976. 

V.  Maronne:  1557,  1558. 

v.  McAllister:  459. 

v.  McCalla:   1814,  2176. 

v.  McConihe:  2414,  2415. 

v.  McKibben:    1578,  1595. 

v.  Megguire:  1689. 

v.  Merchants'    Bank:     327,    1303, 
1314. 

V.Netties:  1351. 

v.  O'Bryaif:   1332. 

v.  Pegram:  1383,  1396. 

v.  Railroad:  1831. 

v.  Root:  2307.  . 

v.  South  Boston  R.  Co.:  1801, 1815, 
1816,  1819. 

v.  St.  Lawrence  County  Farmers' 
Ins.  Co.:  1055. 

v.  Steers:  2571. 

v.  St.  Louis  Bank:  2509. 

V.  Suydam:  1299,  1300,  1305,  1314, 
1320. 

v.  Tarrant:  953. 


2195 


TABLE   OF    CASES    CITED 


[Reference*  are  to  Bectloiun  g§  1-1705,  Vol.  1$  §§  1706-2588,  Vol.  II.] 


Allen  v.  Treat:   1803. 
v.  Whitlark:  1557. 
v.Williams:   2562. 
Allen-Bradley  Co.  v.  Anderson :  310. 
Allen-West  Commission  Co.  v.  Patil- 

lo:    1351. 

A.lley  v.  Rogers:  281. 
v.  Rodgers:  946. 
v.  Winn:  165. 

Allin  v.  Williams:  471,  473. 
Allis  v.  Billings:  138. 
v.  Goldsmith:   805. 
v.Voigt:  710,  739,  780. 
Allison  v.  Byrne:  1327. 

v.  Falconer:  1803,  1831,  2177. 
v.  Sutlive:  711,  1767. 
v.  Horning:    2425. 
Allkins  v.  Jupe:   2481. 
Allman  v.  City  of  Mobile:   313. 

v.  Yukon     Consol.     Gold     Fields 

Co.:    593. 

Allred  v.  Bray:   386. 
Allsopp   v.    Hendy   Machine   Works: 

1335,  1340. 
Almand  v.   Equitable  Mortgage  Co.: 

285. 

Almy  v.  Orne:  105. 
Alna  v.  Plummer:  2320. 
Alpern  v.  Klein:  227. 
Alpers  v.  Hunt:   105. 
Alpha   Check  rower    Co.    v.    Bradley: 

48,   2499. 
Alpha    Mills    v.    Watertown    Steam 

Engine  Co.:    1458. 
Alsever  v.  Minneapolis,  etc.,  R.  Co.: 

1799,  1945,  1950. 
Alsop    v.    Caines:    2024,    2025,    2031, 

2046. 

Alston  v.  Heartman:   2030. 
Alt  v.  Doscher:   2441.* 
Alta  Investment  Co.  v.  Worden:  178, 

1548,  1588,  1590,  2474. 
Alta  Silver  Min.  Co.  v.  Alta  Placer 

Co.:    236. 

Althorf  v.  Wolfe:    321,  1866,   1867. 
Alton  v.  Midland  R.  Co.:  1480,  2135. 
Alton  Paving  Co.  v.  Hudson:    1667. 
Alton  P..  &  !.  Co.  v.  Cox:  1953,  1977. 
Aluminum  Castings  Co.  v.  Local  No. 

84:  2133. 

Alvey  v.  Hartwig:  156. 
Alvord  v.  Cook:  775,  1536,  1590,  2412, 
2477. 


Alvord  v.  Latham:   2546. 
Alwood  v.  Mansfield:   1221. 
Alworth  v.  Seymour:   566,  567,  642. 
Amans  v.  Campbell:  1169,  1183,  1410, 

1413. 

Amato  v.  Dreyfus:   2479. 
Amber  Petroleum  Co.  v.  Breech:  252, 

1232,  1235. 

Ambler  v.  Church:  494. 
Ambrose  v.  McDonald:  2163. 
American  Alkali   Co.  v.  Bean:   1170. 

v.Kurtz:   1410,  1416. 
American  Baseball  Club  v.  Harper: 

644. 
American  Bonding  Co.  v.  Ensey:  784, 

963. 
American  Bridge  Co.  v.  Seeds:   1624. 

v.  Valente:  1654. 

American  Building  &  Ass'n  v.  War- 
ren:   300. 
American    Car    &    Foundry    Co.    v. 

Spears:   1918. 
v.  Water  Co.:   296. 
American  Central  Ins.  Co.  v.  McCrea: 

1066. 
v.  McLanathan:    716,    1053,   1058, 

1061. 

American  Circular  Loom  Co.  v.  Wil- 
son:  1214. 
American   Employers'    Liability   Ins. 

Co.:   1053. 

American,  etc.,  Co.  v.  Maddock:   760. 
American    Exchange    Nat.    Bank    v. 

First  Nat.  Bank:  368. 
v.  Woodlawn      Cemetery:      180L 

2125. 
American    Exp.    Co.    v.    Des    Moines 

Nat.  Bank:  2012. 
v.  Haire:   1313,  1319. 
v.  Lankford:    169. 
v.  Milk:  741. 
v.Patterson:    1973. 
American   Fire    Ins.   Co.  v.   Brooks: 

300,  2368. 
American    Freehold    L.    Mtg.    Co.    v. 

Felder:    1803,  1804. 
American    Graphic    Co.    v.    Railway 

'Co.:  980. 

American  Ins.  Co.  v.  Gallatin:   1065. 
v.  Hornbarger:    1074. 
v.  Neiberger:  2139. 
v.  Stratton:  1148,  1157. 
v.  Walston:  1070. 


2196 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   g§  1-1705,   Vol.  I)  §§  1706-2538,  Vol.  II.] 


American  Lead  Pencil  Co.  v.  Davis: 

2281. 

v.Wolfe:   710,  914. 
American    Life    Ins.    Co.    v.    Mahon: 

1073. 

American  Loan  &  Trust  Co.  v.  Bill- 
ings:  577,  660,  661,  681. 
American  Manufacturing  Co.  v.  Bige- 

low:  1796. 
v.  King:  300,  1029. 
v.  Williams:  1221. 
v.  Woodward:   2002. 
American  National  Bank  v.  Cruger: 

436. 

v.Omaha  Coffin   Mfg.   Co.:    1126. 
v.  Ritz:    1845. 

American  Oil  Co.  v.  Gurr:  285. 
American  Press  Ass'n  v.  Daily  Story 

Pub.  Co.:  53. 
American    Pub.    House    v.    Wilson: 

1577. 
American  Quarries  Co.  v.  Lay:    435, 

464,  944. 
American    Rolling    Mill    Co.    v.    Hul- 

linger:    1671. 

American    Sales    Book    Co.    v.    Cow- 
drey:   865. 
v.  Whitaker:   902. 
American  Savings  Bank  v.  Helgesen: 

217,  971. 
American    Silk    Label    Mfg.    Co.    v. 

Wolf:    474. 

American  Splane  Co.  v.  Barber:  2064. 
American  Steamship  Co.  v.  Landreth: 

1783. 

American  Sugar  Co.  v.  McGhee:  2394. 
American     Sugar     Refining     Co.     v. 

Fanger:    2091. 
American  Surety  Co.  v.  Morton:  1395. 

v.  Pauly:    1815,    1842. 
American   Telephone   Co.    v.    Kersh: 

291. 
American    Telegraph    &    Tel.    Co.    v. 

Jones:  840. 
American    Trust    &    Banking    Co.    v. 

Boone:   134. 
American  Trust  Co.  v.  Canevin:  1127, 

1156,  1162. 

Americus  Oil  Co.  v.  Gurr:  742,  914. 
Ames  v.  Drew:  960. 
v.  Oilman:    91. 
v.  Jordan:  1861. 


Ames   v.   Lament.    1514,   1524,    1533, 
2425,  2430,  2437. 

v.  Palmer:  1683,  2561. 

v.  Port  Huron  Log  Driving  Co. : 
179. 

v.  St.    Paul,    etc.,    R.    Co.:    2059, 
2063. 

v.  Union  R.  Co.:   2135. 
Ames-Brooks  Co.  v.  Aetna  Ins.  Co.: 

261. 
Arnes  Packing  &  Prov.  Co.  v.  Tucker: 

1760. 

Amicalola  Marble  Co.  v.  Coker:  285. 
Amison  v.  Ewing:    1143. 
Amite  City  v.  Clementz:    2319. 
Ainondson  v.  Ryan:   2002. 
Amperse  v.  Winslow:  1499. 
Amor  v.  Fearon:  609. 
Amory  v.  Hamilton:    1245. 

v.  Kanoffsky:  836. 
Amos  v.  American  Trust  &  Savings 

Bank:  134. 

Amy  v.  Supervisors:   1501. 
Ancher  v.  Bank  of  England:   2089. 
Ancona  v.  Marks:  507,  529,  530. 
Anderson  v.  Adams:   293,  1374,  1395, 
1398,  1400. 

v.Ames:    169. 

v.  Bank:  946. 

v.  Beard:    2494. 

V.Bennett:  1618,  1654. 

v.  Bigelow:  823. 

v.  Bosworth:    2269. 

v.  Boyer:   1860. 

v.  Bruner:  900. 

v.Clark:  2563. 

V.Columbia     Improvement     Co.: 
1619. 

v.  Coonley:   60,  66,  929. 

v.  Cox:  2435. 

v.  Creston  Land  Co.:  393,  395. 

v.Diaz:    1940. 

v.  Fiedling:   1630. 

v.  First  National  Bank:   173,  793, 
1222,   1266,   1272,   1327,   1344. 

v.Goodwin:  652. 

v.  Great  Northern  R.  Co.:  1796. 

v.  Gregg:    169. 

v.Harold:   601. 

v.  Hawhe:  2156,  2158. 

v.  Hendrickson :   2172. 

v.  Hultman:  2152. 


2197 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Anderson  v.  Itasca  Lumber  Co.:  2243. 

v.  Johnson:  2471. 

v.Kinley:   1844. 

v. Lumber  Co.:  1676. 

v.Morrison:  1619,  1637. 

v. Nelson  Lumber  Co.:  1671. 

v.  New  York,  etc.,  Co.:  1787. 

v.  Northrop:   186. 

V.Olson:  2435. 

v.  Oregon  R.  &  N.  Co. :  1636. 

v.  Pacific  Lumber  Co.:  1671. 

v.  Patten:  848,  2107,  2110. 

v.  Pittsburg  Coal  Co.:  1619,  1653. 

v.  Pitt  Min.  Co.:   1669. 

v.  Radcliffe:  2237. 

v.  Rodgers:  1314. 

v.  Rome,  etc.,  R.  Co. :  1782,  1783. 

v.  Sanderson:   284. 

v.Scott:    446,  448. 

v.  State:  1341,  2008. 

v.  Timberlake:   1180,  1422,  1423. 

y.  Vallery:  2004. 

V.Wallace:  310. 

V.Watson:  2162. 

v.  West  Chicago  St.  R.  Co.:  2012. 

V.Wisconsin  Cent.  R.  Co.:   2342, 

2358. 

Anderton  v.  Shoup:  1736. 
Andirac  v.  Richardson:  2234,  2236. 
Andres  v.  Wells:  1980. 
Andrews  v.  Aetna  Life  Ins.  Co.:  509, 
526. 

V.Clark:  1984,  2529. 

v.  Estes:  1133,  1165,  1170. 

v.  Frierson:  2349. 

V.Himrod:  902,  2406. 

v.  Kneeland:  885,  2403,  2506. 

v.  Morse:  2276,  2278. 

v.Ohio    &    Mississippi    R.    Co.: 
2300. 

v.  O'Reilley:  2163. 

v.Ramsey:      1206,      1227,      1234, 
1589,  1590,  2474. 

v.  Ramsey  &  Co. :  2412. 

v.Robertson:   407. 

v.  Travelers'  Ins.  Co.:   586. 

v.  Worcester,  etc.,  R.  Co. :  237. 

v.  Yazoo,  etc.,  R.  Co.:  1936. 
Andrus  v.  Howard:  1914. 
Angehrn  v.  Federal  Cold  Storage  Co.: 

608. 

Angel  v.  Miller:  442. 
Angle  v.  Hanna:  1577. 


Anglo-American  Land,  Mortgage,  etc., 

Co.  v.  Dyer:  2163. 

Anglo-California  Bank  v.  Cerf:   241, 
788,  1028. 

v.  Mahoney  Min.  Co. :  374. 
Anglo-Continental  Works  v.   Dillon: 

2255. 

Anheny  v.  Young:  433. 
Anheuser-Busch    Brewing    Ass'n    v. 

Murray:  285. 
Ankeny  v.  Young:  462. 
Annabil  v.  Traverse  Land  Co.:  2437. 
Anonymous :  545,  2156. 
Ansley  v.  Green:  2356. 

V.Jordan:  1&57,  1558. 
Ansonia  v.  Cooper:  347,  416. 
Anthony  v.  Eastabrook:  1783. 

v.Phillips:  165. 
Antisdel  v.  Canfield:   2437. 
Antiseptic     Fiber     Package    Co.    v. 

Klein:  1327. 
Antoni  v.  Belknap:  830. 
Antram  v.  Thorndell:   281. 
Antrim   Iron  Co.   v.   Anderson:    234, 

848. 

Anntrobus  v.  Sherman:  2164, 
Appeal  Refused:   135. 
Appel  v.  Eaton:  1867. 

v.  Lipman:  291. 
Applegate  v.  Moffltt:   882. 
Appleton  v.  Binks:  1419. 
Appleton    Bank    v.    McGilvray:    306, 

316,  332,  1288. 

Applicants  for  License,  In  re:  2147. 
April  v.  Pretorius:  1909. 
Arbuckle  v.  Kirkpatrick:  47,  48. 

v.  Templeton:  2297. 
Arbuckle  Bros.  v.  Kirkpatrick:  2499. 
Arbuthnot  v.  Dupas:   1743. 
Archard  v.  Hornor:  1554. 
Archer  v.  Dunn:  2557. 

v.  McMechan:   2566. 

v.  Stone:  2042. 
Archibeque  v.  Miera:  1457. 
Archer's  Case:  1227. 
Arden  v.  Patterson:  2237. 
Ardesco  Oil  Co.  v.  Gilson:  1641. 

v.  North  American  Co. :  1349. 
Area   v.    Milliken:    1298,   2521,   2531, 

2532. 

Arey  v.  Hall:  435. 

Arff  v.  Star  Fire  Ins.  Co.:  317,  1054, 
1841. 


2198 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 


Argenti  v.  Brennan:  2072,  2076. 
Argentine   Mining    Co.    v.    Benedict: 

1217. 
Argensinger   v.    Macnaughten:    1374, 

1411,  1427,  2420,  2506,  2582. 
Argus  Co.  v.  Hotchkiss:  2216. 
Arispe  Mercantile  Co.  v.  Capital  Ins. 

Co.:   1078. 

v.  Queen  Ins.Co.:  1078. 
Arkadelphia  Cumber  Co.  v.  Thornton: 

319. 

Arkansas  City  Bank  v.  Cassidy:  1457. 
Arkansas,  etc.,  R.  Co.  v.  Loughride: 

341,  994. 
Arkansas  Fertilizer  Co.  v.  Banks:  48, 

2499,   2523,  2533,   2537. 
Arkansas    Smelting    Co.    v.    Belden: 

2040,  2067. 
Arkansas  Valley  L.  &  C.  Co.  v.  Mann: 

2529. 

Arkell  v.  Commerce  Ins.  Co.:  1065. 
Arlington  v.  Hinds:  2059,  2063. 

v.  Peirce:   368. 
Arlington  Brewing  Co.  v.  Bluethenal: 

1845. 

Arlington  Hotel  Co.  v.  Lewis:  102. 
Armes  v.  Cameron:  2437. 
Armfield  v.  Nash:  1554,  1559. 
Armil  v.  Chicago,  etc.,  R.  Co.:   1796. 
Armin  v.  Loomis:  2251. 
Armitage  v.  Widoe:  141,  142,' 143,  354, 

358,   370. 

Armour  v.  Brazeau:  1626. 
v.  Gaffey:  1344,  2542. 
v.  Hahn:    1621. 
v.  Michigan  Central  R.  Co.:   759, 

1800. 

v.Ross:  291,  732. 
Armour  &  Co.  v.  Russell:  1618. 
Armour    Pack.    Co.    v.    Vietch-Young 

Produce  Co.:   1410,  1413. 
Armstrong,  In  re:  1321,  2104. 
Armstrong  v.  Advance  Thresher  Co.: 

268. 

V.Ashley:  1803,  1823,  1827. 
v.  Campbell:  1458. 
v.Chicago,  etc.,  R.  Co.:  1046. 
v.  Clarion  Co.:   1611. 
v.  Crump:  1015,  1778. 
v.  Elliott:   922. 
v.  Hurst:    2162. 
v.  Insurance  Co.:  610. 
v.  Lowe:  797,  798,  2428,  2430. 


10  MA 


Armstrong  v.  Maryland  C.  Co.:    230. 

v.  National  Bank  of  Boyertown: 
1321. 

V.Oakley:  39'5,  797,  798,  2430. 

V.  O'Brien:  177,  178,  1590,  2437. 

v.  Smith:  1327,  1339. 

v.  South  London  T.  Co.:  1586. 

v.  Stokes:   1417,  1741,  1742,  1743, 
1744,  1748,  1750. 

V.  St.  Paul:  2499. 

v.  St.  Paul,  etc.,  Co. :  48. 

v.  Tyndal  Quarry  Co.:  603,  988. 

v.  Warin:  2445. 

v.  Western  Mfg'rs.  Inv.  Co. :  1051. 
Armstrong,  Byrd  &  Co.  v.  Crump :  276. 
Arndt  v.  Hosford:  2246. 
Arnett  v.  Glenn:  170. 
Arno  v.  Wayne  Circuit  Judge:  2156. 
Arnold  v.  Adams:  296. 

V.American  Insurance  Co.:  1070. 

V.Arnold:  1601,  1694. 

v.  Clifford:  1611. 

v.  Insurance  Co.:  446,  448. 

V.  National  Bank:    49,  253,  1801, 
1987. 

v.Nye:  2152. 

v.  National    Bank    of    Waupaca: 
2447. 

V.Phillips:  2222. 

V.Richmond  Iron  Works:   138. 

v.  Sprague:    1158. 

v.Spurr:   169,  171,  277,  986. 

v.Stevenson:  636. 

v.  Waupaca  Bank:  760,  762. 
Arnot  v.  Coal  Co.:  113. 
Arnott  v.  Spokane:  419. 
Arrington  v.  Arrington:    1814,   1831, 
2151,  2155,  2176,  2177. 

v.  Sneed:  102. 

Arrott  v.  Brown:  1353  2532. 
Arthur  v.  Balch:  1457. 

v.  Oakes:   642. 

v.  Porter:    563,  2474. 

V.Sylvester:    2484. 
Ash  v.  Century  Lumber  Co.:  1861. 

V.Frank  Co.:   1346,  1348. 

V.  Guie:  187,  1389. 

v.Putnam:    1688. 
Ashby  v.  White:  1498,  1501. 
Ashcraft  v.  Powers:   2162,  2163. 
Asher  v.  Beckner:   2189. 

v.  Sutton:    741. 
Asheville  Supply  Co.  v.  Machin:  995. 


2199 


TABLE   OF   CASES    CITED 


CReferenceM  are  to  section*!  §|  1-1705,  Vol.  I;  §§  1706  2388,  Vol.  II.] 


Ashfield  v.  Case:  1535,  2467. 
Ashley  v.  Baillie:  1803. 

v.  Bird:  772,  774,  802. 

v.Jennings:  1432. 

v.  Schmalinski:   2137. 
Ashmore     v.     Pennsylvania     Steam 

Towing  Co.:   1782. 
Ashmer  v.  Abenheim:  1410. 
Ash  worth  v.  Stanwix:  1615. 
Askew  v.  Silman:  634. 
Askey  v.  Williams:   143. 
Aspdin  v.  Austin:  598,  1554. 
Aspinwall  v.  Torrance:  1405. 
Aspinwall  Mfg.  Co.  v.  Johnson:   48, 

2499. 
Assignment  of  Commercial  Bank,  In 

re:  2245. 

Associate  Alumni   v.   General  'Semi- 
nary: 248. 

Atcheson  v.  Mallon:   93. 
Atchison  &  E.  Bridge  Co.  v.  Miller: 

1644,  1650,  1653. 

Atchison,   etc.,    R.    Co.   v.   Baldwin: 
1046. 

v.  Benton:  1808,  1812,  1831,  2177. 

v.  Brown :  1975. 

y.  Burks:   1784  a"1 

v.  Fronk:   1681. 

v.Henry:   1676,  1934,  1936,  1973. 

v.  Holt:   1625. 

v.  Reecher:  994. 

v.  Reesman:  1676. 

v.  Saddler:  1630. 

v.  Tiedt:   2020. 

V.Watson:  1045,  1047. 
Atchison,  Topeka  R.  Co.  v.  Schroeder: 

1668. 
Atherton  v.  Kansas  City  Coal  Co.: 

1861. 

Atkin  v.  Acton:  607,  609. 
Atkins  v.  Brown:  1125. 

v.  Johnson :   1611. 
Atkinson  v.  Burton:  2523,  2539. 

v.  Heine:  610. 

v.  Manks:   1332. 

v.  Pack:  2034. 

v.Ward:   1335,  1350. 
Atkyns  v.  Amber:  2033,  2034,  2570. 
Atlanta  Buggy  Co.  v.  Hess  Spring  & 

Axle  Co.:  484,  515,  519. 
Atlanta  Cotton  Factory  Co.  v.  Speer: 

1620. 
Atlanta,  etc.,  Ass'n  v.  Bollinger:  347. 


Atlanta,   etc.   R.   Co.   y.   Kimberley: 

1918. 
Atlanta  News  Pub.  Co.  v.  Medlock: 

2224. 

Atlanta  R.  Co.  v.  Kimberly:  1917. 
Atlanta    Savings    Bank   v.   Spencer: 

552. 
Atlanta  Stove  Works  v.   Hamilton: 

593. 
Atlantic   Bank  v.  Merchants'   Bank: 

1847. 

v.  Savery:   1852. 
Atlantic  Coast  Line  R.  Co.  y.  Dexter: 

1046. 

V.Gordon:   2079. 
v.  Partridge:  2573. 
Atlantic  Compress  Co.  v.  Young:  609, 

1229,  1330. 

Atlantic  Cotton  Mills  y.  Indian  Or- 
chard Mills:  1818,  1853.  " 
Atlantic,  etc.,  R.  Co.  v.  Dunn:   2015, 

2016. 

v.  Reisner:   979,  994. 
Atlantic  Glass  Co.  v.  Paulk:  1980. 
Atlantic    Mills    v.     Indian    Orchard 

Mills:    1000,  1002. 
Atlantic   National    Bank   v.    Harris: 

1815. 

Atlas  Mining  Co.  v.  Johnston:  922. 
Atlas   S.   S.   Co.   v.  Columbian  Land 

Co.:   1760. 
Atlee  v.  Bartholomew:  515,  519. 

v.  Fink:   118,  899,  2137,  2141. 
Atterbury  v.  Hopkins:  1592. 

v.  Wallis:    1803. 
Attleboro    Nat.    Bank    v.    Wendell: 

2216. 

Attix  v.  Pelan:  2454. 
Attorney  General  v.  Earl  of  Chester- 
field, 333,  1328. 
v.  Riddle:    2008. 
v.  Sidden:  2008. 
Attrill  v.  Patterson:    563,   565,   1537. 

2435,  2463,  2473. 
Atwater  v.  Lockwood:  2426. 
At  wood  v.  Munnings:    707,  756,  780, 

782,  783,  977,  1001,  1124. 
Atwood  v.  Rose:  294. 
Aubery  v.  Fiske:  2645. 
Auburn  Bank  v.  Leonard:  1160,  1162. 
Audenried  v.  Betteley:  691,  2586. 
Audley  v.  Townsend:   2174. 
Audubon  Bldg.  Co.  v.  Andrews:  1588. 


2200 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  1}  gg  1706-2588,  Vol.  II.] 


Auerbaeh  v.  Internationale  Gesell- 
schaft:  566,  2430,  2435,  2449,  2451, 
2453. 

Auge  v.  Darlington:   441. 
Augerstein  v.  Jones:  1624. 
August,  The:  778. 

Augusta,  etc.,  R.  Co.  v.  Kittel:  368. 
Aukam  v.  Lantzinger:  2148. 
Ault  v.  Nebraska  Tel.  Co.:  1681. 
Aultman  v.  Adams:  1347. 

v.  Falkum:  885. 

v.  Joplin:   1532. 

v.  Lee:  866,  946. 

v.  Loring:   1327,  2290. 

v.Olson:   1984,  1985. 

v.  Ritter:   1533. 

Aultman  Co.  v.  McDonough:  410,  411. 
Aultman    &    Taylor    Co.    v.    Gibert: 

2245. 
Aultman-Taylor   Mach.    Co.    v.    Ride- 

nour:   268,  903. 
Aultman    Threshing    Mach.     Co.     v. 

Knoll:   291,  408,  410,  435,  446. 
Aungst  v.  Creque:   1126,  1158. 
Aurora  Agr.  Society  v.  Paddock:  435. 
Aurora   Fire   &    Marine    Ins.    Co.   v. 

Kranich:   1067. 

Au  Sable  Boom  Co.  v.  Sanborn:  1690. 
Austin  v.  Crawford:   2528. 
Austin's  Case:  2146. 
Austin  v.  Austin:   169. 

v.Davis:   2000. 

v.  Elk  Mercantile  Co. :  982. 

v.Harrington:   2002. 

v.  Hayden:  2389,  2408,  2409. 

v.  Helms:  199. 

V.Holland:    634. 

v.Latham:   2162. 

v.  Ricker:   2557. 

v.  Rupe:   1789. 

v.Thompson:   187. 
Austin,  etc.,  Co.  v.  Heiser:   2297. 
Austrian   v.    Springer:    69,   709,   710, 

739,  861. 
Authors',    etc.,    Ass'n    v.    O'Gorman: 

854,  855,  860. 
Averbeck  v.  Hall:  102. 
Averill  v.  Longfellow:   2276,  2279. 

V.Williams:  963,  2184,  2185,  2222, 

2227,  2228. 
Avery  v.  Dougherty:  1154,  1172. 

v.  Halsey:  1605. 

v.  Creigh:  2002. 


1811  1  .V 

•••••fl  .7 
•'•f  .V 


Avery    v.    Jacob:     2194,    2195,    2248, 

2254,  2255,  2258,  2314. 
v.  Lauve:  973. 
v.  Willson:  1533. 

Avery  Planter  Co.  v.  Murphy:   1324. 
Avikainen  v.  Baltic  Min.  Co.:  1654. 
Aycrigg  v.  New  York,  etc.,   R.   Co.: 

1909. 
Aycock    Bros.    Lumber   Co.    v.    First 

'Nat.  Bank:    1844. 
Ayer  v.  Bell  Mfg.  Co. :  982. 
Ayers  v.  Green  Gold  Min.  Co.:  1852. 
Ayer  &  Lord  Tie  Co.  v.  Young:   291, 

439,  911. 
Ayrault  v.  Chamberlain:   2204. 

v.  Pacific  Bank:  331,  1313,  1314. 
Ayres     v.     Farmers'     &     Merchants' 

Bank:    1321. 
v.  Hubbard:  1782. 
V.Hull:   1515. 
V.Thomas:  1533,  2427,  2463. 

OR  :9[p.9B.  .v  x9l3tysS 
B 

Baars  v.   Hyland:    1533,    2431,   2445, 

2446. 
Baas  Dry  Goods  Co.  v.  Granite  City 

Mfg.  Co.:   2401. 
Babbett  v.  Young:  1150,  1162. 
Babbitt  v.  Bumpus:   2193,  2194,  2246, 

2247. 
Babcock  v.  Appleton  Mfg.  Co.:   1557. 

v.  Beman:    1147,  1155. 

v.  Deford:   858,  859. 

v.  Merritt:   1533. 

v.  Orbison:  1279,  2*504,  2524. 

v.  United  Railways  Co.:  2187. 
Babin  v.  Ensley:  831. 
Babrowsky  v.  Grand  Lodge:  657,  660. 
Bach  v.   Ballard:    2163. 
Bachant  v.  Boston  &  Maine  R.  Co.: 

1779. 

Bacheller  v.   Pinkham:    1873. 
Bacher  v.  Ratkowsky:  2430. 
Bachman  v.  O'Reilly:   2246. 
Bachus  v.  Burke:  2152. 
Backhaus  v.  Buells:  386. 
Backman  v.  Charlestown:   812. 

v.Wright:  1803,  1835. 
Backus  v.  Burke:   2163. 

v.Byron:   2237. 

v.  Cowley:  1216. 
Bacon,  In  re:  673. 


2201 


TABLE   OF    CASES    CITED 


[Reference*  are  to  Hectlons:   g§  1-1705,   Vol.  I;  g§  1700-2588,  Vol.  II.] 


Bacon  v.  Davis:   2430. 

v.  Eccles:   2374,  2375,  2380,  238L 

v.  Frisbie:  2302,  2308. 

v.Johnson:  285,  435. 

v.  Markley,  2136. 

v.  Mitchell,  2152,  2156,  2162. 

v.  Pomeroy:  940. 

v.Rupert:  1169,  1183,  1410. 

v.  Sondley:  1410. 

Baddeley  v.  Granville:  1668,  1674. 
Badger  v.  Celler:  2249. 

v.  Cook:   1803,  1809. 

V.Gallagher:   2234. 

v.Mayer:   1552,  2249. 

v.Williams:   110. 

Badger  Brass  Mfg.  Co.  v.  Daly:  2133. 
Badger   Lumber    Co.    v.    Ballentine: 

904,  990. 
Badger  Silver  Mining  Co.  v.  Drake: 

1093,  1734. 

Badgett  v.  Frick:  903. 
Badgley  v.  Beale:  90. 
Badkin  v.  Powell:  507. 
Baehr  v.  Clark:  848,  2110,  2112. 
Baer  v.  Boynge:  1405. 

v.Terry:  169. 

Bagshame  v.  Rowland:  2447. 
Baier  v.  Selke:  1640. 
Bailey  v.   Bensley:    716,   1268,   2394, 
2502. 

V'~USSi?g~    o°An 
V.Carnduff.  2480. 

v.  Chapman:   2447. 

v.  Galbraiths:  2364,  2418. 

v.  Garrison:  2236. 

v.  Hudson  River  R.  Co. :  2563. 

v.  Macaulay:  187,  190. 

v.  Mayor:  1501. 

v.  Mclntire:  1556. 

v.  Murphy:    2283. 

v.  Pardridge:  446,  447,  865. 

v.  Phillips:  2478. 

v.  Rowe:    2447. 

v.  Shaw:  1693. 

v.  Sibley  Quarry  Co. :  1229. 

v.  Smith:  2437. 

v.  Sundberg:   2141. 

v.Troy  &  Boston,   etc.,  R.   Co.: 

1917. 

v.Wiggins:   1494. 

Bailie    v.    Augusta    Savings    Bank: 
1314. 


Baily  v.  Burgess:   1602. 

v.  Carnduff:  1537. 

Bain  v.  Athens  Foundry,  etc.,  Works: 
1645. 

v.  Brown:   179,  1198,  1226. 

v.  Clarke:   2545. 
Baines  v.  Burbridge:  441. 

v.  Ewing:     708,    756,    761,    1086, 

1801. 
Baird  v.  Loescher:   227. 

v.  Petit:    1657. 

v.Randall:  954. 

v.  Ratcliff :  2258,  2314. 

V.Ryan:  1205. 

v.  Shipman:    1474. 

v.Walker:   1339,  1346,  2549. 
Barthell  v.  Peter:  2447. 
Baker  v.  Alleghany,  etc.,  R.  R.  Co.: 
1619. 

v.  Appleton  &  Co. :  603. 

v.  Baird:  779. 

v.  Barker:  2425. 

v.  Berry  Hill,  etc.,  Co.:  1815. 

v.  Bliss:  1828. 

v.  Brake:   2387. 

v.  Byerly:    803. 

v.  Carter:    163. 

v.  Chambles:   1148,  1172. 

v.  Commercial  Union  Assur.  Co.: 
1055. 

v.  Cook:   2276. 

v.  Cotter:   268. 

v.Davis:    1455. 

V.Drake:    2386,  2394,  2414,  2415, 
2494,   2529. 

v.  First  Nat.  Bank:   2290. 

v.  Freeman :  212,  215. 

v.  Fuller:  2562,  2563,  2566. 

v.  Gerrish:  285. 

v.  Gillan:   2434. 

V.Gregory:   1153,  1162. 

v.Hughes:  1676. 

V.Humphrey:    2190,    2289,    2290. 

v.  Insurance  Co.:  411. 

V.Joseph:   1346. 

v.  Kirk:  1493. 

v.  Metropolitan  St.  R.  Co.:   1866. 

v.Morris:    156. 

v.  Murphy:  1536. 

v.  New    York    Nat.    Bank:    1350, 
2091,  2096,  2576. 

v.  Secor:   2222. 


22O2 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.J 


Baker  v.  St.  Louis,  etc.,  R.  Co.:  1798. 

v.  State:   1500. 

v.  Temple:   1783. 

v.  Union  Mut.  L.  Ins.  Co.:   1993. 

v.  Wainwright:    1601,  2434. 

v.  Wasson:    1456. 

v.  Whiting:  1192,  1194,  1195. 

v.  Willard:  186. 

v.  Witten:   162,  994. 
Balch  v.  Byrnes:   2267,  2273. 
Balderson   v.   Rubber   Co.:    48,   2499, 

2534,  2554. 
Balding  v.  Andrews:  1794,  1795,  1796, 

1798. 

Baldwin   v.    Alabama,    etc.,   R.   Co.: 
1909. 

v.  Bank:  323,  1159. 

v.  Bank   of  Louisiana:    316,    332, 
1313. 

v.  Bank  of  Newbury:   1156,  1162, 
2030,  2065. 

v.  Bartlett:    2256. 

V.Bennett:  2244. 

v.  Burrows:    395,    412,    436,    437, 
443,  484. 

v.  Casella:   1804. 

v.Cole:  1457. 

v.  Connecticut  Mutual  L.  Ins.  Co.: 
1055,  1076. 

v.  Doying:  2003. 

v.  Feder:   48,  2499. 

v.  Garrett,  715,  982,  1731. 

v.  Howell:  463. 

V.Leonard:  369,  1410,  1413,  2582. 

v.Merrill:  2183. 

v.  Mills:   2245. 

v.  Potter:  1327,  1332,  2544. 

v.  Schiappacasse :  477,  519. 

V.  St.  Louis,  etc.,  R.  Co. :  1630. 

v.  St.  Louis,  K.  &  N.  W.  R.  Co.: 
1803,  1804. 

v.  Travis  Co. :  359. 

v.  Tucker:  752,  865,  866,  946. 
Baldwin  Fertilizer  Co.  v.  Thompson: 

439,  739,  742. 
Balfe  v.  West:  1258. 
Balfour  &  Garrette,  In  re:  426. 
Balkema   v.    Searle:    797,    798,    2397, 

2430. 
Ball  v.  Bank  of  Alabama:  1782,  2163. 

v.  Bender:  995. 

v.Clark:   2386. 

v.  Dolan:   2437,  2440. 


Ball  v.  Dunsterville:  208,  216. 

v.  Freund:   859. 

Ballard  v.  Burgett:  2110,  2119. 
v.  Lee:    1870. 
v.Louisville,   etc.,   R.   Co.:    1948, 

1950. 

V.Lyons:    1987. 
v.Nye:   262,  405,  496. 
v.  Travelers'  Ins.  Co. :   557. 
Ballentine  v.  Mercer:  2426. 
Ballis  v.  Easton:   2251. 
Balloch  v.  Hooper:  386,  1192. 
Ballou     v.     Bergvendsen:     797,     79'8, 

2430. 

v.  Carter:    225,  798. 
v.  Talbot:   1124,  1395,  1398. 
Ballston  Spa  Bank  v.  Marine  Bank: 

374,  1146. 

Balsbaugh  v.  Frazer:    2252,  2269. 
Baltimore  &  Ohio  Employees'  Relief 

Ass'n  v.  Post:  37,  285. 
Baltimore  &  Ohio  R.   Co.  v.  Baugh: 

1644. 

v.  Brown:  2286. 
v.Campbell:   1779. 
v.  Canton  Co.:    1852. 
V.Jameson:  1594. 
Baltimore   &   Ohio    S.   W.   R.   Co.   v. 

Cleft:   285. 
Baltimore   Base    Ball   Club    v.    Pick- 

ett:  1557. 

Baltimore  B.  &  S.  Co.  v.  Jamar:  1626. 
Baltimore,  etc.,  Ass'n  v.  Post:  1782. 
Baltimore,  etc.,  R.  Co.  v.  Barger: 

1934,  1935. 

v.  Baugh:  1652,  1653,  1644. 
V.Christie:   1783! 
v.  Deck:   1973. 
v.  Ennalls":  1973. 
v.  Fitzpatrick:    2182. 
v.  Rambo:  1984. 
v.  State:  1661. 
v.  Twilley:    1937,  1973. 
v.Wilkens:  760,  1801. 
Baltimore,    etc.,    Turnpike    Road    v. 

Boone:  2016. 
Baltimore    Marine    Ins.    Co.    v.    Dal- 

rymple:   2386. 

Baltimore  Relief  Ass'n  v.  Post:   285. 
Baltimore  Turnpike,  Case  of:   199. 
Baltzell  v.  Nosier:   2157. 
Baltzen  v.  Nicolay:   1395,  1397,  1401, 
1410. 


2203 


TABLE   OF    CASES    CITED 


are  to  MortioiiN:  §§  1-170.%  Vol.  I;  g§  17OO-2588,  Vol.  II.] 


Bamber  v.  Savage:  2320. 

Bamberg    v.    International    R.    Co.: 

1867,  1869. 

Bamford  v.  Shuttleworth :  1438,  144'5. 
Bancroft  v.  Scribner:  307. 
Bang  v.  Farmville  Ins.  Co.:  2036. 
Bangor  Boom  Corp.  v.  Whiting:   368. 
Bangor  Electric  L.  &  P.  Co.  v.  Rob- 
inson: 2111. 
Bangor,    etc.,    R.    Co.    v.    American 

Slate  Co.:  1808. 
Bangs  v.  Hornick:  1270. 

v.  Mclntosh:   125. 
Banister  v.  Wallace:  1038. 
Bank  v.  Bininger:  1333. 

v.  Burke:   2546. 

V.Butler:   331,  1313,  1314, 

V.Campbell:   1808. 

v.  Conrey:   532. 

v.  Cook:  1139. 

v.Craig:    1831. 

V.Davis:  407. 

v.  Earp:    1314. 

v.Eaton:   1138. 

v.  Finnell:   226. 

v.  Hanks:   115. 

V.Johnson:    1003. 

v.Jones:  1694. 

V.Kennedy:    1789. 

v.  Levy:  2484. 

v.  Macalester:  1349. 

v.McWillie:  977. 

v.  Mersereau :  2303,  2304. 

v.  Penland:    1844. 

v.  Pope:  2509. 

v.  Prater:   1350. 

v.  Reed:   718. 

v.  Sneed:  4134. 

v.  Sturgis:  2566.      ^ 

v.  Tyrrell:    1206. 

v.  Vanderhorst:   1567. 
Bank  v.  Wheeler:   1146. 
Bank    of   Augusta   v.    Conrey:    447, 

2174. 
Bank  of  Batavia  v.  New  York,  etc., 

R.  Co.:    759,  1027,  1800,  1801. 
Bank  of  Batesville  v.  Maxey:   399. 
Bank  of  Beloit  v.  Beale:  447. 
Bank   of   British   N.   A.   v.   Hooper: 

1161. 

Bank  of  California  v.  Western  Union 
TeL  Co.:   1868,  1984. 


Bank    of     Columbia    v.     Patterson's 

Adm'rs:  1101. 

Bank  of  Commerce  v.  Cohen:  1124. 
v.  Hoeber:    1814,   2175. 
v.  Miller:  496,  716. 
V.  Union   Bank:    1435. 
Bank  of  Deer  Lodge  v.  Hope  Mining 

Co.:    263,  970,  977. 
Bank  of  England  v.  Cutler:   1365. 
Bank  of  Evansville  v.  Bank  of  Louis- 
ville: 1314. 
Bank  of  Florence  v.  United  States  S. 

&  L.  Co.:   1350. 
Bank  of  Genesee  v.   Patchin   Bank: 

1146,  1155,  1162,  1422. 
Bank  of  Glade   Spring   v.   McEwen: 

2162,  2163. 

Bank  of  Hamburg  v.  Johnson:  783. 
Bank  of  Indiana  v.  Bugbee:  918,  925. 
Bank   of  Kentucky   v.   Express   Co.: 

946. 

v.  Schuykill  Bank:   749. 
Bank    of   Lakin    v.    National    Bank: 

442,  1030. 

Bank  of  Lindsborg  v.  Ober:  1313. 
Bank  of  Louisiana  v.  Wilson:  2174. 
Bank    of    Louisville    v.    First    Nat. 

Bank:   331,  1314. 

Bank  of  Manchester  v.  Slason:   2065. 
Bank  of  Mobile  v.  Huggins:  1303. 

v.King:   977. 
Bank     of     Monongahela    Valley     v. 

Weston:   1800. 

Bank  of  Morganton  v.  Hay:  969,  970. 
Bank  of  New  South  Wales  v.  Owston : 

340,  1010. 

Bank  of  N.  Y.  v.  American  Dock  & 
Trust  Co.:  753,  754,  760, 
1801. 

v.  Bank  of  Ohio:  1146,  2065. 
v.  Vanderhorst:   669. 
Bank  of  North  America  v.  Hooper: 

1138. 

Bank  of  Odessa  v.  Jennings:   2059. 
Bank  of  Orleans  v.  Smith:  1314. 
Bank  of  Overton  v.  Thompson:  1815, 

1820. 
Bank  of  Owensboro  v.  Western  Bank: 

395,  496,  497. 
Bank  of  Palo  Alto  v.  Pacific  Postal 

TeL  Cable  Co.:   1941,  1990. 
Bank  of  Pittsburgh  v.  Neal:  978. 


2204 


TABLE   OF    CASES    CITED 


[References  are  to  secUons:   §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 


Bank    of    Pittsburg    v.    Whitehead: 

1848,  1851,  1852. 

Bank  of  Ravenna  v.  Dobbins:   169. 
Bank  of  Rochester  v.  Jones:  2562. 

v.  Monteath:    1162. 
Bank  of  Scotland  v.  Dominion  Bank: 

954. 

Banks  v.  Southern  Express  Go.:  1872. 
Bank  of  Ukiah  v.  Mohr:  970. 
Bank   of   United   States   v.    Bank   of 
Washington:    1437. 

v.  Beirne:  974. 

v.Davis:     196,    197,    1783,    1808, 
1840,  1848,  1850. 

v.  Layman:    2065. 
Bank  of  Utica  v.  Magher:   1155. 

v.  Mersereau:  2297,  2302. 
Bank  of  Washington  v.  Peirson:  663. 

v.  Triplet* :  1307. 
Bankers'   Life    Ins.   Co.   v.   Robbins: 

1071. 

Bankhead  v.  Owen:   2364. 
Banks  v.  Evans:    2163,  2185. 

V.Everest:   710,  855,  861. 

V.Flint:   301. 

v.  Judah:   1198. 

v.  Rice:   1350. 

v.  Sharp:   1102. 

v.  Southern     Express     Co.:     317, 

338. 

Bannatyne  v.  Maclver:  1030,  1600. 
Banner  Tobacco  Co.  v.  Jenison:   132, 

185,  982. 

Banning  v.  Bleakley:  2543. 
Banningan  v.  Woodbury:  1474. 
Bannon  v.  Bannon  Sewer  Pipe  Co.: 
2311,  2312. 

v.  C.  Aultmann  &  Co. :  903,  905. 

v.Warfield:  395,  1295,  1296. 
Banorgee  v.  Hovey:   212. 
Banse  v.  Tate:  1578. 
Banta  v.  City  of  Chicago:  2362  . 
Bantz  v.  Adams:   938,  941. 
Barabasz  v.  Kabat:   1953,  1974. 
Barbar  v.  Martin:  1226. 
Barber  v.   Dewes:    2184. 

v.  Ellingwood :   2415. 

v.  Hildebrand :   2470. 

v.  Miller:    2428. 

Barber  Asphalt  Paving  Co.  V.   Bots- 
ford:   86,  94,  95. 


Barbour  v.  Sproul:   2389. 

v.  Sykes:    975. 
Barclay  v.  Puget  Sound  Lumber  Co.: 

1624. 

Barcus  v.  Gates:  2169,  2235. 
Bard  v.  Banigan:  1517. 
v.  Stewart:  2566. 
v.  Yohn:  1898,  1912,  1914,  1959. 
Barden  v.  Felch:  1892,  1952,  1977. 
Bare  v.  Crane  Creek  Coal  Co.:  1666, 

1670. 

Barfield  v.  McCombs:  2170. 
Barger  v.  Miller:  828. 

v.Taylor:    2003. 
Barham  &  Owens  v.  Bell:  1417,  2059, 

2063. 
Barhydt  v.  Clark:  410. 

v.  Shepherd:   1495,  1498. 
Baring  v.  Corrie:  74,  2075,  2079,  2400, 

2405. 

v.  Peirce:   742. 
Barkeloo  v.  Randall:    1494. 
Barker  v.  Barker:  1350,  2237. 
v.  Braham:   507,  2221. 
V.Cairo:   2230. 
v.  Dinsmore:    2107,  2110. 
v.  Furlong:   1457,  2345. 
v.  Garvey:  2063. 
v.  Hibbard:   143. 
v.Keown:  2071. 
v.  Mechanic's  Fire  Ins.  Co. 

1155. 

v.  Ring:    1013. 
v.  St.    Louis,   etc.,   R.    Co. : 

1798. 

v.  St.  Quintin:   2275. 
v.  Troy,  etc.,  R.  R.  Co. 
Barkley,  In  re:  2257. 
Barkley  v.  Holt:  954. 
v.  Olcutt:  557. 
v.  Railroad  Co. :    2255. 
v.  Rensselaer,  etc.,  Co.:  628. 
v.  Wolfskehl:   2023,  2034. 
Barkley  Cemetery  Ass'n  v.  McCune: 

2152,  2154. 
Barksdale  v.  Brown:    318,  716,   1268, 

2504,  2530. 
Barlow    v.    Congregational    Society: 

1124,  1130,   1141,  1144. 
Barmore  v.  Vicksburg,   etc.,  R.   Co.: 
1905,   19v6,  1949,  1950. 

,       :      ' 


1139, 
emcfl 


1796, 


1596. 


TABLE   OF    CASES    CITED 


[Reference*   are  to  *eetloii«i:  §§  1-1705,  Vol.  I;  gg   17OC-25SS,  Vol.  II.] 


Barnabee  v.  Holmes:  2287. 
Barnhard  v.  Backhaus:  111,  112. 
Barnard    v.    Campbell:     2107,    2115, 
2117,  2124. 

v.  Coffin,  333,  1288,  2410,  2550. 

v.Duncan:   2356. 

v.  Kellogg:    1269. 

v.  Kobbe:  2545. 

v.  Jewett:  1194. 

v.  Monnot:   2430. 

v.  National  Fire  Ins.  Co.:  1067. 
Barnes  v.  Ackroyd:   2007. 

v.German  Savings  Society:    798, 
2430,  2431. 

V.Harris:    2310. 

v.  Insurance  Co. :  2033. 

v.  McCarthy:   2291. 

v.  McClinton:   1803. 

v.  Shoemaker:  2041. 

v.  Smith:  112,  1602,  2481. 

v.  Bunn:   2302. 

v.  Taylor:    2276. 

v.Trenton  Gas  L.  Co.:   1818. 
Barnes    Safe    &   Lock    Co.    v.    Bloch 
Bros.  Tobacco  Co.:    48,  1685,   2499, 
2561. 
Barnett  v.  Daw:  407,  1222. 

v.  Warren:  2566. 
Barngrover  v.  Pettigrew:    110,   2236, 

2237,  2241. 

Barney  v.  Newcomb:  2030,  2065. 
Barns  v.  Barrow:   2068. 
Barnsdall  v.   O'Day:    449. 
Barr  v.  American   Copying  Co.:    48, 
2499. 

v.  Craven:  113. 

v.  Hall:   1590. 

v.  Lapsley:    251,   252. 

v.  Rader:   2163. 

v.  Schroeder:  64,  563,  586. 
Barrell  v.  Newby:  1758,  1759,  1903. 
Barret  v.  Rehm:    308. 
Barrett  v.  Ball:  2296. 

v.  Bemelmans:   2072,  2076. 

v.  Irvine:    263. 

V.Johnson:   2427. 

V.King:   2064,  2107. 

v.  Third  Ave.  R.  Co.:  2162. 

v.  Towne:    2314. 
Barrlnger  v.  Stoltz:  2474,  2477. 
Barroll  v.  Forman:  1329. 
Barren  v.  Tucker:  102. 


Barrow  v.  Dyster:  2419. 
Barrows  v.  Cushway:   641,  2535. 
Barry  v.  Adams:   898. 

v.  Boniger:  1696,  2362,  2483,  2486. 

v.  Capen:  96. 

v.  Kirkland:   361. 

v.  Page:   1417,  2474,  2475. 

v.  Pike:  1405. 

v.  Schmidt:   2412,  2413,  2475. 

v.  Third  Ave.  R.  Co.:   2246,  2281. 

v.  Union  R.  Co.:  1936. 
Barry   Lumber   Co.   v.   Citizens'    Ins. 

Co.:   1074. 
Barstow  v.  Gray:  601. 

v.  Savage  Min.  Co.:   2111. 

v.  Stone:  945. 
Barteau  v.  West:  823. 
Bartel  v.  Brown:   281,  937,  940. 
Barteldes    Seed    Co.   v.    Border,    etc., 

Co.:   48,  2499. 

Bartels  v.  Kinnenger:   1340. 
Bartelson  v.   Vanderhoff:    496,   1222, 

2411. 

Barthell  v.  Chicago,  M.  &  St.  P.  R. 
Co.:    2276,  2281,  2283. 

v.  Peter:  2340,  2447. 
Bartholomew  v.  Jackson:  1516. 

v.  Leech:  1216,  1225. 
Bartlett  v.  Board  of  Education:  2119. 

v.  Bunn:    2302. 

v.Collins:     111,    112,    121,    1602, 
2481. 

v.  Farrington :    1595. 

v.  First     National     Bank:      749, 
1984. 

v.  Grand  Rapids  St.  R.  Co.:  1522. 

V.Hamilton:  1335. 

v.  Haw  ley:  1157,  1161. 

v.  Odd  Fellows  Sav.  Bank:   2235. 

v.  Pickersgill:   1194. 

v.  Raymond :    1410. 

v.  Smith:   1270,  2481. 

v.  Sparkman:   1262,  1263. 

v.  Street  R.  Co. :   1522. 

v.  Tucker:  361,  1124,  1395. 
Bartleson    v.    Vanderhoff:    296,    405, 

1239. 

Bartley  v.  Rhodes:  263,  290. 
Barto  v.  Iowa  Telephone  Co.:  1618. 
Barton  v.  Gray:  212. 

v.  Moss:   1216. 
Barton  Bros.  v.  Hunter:  2162. 


22OO 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.   I;  §§   1706-2688,  Vol.  II.] 


Bartonshill  Coal   Co.   v.   Reid:    1643, 

1644. 

Bartow  v.  Parsons  Pulp  Co.:   2463. 
Bartram  v.   Lloyd:    1220,   1590,   1728, 

2474. 

Barwick     v.     English     Joint     Stock 
Bank:   1984,  1987,  1990,  1995,  1996. 
Barziza  v.  Story:  1192. 
Bash  v.  Culver  Min.  Co.:  193. 

v.  Hill:   2447. 

Basilea  v.  Spagnuolo:   148. 
Baskerville    v.    Gaar,    Scott    &    Co.: 

2463. 

Basket  v.  Moss:  103. 
Bass  v.  Chicago  &  N.  W.  R.  Co.:  475. 

V.Chicago,    etc.,    R.    Co.:     1799, 
2015. 

V.Jacobs:  2435. 
Bass  Dry  Goods  Co.  v.  Granite  City 

Mfg.  Co.:  789,  854,  2395. 
Bass  Furnace  Co.  v.  Glasscock:   610. 
Basset  v.  Lederer:   867,  868,  2405. 
Bassett  v.  Brown:   1222. 

v.  French:  1556,  1558. 

v.  Fish:   1501. 

y.  Kinney:   1341. 

v.  Lederer:  867. 

v.Perkins:  1169,  2419,  2420. 
Bast  v.  Byrne:  1581. 

v.  Hill:    2433. 
Basten  v.  Carew:  1494. 
Baster   v.   London   Printing   Works: 

611. 
Basye  v.  Ambrose:   1586. 

v.  State:   2305,  2308. 
Batchelder  v.  Emery:   1783. 

v.  Libbey:   1410,  1414. 

v.  Standard  Elevator  Co.:   611. 
Bate  v.  McDowell:  2417. 
Bateman,  Matter  of:  1424,  1713,  1733. 
Bateman  v.  Phillips:   2055. 
Bates  v.  American  Mtg.  Co.:  184,  301, 
332. 

v.  Ball:  137. 

v.  Copeland:    2412,   2474. 

v.  Desenberg:   2235. 

v.  First  Nat.  Bank:  2099. 

v.  Holladay:   169. 

v.  Homer:    1503. 

v.Johnson:   1814,  2175. 

v.  Pilling:   2221. 

v.  Stansell:    2529. 

v.  Stanton:   1331. 


Bateson  v.  Hortsink:   2300. 
Bath  v.  Caton:   1463. 
Bathgate  v.  Haskin:   2253,  2262. 
Bathrick  v.  Coffin:   2450. 
Battelle  v.  Gushing:   1223,  1258. 

v.  Northwestern,      etc.,      Paving 

Co.:    382. 

Batterson  v.  Osborne:    2207. 
Battey  v.  Lunt:    2059. 
Batty  v.   Carswell:   977. 

v.  Fout:    2212. 

Baubie  v.  Aetna  Ins.  Co.:   1055. 
Baudouine  v.  Grimes:   263,  628,  1026 
Bauer  v.  Goldman:   596,  602,  603. 
Bauerman  v.  Radenius:  2045,  2570. 
Baugh  v.  Kirkpatrick:   2345,  2566. 
Baulec  v.  N.  Y.,  etc.,  R.  R.  Co.:  1632. 
Baum,  In  re:  2146. 
Baum    v.    Birchall:    148. 

v.  Dubois:  1086. 
Bauman  v.  Eschallier:   2185. 

v.  McManus:    861. 

Baumann  v.  Manistee  Salt  Co.:  1162. 
Baumeister  v.  Markham:  1918. 
Baumgartl  v.  Hoyne:   2435. 
Bawden  v.  London,  etc.,  Ass'n   Co.: 

1804. 

Baxendale  v.  Bennett:  1986. 
Baxter,  In  re:  2288. 
Baxter  v.  Buck:    2003. 

v.Chicago,  etc.,  R.  Co.:   1889. 

v.  Duren:    2364,  2419,  2488. 

v.Jones:   1258,  1283,  1298. 

v.  Lament:    707,  742,   2397. 

v.  Maxwell:    169. 

v.  McDonnell:    55. 

V.Roberts:   1604,  1625. 

•v.  Sherman:   867,  868,  2077,  2079, 
2393,  2394,  2502,  2512. 

v.  Waite:    2547. 
Bay  v.  Trusdell:   2163. 
Bay  State  Gas  Co.  v.  Lawson:    2417. 
Bayard  v.  McLane:   2237. 
Bayer  v.  Blease:  2163. 
Bay  ley  v.  Bryant:  476. 

v.  Onondaga    Co.    Mut.    Ins.   Co. : 
2055,  2059,  2063. 

v.  Wilkins,  715,  716,  1601,  2480. 
Bayliffe  v.   Butterworth:    1607,  2394, 

2403,  2502. 

Baylis  v.  Bishop  of  London:  1432. 
Bayliss  v.  Pearson:   1148. 
Bayne  v.  Stephens:  1341. 


2207 


TABLE   OP    CASES    CITED 


[Reference*   ar«  io  sections:   88  1-1705,   Vol.   I;  §g  170(1  2588,  Vol.  H.] 


Bazemore  v.  Mountain:   169. 
Beach   v.   Branch:    1601,    1603,    2480, 
2658. 

v.  Mullin:   603,  1548,  1576. 

v.  Travelers'  Ins.  Co.:  1276. 
Beacon   Trust  Co.   v.    Sduther:    407, 

1853. 
Beadle   v.   Sage   Land   &   Imp.    Co.: 

2438. 
Beadles  v.  Hartmus:   2527. 

v.  McElrath:   112. 

Beagles  v.  Robertson:  446,  500,  2187. 
Beahler  v.  Clark:   2434. 
Beakley  v.  Rainier:  2498,  2559. 
Beal  v.  Adams  Express  Co.:  996,  997. 

v.  Chase:   1854. 

v.  McKiernan:  1205. 

v.  Polhemus:   98. 
Beale  v.  Barnett:   1327. 

v.  Bond:  1533,  2428. 

v.  Swasey:    2161. 
Beall  v.  January:  489. 
Beals  v.  Allen:   742. 

v.  See:  134. 
Bean  v.  Bennett:   802. 

v.Howe:    69. 

v.  Pioneer  Min  Co.:  1125,  1153. 
Beane  v.  State:   2008. 
Bear  v.  Koch:  1526. 
Beard  v.  Kirk:  628. 

V.London  Omnibus   Co.:    1858. 
Beardslee  v.  Richardson:  1281. 
Beardsley  v.  Davis:   1298,  2531. 

v.  Pope:    2162. 

v.Root:  2185. 

v.  Schmidt:      2035,     2037,     2497, 

2498. 

Beatie  v.  Butler:   659. 
Beattie  v.  Beattie:  1344. 

v.  Lord  Ebury:   1367,  1407. 
Beatty  v.  Bulger:  1207. 

V.Hamilton:   2163. 

v.  Ireland:   809. 

v.Russell:   1614,  1533,  2425. 
Beaubien  v.  Poupard:  1192. 
Beaucage  v.  Mercer:  317,  3*7,  1043. 

V.Winnipeg  Stone  Co.:   611. 
Beauchamp  v.  Higgins:  2438,  2439. 
Beaufort  v.  Neeld:   1723. 
Beaulieu  v.  Finglam:  1865. 

v.Portland  Co.:    1654. 
Beavan  v.  McDonnell:    134. 
Becher,  In  re:  2245. 


Becherer  v.  Asher:  1768. 
Bechtel  v.  Sheafer:  1333. 
Beck  v.  Avondino:  1832,  2177. 

v.  Bellamy:   2161,  2162. 

v.Donahue:  895. 

V.Thompson:    1554. 

v.  West:    1552. 
Beckam  v.  Drake:  1119. 
Becker  v.  Clardy:  849,  861. 

v.  Donalson:  285. 

v.  Dupree:   2015. 

Beckham   v.    Drake:    132,    185,   1559, 
2061. 

v.  Nacke:   2007. 

Beckhuson  v.  Hamblet:   2400,  2494. 
Beckwith  v.  Benner:   2307. 

v.Butler:   134. 

v.  Sibley:  1692,  2554. 
Bedall  v.  Scarlett:  1158. 
Bedell  v.  Janney:  1327,  1337,  1339, 

1341..b'»8aB 

Bedford  v.  Kelly:  2032.''    : 
Bedford    Belt   R.    Co.    v.   McDonald: 

994. 
Bedford    Coal   Co.    v.    Parke   County 

Coal  Co.:   1202. 

Bedford  Quarries  Co.  v.  Bough:  1679. 
Beebe  v.  De  Baun:  252. 

v.  Equitable     Mut     Life     Ass'n: 
395,  982. 

v.Knapp:    276. 
;aih(V.Mead:    2560. 

v.  Ohio  Formers'  Ins.  Co. :   1065, 
1068,  1069. 

v.  Young:    276. 

Beebe  Stave  Co.  v.  Austin:  2572. 
Beecher  v.  Bush:  51. 

v.  Hohl:   2290. 

v.  Peru  Trust  Co. :  2479. 

v.Venn:  983. 
Beede  v.  Lamprey:    2529. 
Beekman    Lumber    Co.    v.    Kittrell: 

291. 

Beere  v.  Northern  Bank:   2123. 
Beers  v.  Hendrickson:  2183. 

v.  Prouty  Co.:  1632. 

v.Spooner:  1447. 
Beesley  v.  Wheeler:  1621. 
Beeson  v.  Green  Mountain  Co.:  1640, 

1644,  1654. 

Beeston  v.  Colly er:   602,  605. 
Beghold  v.  Auto  Body  Co.:  1619,  1625. 
Begly  v.  Weddigen:  2238. 


2208 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§  1-1705,  Vol.  I;  g§  1766-2588,  Vol.  II.] 


Behm  v.  Armour:   1624. 

Behre  v.  National  Cash  Register  Co.: 

1981. 

Behrens  v.  McKenzie:  134. 
Behrns  v.  Rogers:  956. 
Beidleman  v.  Kelly:  1410. 
Beidman  v.  Goodell  411,  412,  447. 
Beilke  v.  Carroll:  1940. 
Beique  v.  Hosmer:  1621. 
Beissel  v.  Vermillion  Farmers'  Ele- 
vator Co.:   593,  1573. 
Belcher  v.  Manchester,  etc.,  Associa- 
tion:   295. 

Belden  v.  Hurlbut:  214. 
Belding  v.  Smythe:  2237,  2239. 
Belfield  v.  National  Supply  Co.:  2077. 
Belger  v.  Dinsmore:  1046. 
Beliveau  v.  Amoskeag  Co.:  143,  2163. 
Belknap  v.  Davis:    1028. 

v.  Reinhart:    1113. 
Belo  v.  Tuller:  1783. 
Bell  v.  Bell:   1226. 

v.  Cafferty:   2364. 

v.Cunningham:     395,    412,    459, 
496,  1291. 

v.  Day:  2003. 

v.  Farwell:    2151,    2154,    2155. 

v.  Josselyn:    1465,  1477. 

v.  Kaiser:   2430,  2435,  2447. 

v.  McConnell:      177,     178,     1590, 
1592,  2412,  2474. 

v.  McJones:   170. 

v.  McKinney:  1494. 

v.  Offutt:  710,  2397. 

v.  Palmer:   2525. 

v.  Pierce:   1498. 

v.  Rocheford:   1652. 

v.  Rokeby:   2458. 

v.  Staacke:    2301. 

v.  State:   285. 

v.  Stedman:  2447. 

v.Teague:  1170,  1181,  1424. 

v.  Tilden:  2023,  2034. 

v.  Western,  etc.,  R.  R.  Co.:  1615, 

1624. 

Bellas  v.  Hays:   420,  1099,  1102. 
Bellamy  v.  Ames  Co.:   1871. 
Belief ontaine  R.  Co.  v.  Hunter:  1798. 
Bellemire  v.  Bank  of  United  States: 

1313,    1314. 
Seller  v.  Block:  2035,  2326. 

v.  Levy:    1868. 
Bellevue  Borough  v.  Hallett,  553. 


Bellinger  v.  Collins:   322,  499. 

Bell's  Gap  R.  Co.  v.  Christy:  193,  382. 

Belmont  Branch  Bank  v.  Hoge:  2111. 

Belmont's  Ex'r  v.  Talbot:  886. 

Belt  v.  Washington  Water-Power  Co.: 

1731,  1732,  1733,  1750. 
Belt  R.  Co.  v.  Banicki:  1979. 
Belton  Compress  Co.  v.  Belton  Brick 

Mfg.  Co.:  894. 
Beltzhoover     v.     Blackstock:      2297, 

2302. 

Bement  v.  Armstrong:  463,  480. 
Bemis  v.  Place:  1195. 

v.Plato:  1210. 
Benan  v.  Cullen:  1351. 
Benden  v.  Manning:  1258,  1282. 
Bender  v.  Ragan:  291. 
Benedict  v.  Arnoux:  1815,  1826. 

v.  Dakin:   2435. 

v.  Inland  Grain  Co.:    2523,  2539. 

v.  Pell:    2426. 

v.  Pincus:    2472. 

v.  Smith:   2163. 

v.  State:   2310. 

v.Wilhorte:    2163. 

v.Wilson:   1419. 

Benesch  v.  Insurance  Co.:  980,  988. 
Benham  v.  Emery:  1093,  1734. 

v.  Smith:   1126. 

Benjamin  v.  Benjamin:  161,  167,  789. 
989,  2276. 

v.  Coventry:   2311. 

v.  Public  Service  Corp.:   1522. 

v.  Zell:  233. 

Bennecke  v.  Insurance  Co.:  395. 
Benner  v.  Fire  Ass'n  of  Philadelphia: 

1055,  1056. 

Bennett,  Ex  parte:  1202. 
Bennett  v.  Austin:  1192. 

v.  Bayes:  1455,  1462,  1485. 

v.  City  Ins.  Co.:   2368. 

v.  Council  Bluffs  Ins.  Co.:  1067. 

v.  Covington:    2480. 

v.Davis:   141,  143. 

v.Gillette:  156. 

V.Johnson:   2084. 

v.  Judson:   411,  809,  1985,  1993. 

v.  Kupfer:   1597. 

v.  Lathrop:  188. 

v.  Millville  Imp.  Co.:  368. 

v.Morton:   1557. 

v.  Northern  Pac.  R,  Co.:  1676. 

v.  Stout:  169. 


139 


2209 


TABLE   OF    CASES    CITED 


[Reference*  are  to  Mectlona:   S3   1-1705,  Vol.  I;  gg   1706-2588,  Vol.  II.] 


Bennett  v.  Truebody:  1917. 

v.  Ware:   1. 

v.  Weed:    2190. 

V.Whitney:   1501. 

v.Williamson:  867,  2115. 
Bennett  Piano  Co.  v.  Scace:  933. 
Bemminghoff  v.  Agricultural  Ins.  Co.: 

789. 
Benny  v.  Pegram:  2509,  2512,  2576. 

V.Rhodes:    2509,  2512,  2576. 
Benoit  v.  Con  way:   554. 
Bensburg  v.  Harris:   861. 
Benschoter  v.  Atkins:   805. 

v.  Lalk:   805. 

Bensel,  In  re:  173,  652,  2277. 
Bensley  v.  Brockway:   395. 

v.  Moon:    2524. 
Benson  v.   Bawden:    98. 

v.  Carr:   2161,  2162. 

v.  Haywood:  2281. 

v.  Heathorn:   1194. 

v.Liggett:   447. 

v.  Oregon    Short    Line    R.    Co. : 
1046. 

v.  Tucker:   145. 
Bent  v.  Cobb:   72,  2320. 

v.  Lipscomb:    2276,  2281,  2286. 

v.  Priest:   1206. 
Bentinck     v.     London     Joint     Stock 

Bank,  2388,  2389. 

Bentley  v.   Columbia  Ins.   Co.:    1078, 
1202. 

v.  Craven:  1189. 

v.  Doggett:  710,  716,  875. 

v.  Fidelity  Co.:  2230. 

V.  Nasmith:   2477. 

v.  Smith:  604. 

v.  Snyder:  910. 

Benton    v.    German    American    Nat. 
Bank:  1837,  1848. 

v.    Hill  Mfg.  Co.:  1978. 

V.Minneapolis      Tailoring      Co.: 
1828. 

v.  Stokes:   836. 
Beougher  v.  Clark:    2430,  2447,  2457, 

2458. 

Bercich  v.  Marye:  1457,  2423. 
Berdos  v.  Tremont,  etc.,  Mills:   1663, 

1670. 

Berea  Stone  Co.  v.  Kraft:   1652. 
Berg  v.  Parsons:  1918. 


Bergen    v.    Bennett:     585,    655,    659, 
2585. 

v.  Friable:   86,  98. 
Berger,  In  re:  2008. 
Berger  v.  Duff:    312. 
Berger's  Appeal:   542. 
Bergeron  v.  Pamlico  Ins.   &  B.  Co.: 

332,  1054,  1068,  1841. 
Bergh  v.  Warner:   163. 
Berghoff  v.  McDonald:  1452,  1457. 
Bergman  v.  Hendrickson:  1916,  1940, 
1978. 

v.  Manes:   2308. 

Bergner  v.  Bergner:   1195,  1223. 
Bergstrom,  In  re:  2264,  2267. 
Bergtholdt  v.  Porter  Bros.  Co.:   261, 

287. 

Bcringer  v.  Meaner:  69,  743. 
Berkeley  v.  Hardy:  212,  2038,  2064. 
Berkey  v.  Judd:  805,  1116. 
Berlin  v.  Farwell:   1590. 
Bernard  v.  Maury:    1262,  2414. 
Bernheim  v.  Hahn:   1783. 
Bernheimer  v.  Eager:   1641. 

v.  Herrman:    949. 
Bernier  v.  Cabot  Mfg.  Co.:  1579. 
Bernshouse  v.  Abbott:  869,  874,  2075, 

2077. 
Berry  v.  Allen:  2509. 

V.American     Central     Ins.    Co.: 
1059. 

v.  Barnes:  914. 

V.Broadway  Co.:    285,  836. 

V.Carolina,  etc.,  R.  Co.:   1934. 

v.  Chase:    1745,  1748,  1769. 

v.  Haldeman:    793. 

v.  Harnage:  780,  802. 

v.  Rood:    1837. 

v.  Skinner:   659,  679. 

v.  Vantries:   1457. 
Berryman    v.    Pennsylvania   R.    Co.: 

1977. 

Bertha  Zinc  Co.  v.  Martin:   1624. 
Berthold  v.  Fox:    2182,  2315. 
Berthoff  v.  Quinlan:    866,  2108,  2114, 

2129. 

Berthoud  v.  Gordon:  1297. 
Bertoli   v.   Smith   &  Co.:    2059,   2063, 

2075. 
Bertram  v.  Ball:  642. 

v.  Godfray:  1244,  1249. 


2210 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I?  §§   1706-2588,  Vol.  II.] 


Bertschy  v.  Bank  of  Sheboygan:  148, 

824. 

Bessemer  Land  Co.  v.  Jenkins:   1803. 
Bessent  v.  Harris:   793,  1266,  2547. 
Best  v.  Guenther:   624,  636. 
v.  Krey:   289,  953. 
v.  Sinz:    1526. 
Beston  v.  Amadon:    296. 
Bestor  v.  Wathen:   118. 
Betteley  v.  Stainsby:  1298. 
Betts    v.    Southern    Cal.    Exchange: 

2497,  2538. 
Betz  v.  Land:   2447. 

V.Williams     &     White     Land     & 

Loan  Co.:   1536. 
Beugnot  v.  Tremoulet:   1341. 
Beuttel    v.     Chicago,     etc.,     R.    Co.: 

2011. 

Bevan  v.  Cullen:  2557. 
v.  Thackara:    171. 
v.  Waters:  1683,  1684,  2307. 
Beverly  v.   Stephens:    2162. 
Beveridge  v.  Rawson:  386. 
Bevin    v.    Connecticut    Mut.    L.    Ins. 

Co.:   395. 
v.Powell:   679. 

Bexwell  v.  Christie:  2334,  2341. 
Beyer  v.  Bush:  2050,  2354,  2572. 
Beymer  v.  Bonsall:  1410,  1759. 

v.  McBride:   1560. 
Bibb  v.  Allen:    111,  1602,   2381,  2393, 

2394,   2478. 

V.Norfolk  &  W.  R.  Co.:    1871. 
Bibb's    Admr.    v.    N.    &   W.    R.    Co.: 

1917. 

Bice  v.  Hover:   909. 
Bickart  v.  Hoffman:    2458. 
Bickerton     v.     Burrell:     2037,     2042, 

2059,  2063. 
Bickford    v.    First   Nat.   Bank:    1137, 

1410. 
v.Menier:  263,  273,  708,  925,  971, 

1001,  1026. 
v.Richards:    1461. 
Bicknell  v.  Dorion:   2219. 
Biddeford  v.  Yates:   313. 
Biddle  v.  Bond:   1331. 
Bidwell   v.    Haas:    2435. 
Bier  v.  Hosford:    1668. 
Bierbauer  v.  Wirth:   110. 
Bierce    v.    Red    Bluff    Hotel:     1808, 

1814,   2175,   2176. 
v. State  Nat.  Bank:   2045. 


Bierman  v.  City  Mills  Co:   395,  882. 
Biest  v.  Versteeg  Shoe   Co.:    226. 
Biester   v.   Evans:    2461. 
Bigelow  v.  Benedict:  111,  112. 

v.  Granite   State    Ins.   Co.:    1070. 

v.  Heaton:    1688. 

V.Livingston:  805. 

v.  Powder   Co.:    1560. 

v.  Sheehan:    2286. 

v.  Stilphen:    1984. 

v.Walker:   854,  2401,  2540. 
Bigelow  Carpet  Co.  v.  Wiggin:   1782. 
Big  Four  Coal  Co.  v.  Wren:    585. 
Biggers  v.  Owen:    2452. 
Biggs  v.  Evans:   2112,  2321. 

v.  Mutual   Reserve   F.   L.   Ass'n: 

640. 
Bigham  v.  Kistler:  2152. 

v.  Linville:    2435. 
Bigler  v.  Baker:  208. 

v.  Toy:  2163,  2183. 
Bigley  v.  Brown:  2279. 
Big  Stone  Gap  Iron  Co.  v.  Ketron: 

1644. 

Bileu  v.  Paisley:    1463. 
Billings  v.  Mason:   448,  871,  2084. 

v.  Morrow:    395,   403,   802,   1095. 
Billingslea  v.  Smith:    111. 
Billingsley  v.   Benfield:    542,   948. 

v.  Dawson:   620. 
Billington    v.    Commonwealth:     216, 

225. 

Billman  v.  Railroad  Co.:   1945,  1950. 
Bills  v.  Polk:   2250. 

v.  Schliep:       2090,      2091,      2094, 

2576. 

Bilz  v.  Powell:    608,  15'88. 
Bingamen  v.  Hickman:    53. 
Bingham  v.  Board  of  Sup'rs:  2162. 

v.Davidson:    2438,   2448. 

v.  Spruill:    2245. 

v.Stewart:    1152,  1176. 

v.  Walk:    2308. 
Bingham pton    Trust    Co.    v.    Auten: 

1984,  1987. 

Binney  v.  Globe  Nat.  Bank:   978. 
Binsse  v.  Ohl:   557. 
Birbeck  v.   Stafford:    2204. 
Bircher  v.  Walther:   1350. 
Birch  Tree  Bank  v.  Brown:   865. 
Bird  v.  Blackwell:   2470. 

v.  Boulter:    180,  2320. 

v.  Breedlove:    108. 


221 1 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:  §§  1-1705,  Vol.  I;  §§  1706-2688,  Vol.  II.] 


Bird  v.  Brown:  507,  539. 
v.  Daggett:   976. 
v.  Daniel:  2024. 
v.  Decker:   208. 

V.Louisiana   State   Bank:    1312. 
V.Phillips:   1536,  2430,   2447. 
Birdsall  v.  Clark:  313. 
Birdsong  v.  Ellis:    1560. 
Birge-Forbes  Co.  v.  St.  Louis,  etc.,  R. 

Co.:   789,  919. 
Birmingham,    etc.,   R.   Co.   v.   Allen: 

1661. 

v.  Baird:   1934,  1935. 
v.Mullen:    1935. 
v.Tennessee    Coal    &    Iron    Co.: 

296. 
Birmingham    Iron    Foundry   v.   Reg- 

nery:  1127. 
Birmingham  Land  Co.  v.  Thompson: 

2447. 

Birmingham    Matinee    Club    v.    Mc- 
Carthy: 2067,  2068. 
Birmingham  R.  &  Elec.  Co.  v.  Allen: 

1671. 
Birmingham  Trust  Co.  v.  Louisiana 

Sav.  Bank:  1813,  1844. 
Birt  v.  Burt:  2090. 
Bisbee  v.  Graf:  2480. 
Bischoffsheim  v.  Baltzer:    2386. 
Bishop  v.  Averill:  1536. 
v.  Mahoney:  1350. 
v.Montague:   506,  507. 
v.  Ranney:    648,  1573. 
v.  United  Rys.  Co.:    2276. 
v.Williamson:    1503. 
Bi-Spool    Sew.    Mach.    Co.    v.    Acme 

Mfg.  Co.:  374. 

Bissell  v.  Dowling:  442,  938. 
v.  Gold:    1494. 

v.  New  York,  etc.,  R.  Co.:    1281. 
v.  Terry:'  148,  619,  2446. 
v.  Zarn:   2244. 

Bittiner  v.  Gomprecht:    2249. 
Bittle  v.  Camden,  etc.,  R.  Co.:   1945. 
Bixby  v.  Dunlap:   2133. 
v.Moor:    90,  1523. 
v.  Parsons:    607,   610,   1595,   150 8. 
Bize  v.  Dickason:  2534. 
Black   v.    Atlantic    Home    Ins.    Co.: 

1065. 

v.  Drake:  2182. 
v.  Dundon:  946. 
V.  Harsha :  583. 


Black  v.  Hersch:  1339,  2208. 

v.  McQuaid:  169. 

v.  Miller:    178. 

v.  Sec.   Mut.   Life   Ass'n:    2479. 

v.  Snock:   2479. 

v.Webb:   45,  46. 

v.  Woodrow:    600. 
Black   Hills   Nat.   Bank  v.  Kellogg: 

1818,  1844. 

Black  Lick  Lumber  Co.  v.  Camp  Con- 
struction Co.:  266,  289,  909. 
Black  River  Lumber  Co.  v.  Warner: 

296,  1162,  1176. 

Black  &  Sons  v.   Johnson:    1803 
Blackburn  v.  Crawford  2311,  2312. 

v.  Mason:   318,  2079. 

v.  Scholes:   552. 

v.  Vigors:  1840. 
Blackburn    Low    &    Co.    v.    Vigors: 

1831. 

Blackledge  v.   Davis:    186. 
Blackman  v.  Green:  2576. 

v.Webb:  2246. 

v.  West  Jersey  &  S.  R.  Co.:  1798. 
Blackmer  v.   Summit  Coal  &  Mining 

Co.:   850. 
Blacknall   v.   Parish:    213,    218,    798, 

810. 
Blackstone  v.  Buttermore:    116,   564, 

565,  586. 

Blackstone  Nat.  Bank  v.  Lane:  1139. 
Blackwell  v.  Ketcham:   707,  742,  977, 
978. 

v.Willard:    695,  2814. 
Blaess    v.    Nichols    &    Shepard    Co.: 

903,  904. 

Blaikie  v.  Post:  2236. 
Blain  v.  Pacific  Express  Co.:  1783. 
Elaine  v.  Bourne:  2104. 
Blair  v.  Austin:  2434. 

v.  Baird:  2140. 

v.Childs:    2416,  2527. 

V.Columbian  Co.:   2246. 

V.Harrison:   2286. 

v.  Slosson:   1536. 

v.Waco:    313. 

Blair-Baker  Horse  Co.  v.  Bank:   285. 
Blaireau,  The:   1231. 
Blaisdale  v.  Davis  Paper  Co.:  1619. 
Blaisdale  Co.  v.  Lee:  2527. 
Blaisdell  v.  Ahern:  2236,  2237. 
v.  Bohr:    848. 


>M,v 


2212 


TABLE   OF    CASES    CITED 


[References   are  to  section*:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Blake  v.  Bremyer:  286. 

v.  Brothers:    1498. 

v.  Clary:   1814,  2175. 

V.Dick:    954,  957. 

v.  Domestic  Mfg.  Co.:  717,  722. 

v.Ferris:    1897. 

V.Maine   Cent.   R.  R.   Co.:    1632, 
1644,  1654. 

v.  Stump:   2477. 

v.  Voight:   226. 
Blakeley  v.  Blakeley:  13'8. 

v.  Bennecke:   1390. 

v.  Cochran:  432,  471f 

v.  Frazier:    2554. 

v.  Jacobson:    1322,  2534,  2549. 
Blakemore  v.  Heyman:  2386,  2394. 
Blakeston  v.  Wilson:   310. 
Blanchard  v.  Blackstone:  2064. 

v.  Ely:    1597. 

v.  Kaull:  1133. 

v.  Page:   2031. 

v.  Stearns:    1498. 

Bland  v.   Shreveport  R.  Co.:   1813. 
Blandford   v.   Wing  Flour  Mill   Co.: 

2554. 

Blane  v.  Proudflt:   742. 
Blaney  v.  Rogers:   300. 
Blank  v.  Aronson:   1198. 
Blanke  Co.  v.  Trade  Exchange  Co.: 

246. 
Blanke   Tea   Co.   v.    Rees   Co.:    246, 

285. 

Blantin  v.  Whitaker:   499. 
Blanton  v.  Dold:    1681. 

v.King:    2253. 
BLiss  v.  Terry:    403,  2107. 
Blazo  v.  Gill:  1601. 
Bleaden  v.  Hancock:  1683. 
Bleau  v.  Wright:    1405,  1438. 
Bleecker  v.  Franklin:    2034,  2326. 
Bleeker  v.  Satsop  R.  Co.:   739,  743. 
Bleser  v.  Stedl:  958. 
Bless  v.  Jenkins:   215,  424. 
Blevins  v.  Pope:  290,  441. 
Blin  v.  Hay:  198. 
Blinn  v.   Schwarz:    134,  135,  371. 
Bliss  v.  Arnold:  318,  716,  1249,  1268, 
2502,  2504,  2530. 

v.  Bliss:    2075,  2079. 

V.Clark:    465,   852. 

v.  Cutter:  958. 

v.  Railroad  Co. :   134. 

v.  Sneath:  2046. 


Bliven  v.  Hudson  River  R.  Co.:  1331. 

v.  Lydecker:  405,  2005. 
Blizzard  v.  Brown:   2225. 
Block  v.  Dundon:   895. 

v.  Meridian:     2059,    2063. 
v.Ryan:  2443,  2447. 
Blodgett  v.  Berlin  Mills  Co.:    1594. 
v.  Railway:   2436. 
v.  Sioux  City,  etc.,  R.  Co. :   2430. 
Blodgett's      Estate      v.      Converse's 

Estate:  1341. 
Blomquist  v.   Chicago,   etc.,   R.   Co.: 

1 621 
Blood  v.  French:   2332. 

v.  Goodrich:    63,  212,  420. 

v. La  Serena  Land  &  Water  Co.: 

349.    485. 

v.  Palmer:   2499,  2576. 
Blore  v.  Sutton:   2327,  2514. 
Bloodworth  v.  Jacobs:    2547. 
Bloomer  v.  Dau:  937. 
Blot  v.  Boiceau:  1245,  2525,  2526,  2527, 

2528,   2540. 
Blount  v.  Kimpton:  2302. 

v.  Tomlinson:   1168,  1422. 
Blower  v.  Van  Noorden:   1363,  1365, 

1369,  1395. 
Blowers    v.    Southern    R.    Co.:     244, 

988,  1803. 

Bloyd  v.  St.  Louis,  etc.,  R.  Co.:  1652. 
Blue  v.  Briggs:  1454. 
Bluecher   Bldg.    Ass'n   v.    Sylvester: 

2356. 

Blue  Ridge  Light  Co.  v.  Price:   1798. 
Blum    v.    Netwaska    Creamery    Co.: 

645. 

Blumb  v.  Kansas  City:  1871. 
Blumberg    v.    Sterling    Bronze    Co.: 

2463. 

Blumenthal  v.   Brainerd:    1808. 
v.  Bridges:   592,  2446. 
v.  Goodall:   2452,   2455. 
v.  Shaw:    1980 
Blunt  v.  Strong:   2309. 
Board    of   Commissioners   v.    Clapp: 

2285. 

V.Reynolds:   1202. 
v.Wilkinson:   1350. 
v.  Younger:  2160. 
Board  of  Education  v.  Kelly:    957. 

v.  Rankin:   2251. 

Board    of    Justices    v.    Fennimore: 
1341. 


2213 


TABLE   OF    CASES    CITED 


[Reference*   are  to  section*:   §§  1-1705,  Vol.  I;  88  1706-2588,  Vol.   II.] 


Board  of  Supervisors  v.   Hall:    2065. 
Board  of  Trade  Bldg.  Co.  v.  Cralle: 

306,  1869. 

Board  of  Trustees  v.   Blair:    1195. 
Boardman  v.   Banks:    2425. 
v.  Gore:    213. 
v.  Sill:    1691. 
v.  Spooner:    2403. 
v.  Taylor:   1832,  2003. 
V.Thompson:    2234,  2237,  2243. 
Boardsley  v.  Schmidt:    2568. 
Boast  v.  Firth:  1572. 
Bocchino  v.  Cook:   1440. 
Bochat  v.  Knisely:   2162. 
Bocock  v.  Pavey:   308. 
Bodenham  v.  Hoskyns:    2090. 
Bodey  v.  Thakara:   169. 
Bodin  v.   McClaskey:    2334. 
Bodine  v.   Berg:    435. 

v.  Exchange   Fire   Ins.   Co.:    317, 

1054,  1060. 
v.  Glading:   519. 
v.Killeen:    148,    149. 
Bodwell  v.  Nashua  Mfg.  Co.:    1631. 
Boehen   v.   Williamsburgh    Ins.    Co.: 

1060. 

Boehmer  v.  Schuylkill:   1332. 
Bogart  v.  Crosby:    1438,   1445. 
v.  De   Bussy:    1093,    1100. 
v.  O'Regan:    2326. 
Bogel  v.  Teutonia  Bank:    473. 
Bogert  v.  Adams:    2249. 
Boggs    v.    Alabama,    etc.,    Iron    Co.: 

1679. 
Bohan    v.     Metropolitan    Exp.     Co.: 

1861. 
Bohanan  v.  Boston  &  Maine  R.  Co.: 

285,  395,  1020,  1835. 
Bohart  v.  Oberne:   395,  412,  438,  707, 

911. 

Bohlmann  v.  Rossi:   410. 
Boice  v.  Conover:  1803. 

v.  Palmer:   2332. 
Boinest  v.  Leignez:   2329,  2356. 
Boisblanc's  Succession:    2108. 
Bolan  v.  Williamson:   1503. 
Boland  v.  Ashurst:  2447. 

v.  Glendale  Quarry  Co.:    1556. 
v.  Kistle:   90. 

v.  Northwestern   Fuel  Co.:    1731. 
Boldt   v.    New   York   Cent.    R.    Co.: 
1657. 


Bollman  v.  Lewis:   105. 

v.  Loomis:    118,    120,    1590,    2137, 

2474. 
Bolles  v.  O'Brien:   2289,  2292. 

v.  Sachs:    598. 
Bollington  v.  Louisville,  etc.,  R.  Co.: 

1619,  1625. 
Bolton  v.  Coburn:   2431,  2471. 

v.  Corporation       of       Liverpool: 


2302. 


... 


Bolton  Partners  v.  Lambert:  477,  486, 

516,  517,  519,  538. 
Bond  v.  Bond:   134. 

v.Gibson:  760. 

v.  Kurd:   341,  994,  1042. 

v.  Pontiac,  etc.,  R.  Co. :  285. 
Bonita  v.  Mosquera:  897,  2510. 
Bonnazza  v.  Schlitz  Brewing  Co.: 

830. 

Bonnell  v.  State:   1041. 
Bonner  v.  Bryant:    1658. 

v.Lisenby:   261. 

v.  Marsh :    2562. 
Bonney  v.  Morrill:   2163. 

v.  Perham:    161. 

v.  Smith:   563,  586, 

Bonnifleld  v.  Thorp:  2152,  2154,  2160. 
Bonnin  v.  Crowley:   1652. 
Bonniot  v.  Fuentes:    2509. 
Bonnon  v.  Urton:   1579. 
Bonsquet  v.  Nellis:    610. 
Bonwell  v.  Auld:    1591. 

v.  Howes:    308. 
Eonwit,  Teller  &  Co.  v.  Lovett:   162, 

165,  167. 
Bonynge  v.  Field:    1710,  2169,  2217. 

v.  Waterbury:    2169. 
Boogren    v.    St.    Paul    City    R.    Co.: 

2243,  2283. 

Book  v.  Jones:   1410,  1413. 
Booker  v.  Booker:  1803,  1834. 

v.  Tally:    156. 

Booker-Jones  Oil  Co.  v.  National  Re- 
fining Co.:   979. 
Bool  v.  Mix:    141,  143,  145. 
Boomer  v.  Wilbur:    1917. 
Boone,  In  re:   2188,  2311. 
Boone  v.  Clark:   198. 

v.Clarke:    652. 

v.Oakland     Transit     Co.:     1794, 

1798. 
Boord  v.  Strauss:   976,  1003. 


2214 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§   1-1705,  Vol.  I;  g§   1706-2588,  Vol.  II.] 


Boorman  v.  Brown:    2410. 
Boos  v.  State:   2000. 
Booth    v.    Mister:    321,   1866,    18G7. 
v.Newton:    285. 
v.  Wiley:   463,  741. 
v.  Wonderly:     1383,     1386,     1396, 

1573. 

Boothby  v.  Scales:    882,  887. 
Boothe  v.  State:   1796. 
Borcherling  v.  Katz:  1731,  1732,  1734. 
Borden    v.    Richmond,    etc.,    R.    Co.: 

1723 

v.  State:    1494. 

Bordere  v.  Den:   426,  486,  831. 
Borel  v.' Rollins:    822. 
Boren  v.  McGehee:    2183. 
Borge,  Succession  of:    1334. 
Borgnis  v.  Falk  Co.:    1679. 
Boring  v.  Jobe:    2280. 
Borland  v.  Nevada  Bank:   1783. 

v.  Stokes:  1254. 
Bormann  v.  Milwaukee:  1615. 
Born  v.  Home  Ins.  Co.:  1066. 

v.  Simmons:   971. 

Borough  of  Preeport  v.  Marks:   1500. 
Borries  v.    Imperial   Ottoman   Bank: 

867,  2077,  2079. 
Borrowscale  v.  Bosworth:  2024,  2033, 

2037. 

Borst  v.  Lynch:  2417. 
Borum  v.  Fouts:   2309. 
Borup  v.  Nininger:    1303,  1306,  1320. 
Bosanquet's  Case:  518. 
Bosseau  v.  O'Brien:  229,  395,  802. 
Bostick  v.  McLaren:  110. 
Boston  v.  Simmons:  1192,  1233. 
Boston  Carpet  Co.  v.  Journeay:   2542. 
Boston  Deep  Sea  Fishing  Co.  v.  An- 

sell:   608,  1234,  1334,  1543,  1588. 
Boston  Ice  Co.  v.  Potter:   2040,  2041, 

2067,  2068,  2071. 
Boston  Ins.  Co.  v.  Chicago,  etc.,  R. 

Co.:  1503. 

Boston  Iron  Co.  v.  Hale:  914. 
Boston  Steel  Co.  v.  Steuer:  978. 
Boston  Supply  Co.  v.  Rubin:  2511. 
Boston  &  Albany  R.  Co.  v.  Richard- 
son:  1398. 
Boston  &   Maine   R.   Co.   v.   Warrior 

Mower  Co:  2050. 
Bostwick  v.  Brower:   29 
Boswell  v.  Cunningham:  1194. 
v.  Laird:  1917. 


Bosworth  v.  Tallman:  2281. 
Botsford  v.  Burr:   1194. 

v.  Plummer:  435. 
Bott  v.  McCoy:  897,  2509,  2510. 
Boudreaux  v.  Fiebleman:  410. 
Bougher  v.  Scobey:  1339. 
Boulder  v.  Hebel:   2236. 
Boulder  Invest.  Co.  v.  Fries:   919. 
Bouldin   v.    Atlantic  Rice  Mills  Co.: 

2523. 

Boulton  v.  Jones:  2040,  2067. 
Bound  v.  Simkins:   2435. 
Bourg  v.  Brownell  Lumber  Co.:  1637. 
Bourke  v.  Van  Keuren:  628. 

v.  Whiting:    2246. 
Bourlier  v.  Macauley:   2133. 
Bourne  v.   Campbell:    224,  229,  1178, 
1732. 

v.  Diggles:   2211. 
Boursot  v.  Savage:    1350,  1803,  1805, 

1823. 

Bouscher  v.  Larkin:    2442. 
Boutwell  v.  Globe,  etc.,  Ins.  Co.:  524. 
Bowcher  v.  Noidstrom:   1958,  1959. 
Bowden  v.  Derby:   1618. 

v.  Dugan:    1691. 

V.London,  etc.,  Assur.  Co.:   1066. 
Bowe  v.  Gage:   2435,  2437,  2455.    . 
Bowen  v.  Bowen:  Io28. 

v.  Illinois   Central   R.   Co.:    1935, 
1936,  1939,  1941,  1969. 

v.Morris:  542. 

v.  Pennsylvania  R.  Co. :  1667. 

v.  Smidt:    2207. 
Bowerman  v.  Rogers:   1285. 
Bowers  v.  Bryan  Lumber  Co.:   19S5, 
2115. 

v.Evans:    1350. 

v.Johnson:    2084. 
Bowie  v.  Napier:  2509. 
Bowlby  v.  Bell:   2481. 
Bowler  v.  O'Connell:  1913. 
Bowles  v.  Rice:   784,  816,  893. 

v.  Trapp:  148. 

Bowlin  v.  Hekla  Fire  Ins.  Co.:  1074. 
Bowling  v.  Arthur:   1313,  1314. 

v.Blum:  110. 

Bowling  Green  v.  Gaines:  313. 
Bowling  Green  Sav.  Bank  v.  Hatch: 
2269. 

v.  Todd:    2267,  2270. 
Bowman  v.  Bradley:  1338. 

v.  Brewing  Co.:  267. 


2215 


TABLE   OF    CASES    CITED 


[Reference  are  to  section*:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.   I  I.I 


Bowman  v.  Coffroth:  120. 

v.Hilton:  1688. 

v.  Officer:   1217. 

v.Phillips:  104,  2234. 

v.Texas  Brew  Co.:   280. 
Bowmanville  Machine  Co.  v.  Demp- 
ster: 2077. 

Bowser  v.  Field:  2435. 
Boyce  v.  Boyce:  1334. 

v.  Commerce  Bank:  2510. 
Boyd  v.  Boyce:  2235. 

v.  Boyd:    1831. 

v.  Brinckin:    1350. 

v.Chesapeake,    etc.,    Canal    Co.: 
1852. 

v.  Chicago,  etc.,  R.  Co. :  1871. 

v.Corbitt:  661,  964,  2023. 

v.  Dullaghan:    1590,  2474. 

V.Greene:  2359. 

V.Jacobs:  1221,  1222. 

V.Jennings:  285. 

v.  Improved     Property     Holding 
Co.:  2435,  2472. 

v.  Quinn:  1410. 

v.Satterwhite:    789. 

v.  Stone:    2316. 

v.  Vanderkemp:  1841. 

v.Watson:  2431,2435,  2436. 
Boyd    Grain    Co.    v.    Thomas:    1406, 

1422. 
Boyer  v.  Berryman:  134. 

v.  Nesbitt:   116,  308,  585. 
Boyes  v.  Moss:  2063. 
Boykln    v.    Bank    of    Fayettesville: 

2023,  2104. 

Boylan  v.  Holt:   2248. 
Boyle  v.  Boyle:  2281. 

V.Columbian  Fire  Proofing  Co.: 
1657. 

V.Ferguson:   1912. 

v.  Grassick:  797,  2430,  2447. 

v.Parker:  1365. 

v.Read:   2290. 

v.Robinson:  2307. 
Boylston  v.  Bain:    2003. 
Boynton  v.  Brannum:  1410. 

v.  Brown:  2195. 
Boynton  Furnace  Co.  v.  Clark:   858, 

885. 
Boysen  v.  Frink:  2437,  2449. 

v.  Thorn:   2133. 
Bozon  v.  Bolland:   2264,  2274    2275. 


Brabbits    v.    Chicago,    etc.,    R.    Co.: 

1630,  1640,  1644. 

Brace  v.  Calder:   620,  669,  1567. 
Bracher  v.  Olds:  2267. 
Bracher's  Will,  In  re:  2267. 
Brack  v.  Hart  Commission  Co.:  2551. 
Bracken  v.  Miller:  1808. 
Brackenbridge     v.     Claridge:      1414, 

1536,  2440,  2442. 
Brackett,  In  re:  2280 
Brackett  v.  Lubke:  1870. 

V.Norton:  2182,  2184,  2251. 

v.  Sears:  2250. 

Bradburn  v.  Wabash  R.  Co.:  1673. 
Bradbury  v.  Kinney:  940. 
Braden  v.  Louisiana  State  Ins.  Co.: 
2371,  2488. 

v.  Randies:   1589. 

v.  Sherer  Town  Lot  &  Immigra- 
tion Co.:  2475. 

v.Ward:   2276. 
Bradford  v.  Barclay:  289. 

v.  Bush:  882,  886. 

V.Hanover   Fire   Ins.   Co.:    1250, 
1273. 

v.Laffey:   233. 

v.  Menard:   2437. 

v.Woodworth:  1410,  1413. 
Bradford  Nat.  Bank  v.  Taylor:  978. 
Bradt  v.  Scott:  2187. 

v.Shull:  163. 

v.Walton:  2211. 

Bradlee  v.   Boston   Glass  Co.:    1124, 
1130. 

v.  Southern   Coast   Lumber    Co.: 

698. 

Bradley,  Petition  of:  1784. 
Bradley   v.    Chester  Valley   R.    Co.: 
659. 

v.  Fisher:  1494,  1495,  1499. 

v.Richardson:    1322,  2534. 

v.  Rosenthal:  2012. 

v.  Salmon  Falls  Mfg.  Co. :  1586. 

V.Welch:    2151,  2158,  2163. 

v.  Wheeler:    716,  1269. 

v.  Whitesides:    804. 
Bradley  &  Co.  v.  Brower:  227. 
Bradley's  Case:  2146. 
Bradshaw's  Adm'r  v.  Louisville,  etc., 

R.  Co.:  1668. 
Bradstreet  v.  Baker:  1109. 

v.  Everson:   1315. 


2216 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  1 5  §§  1706-2588,  Vol.  H.J 


Bradstreet  Co.  v.  Gill:    247. 

Brady  v.  Chicago,  etc.,  R.  Co.:  1860. 

V.Foster:   2441. 

v.  Maddox:  2447. 

v.  Mayor:   354,   2230. 

v.  Nagle:  285. 

v.  State:   2308. 

v.  Todd:   60,  411,  716,  886. 
Bragg  v.  Bamberger:  903. 

V.Bradford:    1577. 

v.  Eagan:   2477. 

Brahn  v.  Jersey  City  Forge  Co.:  537. 
Brainard  v.  Elwood:  2276. 
Brainerd  v.  Dunning:   386. 
Braisted    v.    Brooklyn,    etc.,    R.   Co.: 

1918. 

Braithwaite  v.  Power:  2028. 
Bramblett  v.  Henderson:    1803,  1804. 
Bramel  v.  Bryon:  225. 
Branch  v.  Burnley:   2182. 

v.  International,  etc.,  R.  Co.:  1915, 
1950. 

v.  Moore:    2455. 
Brandao  v.  Bennett:   1690. 
Brandon  v.  Pritchett:   229. 
Brandrup  v.  Britten:  797. 
Brands  v.  St.  Louis  Car  Co.:  1624. 
Brandt  v.  Klein:   2305,  2307. 

v.  Krogh:    241,  1987. 
Brann  v.  Chicago,  etc.,  R.  Co.:   1624, 

1626. 

Brannock  v.  Elmore:  1918. 
Brannon  v.  Strauss:  1588,  2551. 

v.  White  Lake  Tp.:    2028. 
Branstrator  v.  Keokuk,  etc.,  R.  Co.: 

1631. 

Brant  v.  Gallup:  1291. 
Branth  v.  Branth:   2280. 
Brantigam  v.  While:   2015. 
Brantley  v.   Southern  IUL.  Co.:    971, 

973,  976. 

Brass  v.  Worth:  395. 
Braswell  v.  American  Life  Ins.  Co.: 

628,  634. 

Bratney  v.  Chandler:   2231. 
Brauch  v.  Roth:    2133. 
Brauer  v.   New   York,    etc.,    R.    Co.: 

1798. 

Braun  v.  Hess:  900. 
Braunn  v.  Keally:    47. 
Bray  v.  Gunn:  459,  463,  491. 
v.Kettell:  1417,  2584. 


. 


Bray  v.  Morse:  178,  2398. 

v.  Staples:  2284. 
Brazil  v.  Fair:  2307. 
Brazil    Block    Coal    Co.    v.    Gibson: 
1624. 

v.  Hoodlet:   1638,  1668. 
Breathitt  Coal,  etc.,  Co.  v.  Gregory: 

2255. 

Breux  v.  Sarvoie:  416. 
Breck  v.  Meeker:  316,  317,  318,  332. 
Breckenridge  v.  Hicks:  1630. 
Breckenridge's     Heirs     v.     Ormsby: 

134. 

Bredin  v.  Dubarry:  459,  463. 
Bree  v.  Holbeck:  1783. 
Breed  v.  Breed:  1344. 

v.  Central  City  Bank:   463. 

v.  First  Nat.  Bank:   977. 
Breen  v.  Field:   1460. 

v.  Rives:  807. 

v.  Union  R.  Co.:   2245. 
Breese  v.  Lindsay:   556,  807. 
Breithaupt   v.    Thurmond:    441,    519. 
Breman  v.  Roach:   2458. 
Bremsen  v.  Engler:  108. 
Brennan  v.  Dansby:  861. 

v.  Emery,  etc.,  Dry  Goods  Store : 
1848. 

V.Gordon:  1619,  1637. 

v.  Merchant    &    Co.:     1889,    1916, 
1953,  1971. 

v.Wilson:    198. 
Brenner  v.  Lawrence:  1162. 
Brent  v.  Green:  2320. 

v.  Miller:  1410,  1413. 
Breon  Lumber  Co.,  In  re:  2437. 
Brett  v.  East  India,  etc.,  Co.:   642. 
Bretz  v.  Connor:  811. 
Brewer  v.  Hartman:  2166. 

v.  Sparrow:   357. 

v.  State:    26. 

V.Tennessee  Coal,  etc.,  Co.:  1630, 

1631. 
Brewster  v.  Games:  937,  945. 

v.  Hobart:    307. 

v.  Saul:   2574. 

v.  Sime:    2119. 

v.  Van  Lieu,  2389,  2529. 
Briae  v.  Westinghouse:   1615. 
Brice  v.  Bauer:   1804. 
Brice-Nash  v.  Barton  Salt  Co.:   1619, 
1640. 


2217 


TABLE   OF    CASES    CITED 


[Referenced   are  to  aecUonn:   §§  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  II.] 


Bridge  v.  Wellington:  1102. 
Bridgeford  v.  Meagher:   593. 
Bridgeport  Bank  v.  New  York,  etc., 

R.  Co.:  2C7. 
Bridgeport   Electric   Co.   v.    Meader: 

193. 
Bridgeport    Organ    Co. .  v.     Snyder: 

1342. 
Bridgers    v.    First    National    Bank: 

116,  308. 

Bridger  v.  Savage:   1332. 
Bridges  v.  Garrett:   946,  949. 

v.  McAlister:   2012. 

v.Russell:   171. 
Bridgman  v.  Hepburn:   2437. 
Bridgton  v.  Bennett:   2155. 
Briel    v.    Exchange    National    Bank: 

1126. 

Brier  v.  Mankey:  886. 
Briere  v.  Taylor:   1277,  1281. 
Brierly  v.  Connelly:  1590. 
Briggs  v.  Boston,  etc.,  R.  Co.:    1893. 

v.  Boyd:    2553. 

v.  Briggs:  1514. 

v.  Central  National   Bank:    1314. 

v.  Chamberlain:  239,  563,  564, 
592. 

V.Chicago  &  N.  W.  R.  Co.:   1624. 

V.Georgia:    2164. 

v.  Hodgdon:    2290. 

v.  Munchon:    2059. 

v.  Partridge:  1093,  1098,  1102, 
1119,  1176,  1178,  1731,  1732, 
1734,  1735,  1736. 

V.Tennessee  Coal  Co.:  1668. 

v.  Yetzer:  963,  2168,  2169. 
Brigham  v.  Carlisle:   1552. 

v.  Gurney:    964,  2023. 

v.  Fayerweather:    134. 

v.  Hawley:  1596. 

v.  Herrick:    1410. 

v.  Hibbard:  902. 

v.  Meyers:  2002. 

v.Newton:  1334,  2290,  2293. 

v.Peters:    285,  463. 
Bright  v.  Taylor:  2234. 
Brightman  v.  Bates:   116,  308. 
Brighton  v.  Lake  Shore,  etc.,  R.  Co.: 

1556. 

Brigot  v.  Brigot:   2158. 
Brill  v.  Eddy:  1973. 
Brillow  v.  Ozienkowski:   2467. 
Brind  v.  Hampshire:   1447. 


Brink  v.  Dolsen:   2548,  2549. 

Brinkman  v.  Shaffer:  2156. 

Brinley    v.    Mann:    1089,   1093,    1104, 

1108. 

Brinson  v.  Davies:  2445. 
v.  Exley:   1223,  1237. 
Brisban  v.  Boyd:  1297,  2521. 
Brisbane  v.  Adams:    1048. 
Briscoe  v.  Litt:  1557,  1559,  1561. 
Brissac  v.  Lawrence:  1503. 
Bristol  v.  Mente:  854. 
Bristol  Knife  Co.  v.  First  Nat.  Bank: 

2099. 

Bristol  Savings  Bank  v.  Holley:  671. 
Bristol  Co.  v.  Bristol  Gas  Co.:    2284, 

2286. 

Bistor  v.  Burr:   55,  1338. 
Bristow  v.  Taylor:  564. 
British  American  Ins.  Co.  v.  Wilson: 

1250. 
British,  etc.,  Mach.  Co.  v.  Spellissy: 

2255. 
British    Mut     Bank    v.     Charnwood 

Forest  R.  Co.:  1723,  1801,  1990. 
British  &  Amer.  Mtg.  Co.  v.  Tibbals: 

946,  950. 
Brittish     American     Assur.     Co.     v. 

Cooper:   178,  1078. 
Britt  v.  Burghardt:  2245. 

V.Gordon:  374,  407,  425,  466,  486. 
Brittain    v.    Westall:     285,    395,    435, 

441,  914,  917. 

Brittan  v.  Oakland  Bank:  2119. 
Brittingham  v.  Stadiem:  156,  1859. 
Britton   v.   Ferrin:    1254,   2502,    2524, 

2546,  2576. 

v.  Lorenz:   2297,  2305. 
v.Nichols:  1313,  1314. 
v.Turner:    1578,  1597,  2425. 
Broadwater  v.  Lion  L.  Ins.  Co.:  2368. 
Broadway  v.  Sidway:    2152. 
Broadway  National   Bank  v.   Wood: 

1768,  2129. 

Brobston  v.  Penniman:   1818. 
Brochman  Commission  Co.  v.  Pound: 

910. 

Brock  v.  Jones:  489. 
v.  Pearson:  843. 
v.  Southern  R.  Co.:   1333. 
v.  Rice:    2331. 

Brockelbank  v.  Sugrue:   246. 
Brocklesby      v.      Temperance      Bldg. 

Soc.:   1026,  2115,  2119.  • 


2218 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-25SS,  Vol.   II.] 


Brockley  v.   Brockley:    2163. 
Erockmeyer  v.  Washington  National 

Bank:   281. 

Brockway  v.  Allen:  1155,  1162. 
v.  Innes:    39. 
v.  Mullin:    983. 
Broderick    v.    Detroit    Union    Depot 

Co.:   1637. 
Brodie  •"    Parsons:   2189. 

v.  Rutledge:    1494. 
Brodwell  v.  Illinois:   2147. 
Brogali  v.  Porter:  2302,  2309. 
Brohl  v.  Lingeman:    156. 
Brokaw  v.  New  Jersey,  etc.,  R.  Co.: 

1460. 

Bromer  v.  Locke:  1671. 
Bromley  v.  Aday:   306,  308,  436,  474. 
v.  Coxwell:   319. 
v.Lathrop:    940. 
Brong  v.  Spence:   542,  1395. 
Bronk  v.  Riley:   642. 
Bronnenburg  v.  Rinker:    1295,   1296. 
Bronson  v.  Ashlock:   958. 
Bronson  v.  Chappell:   246,  483. 
Bronson  v.  Coffin:   812. 
Bronson  v.  Implement  Co.:  849. 
Bronston  v.  Bronston:    2305. 
Brook  v.  Hook:   361,  517,  518. 
Brooke   v.   New   York,  etc.,   R.   Co.: 

760,    1801. 
Brooke  v.   Western  Union  Tel.   Co.: 

41. 

Brookfield  v.  Drury  College:    563. 
Brookhouse     v.     Union      Publishing 

Co.:   1803,  1818,  1821,  1825,  1831. 
Brooklyn  v.   Breslin:    313. 
v.  Railroad  Co.:   1292. 
Brooklyn  Baseball  Club  v.  McGuire: 

644. 
Brooklyn    Daily    Eagle   v.    Dellman: 

892. 
Brooklyn     Distil.     Co.     v.     Standard 

Distil  Co.:    1803,  1826. 
Brooks    v.     Central     Sainte     Jeane: 

1658. 

v.  Cook:    519,    2056. 
v.  Doxey:    2574. 
v.Fletcher:    445. 
v.  Holden:    2311. 
v.Jameson:  865,  866,  1783. ' 
v.  Jennings   County,   etc.,   Ass'n; 

1940. 
v.  Leathers:    2435. 


Brooks  v.  Martin:  1332. 
v.Mortimer:   914. 
v.  New  Durham:    2162. 
v.Shaw:    915,   1767. 
Brookshire  v.   Brookshire:    614. 

v.  Voncannon:    563. 
Broom  v.  Douglass:  1494. 
Brooms  v.  Neff  Harness  Co.:  2129. 
Brossman  v.  Railroad  Co.:   1661. 
Brothers   v.   Bank:    1808,   1809,   1810, 

1812. 

v.  Cartter:  1640,  1644,  1654. 
Brotherton  v.  Hatt:  1803,  1808. 
Brotzki  v.  Wisconsin  Granite  Co.: 

1661. 

Brougham  v.  Paul:  592,  598. 
Broughton    v.    Silloway:     949,    2325, 

2338. 

Brounfleld   v.  Denton:    285. 
Brouseau     v.     Kellogg     Switchboard 

Co.:    1630. 

Browder  v.  Long:    2234. 
Brower  v.  Northern  Pacific  R.  Co.: 

1477,  1483. 

Brower  v.  Peabody:    1687. 
Brower  v.  Wooten:    536. 
Brown,  In  re:  2386,  2493. 
Brown  v.  American  Tel.  Co.,  1984. 
v.  Ann  Arbor  R.  Co.:   1637. 
V.Arnold:    2152,  2161,  2162. 
v.  Arrott:    1245,  1340,  2432. 
V.Austin:    1113. 
v.  Bamberger:    395,   403. 
v.  Bankers',   etc.,   Tel.   Co.:    1750. 
v.  Beauchamp:    2237. 
V.Bennett:    372. 

v.  Bigley:    2264,  2274,  2276,  2280. 
v.  Blydenburgh:   937. 
v.  Board  of  Education:   1557. 
V.Boston  Ice  Co.:    1978. 
v.  British      American      Mortgage 

Co.:    219. 

v.  Brown:    246,  1028,  2123. 
v.  Bunger:   2163. 
v.Butler:  2309,  2312. 
v.  Central  Land  Co. :  816. 
v.  Coal  Co.:    1674,  2302. 
v.  Colquitt:   208,  216. 
v.  Combs:    2545,  2549,  2554,  2559. 
v.  Cone:  291. 
v.  Cranberry     Iron      Co.:      1783, 

1803,   1804,   1809. 
v.Cushman:    663,   1342. 


2210 


TABLE  OF   CASES    CITED 


[Reference*  are  to  flection*  s  §9  1-1705,  Vol.  I;  88  1706-2588,  Vol.  II.] 


Brown  v.  Daugherty:  169. 
v.  Deloach:    275. 
v.  Doherty:    2320. 
v.Eaton:    227,  229,  2390. 
v.  First  Nat.  Bank:   119. 
v.  Fitch:  1577. 
v.  Foot:  2008. 

v.  Foster:  440,  443,  492,  716. 
V.  Franklin   Mut.    Ins.   Co.:    732, 

739. 

V.  Funck:    2504,    2533. 
v.  Gallandet:    1349. 
V.German    Am.    Title    &    Trust 

Co.:   36. 

v.  Gilchrist:  1640. 
v.  Ginn:  2023,  2237,  2243. 
v.  Grady:   799,  807,  814. 
v.  Griswold:   229. 
v.  Gro  .    .   2309. 
v.  Haigh:   333. 
T.Harris:  1803,  1815,  1842. 
V.Harrison:   2002. 
v.Henry:   352,  479. 
v.  Hiatts:   695. 
V.Hodgson:  2033. 
v.  Holloway:    435. 
v.  Home  Ins.  Co. :   1055. 
V.Howard:   1260. 
v.  Insurance  Co.:    710. 
V.Johnson:   707,  742,  2002. 
v.  Keegan:   2443. 
v.Lally:    870. 
v.  Lennane:    1669. 
v.  Lent:  1463,  1485. 
v.Louisville  &  Nashville  R.  Co.: 

1046. 

v.  Lydecker :   405. 
v.  Mason:    2438. 
v.  McGran:  585,  2527. 
v.  Mead:   2162,  2163. 
y.  Mechanics  Bank:  1603,  1613. 
v.  Miller:   692. 

V.Minneapolis,  etc.,  R.  Co.:  1644. 
V.Morgan:   2283. 
v.  Morris:  867. 
V.Nichols:    2156:    2158. 
V.Northampton:    2464. 
V.  Oattis:    1814.  1840.   2175. 
v.Parker:  972,  998,  1162. 
v.  Payson:   2307. 
v.  Peoples'  Gas  L.  Co.:  1629. 
v.  Peoples'  Nat.  Bank:   952,  1813, 
2183. 


Brown  v.  Plorr:  563,  586,  2452. 

v.Powell:  760. 

v.  Purviance:   1959. 

v.  Railway  Co.:   2278. 

v.  Reiman:   432,  1755. 

v.  Remington:  2230. 

v.  Retsof  Min.  Co. :  593. 

v.  Rouse:   372. 

v.  Sessell:   611. 

v.  Sennett:  1640,  1654. 

v.  Sharkey:   2024. 

v.Shaw:  2050. 

V.  Sims:  1480. 

v.  Skotland:  652,  663. 

v.  Smith:    253,    895,    1498,    1860, 
2447. 

v.  St.  John  Trust  Co.:  2140. 

v.  Stoerkel:  188. 

v.  Tainter:  1162,  1713,  1729,  1733, 
1764,  1771. 

v.  Telegraph  Co.:  1746. 

T.  Thompson:  169. 

v.  Travelers'  Life  &  Ace.  Ins.  Co.: 
2169. 

V.West:  739,  742,  752,  854. 

v.  West  Riverside  Coal  Co.:  1667. 

v.Wiggin:  2562. 

V.Wilson:  432,  471,  1536,  2468. 

v.  Winnisimmet  Co.:  368. 

v.  Winona,  etc.,  R.  Co.:  1644, 1654. 

v.  Woodward:  167. 

v.Wright:   372. 
Brown  Co.  v.  Harris:  2563. 
Brown   Grocery  Co.   v.   Beckett    850, 
861. 

v.  Beckitt,  861. 

Brown  Hwde.  Co.  v.  Indiana  Stove- 
works:  2133. 

Brown  Paper  Co.  v.  Dean:  1475. 
Browne  v.  Phelps:  2230. 

v.  Siegel  Cooper  &  Co.:  1671, 1674. 
Brownell  v.  Pacific  R.  Co.:  1706,  1799. 
Brownfield  v.  Phoenix  Ins.  Co.:  1077. 
Browning  v.  Henkle:  1783. 

v.Marvin:  1374. 

v.  Provincial  Ins.  Co.:  1731,  2063, 

2371,  2488. 
Bruce  v.  Anderson:   2283. 

V.Andrews:  2563. 

V.  Baxter:  1320,  2212. 

v.  Bevis:   2467. 

v.  Dickey:  2246. 


2220 


TABLE   OF    CASES    CITED 


[Reference*  are  to  mtetlonmt  §§  1-1705,  Vol.  I;  g§  1700-2588,  Vol.   II. J. 


Bruce  v.  Reed:  1980. 
Bruen  v.  Gillett:   1329. 
v.  Hone:   2557. 

v.  Kansas  City  Agric.  Ass'n:  2076. 
Bruley  v.  Garvin:  2302,  2308. 
Brummitt  v.  Ogden  Water  Works  Co: 

313. 
Bruner  v.  Kansas  Moline  Plow  Co.: 

905. 

Brunger  v.  Smith:  2310. 
Brunner  v.  Platt:  1046. 
Brunson  v.  Ballou:   1346. 

v.Martin:   1594,  1596,  1597. 
Brunswick-Balke-Collender      Co.      v. 

Boutell:  1139,  1152. 
Bryan  v.  Adler:  2000. 
V.Albert:  2435,  2437. 
v.  Berry:  974. 
v.  Brazil:  1176. 
v.Jackson:   263,  284. 
V.Reynolds:   92,  94,  95. 
v.  Stump:   1107. 
Bryans  v.  Nix:    2564. 
Bryant  v.   Banque  du  Peuple:    1001, 

1026. 

V.Burlington,  etc.,  R.  Co.:    1615. 
v.  Hendricks:  1192. 
v.  La  Banque  Du  Peuple:  925,  976. 
v.  Mclntosh:  2190. 
V.Moore:   395,  398,  412,  436,  707, 

710,  737,  882,  919,  2510. 
v.  Quebec  Bank:  1723. 
V.  Rich:   1874,  1934. 
v. Wells:  2060. 

Bryant  Lumber  Co.  v.  Crist:  1731. 
Bryce  v.  Brooks:   2498,  2559. 
v.  Massey:   1027. 
v.  Southern  R.  Co.:  1461. 
Brydges  v.  Clements:   2447. 
Bryn  Mawr  Nat.  Bank  v.  James:  2158. 
Bryne  v.  Doughty:   498. 

v.Kansas  City,  etc.,  R.  Co.:  1860. 
Bryson  v.  Lucas:  1110,  1419. 
v.  Rayner:  2386. 
v.  Wylie:   2576. 

Buchan  v.  Chicago,  etc.,  R.  Co.:  1860. 
Buchanan  v.   Cleveland   Linseed   Oil 

Co.:  2063. 
v.  Hazzard:  372. 
v.  Hubbard:  372. 
Buchholtz  v.  Barre:   296. 


Buck  v.  Albee:  1332,  2558. 
v.  First  Nat.  Bank:  102. 
v.  Reed:  1248. 
v.Wood:  364. 

Buckbee  v.  Brown:   2020,  2035. 
Bucken  v.  South,  etc.,  R.  Co.:   1978, 

1982. 

Buckeye  Marble  Co.  v.  Harvey:  368. 
Buckeye  Saw  Co.  v.  Rutherford:  907, 

1804. 

Bucki  v.  Cone:   317,  321,  1866. 
Buckingham    v.    Harris:    798,    1536, 

2430,  2431,  2447. 
v.  Ludlum:  1579. 

v.  Surrey  &  Hants  Canal  Co.:  603. 
v.  Trotter:   1424. 

Buckland  v.  Conway:   316,  318,  2162. 
Buckley  v.  Buckley:  226. 
v.  Gray:  1480,  2213. 
v.  Handy:  1692. 
v.  Humason:  91,  2479. 
v.  Wells:  167. 
Buckner  v.  Richmond,  etc.,  R.  Co.: 

1671. 

Backwalter  v.  Craig:  895. 
Budd  v.  Broen:  940. 

V.Howard  Thomas  Co.:  411,  435. 
v.  Zoller:  2467. 

Buddecke  v.  Alexander:  2364. 
Budge  v.  Railroad  &  Steamship  Co.: 

1623. 

Budlong  v.  Budlong:  2163. 
Buehner  v.  Creamery  Pkg.  Mfg.  Co.: 

1630,  1661. 

Buel  v.  New  York  Steamer:  2000, 
Buell  v.  Chapin:   1247,  1299,  1310. 
v.  Kanawha  Lumber  Co. :  2284. 
Buelterman  v.  Meyer:  1326. 
Buffalo  Catholic  Institute  v.  Bitter: 

1093,  1102,  1112. 

Buffalo  Land  Co.  v.  Strong:  585. 
Buffalo  etc.,  R.   Co.   v.   Supervisors: 

1498. 
Buffington  v.  Bardon:  193,  382,  1383. 

v.  McNally:  2025. 
Buff  urn  v.  Chadwick:  2024,  2026,  2030^ 

2031. 

Buford  v.  Speed:  167,  175. 
Buge  v.  Newman:  2038,  2064. 
Buhl  v.  Smith:   999. 
Buick  v.  Insurance  Co.:  2368. 


2221 


TABLE  OF    CASES    CITED 


[ lief crenccM  are   to  sections:  8§  1-1705,   Vol.  I)  g§  1700-2588,  Vol.  II.] 


Buist  v.  Guice:  285,  29G,  299. 
Bulkley  v.  Derby  Fishing  Co.:  368. 
Bull  v.  Duncan:  261. 

v.  Sigerson:    2566. 
Bullard  v.  DeGroff:  981,  1003. 
Buller  v.  Harrison:  1432,  1435. 
Bullett  v.  Clement:  1494. 
Bullitt  v.  Walker:  2583. 
Bullock  v.  Angelman:  2207. 
v.  Gaffigan:  1477. 
v.  The  Wimmera,  etc.,  Co.:  605. 
v.Ueberroth:  2041. 
Bulmer  v.  Gilman:  2194. 
Bulwinkle  v.   Cramer:    1150. 
Bulman   v.   Michigan    Cent.    R.    Co.: 

1937,  1973. 

Bumgartner  v.  Hall:  171. 
Bunce  v.  Gallagher:  676,  680. 
Bundoora  Park  Estate  Co.  v.  Fisher: 

373. 
Bundy  v.   Sierra  Lumber  Co.:    1782, 

1787. 

Bunger  v.  Roddy:   1255. 
Bunker  v.  Miles:    1191,  1226. 
Bunn  v.  Keach:   1590,  2474. 
Bunnell  v.  St.  Paul,  etc.,  R.  Co.:  1632. 
Bunney  v.  Poyntz:  1690. 
Bunning  v.  Lyric  Theater:   1510. 
Bunton  v.  Lyford:   2151,  2156. 
Bunyard  v.  Farmanf  2440. 
Burbridge  v.  Fackler:   101. 

v.  Gumbel:  2531. 

Burch  v.  Caden  Stone  Co.:    1460. 
Burchard  v.  Hull:  965. 
Burchell  v.  Gowrie:  2435,  2437. 

v.  Gourie,     etc.,     Collieries     Co. : 

1207. 

Burcher  v.  Walther:  1350. 
Burck  v.  Abbott:  119. 
Burden  v.  Sheridan:   1194. 
Burdict  v.  Missouri  Pac.  R.  R.  Co.: 

1618. 

Burditt  v.  Hunt:  1457. 
Burdon  v.  Briquelet:  2425. 
Burelson  v.  Northwestern  Mut.   Life 

Ins.  Co.:  557. 
Burford    v.    Memphis    Bulletin    Co.: 

946. 

Burgan  v.  Lyell:   132. 
Burgeois  v.   Northwestern  Nat.   Ins. 

Co.:  1051. 


Burgess  v.  Carpenter:  2135. 

v.  Davis  Sulphur  Ore  Co.:  1674. 

v.Stevens:  2161. 

v.  Willis:   957. 
Burgraf  v.  Byrnes:  2206. 
Burhorn  v.  Lockwood:   436. 
Burk  v.  Howard:  167. 

v.Webb:  2050. 
Burke  v.  Bours:  179,  1198,  1201,  1221 

v.  Burke:  1951. 

v.  Cogswell:  2435. 

v.Davis:  1661,  1668. 

v.  Frye:  285,  2514,  2538. 

V.Haley:  2320. 

v.  Priest:  586. 

v.  Union  Coal  Co.:  1674. 

v.  Witherbee:  1624. 

v.  Woods:  92. 
Burke,  etc.,  Co.  v.  Wells  Fargo  &  Co.: 

410. 

Burkhalter  v.  Perry:  1162,  1419,  1736. 
Burkhard  v.  Leschen  Rope  Co.:  1669. 

v.Mitchell:  442. 

Burkhart  v.  Scott:   2243,  2276,  2283. 
Burkholder  v.  Fonner:  2435. 
Burks  v.  Hubbard:  893,  894,  2529. 

v.  Stam:   922. 
Burley  v.  Garvin:    2308. 

v.  Hitt:    904,  991. 

v.  Kitchell :   985. 
Burling  v.  Gunther:   2430,  2447. 
Burlingame  v.  Aetna  Ins.  Co.:  972. 

v.  Brewster:   1131,  1141. 

v.  Burlingame:   1579. 
Burlington  Ins.  Co.  v.  Gibbons:  1065. 

v.  Kennerly:  1074. 
Burlington,  etc.,  R.  Co.  v.  Sherwood: 

800. 

Burn  v.  Brown:  1687. 
Burnap    v.    Marsh:    546,    2219,    2220, 

2223,   2254. 
Burnell  v.  Morrison:  241. 

v.Robinson:  261. 
Burnes  v.  Kansas  City,  etc.,  R.  Co.: 

1641. 
Burnet  v.  Boyd:  1027. 

v.Hope:  669,  1567. 
Burnett  v.  Edling:  1557. 

v.  Elliott:    2201. 

v.  Freeman:  110. 

v.  Gustafson:    1350. 


2222 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1700-258$,  Vol.  IT.] 


Burnett  v.  Oechsner:   1893,  1924. 

v.  Potts:   2428. 
Burney  v.  Ludeling:  92. 
Burnford  v.  Patterson:  1282. 
Burnham  v.  Ellis:  1783. 

v.  Eyre:    2073. 

v.  Fisher:   2094. 

v.  Grand    Trunk    R.    Co.:     1779, 
1782. 

v.  Heselton:  2237. 

v.  Holt:  156,  2103. 

v.  Kidwell:  134. 

v.  Lawson:  395. 

v.  Seaverns:  147. 

v.  Stevens:    1494. 

v.Upton:  2430,  2441,  2470. 

v.Webster:  1146. 

v.Wilson:  945. 
Burnham  City  Lumber  Co.  v.  Rannie: 

1206,  2412,  2474,  2477. 
Burns  v.  Campbell:  531,  1351,  2014. 

v.Chicago,  etc.,  R.  Co.:  1624. 

v.  Clark:   1231. 

V.Delaware,  etc.,  Tel.  Co.:  1618. 

v.  Horkan:  1455. 

v.  Lynde:   213. 

v.  Michigan  Paint  Co.:   1870. 

v.  Pillsbury:  2544,  2549. 

v.  Royal  Bank:    1717. 

v.  Smith:  141,  147. 

Burnside    v.    Grand    Trunk    R.    Co.: 
1779,  1782. 

V.Peterson:  1618,  1619,  1667. 
Buron  v.  Denman:  506,  507,  546. 
Burr  v.  De  La  Vergne:  1214. 

v.  Koster:  2499. 

v.  Theatre  Royal:  1644. 
Burrell  v.  Bull:  1192,  1194. 

v.  Jones:  1170. 

Burrill    v.    Nahant    Bank:    219,    220, 
374. 

v.Phillips:  2554,  2559. 
Burritt  v.  Rench:  2050. 
Burrough  v.  Skinner:  1445. 
Burrows  v.  Ward:   1516. 
Burrus  v.  Kyle:    2562. 
Burson  v.  Bogart:  263. 

V.Philadelphia     Freight     Ass'n: 

1073. 

Burstein  v.  Sullivan:  953. 
Burt  v.  Batavia  Mfg.  Co.:   1854. 

v.  Catlin:   611. 


Burt  v.  Lathrop:  187. 

v.  Myer:  111,  112,  121,  2481. 

v.  Palmer:  284. 
Burtnett  v.   First   Nat.    Bank:    2099, 

2100. 
Burton  v.  Blin:  2553,  2556. 

v.  Collin:  1339,  2549. 

v.Fulton:    1498. 

v.  Goodspeed:  48,  2499,  2504,  2574. 

v.  Grand  Rapids   Furniture   Co.: 
1389. 

v.  Great  Northern  R.  Co.:   598. 

v.  Perry:  1803,  1809. 

v.  Wilkison:  1331. 

Busch  v.  Wilcox:   408,  411,  743,  1993. 
Busenbark  v.  Saul:    1516. 
Bush,  Ex  parte:  2271. 
Bush  v.  Breinig:  134,  137,  138. 

v.  Cole:     807,    1374,    1400,    2322, 
2323,  2342,  2457. 

v.  Devine:  1750. 

v.  Froelich:  1207,  1216,  1217,  1218, 
1219,  1601,  2280. 

v.  Halsted:  2290. 

v.  Lathrop:  2082. 

v.  Mattox:  1537,  2473. 

v.  Miller:  963,  2155. 

v.  Southern    Brewing   Co.:    1011, 
2230. 

v.  Steinman:   1485. 

v.  Westchester     Fire     Ins.     Co. : 

1074,  1075. 

Bush  Grocery  Co.  v.  Conely:  246. 
Bushby  v.   New   York,   etc.,  R.   Co.; 

1640. 

Bushnell  v.  Chicago,  etc.,  R.  Co.:  994. 
Busteed  v.  Parsons:    1494. 
Butcher  v.  Chidester:    2290,  2296. 

v.  Krauth:  1220. 

Butler    v.    Baker:    1533,    2430,    2441, 
2448,  2470. 

v.  Basing:  1898. 

v.  Dorman:    865,  869,  870. 

v.  Fayerweather:   2312. 

v.  Frazee:   1661,  1675. 

v.  Goreley:  2314. 

v.  Kennard:  2447. 

v.Kent:    1491. 

v.King:    2245. 

v.  Knight:   552. 

v.  Legro:    2237,  2239,  2241. 

V.Manhattan:   1790,  1798. 


2223 


TABLE   OF    CASES    CITED 


[Reference   are  to  sections!   §§   1-1705,  Vol.  I;  g§  1700-2588,  Vol.  II.] 


Butler  v.  Maples:  710. 

v.  Morse:   2175. 

v.  National  Home:    2178. 

v.  Price:   160,  1494,  1496. 

v.  Standard  Guaranty  Co. :  768. 

T.Thomson:   2374,  2381. 

v.  Townsend:  1641,  1871. 

v.  Wlnona  Mill  Co.:   1525. 
Butler  Paper  Co.  v.  Regan  Printing 

Co.:  2189. 

Butman  v.  Butman:  227. 
Butterfleld  v.  Beall:  212,  1105. 

v.  Consolidated    Fuel    Co.:    2435, 
2442. 

v.  Stephens:  2416,  2527. 
Butterick  Pub.  Co.  v.  Boynton:  1232. 

v.  Whitcomb:  600. 
Button  v.  Winslow:  1410. 
Butts  v.  Collins:  2033. 

v.  Gibbons:  1606. 

v.  Newton:  167,  894,  946. 

v.  Phelps:  1247. 

Buzard  v.  Bank  of  Greenville:  51. 
Buzzell  v.  Laconia  Mfg.  Co.:  1676. 
Byars  v.  Doore:  1395,  1397. 
Bybee    v.    Embree-McLean    Carriage 

Co.:  291,  859,  905. 
Byerlee  v.  Mendell:  1578. 
Byers  v.  Danley:  2562,  2566. 

v.  Harris:  1310. 

v.Johnson:   2583. 
Byington  v.  Simpson:  507,  1176,  1420, 

1423,  1715,  1731,  1733. 
Byne  v.  Corker:  169. 
Bynum  v.  Pump  Co.:   954. 
Byrd  v.  Boyd:  1577. 

v.Frost:  2461. 

v.Hughes:  105. 
Byrne  v.  Fremont  R.  Co.:  635,  2359. 

V.Londonderry  T.  Co.:   1875. 

v.  Schwing:  716,  1268,  2504, 
Byrnes  v.  Palmer:  2202. 
Byxbee  v.  Blake:   980. 


Cabell  v.  Given:  2158. 

Cabin   Branch   Min.  Co.  v.   Hutchin- 

son:  1808. 

Cable,  Matter  of:    2256. 
Cable  Co.  v.  Parantha:   2178. 
Cabot  v.  Kingman:  1918. 
v.Shaw:   1432. 


Caccia  v.  Isecke:  2246. 

Cadden  v.  American  Steel  Barge  Co.: 

1621. 
Cadell  v.  Adams:  1105. 

v.Allen:   1102,  1110 
Cadigan  v.  Crabtree:  563,  1533,  2427, 

2430,  2449,  2461,  2472. 
Cadwell  v.  Evans:  934. 
Cady  v.  Shepherd:  421. 

v.  South  Omaha  National  Bank: 

2099,  2100. 
Caerleon   Tin   Plate  Co.   v.   Hughes: 

2379. 

Cafre  v.  Lockwood:   882. 
Cain  v.  Allen:  80,  82. 

v.  Hockensmith,   etc.,   Co.:    2276. 
v.  Nawn  Contracting  Co.:  1861. 
Cairnes  v.  Bleecker:    459,  491,  1254, 

2547. 

Cairns  v.  Page:  2511. 
Cairo  &  St.  Louis  R.  Co.  v.  Mahoney: 

368,  374,  994. 
Cake's  Appeal:  1783. 
Calais   Steamboat   Co.   v.   Van   Pelt: 

2121. 
Calder    v.    Dobell:    1420,    1423,    1714, 

1716,  1731,  1764,  2430. 
Caldicott  v.  Griffiths:  187,  190. 
Caldwell    v.    Atlantic,    etc.,    R.    Co.: 

1870. 

v.  Bigger:  619,  2314. 
v.  Davis:  2309. 
v.  Dawson:  716,  1269. 
v.  Dickson:  1577. 
v.  Evans:   281. 
V.Harrison:  198,  199. 
v.  Meshew:   2055,  2063,  2066. 
v.  Nichol:  1798. 

V.Virginia  F.  &  M.  Ins.  Co.:  1055. 
v.  Waters:  148. 
Caldwell   Bros.   v.    Coast    Coal   Co.: 

1783. 

Caldwell  Milling  Co.  v.  Snively:  615. 
Caledonian  R.  Co.  v.  Lockhart:  310. 
Calhoon  v.  Buhre:  315,  983. 
Calhoun  v.  Akeley:    2166. 
Califf  v.  First  Nat.  Bank:  784. 
California  Bank  v.  Kennedy:  368. 

v.  Western  Union  Tel.  Co.:  1872. 
California  Ins.  Co.  v.  Union  Compress 

Co.:   2031. 

California  Powder  Works  v.  Atlantic, 
etc.,  R.  Co.:  1046. 


2224 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1708-2588,  Vol.  II.] 


Californian,  The:   312. 

Calkins  v.  Pease:  2237. 

Call  v.  Palmer:  2003,  2004. 

Calland  v.  Trapet:  1528. 

Callander    v.    Oelrichs:     1298,    2337, 

2415,  2531,  2532. 
Callahan  v.  Crow:  919. 

v.  Munson  S.  S.  Line:  1860. 

v.  Phillips  Academy:  1621. 

v.  Riggins:  1515. 

v.  Shotwell:  1582. 

v.  St.  Louis,  etc.,  R.  Co.:  1679. 
Callaway    v.    Equitable    Trust    Co.: 
1516. 

v.  Pettyman:   2434. 
Callen  v.  Bull:  1871. 
Callender  v.  Golsan:  977. 

v.  Oelrichs:  1353. 
Callis  v.  Bothamly:   601. 
Callo  v.  Brouncker:  607,  610. 
Galloway  v.  Prettyman:  2479. 

v.  Stobart:   2426. 
Calmon  v.  Sarraille:  1207,  1226. 
Calnan  Constr.  Co.  v.  Brown:  1030. 
Calvary  Cathedral  v.  United  States: 

2059. 

Calvert  v.  Coxe:  2246,  2247. 
Camard    Investment    Co.    v.    Lloyd: 

2441. 
Cambridge  Corporation  v.  Sovereign 

Bank:  1332. 
Cambridge  Valley   Bank  v.   Delano: 

1828. 

Camden  Bank  v.  Hall:  213. 
Camden   Fire    Ins.    Ass'n   v.    Jones: 

848. 

Camden  Safe  Deposit  Co.  v.  Abbott: 
783,  976. 

v.  Lord:   1815,  1818. 
Camerlin  v.  Palmer  Co.:  167. 
Cameron  v.  Blackwell:  1206. 

v.  Boeger:  2243. 

v.  Grouse:  2499. 

v.  Durkheim:  111,  2416. 

v.  Kenyon-Connell       Com.       Co.: 
1460,  1477. 

V.Lewis:  1192,  1194. 

v.  Mount:  1469. 

v.  Mutual  Loan  &  Trust  Co.:  432. 

v.  Nystrom:  1861. 

v.  Pacific  Exp.  Co.:  1973,  1975. 

v.  Paxton :  851. 


Cameron    v.   Real   Estate   Co.:    1276, 
2393. 

v.  Stratton:  2182. 

Cameron  Mill  &  Elevator  Co.  v.  An- 
derson: 1918. 

Cameron  Sun  v.  McAnaw:  2216. 
Cameron  &  Co.  v.  Blackwell:  841. 
Camp  v.  Hall:   1637,  1885. 
Campau  v.  Conan:  1803. 

v.  Konan:  1804,  1808. 
Campbell  v.  Angus:  2527. 

V.Atlanta,  etc.,  R.  Co.:   1676 

v.Baxter:   177,  178,  1590,  2474. 

v.  Beard:   805. 

V.Benjamin:  1814,  2176. 

v.  Boggs:  1340,  1346,  1348. 

v.  Brown:   2221. 

v.  Campbell:   361. 

v.  Chase:  553. 

v.  City  of  Providence:  1904. 

v.  Cook:  1343. 

v.  Cothran:  2217. 

v.  Drake:  1350. 

v.  Faxon:   652. 

V.Foster  Home  Association:  7S4, 
813. 

v.  Galloway:  233,  797,  798,  2430. 

v.  Goddard:   2246. 

V.Goodman:  2253,  2254. 

v.  Go  wans:  938. 

v.  Hassel:  958,  2405. 

v.  Hastings:  1006. 

v.  Hillman:  1458. 

v.  Hooper:  134. 

v.  Kincaid:    2249,  2260,  2314. 

v.  Kuhn:  138. 

V.London,  etc.,  Bank:    331. 

v.  Manufacturers'      Nat.      Bank: 

v.  Maple:   2258,  2259. 

v.  Millar:  430.    . 

v.  Muller:  1374,  1398,  1400. 

v.  National  Bank:    395. 

v.  Northern  Pacific  R.  Co.:  1978. 

v.  O'Connor:   945. 

v.  Park:  1803,  1987,  1995. 

v.  Phelps :  1505. 

v.  Porter:  1170. 

v.  Portland  Sugar  Co.:  1474,  2011. 

v.  Providence:    1912. 

v.  Reaves:   1288. 

v.  Reeves:  333,  2514,  2550. 

v.  Roe:  1340,  1346. 


140 


2225 


TABLE   OF    CASES    CITED 


[References  are  to  *eetlon«:   §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 


Campbell  v.  Sherman:  742. 

v.  Somerville:   1596. 

v.Thomas:    2445. 

V.Trimble:   321. 

v.Upton:   244. 

v.Wright:   2415. 

v.  Yager:  1590,  2474. 
Campbell  Printing  Press  &  Mfg.  Co. 

v.  Yorkston:  1516. 
Campbell's  Appeal:  2183. 
Campion  v.  King:  2229. 
Camp  Point  Mfg.  Co.  v.  Ballou:  1624. 
Canadian     Bank     of     Commerce     v. 

Coumbe:  463. 

Canadian  Imp.  Co.  v.  Cooper:  2463. 
Canal  Bank  v.  Bank  of  Albany:  1410, 

1439. 

Canary  v.  Russell:  643. 
Canda  v.  Casey:   433. 
Candict  v.  Cowdrey:   1533. 
Candiff   v.    Louisville,    etc.,   R.    Co.: 

2001. 

Candler  v.  De  Give:  1170,  1176,  1419. 
Cane  v.  Sinclair:  139G. 
Canfleld,  In  re:  112. 
Canfield  v.  Chicago,  R.  I.  &  P.  R.  Co.: 
316,  317,  333,  1454,  1463,  1977, 
2016. 

v.  Johnson:  432. 

v.  Orange:  1536,  2447. 
Canham  v.  Piano  Mfg.  Co.:  885,  903. 
Cannee  v.  Spauton:  1691. 
Cannel  Coal  Co.  v.  Luna:  285,  291. 
Cannell  v.  Smith:  1206,  1590,  2474. 
Canney  v.  Canney:  2280. 

v.  Railroad  Co.:  994. 
Cannon  v.  Gibson:  939. 

v.  Henry:  985. 

v.Mitchell:    2322. 

Cannon  Coal  Co.  v.  Taggart:    641. 
Canterberry  v.  Commonwealth:  2182. 
Cantine  v.  Phillips:  29,  144. 
Canton  v.  Grinnell:   1977. 
Canton     Cotton     Warehouse     Co.    v. 

Poole:    1949,  1950. 
Cantrell  v.  Colwell:  167,  1890. 
Cantwell  v.  Pacific  Express  Co.:  2031. 
Canty  v.  Latterner:   2286. 
Capehart  v.  Dodd:  1131. 
Capel  v.  Thornton:  865,  867,  868. 
Capen  v.  Pacific  Mutual  Ins.  Co.:  628, 
649. 


Capron  v.  Strout:  605,  1576. 

Capital  Nat.  Bank  v.  Coldwater  Nat. 

Bank:   1350. 

Capitol  State  Bank  v.  Lane:  1299. 
Cardcross,  In  re:  155. 
Carder  v.  Primm:  1344. 
Carey  v.  Baxter:  1917. 

v.Carey:    2302. 

V.German    American    Ins.    Co.: 
1065. 

v.  Rochereau:  1474. 

v.  Western  Union  Tel.  Co.:  92. 
Cargill  v.  Bower:    1484. 
Garland  v.  Western  U.  Tel.  Co.:  1779. 
Carleton  v.  Bickford:  2157. 
Carley  v.  Jenkins:  132,  185. 
Carlisle  v.  Barnes:   2249. 

v.  Quattlebaum:   1684. 
Carlson  v.  Oregon  Short  Line:   1621. 

v.  Phoenix  Bridge  Co.:   1641. 

v.  Stone-Wells  Co.:  480,  498. 
Carlton  v.  Western,  etc.,  R.  Co.:  1784. 
Carlton  Co.  Ins.  Co.  v.  Foley:  1918. 
Carmack  v.  Masterson:   2320 
Carman  v.  Beach:   1590. 
Carmen  v.  Steubenville,  etc.,  R.  Co.: 

1918. 

Carmichael   v.   Buck:    710,   734,   741, 
742. 

v.  W.  &  L.  Railway  Co.:  2014. 
Carmichael's  Case:    573,  585. 
Carmouche  v.  Bouis:    1454 
Carnahan  v.  Alderdice:  141. 
Carnegie  Trust  Co.  v.  Security  L.  Ina. 

Co.:  116,  308. 
Carnes  v.  Howard:   2430,  2431. 

v.  Platt:   2307. 
Carnig  v.  Carr:   604. 
Carnochan  v.  Gould:  2516. 
Carolan  v.  Southern  Pac.  Co.:  1623 
Carolina  Nat.  Bank  v.  Wallace:  716. 
Carpenter  v.  Ashley:    2224. 

v.Blake:  1282. 

V.Boston  &  Albany  R.  Co.:   1941, 

v.  Danforth:  1202 

v.  Farnsworth:  1135. 

v.  Fisher:    1199,   1207,   1590. 

V.German    American     Ins.    Co.: 
332,  1891. 

v.  Holcomb:    1558. 

v.  Insurance  Co. :  411. 

v.  Lamphere:    2002. 


2226 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§   1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 

Carpenter   v.   Le   Count:    2319,   2336,      Carter  v.  Baldwin:   2196. 
2349. 

v.  Momsen:   1696,  2484. 

v.  Rodgers:    138. 
Carper  v.  Sweet:  2457. 
Carr  v.  Chartiers  Coal  Co.:  1522. 

v.  Glover:  2193. 

V.Greenfield:  990. 

v.  Hadrill:   1584. 

v.  Houser:    1202. 

V.Jackson:  1169,  1175,  1403. 

v.  Leavitt:   233. 

v.  Ubsdell:   1590. 
Carraher  v.  Allen:  1452,  1455. 
Carrau  v.  Chapotel:  1334. 
Carrier  v.  Sears:  138. 
Carrigan  v.  Lycoming  Fire  Ins.  Co.: 

1066. 

Carriger  v.  Wittington:   1378. 
Carrol  v.  East  Tennessee,  etc.,  R.  Co.: 
1784. 

v.  Pettit:  2447. 
Carroll  v.  Bowen:   1419. 

V.  Charter    Oak    Ins.    Co.:     1056, 
1064,  1067, 

v.  East   Tennessee,   etc.,   R.   Co.: 
1676. 

v.  Lemmons:  2480. 

v.  McKale:   2050. 

V.  Mix:    1457. 

v.  State:  2008. 

v.  Tucker:   306,  308,  1701,  1702. 

V.Welch:    1548,  1578. 
Carroll  County  v.  Cheatham:    2180. 
Carrugi  v.  The  Atlantic  F.  Ins.  Co.: 

1064,  1065. 
Carruthers  v.  Diefendorf:   1522. 

v.  Towne:    1524,  1526. 
Carson  v.  Cummings:  468. 

v.Jersey  City  Ins.  Co.:  1060. 

v.  Leathers:    1868. 

v.Mitchell:   992. 

v.  Quinn:  1474. 

v.  Smith:  814.  816. 

v.  Southern  R.  Co.:  1671. 
Carsten  v.  McReavey:    233,  797,  798, 

2430. 

Carstens  v.  Schmalholz:  2163. 
Carter  v.  Aetna  Loan  Co.:    752. 

v.  Ailing:   113. 

V.Atlantic  C.  L.  R.  Co.:    1474. 


v.  Beckwith:   134. 

V.Bennett:    2276,  2278,  2281. 

v.  Brown:    1579. 

v.  Buchannon:    1796. 

v.  Burnham:   285,  910,  984. 

v.  Chaudron:   1093,  1109. 

v.Chicago,  etc.,  R.  Co.:   2281 

v.  Cooper:    2163. 

v.  Davis:    2276,  2278,  2281. 

v.Dow:   1494,  1496. 

v.  Goff:   282. 

v.  Gray:   1803,  1854. 

V.Harrison:    1498. 

v.Howe  Machine  Co.:  1975,  1976. 

v.Owens:   2411,  2430,  2477. 

v.  Slccomb:    659. 

v.  Southern  R.  Co.:    2031. 

V.Webster:    2435. 

v.  West:    2290,  2293,  2309. 
Cartier  v.  Spooner:   2207. 
Cartmel  v.  Unverzaght:    296. 
Cartraell  v.  Allard:    1335,   2543. 
Cartwright    v.     Greene:     1322,    1351, 
2534. 

v.  Hately:    333. 

v.Jones:    2182. 

v.  Ruffin:    49. 

v.  Wilmerding:    2125,   2127. 
Caruth  v.  Thompson:  2111. 
Caruthers  v.  Ross:    1278,  1295,   2410. 

v.  Tisdale:   1189. 
Carver  v.  Creque:  1272. 
Gary  v.  Sparkman:  1917. 
Casady  v.  Carraher:   608,  1591,  2474. 

v.  Manchester  Fire  Ins.  Co.:   435. 
Casco  Bank  v.  Keene:   364. 
Casco  Nat.  Bank  v.  Clark:  1135,  1848, 

1852. 
Case  v.  Carroll:    1215,  1219,  2290. 

v.  Hammond:   399. 

v.Hammond    Packing    Co.:    437, 
443,  961. 

v.  Jennings:    608,  609. 

v.Kramer:    225,  949,  953. 
Case  Mfg.  Co.  v.  Soxman:  382,  1384. 
Case  Mill  Mfg.  Co.     v.  Vickers:   889, 

2058. 

Case  Threshing  Mach.  Co.  v.  Eichin- 
ger:   865. 

v.  Fisher:  110. 


2227 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Case  Threshing  Machine  Co.  v.  Fol- 
ger:  1249. 

Y.  McKinnon:  885. 

v.Wright  Hardware  Co.:    1532. 
Casey  v.  Davis,  etc.,  Co.:  1860. 

v.  Donovan :  178. 

v.Lucas:   1100. 

V.March:   2267,  2269,  2276. 
Cash  v.  Taylor:    722. 
Cashman  v.  Root:  121,  2389. 
Cason  v.  Field:   2526. 
Cassaday  v.  Seeley:   2430. 
Cassady  v.  Boston  &  A.  R.  Co.:  1671. 

v.  Carraher:    2475. 
Cassels  v.  Usry:  2179. 
Casserleigh  v.  Wood:  110. 
Cassiday,    etc.,    Co.    v.    Terry:    1804, 

2084. 
Cassiday  Fork  Boom  Co.  v.  Terry: 

55. 

Cassidy    v.    Automatic    Time    Stamp 
Co.:  2158. 

v.  McKenzie:   652,  664. 

v.  Saline  Co.  Bank:  369,  483. 
Cassidy    Bros.    v.   Elk   Grove   Cattle 

Co.:   1457. 

Casteel  v.  Casteel:    167. 
Castillain  v.  Thompson:  1696. 
Castle  v.  Belfast  Foundry  Co.:   1125. 

v.  Go'  Juno:   2059. 

v.Noyes:  1603,  1611,  2012,  2349. 
Castner  v.  Richardson:  255,  261,  550, 

1516,  2426. 

Caston  v.  Quimby:   1534,  2467. 
Castrique  v.  Battigieg:  1162. 
Castro  v.  Geil:   134,  652. 
Caswell  v.  Cross:    2227. 

v.  Fellows:    304. 

v.Putnam:   2386,  2389. 
Cate  v.  Blodgett:   1783. 

v.Rollins:   169. 
Cathcart  v.  Bacon:   2435. 
Catholic  Bishop  v.  Troup:  739. 
Catholic  Press  Co.  v.  Ball:    1556. 
Catlett  v.  Young:    1671. 
Catlin  v.  Bell:  1262,  2514. 

v.  Peddie:   1861. 

v.  Smith:  318,  716,  1268. 
Caton  v.  Stewart:  104. 
Cator  v.  Merrill:   2566. 
Cattell  v.  Ferguson:   171. 
Catterall  v.  Kindle:    894,  946,  2575. 


Catterlin  v.  Summerville:  1339. 
Caudle  v.  Rice:  2281. 
Caulfleld  v.  Bullock:    1498. 
Caulkins  v.   Fry:    137. 

v.  Memphis  Gas  L.  Co.:   2128. 
Cavanagh  v.  Beer  Co.:  94. 

v.  Dinsmore:  1902. 
Cave  v.  Cave:  1815. 
v.  Lougee:   1245. 
V.Mackenzie:    1194,   2066,    2082. 
Cavender  v.  Waddingham:  137,  2034. 
Caverly  v.  McOwen:  2194,  2251. 

v.  Robbins:    2234. 
Gavin  v.  Gleason:  1350. 
Cawker  v.  Apple:    1536,   2447. 
Cawthon  v.  Lusk:    716,  849,  861. 
C.  &  C.  Electric  Motor  Co.  v.  Frisbie: 

285,  909. 
Cecil  v.  Citizens'  Nat.  Bank:  1731. 

v.Clark:    2230. 

Cecil  Bank  v.  Farmers'  Bank:   2104. 
Cedar   Rapids  Auto  Co.   v.   Geffrey: 

1533. 
Cedar  Rapids,  etc.,  R.  Co.  v.  Stewart: 

198. 

Cement  Co.  v.  Jones:   1422. 
Center  v.  McQuesten:   1447. 

v.  Rush:   275. 

Central  Bank  v.  Hammett:  2111. 
Central  Branch  U.  P.  R.  Co.  v.  But- 

man:   1782. 
Central  Coal  Co.  v.  George  S.  Good  & 

Co.:   1834. 
Central  Georgia  R.  Co.  v.  Americus 

Cons.  Co.:  1783. 
Central    Nat.    Bank    v.    Connecticut 

Mut.  L.  Ins.  Co.:  2090,  2091. 
V.  Copp:   361. 
v.  Insurance  Co. :  2090. 
Central  N.  Y.  Tel.  Co.  v.  Averill:  122. 
Central  of  Georgia  R.  Co.  v.  Brown: 

1977. 
Central   Ohio  Ins.  Co.  v.  Lake  Erie 

Provision  Co.:   2369. 
Central   Penn.  Tel.  &  Supply  Co.  v. 

Thompson:    285,   299. 
Central  R.  Co.  v.  Brewer:  1974,  1975. 
v.  Brown:  1962. 
v.  Cheatham:  405,  463,  473. 
v.  James:  2063,  2132. 
v.  Keegan:    1636. 
v.  Peacock:    1936. 


2228 


TABLE   OF    CASES    CITED 


[Referenced  are  to  Hectiong:  §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 


Central  R.  Co.  v.  Pettus:   2281,  2284 
2288. 

v.  Smith:   290. 
Central  R.  &  B.  Co.  v.  Lampley:  1506. 

v.  Skellie:   1779. 
Central  South  African  Ry.  v.  Cooke: 

603. 
Central   Stock  Exchange  v.  Bendln- 

ger:  42,  1350. 
Central    Stock    &    Grange    Exch.    v. 

Bendinger:    2090,  2091,  2094. 
Central  Texas  Grocery  Co.  v.  Globe 

Tobacco  Co.:  432. 
Central  Transf.  Co.  v.  Pullman  Car 

Co.:   368. 
Central  T.  Co.  v.  Ashville  L.  Co.:  368. 

v.  Folsom:    936,  2180. 

v.  Respass:   1332. 

v.  West  India  Imp.  Co.:  2082. 
Cerkel  v.  Waterman:   2345. 
Cetofone  v.  Camden  Coke  Co.:   1619. 
Chadburn  v.   Moore:    797. 
Chadsey  v.  Greene:  1778. 

v.  McCreery:  1139. 
Chadwick  v.   Butler:    2529. 

v.Collins:  2479. 

v.  Knox:  108,  1516. 
Chaff  e  v.  Stubbs:   707,  743. 
Chaffee  v.  Rutland  R.  Co.:  42,  43. 

v.  Widman:      2428,     2430,     2435, 

2442. 

Chalfant  v.  Payton:  117. 
Chaliss  v.  Wylie:   1233. 
Challenge  Co.  v.  Kerr:   888. 
Challis  v.  McCrum:  2364. 
Challoner  v.  Bouck:    229. 
Chalmers  v.  Tandy:    2162. 
Chamberlain   v.    Amter:    2020. 

V.Clayton:    1498. 

V.Detroit   Stove  Works:    602. 

V.Dover:   465. 

v.  Masterson:    2001. 

V.Rogers:    2246. 

v.  Sebley:   1493. 

v.  Morgan:  1559. 
Chambprs  v.  Ackley:   2467. 

v.  Gilmore:    2255. 

v.  Hubbard:  2510. 

v.Peters:    2467. 

v.Probst:    2133. 

v.  Seay:   563,  565,  586,  1542. 


Chambers  v.  Short:  869,  870. 

v.  Woodbury  Mfg.  Co.:  1619,  1670. 
Chamblee  v.  Baker:  1578. 
Champion  v.  McCarthy:   2302. 
Champion    Machine    Co.    v.    Ervay: 

1602. 
Champlain  v.  Detroit  Stamping  Co.: 

1557. 
Champlin  v.  Parish:   229. 

v.  Pawcatuck  Valley  St.  R.  Co.: 

1796. 
Chandler  v.   Belden:    1690. 

v.  Coe:     1162,    1420,    1423,    1713, 
1733. 

v.  Gloyd:    1874. 

v.  Green:   1600. 
•    v.  Hogle:   2523,  2548. 

v.  Mason:  110. 

Channon  v.  Sanford  Co.:   1621,  1623. 
Chapin  v.  Bridges:    2439. 
Chaples  v.  Brunswick  Bldg.  Society: 

1386. 
Chaplin  v.  Canada:   2065. 

v.  Freeland:  341,  994. 
Chapman  v.  Americus  Oil  Co.:  914. 

v.  Bates:   579,  585. 

V.  Burt:  2208.  2210. 

v.  Cowles:    2183. 

v.  Currie:    178. 

v.  Durant:    17GO,  2581. 

V.Erie  R.  Co.:   1632. 

v.  Forsyth:    2576. 

v.  Glassell:    1828. 

v.Hughes:    817,  1350,  1803,  1804, 
1814,  2090,  2176. 

v.  Lee:    358. 

v.  Limerick:    208. 

v.McCrea:   1303. 

v.  McLawhorn:    2034,  2035. 

v.  New  York  Cent.  R.  Co.:   1909, 
1914. 

v.  Spence:    2199. 

v.Twitchell:   1778. 

v.  Union  Bank:  1287. 
Chappel  v.  Raymond:  956. 
Chappedelaine  v.  Dechenaux:  1352, 

2547. 
Charles  v.  Eshleman:  132,  185. 

v.  Klingstein:    2463. 

v.Taylor:    1654. 
Charleston,  etc.,  R.  Co.  v.  Leech:  186. 


2229 


TABLE  OF    CASES    CITED 


[References  are  to  gectlona:  §§  1-1705,  Vol.  I;  §8  1700-2588,  Vol.  II.] 


Charlesworth  v.  Whitlow:  1281. 
Charlotte    Oil    Co.    v.    Hartog:    2502, 

2517,  2523,  2539,  2547. 
Charlton  v.  Wood:   2437. 
Chase  v.  Baskerville:  1255,  1342. 
V.Boston:    2388. 
v.  Chase:   677,  2314. 
v.Hamilton  Ins.  Co.:    1062. 
v.  Heaney:    2194,  2202. 
v.  Pattberg:    1125. 
v.  People's   Fire   Ins.   Co.:    1073. 
v.  Swift:    994. 
v.  Veal:    1590,    2477. 
v.  Westmore:    1690. 
Chase's  Case:    2311. 
Chastain  v.  Bowman:  158,  160. 

v.  Smith:    1192,  1194. 
Chatard  v.  O'Donovan:   55,  1338. 
Chatenay  v.  Brazilian  Telegraph  Co.: 

778. 
Chatfield  v.  Clark:   2050. 

v.  Simonson:   2251. 
Chattanooga,   etc.,   R.   Co.   v.   Davis: 

1789. 
Chattanooga  Pipe  Works  v.  Gorman: 

946. 
Chattanooga    Rapid    Transit    Co.    v. 

Venable:  1657. 
Chauche  v.  Pare:   849. 
Cheatham  v.  Hogan:   1621. 

v.  Yarbrough:     1536,    2430,    2431, 

2447. 
Cheeney    v.    Ocean    Steamship    Co.: 

1630,   1634,   1654. 
v.  Steamship  Co.:    1633. 
Cheesborough  v.  Hunter:  2556. 
Cheeseman  v.  Sturges:  2131. 
Cheetham  v.  Manchester:   546. 

v.  Mayor  of  Manchester:    507. 
Cheever  v.  Ellis:    312. 
v.  Mirrick:    2186. 
v.  Pittsburg,    etc.,    R.    Co.:     754, 

760. 

v.  Smith:    1746,  1750. 
Chenault  v.  Quisenberry:    616. 
Cheney  v.  Eberhardt:    2004. 
v.Kelly:   2249. 
v.Libbey:  281,  934. 
v.  Unroe:  119. 
v.  White:   2004. 
v.  Woodruff:    2004. 
Chenkin  v.  Lipman:  2469. 


Chenowith  v.  Dickson:   2535. 
Cheong  v.  Lohmann:  1417. 
Cherrington  v.  Burchell:   1758,  1759. 
Cherry  v.  Long:  2320. 
Chesapeake,     etc.,     Co.     v.     County 

Com'rs:    1292. 
Chesapeake,   etc.,   R.   Co.    v.   Dodge: 

2016. 

v.Francisco:  682,  1933,  1938. 
Chesapeake  &  Ohio  R.  Co.  v.  Dixon: 

2011. 

V.Hoffman:    1679. 
v.  Reeves :   1798. 

Chesebrough  v.  Conover:  94,  96. 
Cheshire  v.  Bailey:   1944,  2001. 

v.  Des  Moines  City  R.  Co.:   2281. 
Cheshire    Provid.    Inst.    v.    Fuesner: 

938,  942,  2122. 
Chesley  v.  Woods:   1048. 
Chester  v.  Jumel:  2237. 
Chester  County  v.  Barber:   2236. 
Chesterfield  Mfg.  Co.  v.  Dehon:  1350. 

2574,  2576. 

Chetwood  v.  Berrian:  2130. 
Cheuvront  v.  Homer:  1332. 
Chew  v.  Bank:  134. 

v.  Louchheim:  2417. 
Chezum  v.  Creighbaum:  1198. 

v.  Kreighbaum:   49. 
Chicago  v.  McKechney:   1789. 

V.Nicholson:  465. 
Chicago    Building   Co.   v.    Talbottom 

Creamery  Co.:  382. 
Chicago  City  R.  Co.  v.  Leach:   1650. 

1654. 

v.  McMahon:    1883,  1984. 
Chicago  Cottage  Organ  Co.  v.  Stone: 

474. 

Chicago  Edison  Co.  v.  Fay:   361. 
Chicago  Electric  Co.  v.  Hutchinson: 

998. 
Chicago,  etc.,  Bottling  Co.  v.  McGin- 

nis:   1901. 
Chicago,  etc.,  Mfg.  Co.  v.  Talbottom 

Creamery  Co.:  1384. 
Chicago,  etc.,  Organ  Co.  v.  Rishforth: 

210. 

Chicago,  etc.,  R.  Co.  v.  Barrett:  1935. 
v.  Bayfield:   607,  1637,  1638,  1678. 

1898. 

v.  Belliwith:   1804. 
v.  Brown:   1676. 


2230 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.   I;  §§  1700-2588,  Vol.  II.] 


Chicago,  etc.,  R.  Co.  v.  Chickaska  Nat. 
Bank:   400,  925,  1001,  1026. 

v.  Cox:   1779. 

v.  Grotty:  1637,  1674,  1676. 

v.Curtis:  1661. 

v.Dane:  598. 

V.Davis:  341,  994. 

v.  Dickson:  1874,  1945,  1950. 

v.  Driscoll:  1624,  1632,  1644. 

v.  Eaton:  1654. 

v.Epperson:   1948. 

v.  Fillmore:  1798. 

v.  Flexman:    1874. 

V.  Fox:   285. 

v.  Hamler:    1681. 

v.  Harney:   1632. 

v.  Healy:   1681. 

v.  Holliday:   1973. 

v.  Hutchins:  2012. 

v.James:   246. 

v.  Keegan,  555,  556. 

v.  Keefe:  1644. 

v.  Kerr:   1953,  1960,  1968,  1977. 

v.  Knapp:  1625. 

v.  Kneisim:  1654. 

v.  Larned:    2230. 

v.  Maroney:    1621. 

v.  May:   1654. 

v.  McCarthy:  40. 

v.  McCarty:   1638. 

v.  Moranda:  1650. 

v.  Nelson:   1937,  1973. 

v.  Newburn:    2015. 

v.  Riddle:   1798. 

v.Ross:    36,  1644,  1652. 

v.  Scurr:  2016. 

v.  Sullivan:  1644. 

v.  Watkins:    1918. 

v.  Woodson:   652,  2314. 
Chicago,    etc.,    Traction    Co.    v.    Fla- 
herty: 2164,  2166. 
Chicago   Fire    Proofing   Co.    v.   Park 

Nat.   Bank:    2003. 

Chicago  Gen.  R.  Co.  v.  Murray:  2170. 
Chicago    Junction    R.    Co.    v.    King: 

1646. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Benton: 

1674. 
Chicago  R.  Co.  v.  Lee:   1783. 

v.  Riddle:    1783. 

v.  Volk:    1860. 


Chicago,  R.  I.  &  P.  R.  Co.  v.  Chickasha 

Nat.  Bank:   285. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  Bel- 

liwith:   1803. 
Chicago   Sugar   Ref.   Co.   v.   Jackson 

Brew.  Co.:   1832,  2177. 
Chicago  Taylor  Printing  Press  Co.  v. 

Lowell:    2509. 
Chicago  Title  &  Trust  Co.  v.  Ward: 

1334. 
Chicago   Union   Tract.   Co.   v.   Daly: 

1798. 

v.  Sawusch:    1654. 
Chicago    &   Alton    Ry.    Co.    v.    May: 

1652. 

Chicago   &  Eastern   R.   Co.   v.   Flex- 
man: 1934. 
Chicago  &  N.  W.  R.  Co.  v.  Bayfield: 

1615. 
Chicago     &     So.     Traction     Co.     v. 

Flaherty:   309. 

Chick  v.   Bridges:    233,  2430. 
Chickasha  Co.  v.  Lamb:  291. 
Chickering  v.   Baksess:    2499. 
v.  Bastress :    48. 
v.Robinson:    1494. 
Chilberg  v.  Lyng:  2393,  2394. 
Child  v.  Dwight:    2183. 

v.  Eureka  Powder  Works:    2163. 
v.  Gillis   Constr.    Co.:    2059. 
v.  Hugg:   2387. 
v.  Morley:    1602. 
Childers  v.  Bowen:    1079. 
Childress    v.    Smith    Hardware    Co. 

285,   288. 

Childs   v.    Comstock:    2212. 
v.Merrill:    2309. 
v.  Ptomey:      1591,      2431,      2437, 

2475. 
V.Waterloo    Wagon    Co.:     2115, 

2576. 

Chiles  v.  Southern  Ry.  Co.:   848. 
Chillicothe  Ferry,  etc.,  Co.  v.  Jame- 
son:   2305. 

Chilton   v.   Butler:    2447. 
Chin  Kem  You  v.  Ah  Joan:   2020. 
Chinn  v.  Chinn:    1332,  1334. 
Chinnock  v.  S^iinsbury:   642. 
Chipley  v.  Atkinson:  2049,  2133. 

v.  Leathe:    2441. 
Chipman  v.  Foster:   1137. 


2231 


TABLE   OF    CASES    CITED 


[Reference*  are  to  mctlonmi  §§  1-1705,  Vol.  Ij  S3  1706-2688,  Vol.  II.] 


Chippewa  Valley,  etc.,  R.  Co.  v.  Chi- 
cago, etc.,  R.  Co.:  92,  93,  95. 
Chirac  v.  Reinicker:    2299,  2307. 
Chisholm    v.    Preferred    Assur.    Co.: 

1560. 
Chismore  v.   Anchor  Fire  Ins.   Co.: 

1062,  1063. 

Choctaw,  etc.,  P    Co.  v.  Craig:  1674. 
v.Jones:    1661,   1668,  1678. 
v.  Wilker:    1918. 
Choctaw    R.    Co.   v.    McDade:    1667, 

1673,  1674. 

Chorpenning  v.  Boyce:  1782. 
Chouteau   v.   Allen:    374,   1808,  1810. 

v.  Goddin:    369,   2322. 
Chouteau    Land    Co.    v.    Chrisman: 

333,  315,  308. 
Chouteaux  v.  Leech:  716. 
Chrisholm  v.   Eisenhuth:    1987. 
Chrisman  v.  Bruce:    1498. 
Christensen  v.   Wooley:    1536. 
Christian   v.    Columbus   &   Rome   R. 

Co.:  1941. 
v.  Smith:    169. 
Christian  B.  &  L.  Ass'n  v.  Walton: 

358,  361. 
Christiansen  v.  Mille  Lacs  Land  Co.: 

2477. 
Christie   v.   Robinson:    1438,   1445. 

v.  Sawyer:    2237,  2243. 
Christienson  v.  Rio  Grande  West  R. 

Co.:    1621. 

Christmas  v.   Russell:    2286. 
Christner  v.    Cumberland   Coal   Co.: 

1676. 
Christopher     v.     National     Brewing 

Co.:   433. 
Christopherson    v.    Chicago,   etc.,   R. 

Co.:    1619. 

Chronicle  Co.  v.   Franklin:    1383. 
Chumasero  v.  Potts:   1493. 
Chunot  v.  Larson:    166. 
Church  v.  Chicago,  etc.,  R.  Co.:   306. 
v.Lafayette  Fire  Ins.  Co.:   1060. 
v.  Landers:    167. 
v.  Mansfield:    1959. 
v.  Proctor:    96. 

v.  Sterling:  368,  1192,  1194,  1198. 
Church  Assoc.  v.  Walton:   940. 
Churchill  v.  Brooklyn  Life  Ins.  Co.: 

2172. 
Churchward  v.  The  Queen:  598,  600. 


Cicotte  v.  St.  Anne's  Church:   2230. 
Cilley  v.   Tenny:    1594. 
Cincinnati,  etc.,  Co.  v.  Finnell:  1658. 
Cincinnati,  etc.,  R.  Co.  v.  Davis:  994. 

v.Evans:    1790,   1799. 

v.  Gray:    1619. 

v.  Lee:  1516. 

v.Martin:   1487,   1798. 

v.  Rue:    1954. 
CIriack   v.   Merchant's   Woolen   Co.: 

1619. 
Citizens'  Bank  v.  Grafflin:  26.9,  716. 

v.Harrison:   2099. 

v.  Howell:  1313,  1314. 

v.  Tessman:    585. 

v.Wright:    1493. 
Citizens'    Fire    Ins.    Co.    T.    Swartz: 

2369. 

Citizens'  Gas  Co.  v.  Wakefield:  523. 
Citizens'  Ins.  Co.  v.  Stoddard:  1074. 
Citizens'  Life  Assurance  Co.  v. 

Brown:    1980. 
Citizens'   Loan,  etc.,  Ass'n  v.  Fried- 

ly:   2193,  2194,  2195. 
Citizens'  Nat.  Bank  v.  Culver:   2288. 
Citizens'    Savings    Bank    v.    City    of 
Newburyport:    1149. 

v.  Hart:    976,  977. 

v.  Marr:    395. 

Citizens'  State  Bank  v.  Pence:  410. 
Citizens'   Street   R.   Co.   v.   Howard: 
1795,  1798. 

v.  Robbins:    2529. 

v.  Steen:    2015,   2016. 
Citrone  v.  O'Rourke  Eng.  Co.:   1621. 
City  v.  Collins:    861. 
City  Bank   v.   Barrow:    2114. 

v.  Bateman:    1782. 

v.Weiss:   1321. 

City  Elec.  R.  Co.  Shropshire:  1935. 
City,  etc.,  Homes  Co.  v.  Marrow: 

2058. 

City,  etc.,  R.  Co.  v.  Moores:  1913. 
City  Missionary  v.   Reams:    945. 
City   Nat.    Bank   v.   Clinton   County 
Bank:    1303. 

v.  Dun:    1995. 

v.  Goodloe-McClelland  Com.   Co.: 

958. 

City  of  Austin  v.  Nuchols:   1799. 
City  of  Cherokee  v.  Illinois  Cent.  R. 
Co.:    2152. 


2232 


TABLE   OF    CASES    CITED 


[Referent-en  are  to  sections:   §§  1-1705,  Vol.  1}  88  1700-2588,  Vol.  II.] 


City  of  Chicago  v.  Gage:   214.  Clark 

City    of    Cleveland    v.    State    Bank:  v. 

895.  v. 

City  of  Decatur  v.  Vermillion:   1522.  v. 

City  of  Detroit  v.  Jackson:  368,  1166.  v. 

City  of  Hammond  v.  Evans:   2187.  v. 

v.  NPW  York,  etc.,  R.  Co.:    2000.  v. 

2009.  v. 

City  of  Jacksonville  v.  Allen:   1557.  v. 

City    of    Kansas    City    v.    Hannibal,  v. 

etc.,  R.  Co.:    1109.  v. 

City  of  New  York  v.  Dubois:   307.  v. 

City    of    Paducah    T.    Jones:     2007.  v. 

2008.  v. 

City  of  Pontiac  v.  Carter:   1500.  v. 

City   of  Providence  v.   Miller:    1093,  v. 

1734.  v. 

City  of  Richmond  v.  Long:   1502.  v. 

City  of  San  Diego  v.  San  Diego,  etc.,  v. 

R.:    1202.  v. 

City  of  Spokane  v.  Patterson:    2007.  v. 

City  of  St.  Louis  v.  Laclede  Gas  L.  v. 

Co.:   186.  v. 

City  of  St.  Paul  v.  Clark:   26.  v. 

v.  Seitz:    1917.  v. 

City  of  Wheeling  v.  Baer:   2280.  v. 

City  of  Worcester  v.  Worcester  City  v. 

R.  Co.:   446.  V. 

City  Transfer  Co.  v.  Robinson:  2016.  v. 

City   Trust   Co.   v.   American   Brew.  T. 

Co.:    1731.  v. 

Clafflin   v.    Evans:    1009.  v. 

Claflin    v.    Continental   Works:    294. 

1008. 

v.  Farmers'  Bank:   1801.  T. 

v.  Lenheim:    628,    634,    637,    638.  v. 

v.Meyer:    488.  v. 

Clairmonte  v.  Napier:   1532.  v. 

Clammer  v.  Eddy:    2426.  v. 

Clanahan   Co.   v.   Payne:    485.  v. 

Clancy  v.  Barker:    1792,   1798,   1940.  v. 

V.Harrison:   1477.  v. 

Clap  v.  Day:   2026,  2030.  T. 

Clapp  v.   Hughes:    2447.  v. 

v.Kemp:    1988. 

V.Rogers:    634.  V. 

Clark,  In  re:  105.  T. 

Clark  v.  Alexander:  125.  v. 

v.Allen:  1591,  2413,  2444,  2475.  v. 

v.  Bird:  992,  1198,  1201,  1221,  v. 

2411.  v. 

v.  Buckmobile  Co.:  1912.  T. 

2233 


v.  Clark:  436,  439. 

Courser:    2171. 

Cox:   161. 

Gumming:    1254,   2397,   2494. 

Cushman:    2319. 

Davies:    2461. 

Davis:    2437. 

Des   Moines:    763. 

Dillman:    296. 

Dobbins:    2562. 

Edwards:    2509. 

Ellsworth:    2246. 

Flint:   591,  654. 

Foster:  1395,  1397. 

Fry:  1917,  2011. 

Gilbert:    1570,  1577. 

Graham:   212.     • 

Hale:   1705. 

Haupt:    855. 

Hyatt:   435,  442. 

Iron   Co.:    689. 

Jones:   1606. 

Kingsland:    2183. 

Latham:   208. 

Lilliebridge:    2163. 

Lovering:   1458. 

Lowell,  etc.,  R.  Co.:  1687. 

Marsgilia:    563,    566. 

Marshall:  1819,  1831,  2202. 

Mauran:   2564. 

Miller:  1501. 

Moody:    1332,  1334,  1336,  1337, 

1340,   1341,  2543,   2544,  2548. 

2549. 

Morris:   2463. 
Morrison:    2152,   2163. 
Morse:    2162. 
Mullenix:    634. 
Murphy:    869,   870. 
O'Rourke:    189,    1389. 
Parish:   2260,  2314. 
Pett:   279. 
Randall:    963. 
Roberts:      1249,      1324,     1803 

2161,  2172,   2173,   2229,   2533 
School   District:    1577. 
Slate  Valley  R.  Co.:  132,  185 
Smith:  157,  865,  869,  870. 
Spicer:  1494. 
Starin:    1973. 
Sullivan:    2276,  2280. 
Terry:   1579. 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   §§  1-1705,  Vol.  Ij  gg   1700-2588,  Vol.  II.] 


Clark  v.  Thompson:  1536,  2467. 

v.  Union   Mutual    Fire    Ins.    Co.: 
301. 

v.  Vannort:   1338. 

v.Van  Northwick:  318,  716,  1268, 
2530. 

v.Van   Riemsdyk:    515, 

V.Washington:    313. 

v.  West:    1575. 

v.  Wilson:    2441. 
Clarke  v.  Baillie:  2375,  2389. 

v.  Brown:   1332. 

V.  Havard:    414,    2002. 

v.  Holmes:    1615,  1630,  1644. 

v.  Kelsey:    981,    1229. 

v. Lyon   Co.:    354. 

v.May:    1494. 

v.  Shee:    2102. 

v.  Spence:    1576. 

v.  Stevedoring  Co. :    592. 

v.  Tipping:    2524. 

v.Van  Reimsdyk:    489. 
Clarkson  Home  v.   Chesapeake,  etc.. 
R.  Co.:   2420. 

v.Missouri,    etc.,   R.   Co.:    2125. 
Clavin  v.  Tinkham  Co.:  1640. 
Clay  v.  Allen:   112. 

v.Hammond:   135. 

v.  Spratt:   459,  463,  491. 
Claypool  v.   Gish:    1339,  2208. 
Clayton  v.  Martin:   989. 

v.  Merrett:   652,  664,  665,  666. 

y.  Patterson:  1344. 

v.  Western  Nat.  Wall  Paper  Co.: 

859. 

Clayton's  Case:   2090. 
Clealand  v.  Walker:   483,  1089,  1748, 

1750. 

Cleary  v.  Heyward:   2038,  2064. 
Cleave  v.  Jones:   2302. 
Cleaveland  v.  Stewart:  1158. 
Cleaves  v.  Foss:   2320. 

v.  Stockwell:    1701. 
Clegg  v.  Bamberger:   1340,  2314. 

v.  Townshend:   2481 
Cleghorn  v.  Castle:  42,  43. 

v.  New  York  Cent.  R.  Co. :  2014. 
Clemens  v.  Supreme  Council:   1073. 
Clemenson   v.    Davidson:    2563. 
Clement  v.  Amusement  Co.:  830. 

v.  Canfield:    40. 

Vw  Young-McShea         Amusement 
Co.:   401,  427,  435,  464,  1803. 


Clendenning  v.  Hawk:   178,  179,  488. 

1198. 

Clerk  v.  Laurie:   573. 
Clerks'  Sav.  Bank  v.  Thomas:   1853. 
Cleus  v.  Jainieson:   1602. 
Cleveland  v.  Newsome:  1799. 

v.  Pearl:  739,  742. 

v.  South     Covington,     etc.,     Co.: 
1977. 

V.Williams:    652,    664,    666. 
Cleveland  Co-op  Co.  v.  Hovey:   1783. 
Cleveland,    etc.,    R.    Co.    v.    Closser: 
555,   1780,   1782. 

v.Davis:    2239. 

V.Jenkins:     285. 

v.  Keary:  1652. 

V.Mara:    1796. 

V.  McNutt:   2063. 

v.  Pattison:    1588. 

v.  Shanower:    1652. 

v.  Shea:    1021. 

v.  Shrum:    2230. 
Cleveland  Rolling  Mill  Co.  v.  Corri- 

gan:    1619. 

Cleveland   R.   Co.   v.   Somers:    1671. 
Clews  v.  Friedman:    2119. 

v.  Jamieson:    111,    112,    386,   515, 
523. 

v.  Reilly:    854. 
Clifford    v.    Armstrong:     1226. 

v.  Burton:  284. 

v.Hughes:    110. 

v.  New  York,  etc.,  R.  Co.:    1941. 

v.  Turrill:    2267. 
Clifton   v.    Clark:    2258. 

v.Ross:    1601. 

Cline  Piano   Co.   v.   Sherwood:    2279. 
Clinkscales  v.  Clark:    1227. 
Clippard   v.    St.   Louis   Transit   Co.: 

1661. 

Clippinger     v.     Hepbaugh:     92,     93, 
1523. 

v.  Starr:   369,  462,  471. 
Cloe    v.    Rogers:     567,     1550,     1552. 

2450,    2451,    2454. 
Close  v.  Hodges:  2023,  2028. 

v.  Holmes:    2125,   2127. 
Clough   v.   Clough:    180,   208,   217. 

v.  Rockingham,    etc.,    Co.:    285, 
291. 

v.  Whitcomb:    871. 
Clouston  v.  Corry:    611. 


2234 


TABLE    OF    CASES    CITED 


[References   are  to  sections:   §8  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 


Clover  Condensed  Milk  Co.  v.  Cush- 

man:    628. 
Clow-Schaaf    Lumber    Co.    v.    Kass: 

2058. 
Clubb  v.  Scullin:   2411. 

v.  St.    Louis,    etc.,    R.    Co.:    2059, 

2063. 
Clute   v.   Barron:    1198. 

v.  Clute:    186. 
Clydesdale    Horse    Co.    v.    Bennett: 

902. 

Clymer  v.  Terry:   974. 
Coal    Creek    Mining    Co.    v.    Davis: 

1651. 

Coalgate   v.   Bross:    1461. 
Coalgate   Co.   v.    Bross:    1487. 
Coaling  Co.   v.   Howard:    1162,   1736, 

1758. 

Coat  v.   Coat:    1202. 
Coates  v.  Allegheny  Steel  Co.:   1557. 
v.  Chapman:   1656. 
v.  Locust  Point  Co.:    2479. 
v.  Semper:  2307,  2311,  2312. 
Cobb  v.  Columbia    etc.,  R.  Co.:   1946, 

1948,    1950. 
v.  Cowdery:    110. 
v.  Dunlevie:  2479. 
v.  Fogg:    1014. 
v.  Hall:    281. 
v.Johnson:    1783. 
v.  Judge:   180. 
v.  Judge     of     Superior     Court: 

2149. 

v.Keith:    2036. 

v.  Knapp:  1083,  1169,  1410,  1413, 
1414,  1422,  1424,  1731,  1758. 
1759,  2582. 
T.Prell:  111,  112. 
v.Simon:  475,  1973. 
v.  United   Engineering   Co.: 

1783. 

Cobban   v.   Hecklen:    229. 
Cobbey   v.    Buchannan:    143. 
Coble    v.    Denison:    1444. 
Coburn  v.  Cedar  Valley  Co.:  642. 
v.  Omega  Lodge:    1141. 
v.  Paine:    285. 
Cochell  v.  Reynolds:  126. 
Cochran  v.  Baker:  1374,  1398. 
v.  Chitwood:   445,  447,  8 
v.  Irlam:    1705,   2514. 
v.  Johnson:    2349. 


Cochran  v.  MacRae:   2054. 

v.  Shanahan:    1644. 

v.Thomas:  2158. 
Cochrane  v.  Little:    2194,  2195. 
Cockcroft  v.  Muller:   2348,  2358. 
Oocke   v.   Campbell:    882. 

v.  Dickens:  2026,  2030. 
Cockerell  v.  Aucompte:  188. 
Cockerham  v.   Perot:    384. 
Cockley  v.  Brucker:    2060. 
Cockran  v.  Irlam:    319. 

v.  Rice:    1454,   1870. 
Cockrell  v.  Thompson:    112. 
Cockrill  v.  Kirkpatrick:    1339. 
Codd  Co.  v.  Parker:    1424,  1759. 
Codding  v.  Munson:   1389,  1390. 
Coddington  v.  Goddard:  2374,  2375. 

2376,   2395,   2396. 
Codres  v.   Bailey:    2234. 
Codwise   v.   Hacker:    435,   498. 
Cody   v.    Dempsey:    2439. 

v.  Raynaud:    648,  1577. 
Coe  v.  Kutinsky:    285. 

v.  Nash:    851. 

v.  Smith:    1572,   1578,  2249. 

v.  Wager:  1515,  1517. 
Coen  v.  Watkins:    2141. 
Coffin   v.   Craig:    1327,   1343. 

v.  Grand   Rapids  Co.:    2028. 

V.  Landis:   563,  592,  641,  1543. 

v.  Linxweiler:     2426. 

v.Reynolds:    39. 
Coffman  v.  Hampton:   946. 

v.Harrison:    1395,  1397. 

v.Williams:    2529. 

Cogdell  v.  Southern  R.  R.  Co.:  1671. 
Coggburn  v.    Simpson:    2032. 
Coggins    v.    Chicago,    etc.,    R.    Co.: 

1935. 

Coghlam  v.  McKay:   2034. 
Cohen,  In  re:  911. 
Cohen  v.  Ames:  2435,  2463,  2472. 

V.Barry:    1438. 

v.Farley:    1536,    2447. 

V.Goldstein:    104S. 

v.Jackson:    401. 

v.  Kuschke:    2137. 

v.  Mincoff :    910. 

v.  O'Connor:    949. 

V.Oliver:    236. 

v.  Teller:    364. 

v.  United  States  Exp.  Co.:   1046. 


2235 


TABLE   OF    CASES    CITED 


[Reference*  «r«  to  •ectlonsi   §§  1-1705,  Vol.   I;  gg   170O-2588,  Vol.  II.] 


Cohn  v.   Heusner:    2202. 
Cohn,   etc.,   Co.   v.   Robbins:    285. 
Coin  v.  Talge  Lounge  Co.:  1631. 
Coker  v.  Ropes:  1244. 
Colbert  v.  Shepherd:  177,  179,  1198, 
1199.  h<jf) 

Colburn  v.   Grant:    1329. 

r.  Phillips:      2024,     2025,     2032, 
2033. 

y.  Seymour:    2441. 
Colby  v.  Thompson:   167. 
Coldrick    v.    Partridge:     1643,    1644, 

1657. 
Coldwater  National  Bank  v.  Buggie: 

285. 

Cole,  Estate  of:   2230. 
Cole  v.  Andrews:   2308. 

v.  Baker:    436,   1339,   1346. 

y.  Bennett:    2279. 

v.  Brown-Hurley   Hardware   Co.: 
95. 

v.  Chicago,  etc.,  R.  Co. :  1637. 

V.Edwards:    411,   441. 

v.  Getzinger:   1815,  1818. 

v.  Hardware  Co. :    94. 

v.  Kosch:  2447,  2459. 

v.  Northwestern       Bank:       2112, 
2509. 

v.  O'Brien:    1395,    1397. 

y.  Pennoyer:  141,  143. 

y.  Roby:    2251. 

y. Union  Cent.  L.  Ins.  Co.:  1060, 
1062. 

y.  Utah   Sugar  Co.:    2059,   2064. 
Coleman,  In  re:  2147. 
Coleman  v.   Billings:    2237. 

v.  First   Nat.    Bank   of   Elmira: 
1423,   1731,    1732. 

v.  Garrigues :    807. 

v.  Meade:    2430,   2437,   2441. 

v.  National    Bank:    775. 

v.  Pearce:   1255,  1342,  2529. 

V.Roberts:    1496. 

v.  Stark:  410,  411,  1993. 

v.  State:  1918. 

Coleman's  Will,  In  re:  2307. 
Coles  v.  Bell:   534. 

V.Clark:    1457,    2345. 

V.  McKenna:    1759. 

v.  Trecothick:    2327. 

y.  Wright:    1457. 
Coley  v.  N.  C.  R.  Co.:  1671. 


Coll  v.  Easton  Transit  Co.:   1799. 
Collar  v.  Ford:  236,  1221. 

v.  Patterson:    1515. 
Collen  v.   Wright:    1363,   1365,   1374, 

1378,   1398. 

Collette  v.  Rebori:    1978. 
Colley  v.  Merrill:  1692. 

v.  Wolcutt:    2284. 
Collier  v.  Pulliam:   1320,  2212. 

v.  Steinhart:    1654. 
Collingwood    v.    Illinois,    etc., 

Co.:   1644. 
Collins  v.  Allen:    1397. 

v.  Blantern:    112. 

y.  Buck:  1686,  1688. 

v.Butler:  1782,  1953,  1962. 

V.Campbell:    2281. 

v.  Cooper:    999,  1002,  1030. 

v.  Crews:   273,  869,  1803. 

v.  Durward:    403. 


Fuel 


' 


v.  Fairchild:    986. 

v.  Fidelity  Trust  Co.:    435. 

v.  Fowler:    2412,  2474. 

v.  Hammock:    1107. 

V.Harrison:    1618. 

V.Hoffman:    2307. 

V.Hopkins:    672. 

v.  Insurance     Co.:      1139,     1158, 
1162. 

v.  McClurg:    1588. 

v.  Metropolitan    Life    Ins.    Co. : 
1065. 

v.  New  England  Iron  Co.:    1586. 

v.Newton:    870. 

v.  Rainey:    1216. 

v.  Smith:     1579. 

v.  State:    2006. 

v.  St.  Paul,  etc.,  R.  Co.:   1644. 

v.  Suau:    386. 

v.Sullivan:   1194,  1195. 

v.  Tillou:    1331. 

v.  Trust  Co.:    2187. 

v.  United  States:    1522. 

v.Waggoner:    386. 

Collins  &  Toole  v.  Crews:   907,  1831. 
Colloty  v.   Schuman:    1180. 
Collyer  v.  Collyer:   1515. 

v.  Krakauer:    48,   2499. 
Colonial   Bank  v.   Cady:    2119. 

v.  Exchange  Bank  of  Yarmouth: 

2044. 
2236 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 


Colonial     Mtg.     Co.     v.     Hutchinson 

Mtg.   Co.:    1343. 
Colorado   Coal   &   Iron  Co.   v.   John: 

2261. 

Colorado,  etc.,  Co.   v.   Carpita:    2154. 
Colorado,  etc.,  R.  Co.  v.  Ogden:   1644. 
Colorado  Land  Co.  v.  Adams:   382. 
Colorado     Midland    R.    Co.    v.     Mc- 

Garry:    1798. 
v.  Nay  Ion:    1654. 
Colorado   Springs   v.   Colorado   City: 

465. 

Colorado    State   Bank   v.    Davidson: 
i        2285. 

Colt  v.  Lawrenceburg,  etc.,  Co.:   169. 
v.  McConnell:    2302. 
v.  Noble:   1303. 
v.  Owens:   2415,  2529. 
Colton  v.  Richards:  1644. 
Columbia  Bridge  Co.  v.  Geisse:   246, 

257,    258. 

Columbia   College   of   Music   v.   Tun- 
berg:    642. 
Columbia,    etc.,     Co.     v.     Vancouver, 

etc.,  Co.:  219. 
Columbia   Ins.   Co.   v.   Cooper:    1071, 

1865. 

Columbia  Land  &  Min.  Co.  v.  Tins- 
ley:  234. 

Columbia  Mill  Co.  v.  National  Bank 
of  Commerce:  244,  263,  270,  279, 
720,  755. 

Columbia  Paper  Stock  Co.  v.   Fidel- 
ity &  Casualty  Co.:   1831,  1834. 
Columbia  Phosphate  Co.  v.  Farmers' 

Alliance  Store:   946. 
Columbus     Buggy     Co.     v.     Turley: 

2115,  2499. 
Columbus,    etc.,    R.    Co.    v.    Arnold: 

1651,  1654. 
v.Powell:    285. 

v.  Troesch:    1630,    1632,    1644. 
v.Webb:    1644. 

Columbus  R.  Co.  v.  Christian:   1935. 
Columbus  Showcase  Co.  v.  Brinson: 

908. 

Columbus  &  Rome  R.   Co.  v.   Chris- 
tian:  1935,  1936. 
Colvin  v.  Blanchard:  198. 

v.  Holbrook:   1339,  1431,  1438. 
v.  Peck:    891. 


Colwell   v.   Aetna   Bottle   &    Stopper 
Co.:   1903,  1906,  1950. 

v.  Keystone  Iron  Co.:    178,   2398. 
Comben  v.   Stone  Co.:   1626. 
Combes'  Case:    124,  129,  212,  1093. 
Combes   v.   Adams:    229. 
Combs   v.   Hannibal    Savings   &   Ins. 
Co.:    1073. 

v.  Scott:    393,    395,   403. 
Comeau  v.  C.  C.  Manuel  Co.:  1782. 
Comegys  v.   Lumber  Co.:    285. 
Comer   v.    Grannis:    922,   1723. 

v.Meyer:    1630. 

v.  Way:    2538. 
Comes  v.  Lamson:    1579. 
Comey  v.  Harris:    1809,   1831. 
Comfort  v.  Graham:    1389,   1396. 

v.Patterson:    2099. 
Comley   v.    Dazian:    581,   1255,   1257. 

1342. 

Commercial    Assurance    Co.    v.    Rec- 
tor:  977. 

Commercial    Bank    v.    Armsby    Co.: 
2120,  2509. 

v.  Armstrong:    1321. 

v.  Burgwyn:    1815,   1845. 

v.Cunningham:    1853. 

V.French:    2020,   2030. 

v.  Hurt:    2127,    2509. 

v.Jones:   332,  386,  395,  1288. 

v.  Kortright:    213,    710,   2119. 

v.Martln:    316,   332. 

V.Norton:    307,  315. 

v.  Union   Bank:    1314. 

v.  Warren:    361. 
Commercial  Electric  Co.  v.  Tacoma: 

367. 
Commercial   Ins.   Co.   v.   Ives:    1071, 

1865. 

Commercial    Nat.    Bank    v.    Burch: 
2084. 

V.Hamilton   Nat.   Bank:    1321. 

V.Hawkins:    1516. 

v.  Heilbronner:    2577. 
Commercial  Telegram  Co.  v.  Smith: 

2283. 
Commercial     Union     Assur.     Co.     v. 

State:    1055,  1074. 
Commiskey  v.  McPike:   1760. 
Commissioners  v.   Chambers:    1528. 

v.  Griffin:    2163. 

v.Rose:    2183. 


2237 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   g§  1-1705,  Vol.   I;  §§  1706-2588,  Vol.  II.] 


etc.,    v.    Reynolds: 


of    Police    v.    Cart- 


225. 


:A  .v 


Commissioners, 

1202. 
Commissioners 

man:   2008. 
Commonwealth  v.   Belt: 

v.  Boynton:   2007. 

v.  Briant:    2008. 

v.  Bringhurst:    125. 

v.  Commissioners:    198. 

v.  Cooper:    716,   1220,   2411, 

v.  Coughlin:    2006. 

v.  Detwlller:    125. 

v.Eastman:   4C3. 

v.  Emmons:    2007. 

v.  Farnum:    861. 

v.  Farren:    2007. 

v.  Finnegan:    2007. 

v.Foster:    360. 

v.  Harnden:    2327. 

V.Hawkins:    766,  777,   1086 

v.Hayes:    2008. 

v.  Holbrook:    2007. 

v.  Holmes:    246. 

v.  Joslin:    2008. 

v.  Junkin:    2009. 

V.Leslie:   1459. 

v.  Massi:    553. 

v.  McCulloch:    2240. 

v.  McKay:    2207. 

v.McPike:    1796. 

v.  Mechanics'    Ins.    Co.:    2286 

v.  Mixer:    2007. 

v.  New   Bedford   Bridge: 

V.Nichols:     2006,    2007, 

v.Perkins:    1039. 

v.  Perry:    2008.     . 

v.  Pulaski    Agr.    Ass'n. : 

V.Putnam:    2000,   2006. 

V.Raymond:    2007. 

v.  Sacks:    2007,   2008. 

v.  Stevens:   2000,  2007. 

v.  Tubbs:    2240. 

v.  Wachendorf:    2008. 

v.  Waite:    2007. 

v.  Warehouse  Co.:    126. 

v.  Warren:    2008. 

v.  Wentworth:    2007. 
Commonwealth,     etc.,     Ins.     Co. 

Fairbanks    Canning    Co.:    2368. 
Compton  v.  Bates:   163. 
Comstock  v.  Fowler:   2237. 
Conabeer  v.   Bruenn:    908. 


2008. 
2008. 


2008- 


Conable  v.  Lynch:    2115. 
Conan  v.  Riseborough:    42. 
Conant  v.   Riseborough:    501. 
Conaughtey  v.  Nichols:    1342. 
Concannon    v.     Point     Milling 

2463. 
Conchin  v.  El  Paso  &  S.  W.  R.  Co.: 

1979. 

Condict  v.  Cowdrey:  2426,  2430,  24H1. 
2502.  2443,   2447. 

Condit    v.    Baldwin:    412,    414,    507, 

2003,   2004,   2005. 
Condon  v.  Barnum:   652,  1803. 

v.Hughes:    156. 

v.  Pearce:    1162. 
Cone   v.   Brown:    935. 

v.  Keil:    2435. 

v.Russell:    116. 
Cones  v.  Brooks:    2281. 
Conevey   v.    Tannahill:    2297. 
Coney   v.    Sanders:    C63,    664. 
Congar    v.     Chicago,    etc.,     R.     Co.: 

1831. 

Congregation  v.  Peres:    1548. 
Conkey  v.   Bond:    179,   1205. 
Conkey  Co.  v.  Larsen:   1625. 
Conklin  v.   Benson:    2123. 

v.  Cabanne:    253. 

v.  Conklin:    2315. 

v.Dougherty:    2309. 

v.  Krakauer:    1536,  2447. 

V.Raymond:    2099,  2129. 
Conkling  v.  Krakauer:   2430 

v.  Standard  Oil  Co.:   881,  1781. 
Conley  v.  American  Exp.  Co.:  1630.     . 

v.  Key:   2224. 

V.Portland:    1654. 

v.  Whitthorne:    2170. 
Conlin  v.  Carter:   1352. 
Conn  v.  Chambers:   48,  2499. 
Connally  v.  McConnell:   2074. 
Connecticut  Mutual  Ins.  Co.  v.  West- 

ervelt:   148. 

Connecticut     Mut.     L.     Ins.     Co.     v. 
Pulte:    246. 

v.  Schaefer:    2299. 

Connell  v.  Gisborne  Times  Co.:   611. 
v.  1593. 

v.  McLoughlin:    969,   972,  998. 
Connelly  v.  Woods:    1494. 
Conner  v.  Chicago,  etc.,  R.  Co.:  1644. 

v.Koch:   1860. 
2238 


TABLE   OF    CASES    CITED 


TReferencew   are  to  sections:   §§   1-1705,  Vol.  I;   §§   1706-25SS,  Vol.  II.] 


112. 


2162. 


Conner  v.  Robertson: 
v.Watson:    2182. 
Conners  v.  Holland:    659. 
Conness  v.  Baird:    1445. 
Connett  v.  Chicago:    643,  2133, 
Connolley  v.   Beckett:    1803. 
Connolly  v.  Davidson:    1645. 
Connop  v.   Challis:    2185. 
Connor   v.    Black:    111. 
v.Hodges:    236. 
V.Johnson:    291. 
v.Parker:    306,   2514. 
v.  Parsons:    663,   1024. 
Conover   v.   Neher-Ross   Co.:    16152. 
Conrad   v.   Abbott:    167. 

v.Graham:    1834. 
Conradt  v.  Clauve:   1941. 
Conree  v.   Brandegee:    557. 
Conrey  v.  Brandegee:    645,  647. 
Conroe  v.  Case:   1128,  1162,  1709. 
Conroy  v.  Vulcan  Iron  Works:   1630. 

1631. 
Considerant  v.  Brisbane:    2026.  202S, 

2037. 
Consolidated     Co.     v.     Curtis:     1457. 

2345. 

Consolidated  Coal  Co.  v.  Floyd:  1661. 
v.  Haenni:    1638. 
v.  Wombacher:    1619,    1652. 
Consort  Deep  Level  Gold  Mines.  In 

re:  253. 
Consolidated     Fire     Works     Co.     T. 

Koehl:    1860. 
Consolidated   Fruit   Jar   Co.   v.   Wis- 

ner:    1803. 
Consolidated   Gas   Co.   v.   Chambers: 

1615,    1661. 

v.Connor:    1472,   1474. 
Consolidated      Ice      Mach.      Co.      v. 

Keifer:    1837. 

Consolidated  Nat.  Bank  v.  Pac. 
Coast  Steamship  Co.:  718.  1001. 
1026. 

Consolidated  Safety  Pin  Co.  v.  Hum- 
bert: 1763. 

Constable   v.    Rosener:    161. 
Constant    v.    University    of    Roches- 
ter:   1808,  1809,  1838. 
Construction  Co.  v.  Heflin:   1679. 
Content  v.   Banner:    2386. 
Continental  Adjustment  Co.  v.  Hoff- 
man:   2166. 

22^0 


Continental 
son:    1053, 
Continental 

1064. 

Continental 
lain 
v.  Clark: 


Casualty    Co.    v.    John 
1058. 
F.    Ins.    Co.    v.    Brooks: 


Chamber- 


Ins.     Co.     v. 
1073,   1075. 
435,    439,   493,   1250. 
v.  Insurance  Co.:    1993. 
v.  Pearce:    1073,    1865. 
v.  Ruckman:      317.      1053.     1058, 

1059,  1062,  1071,  1077. 
Continental    Life    Ins.    Co.    v.    Cham- 
berlain:   1071. 
v.  Perry:    1219. 
Continental  Nat.   Bank  v.  McGeoch : 

1852. 

v.  National  Bank:    364. 
v.  Strauss:    146,  1392. 
v.  Weems:    1350. 
Converse   v.   Blumrich:    1783. 
Conway   v.   Carpenter:    1338. 

V.Lewis:     1244,    2503,    2537. 
v.  Rock:    2309. 
Conway  County  v.  Little  Rock,  etc., 

R.    Co.:    2182,   2184. 
Con  well  v.  Voorhees:  323,  1.503. 
Conyers   v.    Magrath:    1410. 
Cook  v.  Anamosa:   1831. 
v.  Aldred:    2059. 
V.American    Tubing   Co.:    1803. 
v.  American    Tubing   &   Webbins; 

Co.:    1825. 

V.Baldwin:    263,   970. 
V.Berlin      Woolen      Mills      Co.: 

1202. 

V.Bradley:    1517. 
v.Buchanan:    236,    473. 
v.  Burlin,  etc.,   Co.:    1221. 
v.Cameron:    465. 
v.  Cook:    1433. 
v.  Fiske:    2430,    2447. 
v.  Forst:    1533,   1536,   2430,   2437. 

2445. 

v.  Gray:    1172,  2064. 
v.  Hopper:    2221,  2222. 
v.  Kuhn:    220. 
v.  Newby:    167. 
v.  Piatt:    2474. 
v.  Rives:    2209. 
v.  Sanford:    1124. 
v.  Shipman:  92,  103. 
v.  Stimpson:   296. 


TABLE  OF   CASES    CITED 


are  to  section*:  g§  1-1705,  Vol.  I;  §§  1700-2688,  Vol.  II.1 


Cook  v.  Stimson  Mill  Co.:  1798. 

v.  Tullis:    353,  385,  483,  486,  526. 
Cooke  v.  Bangs:   1494. 

v.  Eshelby:   867,  2067,  2079,  2400, 
2492. 

T.Fiske:    2463,  2473. 

v.  Kroemeke:  2441. 

v.  Thresher:  2269,  2270,  2281. 
Cooley  v.  Betts:  1336,  1339,  1340, 
2544,  2548,  2549. 

v.  Ksir:  1411. 

v.  Miller:    2289,  2290. 

v.  O'Connor:   199. 

v.  Perrlne:    436,  882,  886. 

v.  Willard:    708,  934,  937. 
Coolidge  v.  Smith:    169. 
Coombe  v.  Knox:   2283. 
Coombs  v.  Barker:   1803,  1804. 

v.Hannibal  S.  &  I.  Co.:  1053. 

v.  New    Bedford     Cordage     Co. : 

1618,  1619,  1624,  1625. 
Coonan  v.  Loewenthal:   2161. 
Cooney  v.   U.   S.   Wringer   Co.:    946, 

949. 

Coons  v.  Renick:  132,  185. 
Cooper  v.  Bell:    2236,  2289. 

v.  Borrall:    2356. 

v.  Cashman:    1619. 

v.  Goad:   856,  899. 

v.  Cooper:   1243. 

v.Erie,  etc.,  R.  Co.:   306. 

v.  Ford:   1815,  1826. 

v.  Farmers'  &  Merchants'  Bank: 
277. 

v.Gardiner:  1400,  1412. 

V.Harvey:    2246. 

v.  Hill:   1844. 

v.  Lake  Erie,  etc.,  R.  Co.:   335. 

v.  Lee:    2291. 

v.  Lowery:    306,   1869. 

v.  Newell:   2158. 

v.  Rankin:   212. 

v.  Schwartz:   463. 

V.Seattle:    1871. 

v.  Strong:   617. 

v.Tim:    1436,    1438. 
Cooperson  v.  Pollon:    2302. 
Coore  v.  Callaway:    259,  534. 
Coote  v.  Gillespie:    1410. 
Cope  v.   Dodd:    2425. 

V.Rowlands:    2479. 


Copeland  v.  Dixie  Co.:  17,0. 

v.  Mercantile   Ins.   Co.:    614,   616, 
1198,  2398. 

v.  Stoneham   Tannery  Co.:    1521. 

v.  Touchstone:   2075. 
Copenrath  v.  Kienby:   134. 
Coppin  v.  Craig:   2033,  2326,  2341. 

v.Walker:    2037,    2325. 
Coppins  v.   New  York,   etc.,  R.  Co.: 

1632,  1646. 

Coquard  v.  Weinstem:   2414. 
Coquillard  v.  Bearss:   92,  99. 

v.French:    780,  802. 

v.  Suydam:   1343. 

Corbel  v.  Beard:    1536,  2435,  2437. 
Corbet  v.  Waller:    937,  946,  954. 
Corbett    v.    Underwood:     243,    2386, 

2387. 
Corbin  v.   Adams:    1783. 

v.America   Mills:    1871. 
Corbit  v.   Klmball:    843. 
Corbitt  v.  Salem  Gaslight  Co.:   601. 

v.  Timmerman:    2152,   2158. 
Corcoran    v.    Holbrook:    1624,    1640, 
1654. 

v.  Snow  Cattle  Co.:  1815,  1817. 
Cordner  v.  Railway  Co.:    1937,  1973. 
Cordova  v.  Barnum:    2386. 
Corey  v.  Hunter:    720,  726,  934,  965. 
Corgan  v.  Lee  Coal  Co.:  593. 
Corlies  v.  Gumming:  186,  2037,  2508. 

2544,   2554. 
Corliss  v.   Keown:    1460,   1860,   1917. 

v.  Smith:    1803. 
Corn  v.   Bergman:    1783. 
Corner  v.  Mackintosh:    2227. 

v.  Pendleton:    2094. 
Corn    Exchange    Bank    v.    American 
Dock   &  Trust  Co.:    244,    754,   760, 
1801. 

Cornfoot  v.  Fowke:    833,  1995,  1996. 
Corning  v.   Calvert:    2467. 

v.  Southland:    515. 

v.  Strong:    946. 
Cornish  v.   Abington:    2067. 
Cornwell  v.  Foord:   1198,  1201,  1221. 

1233,  2411. 
Corona  Coal  &  I.  Co.  v.  White;  1888, 

1914. 

Corner    Brewing    Co.    v.    Huggins: 
1895. 


2240 


TABLE   OF    CASES    CITED 


[Reference?)   are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.) 


Corrigan  v.  Elsinger:    1870. 
v.  Reilly:    1410. 
v.  Rice:    1913. 
Corson     v.    Lewis:     309,     682,     2281, 

2314. 

Corser  v.  Paul:   361,  447. 
Cort  v.  Lassard:    642,  643. 
Cortland  Wagon  Co.  v.  Lynch:  1139, 

1162,   1736. 
Cory  v.  Cook:   162. 
Cosgrove   v.   Leonard:    2246. 

v.  Ogden:    710,   1874,   1892. 
Cosmopolitan  Range  Co.  v.  Midland 

R.  Terminal  Co.:    264. 
Cossitt  v.  Hobbs:   2321. 
Cost  v.  Genette:   2183. 
Costello  v.  Insurance  Co.:  1071. 
Coster  v.  Dilworth:   2002. 

v.  Mayor:    2064. 
Costet  v.  Jeantet:   610. 
Costigan  v.  Newland:   1438. 

v.  Railroad  Co.:    1559. 
Costikyan  v.   Sloan:   397,  2509,  2511. 
Cothran  v.  Ellis:  716. 
Cothren  v.  Connaughton:   2146. 
Cottage    Organ    Co.    v.    McManigal: 

2084. 

Gotten  v.  Ellis:   1493. 
Cottle  v.  Cole:   2023. 
Cottom  v.  Halliday:   178. 

v.  Holliday:    1194,    1198. 
Cotton  v.  Rand:   608,  609,  1548. 
Cottondale  State  Bank  v.  Burroughs 

Adding  Mach.  Co.:   285,  292. 
Cotton  Mills  v.  Indian  Orchard  Mills: 

1847. 

Cotton   States  Life   Ins.   Co.  v.  Mal- 
lard:  1701. 

Cottrell  v.  Wheeler:  2163. 
Couch  v.  Davidson:    954. 
Coughlan  v.   Cambridge:    1860,   1861, 

1988. 
v.  New  York,  etc.,  Co.:  2243,  2276, 

2279,   2281. 

Coughtry  v.  Globe  Woolen  Co.:  1642. 
Coulter  v.  Blatchley:    2059,   2063. 

v.Portland  Trust  Co.:  784,  799. 
Counsman     v.     Modern     Woodmen: 

2283. 
County    Commissioners   v.    Duckett: 

1500. 

v.  Duvall :    1504. 
141 


County  of  Colusa  v.  Welch:   92. 
County  of  Macon   v.   Shores:    749. 
Coupe  Co.  v.  Maddick:  1944. 
Courcier    v.    Ritter:    459,    491,    2525, 

2528. 

Courey  v.  Brenham:    2163. 
Courser  v.  Jackson:    652. 
Coursin's   Appeal:    1225. 
Coursolle  v.  Weyerhauser:   142,  145. 
Court  v.  Snyder:   886,  2332. 
Courtney  v.  Baker:  1796. 

v.  McGavock:    2279. 
Cousins  v.  Boyer:   156. 

v.  Hannibal,    etc.,   R.    Co.:    1912, 

1914. 
Couturie     v.     Roensch:     1569,     2498, 

2551,  2556,  2559. 

Couturier  v.  Hastie:    1322,  2534. 
Covell  v.  Hart:   309,  1180,  1710,  2169, 

2217. 

v.  Loud:   2388. 
Coveney    v.    Tannehill:     2303,    2305, 

2307. 

Coventry  v.  Barton:   1611. 
Coventry's  Case:   43. 
Covey  v.  Campbell:    2246. 

v.Henry:    233. 
Covill  v.  Hill:  2110,  2119. 

v.Phy:    2163. 
Coville  v.   Smart:    1768. 
Covington  v.  Bass:  2280,  2283. 

v.  Newberger:   878. 
Cowan  v.  Curran:  515,  519,  842,  1803, 

1815,  1826,  2063,  2070. 
v.  Sargant   Mgf.   Co.:    395,  896. 
Cowasjee  Nanabhoy  v.  Lallbhoy  Vul- 

lubhoy:   598. 
Cowflry   v.    Galveston,   etc.,   R.   Co.: 

2286. 
Cowell  v.  Phillips:   162. 

v.  Simpson:    1690,   2273. 
Cowen  v.  Winters:   2016. 
Coweta   Falls   Mfg.    Co.   v.    Rogers: 

741,  1782. 
Cowert    v.    American    Woolen    Co.: 

1624. 
Cowie  v.  Apps:    2554. 

v.  National  Bank:    169. 
v.  Remfry:  2379. 
Cowles    v.    Richmond,    etc.,    R.    Co.: 

1640,  1644. 
V.Thompson:    2246. 
2241 


TABLE   OF    CASES    CITED 


[Reference  are  to  section.:  §§  1-17O5,  Vol.  I;  88  1706-2588,  Vol.  II.] 


Cowles  v.  Whitman:  654. 
Cowley  v.  Fabien:   375,  1273. 

v.  People:   14G6. 
Cox  v.  Adams:  1577. 

r.  Adelsdorf:    2163. 

V.Albany   Brewing   Co.:    742. 

v.  Borstadt:    1170,   1444. 

v.  Bowling:    697. 

v.  Brewing  Co.:   980,  988. 

v.  Bruce:  760,  1801. 

v.  First   Nat.    Bank:    2126. 

v.  Haun:    1591,   2475. 

v.  Hickman:    51,  53. 

v.  Hoffman:   167. 

v.  Hugbes:   585. 

v.  Leech :    2198. 

v.  Life  Ins.  Co.:  2003. 

V.Livingston:    1315,    2196,    2197, 
2206. 

V.Massachusetts    Mut.    Ins.    Co.: 
2002. 

v.  New  York,  etc.,  R.  Co. :    2162. 

v.  Pearce:    1809. 

v.  Prentice:    1432,  1435. 

v.  Railroad:    169. 

v.  State:    2006. 

v.Sullivan:    2188,  2196,  2212. 
Cox's  Case:   43. 

Cox  Shoe  Mfg.  Co.  v.  Gorsline:   1893. 
Coyle  v.  Griffing  Iron  Co.:  1615. 
C.,  N.  0.  &  T.  P.  R.  Co.  v.  Conley: 

1657. 

Crabb  v.   Wilkins:    1874. 
Cracken  v.  Hamburger:   1767. 
Craft  v.  McConoughty:    113. 
Crafts  v.  Carr:   143. 
Cragie  v.  Hadley:   1812,  1831,  1844. 
Cragin  v.  Lovell:   1736. 

v.Powell:    1209. 
Craig  v.  Burnett:    1494. 

v.  Chambers:    1282. 

v.Craig:    1778. 

v.Ely:   2163,  2183. 
:  oOv-  Godfrey:    2320. 

v.  Harrison-Switzer  Milling  Co.: 
2523. 

v.Wead:    2435,   2436. 
Craighead  v.  Peterson:  395,  784,  789, 

973,  977.it) 

Craig  Silver  Co.  v.  Smith:  954. 
Grain  v.  First  Nat.  Bank:  80. 

2242 


Craker  v.  Chicago  &  N.  W.  R.  Co.: 

1934,  1942,  1959,  2015. 
Cram  v.   Sickel:    395,  946,  954,  2181. 
Crammer  v.  Kohn:   1552. 
Cranch   v.  White:    1457. 
Crandall  v.  Boutell:  1889. 

v.  Loomis:    1455. 

v.Rollins:    1162,    1405,    1406. 

v.  State:    2319. 
Crane   v.   Bedwell:    463. 

v.  Bennett:    2015. 

v.  Burntrager:   1333. 

v.Eddy:  2449,  2462. 

v.  Gruenewald:    936,  937,  2180. 

v.  Hubbel:   2002. 

v.  McCormick:    1533,   2445. 

v.  McDonald:    2458. 

v.  Nelson:    2152. 

v.  Whittemore:    121,   2478. 
Cranmer    v.    Building,    etc.,    Ass'n: 

2245. 

Crans  v.  Hunter:  410. 
Cranston  v.  Crane:   1094. 

V.Philadelphia   Ins.  Co.:    2484. 
Crasto  v.  White:    1535,  2467. 
Cravens  v.  Gillilan:   361. 
Craver  v.  House:   308,  474. 
Crawford  v.  Barkley:    410. 

v.  Dean:    2030. 

V.Essex:   1333. 

v.  Insurance  Co.:  436. 

v.  Parsons:    1579. 

v.  Publishing   Co.:    593. 

v.  Redus:    169. 

v.Russell:    117. 

v.  Spencer:    111,   112,   2478. 

v.  Tommy:  1560. 

v.  Whittaker:    870. 
Crawshay  v.  Homfray:   1690. 

v.Thornton:    1333. 
Cray  v.  Mansfield:   2292. 
Craycraft  v.  Selvage:    707,  756. 
Crayton  v.  SpullocK:   2290. 
Creager  v.  Link:    563. 
Cream  City  Glass  Co.  v.  Friedlander: 

1419,  1424. 
Creed  v.  Sun  Fire  Office  of  London: 

1073,  1804. 

Creighton,  In  re:  208. 
Crelan  v.  Gardner:   2447. 
Cremer  v.  Miller:   1533,  2431. 

v.  Winimer:    2028,    2032. 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   §§  1-1705,  Vol.  I;  gg  1706-258$,  Vol.  II.] 


Crenshaw  v.  Harrison:    2184. 

v.  Ullman:    1870,   1871,  1918. 
Crescent,   etc.,   Co.  v.   Eynon:    1543. 
Crescent  Ins.  Co.  v.  Bear:    1332. 

v.  Camp:    1067. 
Creson  v.  Ward:   471. 
Cresswell  v.  Byron:    2253. 
Creveling  v.  Wood:   2553. 
Crevier  v.  Stephen:    2441. 
Crew  v.  St.  Louis,  etc.,  R.  Co.:  1644. 
Cribb  v.  Dwyer:    1984.  _g 

Cribben  v.  Deal:   213. 
Crichfield  v.  Bermudez  Asphalt  Pav. 

Co.:  92. 

Crigler  v.   Shepler:    90. 
Crlmmins  v.   Booth:    1619,   1674. 
Crimp  v.  Yokely:    804. 
Crisler  v.  Garland:    2308. 

v.  Ott:   1918. 

Crispin  v.  Babbitt:   1640,  1644. 
Crisup  v.   Grosslight:    102,   110. 
Criswell  v.  Riley:    1223,  1258,   2370. 
Critchfield  v.  Porter:    2156. 
Critten  v.  Chemical  Nat.  Bank:  1842. 
Crittenden  v.  Schermerhorn:   165. 
Croader  v.  McAlister:    386. 
Crocheron   v.   Savage:    2290. 
Crocker  v.  Colwell:   1162. 
Crockett  v.  Grayson:  1533,  2431,  2443, 
2447. 

v.  Sibley:    357. 

Croco  v.  Oregon  R.  Co.:    2237,  2239. 
Crofoot  v.  Gurney:   1447,  1449. 
Croft  v.  Alison:    1898,  1958,  1959. 
Croker  v.  Pusey:    1624. 
Crombie  v.  Waldo:   2430,  2472. 
Crompton  v.   Echols:    2437. 

v.  Marble  Co.:    2529. 
Cronan  v.   Hornblower:    850,  2393. 
Crone  v.  Long:   285. 
Cronemillar  v.  Duluth,  etc.,  Co.:  603. 
Cronkhite  v.  Evans-Snider-Buel  Co.: 

2161. 

Cronin  v.   American   Securities  Co.: 
563,   2449. 

V.Columbian  Mfg.  Co.:  625,  1619. 
Cronk  v.  Mulvaney:   285. 
Crook    v.    International    Trust    Co.: 

1989. 
Crocker  v.  Appleton:   439. 

v.  Hutchinson:    1279,   1280,   2196, 
2212. 


Crookham  v.  State:   1796. 
Crookston    Lumber    Co.    v.    Boutin: 

1630. 

Croom  v.  Shaw:  882. 
Crosby  v.  Berger:    2297,  2299,  2305. 

v.  Hatch:    2281. 

v.  Hill:   869,  2075,  2405,  2492. 

v.  St.  Paul  Lake  Ice  Co.:  1516. 

v.  Washburn:   148. 
Cross  v.  Atchison,  etc.,  R.  Co.:  738. 

v.Matthews:  1716. 

v.  Railroad  Co.:    1043. 

v,  Riggins :  2308. 
Crossley  v.  Kenny:  296. 
Crothers  v.  Acock:  291. 

v.  Lee:  1343. 

Crotty  v.  Eagle:  309,  2162,  2164. 
Crouch  v.  Wagner:   2028. 
Crouse    v.    Hartford    Fire    Ins.    Co.: 
1062. 

v.Rhodes:   2447. 
Crout  v.  DeWolf :  364. 
Crowe  v.  Ballard:   1225. 
Crowell  v.  Truax:  2247. 
Crowfoot  v.  Gurney:  561. 
Crowley  v.  Boston  Elevated  R.  Co.: 
1783. 

v.  Gennesse  M.  Co. :   2151..  ' 

v.  Le  Due:   2276. 

v.  McCambridge:   660. 
Crowley    Co.    v.    Myers:    1533,    2435, 

2437,  2439,  2444. 

Croy  v.  Busenbark:   208,  216,  246. 
Crozier  v.  Carr:  1086. 

v.  Reins:  1041. 

Crumbacker  v.   Tucker:    1693. 
Crump  v.  Ingersoll:  1206. 

v.  Mining  Co.:  833. 
Crumrine  v.  Crumrine:  208. 
Crutchfleld  v.  Railroad  Co.:   1631. 

V.Webster:  2457. 

Cruzan  v.  Smith:  60,  66,  707,  710,  915. 
Crye  v.  O'Neal:  2256. 
Cubberly  v.  Scott:  169. 
Cuckson  v.  Stones:  1584. 
Cuff  v.   Newark,   etc.,   R.   Co.:    1871 

1917,  1918. 
Cullen  v.  Bell:    2430. 

v.  O'Hara:  2050. 
Culliford  v.  Gadd:  2132. 
Cullinan  v.  Bowker:  308. 


2243 


TABLE   OF    CASES    CITED 


rReference«  are  to  MectionH:  §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.  1 


Cullin-McCurdy   C5o.   v.   Vulcan   Tron 

Works:   2163. 

Cullison  v.  Lindsay:  2253,  2254. 
Cullop  v.  Leonard:  2291. 
Cully  v.  Northern  Pac.  R.  Co.:   1784. 
Culver  v.  Nester:   2189. 

v.  Newhart:   291. 

v.  Pocono  Springs,  etc.,  Co. :   219. 
Cumberland    Coal    Co.    v.     Hoffman 
Steam  Coal  Co.:   1202. 

v.Sherman:  1198. 

v.  Scally:    1644. 

Cumberland,    etc.,   R.   Co.    v.    Slack: 
615,  1557. 

v.  State:  1640,  1645. 
Cumber  ledge  v.  State:  2008. 
Cummer  v.  Butts:  593. 
Gumming  v.  Forester:   2033. 
Cummings  v.  Dolan:   804. 

v.  Gann:  1684. 

v.  Harsabrauch:  1808. 

v.  Kurd:  934. 

v.  Kohn:  2023. 

v.Powell:    145. 

v.  Sergent:    983. 
Cummins  v.  Cassily:   215. 

v.  Heald:    1315,  2208,  2210. 

v.  McLain:    1315,  1339. 
Cumpston  v.  Lambert:   1611. 
Cundy  v.  Lindsay:  2110. 
Cuneo  v.  Wimberly:   1413. 
Cunliff  v.  Hausman:   2457. 
Cunningham,  In  re:  778,  998. 
Cunningham  v.  Bennett:  2032. 

v.  Bucklin:   1494,  1495. 

v.  Bucky:   2001. 

v.  Castle:  1912,  1950. 

v.  Fairchild:  2094. 

v.  Holcomb:  2137. 

v.  Jones:  1533,  2290. 

v.  Lamar:  208. 

v.Lynn  R.  Co.:  1668. 

v.  McDonald:  945,  958. 

v.  Morrell:   1576. 

v.  National  Bank:   111. 

v.  Railway  Co. :  1676. 

v.  Syracuse  Imp.  Co. :  1861. 

v.  Wabash  R.  Co.:  951. 
Cunnion,  Matter  of:   2312. 
Curley  v.  Electric  Vehicle  Co.:  1964. 
Curnam  v.  Kessler:   1496. 
Curnane  v.   Scheidel:    446,  471. 


W  .i 


Curran  v.  Galen:  2049. 

V.Holland:    1731,   1732. 

v.  Merchant's  Mfg.  Co.:    1644. 

v.Olson:  1940. 
Curran  Co.  v.  Denver:  313. 
Currie  v.  School  District:   1202. 
Currier  v.  Clark:  208,  216,  217. 

V.Henderson:    1861. 

v.  Railroad  Co.:   2281. 

v.  Ritter  Lumber  Co.:   592,  603. 
Curry  v.  Hale:   395,  406,  461. 

v.  Curry:    1515,  1600. 

v.King:    1198. 

v.  Whitmore:    2447. 
Curtice  v.  Crawford  County:   1844. 
Curtin  v.  Phoenix  Ins.  Co.:  1063. 

v.  Somerset:  1476,  1920. 
Curtis  v.  Aspinwall:   2356. 

v.  Blair:   229. 

V.Borland:   1216.  .v 

v.  Cutler:   965. 

v.  Dinneen:   1940. 

v.  Gibney:  2544. 

v.  Leavitt:  312. 

v.  Lehman:  615. 

v.  Ingham:  259. 

v.  McNair:   1661. 

v.  Metropolitan  St.  R.  Co.:   2243, 
2281,  2283 

v.  Murphy:    267. 

v.  Richards:  2255. 

v.  Riley:   1918. 

v.  Sturgis,  Jackson  &  Co.:  1818. 

v.  United  States:   762. 

V.Williamson:    1745,    1752,    1757, 

1758. 
Curtiss  v.  Avon,  etc.,  R.  Co.:   1779. 

v.  Mott:  1536,  2447. 
Curts  v.  Cisna:   1216. 
Cusick  v.  Boyne:    2246. 
Cushing  v.  Dill:  2009. 

v.  Rice:  2063. 
Cushman  v.  Glover:  618. 

v.  Loker:   435. 

v.  Masterson:   169. 

v.  Root:  2481. 

v.  Snow:    2059,    2532,    2534,    2574, 
2576. 

v.  Somers:  947. 

Custer    v.    Tompkins    County    Bank: 
1852,   1853.   1854. 


< 


.V    T)l 


2244 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1 7O5,  Vol.  I;  §§  1706-2588,  Vol.  II. J 


Cutler  v.  Ashland:   1170. 

v.  Powell:  2249. 
Cutter  v.  Gillette:  1556,  1557. 

v.Powell:    1577. 
Cutting  v.  Dana:  654. 

v.  Jessmer:  2152. 
Cuyler  v.  Merrifleld:   977. 
Cyphert  v.  McClune:  2156. 
Cysewski  v.  Fried:  2332. 
Czarnowski  v.  Holland:  233. 

D 

Dabney  v.  McFarlin:   1014. 
Dada  v.  Piper:  2224. 
Daggett  v.  Champlain:   280. 
Dagnall  v.  Wlgley:  2002. 
Dahlstrom  v.  Featherstone :   2276. 

v.  Gemunder:    1181,    1419,    1424, 

1427,   2420. 
Dailey  v.  Devlin:  2262. 

v.  Preferred,  etc.,  Ass'n :    1804. 
Daily  v.  Maxwell:  156,  1859. 
Dair  v.  New  York,  etc.,  S.   S.  Co.: 

1633. 

Dal  v.  Fischer:  225,  798. 
Dalby  v.   Stearns:    2526,   2527,   2528, 

2540. 
Dale  v.  Commission  Co.:   2582. 

v.Donaldson  L.  Co.:  994,  1395. 

v.Hepburn:  1315,  1316. 

v.  Humfrey:  1174,  2419. 

v.  Pierce :  69. 

v.  Redfleld:   2314. 
Daley  v.  Butchers',  etc.,  Bank:  1314. 

v.  Ipelin:    399. 

v.  Quick:  833. 

Dale  &  Co.,  Ex  parte:  2090. 
Dalgety,  Ex  parte:  2527. 
Dalke  v.  Sivyer:  2457,  2458. 
Dallam  v.  Sanchez:   652. 
Dallas  v.  Hollingsworth :  1599. 

v.  Murry:    1557. 

Dallemand   v.    Saalfedt:    1637,    1668. 
Dally  v.  Wheaton  Co.:   597. 
Dalton  v.  Goddard:   2540,  2551. 

v.West  End  St.  R.  Co.:  2163. 
Dalton  Buggy  Co.  v.  Woods:  215,  424, 

486. 
Daly  v.  Bank:  331. 

v. Commonwealth:  2319. 

v.   Smith:    643. 
Dalyell  v.  Tyrer:  1897. 


Dalzell  v.   Dueber  Watch   Case   Co.: 

1214. 

Damon  v.  Granby:  198,  200,  212,  1101. 
Damonte  v.  Patton:  1888. 
Damron  v.  Robertson:   2281. 
Dana  v.  Duluth  Trust  Co.:  1216,  1217, 
1218,  1219. 

v.  National  Bank:  1842. 

v.  Turlay:    463,  472,  807. 
Danby  v.  Coutts:    550,  780. 
Dancer  v.  Hastings:  2031,  2038,  2048. 
Dane  v.  Cochrane  Chemical  Co.:  1871. 
Danford,  In  re:  2188. 
Danforth  v.  Fisher:   1903,  1906,  1950. 

v.Pratt:    1690. 
D'Angibau,  In  re:  155. 
Daniel  v.  Adams:  853,  2330. 

v.  Atlantic    Coast    Line    R.    Co. : 
1048,  1975,  1976. 

v.  Glidden:   1127,  1135,  1136. 

V.  Land  Co.:    2457. 

T.Petersburg  R.  Co.:    1935,  1936. 

v.  Railroad  Co.:  285 

v.  Swearengen :  2133,  2135,  2154. 
Daniell  v.  Boston,  etc.,  R.  Co.:   1556, 

1581. 
Daniels  v.  Barney:  1332. 

v.  Brodie:  410. 

v.  City  of  New  London:  2162. 
Daniels'  Admr.  v.  Chesapeake  &  Ohio 

R.  Co.:  1652,  1654. 
Danley  v.  Crawl:   309,  2164,  2165. 
Danville,  etc.,  R.  Co.  v.  Rhodes:  2152. 
Danube  &  Black  Sea  R.  Co.  v.  Xenos : 

1563. 
Danziger  v.  Pittsfield  Shoe  Co.:  954, 

2163. 

D'Aquila  v.  Lambert:  1698. 
D'Arcy  v.  Lyle:  1605. 
Darks   v.   Scudders-Gale  Grocer  Co.: 

890,  1987. 

Darley  v.  Lastrapes:  1351. 
Darling  v.  Lewis:  695. 

v.  Stanwood:  318,  332,  1288,  2550. 

v.  St.  Paul:  313. 

v.  Younker:  961. 

Darlington  v.  Chamberlain:  2566. 
Darner  v.  Brown:  2084. 
Darr  v.  Darr:  652. 
Darracott  v.  Chesapeake,  etc.,  R.  Co.: 

1624,   1676. 
Darrin  v.  Clay:  2235. 


2245 


TABLE   OF    CASES    CITED 


[Referenced   are  to  sections:   gg  1-1705,  Vol.  I;   gg  1706-2588,  Vol.  II.] 


Darrow  v.  Harlow:  2445. 

v.  Home  Produce  Co.:  2059,  2063, 
2070. 

v.  St.  George:  563,  586. 
Darrow  Investment  Co.  v.  Breyman: 

2474. 

Darsam  v.  Kohlman:  1676. 
Darst  v.  Gale:  374. 

v.  Mathieson  Alkali  Works:  1556. 
Dart  v.  Coward  Inv.  Co.:  1326. 
Dartt  v.  Sonnesyn:   1516. 


Dartmouth  Ferry  Co.  v.  Marks:   606. 
Dartmouth  Spinning  Co.  v.  Achord: 

1627. 

Dashaway  Ass'n  v.  Rogers:   1731. 
Daubigny  v.  Duval:    1685,  2561. 
Daugherty  v.  Burgess:   446,  447. 

v.  Herzog:  1476,  1920. 
Daughters  of  American  Revolution  v. 

Schenley:   483,  776. 
Daun  v.  Simmins:  1767,  1768. 
Davenport  v.  Ash:  2020,  2487. 

v.  Peoria,  etc.,  Ins.  Co. :  710. 

v.Riley:   1410. 

v.  Schutt:   1344. 

,f>i.' 

v.  Sleight:   213. 

Davenport  Plow  Co.  v.  Lamp:  1350. 
Daves  v.  Southern  Pacific  Co.:   1644, 

1654. 

Davey  v.   Jones:    1313. 
David  Payne  &  Co.,  In  re:  1837. 
Davidson  v.  Cornell:  1667. 

v.  Gunsolly:  2050. 

v.  Lanier:   978. 

v.  La  Plata:  2280,  2283. 

v.  Porter:    743. 

v.  Provost:  673. 

v.  Stanley:   972,  998. 

v.  Stocky:  2447. 
Davie  v.  Lynch:   2342. 
Davies  v.  District  Council:    1572. 

v.Jenkins:   2220,  2221. 

T.  Lyon:  921. 

v.  Waters:  2305. 
Davis  v.  Aetna  Ins.  Co.:   2369. 

v.Ames  Mfg.  Co.:  602. 

v.  Arledge:  1611. 

v.Augusta  Factory:  1624. 

v.  Ayres:  1554. 
v.  Barger:   1260. 

2246 


.v 


Davis  v.  Bessemer  City  Cotton  Mills: 

2540. 

v.Bradley:   2563,  2564. 
v.  Brigham:  841. 
v.  Burnett:    882. 
v.  Caldwell:   90. 

v.  Central  Vermont  R.  Co.:  1644. 
v.  Chase:  2243. 
v.  Chattanooga    Union     R.     Co.  : 

2189. 

v.Chesapeake,  etc.,  R.  Co.:  2015. 
v.  Conn:  2152. 
v.  Com.:   101. 
v.  Danks:  2354. 
v.Davis:  667,  2264,  2267. 
V.Detroit,  etc.,  R.  R.  Co.:    1632. 
v.  England:  1139,  1157,  1161. 
v.  Fidelity  Fire  Ins.  Co.:   563. 
v.  Foreman:  643. 
v.  Garrett:   2337. 

v.Gordon:   807. 

_ 
v.  Gwynne:  2414. 

v.Hall:   2162. 

v.  Hamlin:   1193,  1209,  2411. 

v.  Harness:  2032. 

v.  Hayden:  1102. 

v.Henderson:  1137,  1162. 

v.  Home  Ins.  Co.:  2183. 

v.  Huber:   1532. 

V.Jackson:  2287. 

v.King:  319,  332,  1288. 

v.Kline:  2190. 

T.Kobe:    585,  2502,  2527,  2535. 

v.  Krum:  435. 

v.  School  District:  436. 

v.  Lane:    353,   385,  676,  677,   678, 

679,  680. 

V.Lawrence:  1536,  2447. 
v.  Lee:  978,  1167,  1406   2183. 
v.Louisville,  H.  &  St.  L,  R.  Co.: 

1798. 


v.  Lynch:   1717. 
V.Marshall:    1576. 
v.  Martin:  230. 
V.Matthews:   316,  332,  989. 
V.Maxwell:    1576,  1577. 
v.  McNees:   2224. 
v.  Mercer  Lbr.  Co.  :   1671. 
V.Morgan:  1536,  2308,  2430,  2441. 
2447. 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§   1-1705,  Vol.  I;  §§   1700-2588,  Vol.  II.] 


Davis  v.  Neuces  Valley  Irrigation  Co.: 
480. 

v.  New  York,  etc.,  R.  Co. :  2300. 

v.  New   York,    Ontario    &   W.    R. 
Co.:    2305. 

v.  Panhandle  Nat.  Bank:   2100. 

v.Peterson:   55. 

v.Preston:  1554. 

v.  Read:  313. 

T.  Rood:   1410. 

v.Russell:  2512. 

v.  School  District:  465. 

v.  Seeley:   115. 

v.  Settle:  2239. 

v.  Severance:    446,  946,  2181. 

v.  Sloman:  2002. 

v.Solomon:   2182. 

v.  Smith:  1215,  2253,  2262,  2290. 

v.  Steeps:  1831. 

v.  Talbot:  60,  479. 

v.  Waterman:      863,     967,     1010, 
2168. 

v.Webber:   2236,  2243  2246. 

v.  Wettherell:   1194. 

v.  Whitesides:   1783. 

V.Windsor    Savings    Bank:    652, 

664,  666. 

Davis  Coal  Co.  v.  Polland:  1671,  1676. 
Davis,  etc.,  Com.  Co.  v.  Mt.  Vernon 

Bank:   55. 
Davis  Lumber  Co.  v.  Hartford  Fire 

Ins.  Co.:  411,  442,  1071,  2368. 
Davison  v.  Davison:   1517. 

V.Donaldson:    1743,  1745. 

v.  Herndon:   2467. 

v.  Holden:  188. 
Davol  v.  Quimby:   618. 
Davoue  v.  Fanning:  1192,  1202,  1225. 
Dawes  v.  Jackson:  1113. 
Dawson  v.  Buford:  2221. 

v.  Burrus :  2032. 

v.  Copeland:   2290. 

v.  Cotton:  1102. 

v.  Dawson:  1517. 

v.  Kittle:  1269. 

v.  Landreaux:  285. 

v.  Peterson :  2245. 

v.  Wombles:  935,  962. 
Day,  In  re:  2147. 

Day   v.   American   Machinist   Press: 
609. 

v.  B.  Co.:  921. 


Day  v.  Boyd:   168,  708. 

v.  Building  Association:  395,  506. 

v.  Candee:  577,  581,  591. 

v.  Crawford:   2525. 

v.  Exchange  Bank  of  Kentucky: 
1803,  1804,  1831. 

T.  Holmes:    318,   716,   1268,    2386, 
2393,  2394. 

v.  Larsen:    2276. 

v.  McAllister:  358. 

v.  Merchants'     &     Traders'     Ins. 
Co.:   1064. 

v.  Merrick:  1993. 

v.  Miller:  443. 

v.  Pickens  County:  992. 

v.  Porter:  2457. 

v.  Ramsdell:  1126. 

V.Reynolds:  1480. 

v.  Southwell:  1331. 

v.  Snyder   Brokerage  Co. :    921. 

V.Toledo,  etc.,  R.  Co.:  1644. 

v.  Walmsley:   1808. 

v.Wright:  2290. 

Day  Land  &  Cattle  Co.  v.  State:  529. 
Day  Leather  Co.  v.  Michigan  Leather 

Co.:  2381. 
Dayharsh  v.  Hannibal,  etc.,  R.  R.  Co. : 

1618,  1654. 
Daylight   Burner   Co.   v.   Odlin:    716-, 

854,   2401,   2404,'  2504,   2579. 
Dayries  v.  Lindsly:  1139. 
Dayton    v.    American    Steam    Barge 
Co.:  1521. 

v.  Hooglund:  885. 

v.Nell:  811. 

v.  Warne:  1111. 

Dayton  Coal  Co.  v.  Dodd:  1657. 
Dayton  Ins.  Co.  v.  Kelly:  1057. 
Dazey  v.  Roleau:  1251. 
Deacon  v.  Greenfield:  475,  990. 
Deakin  v.  Underwood:   174,  185,  198, 

808. 
Dean  v.  Bassett:  395. 

v.  Blgelow:    2207. 

v.  Blunkett:   2074,  2075,  2077. 

v.  Brock:   1474. 

v.  Crall:  364.     • 

v.  De  Wolf:  39. 

v.Hipp:  395,  479. 

v.  King:   760,  1801. 

v.  Plunkett:  2115. 

v.  Swoop:   2425. 


2247 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:   g§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  TI.] 


Dean  v.  Toledo,  etc.,  R.  Co.:  1779. 

v.Williams:    2447. 

v.Yates:  2110. 

Dean  Co.  v.  Lombard:   2499. 
Deane  v.  American  Glue  Co.:  285. 

v.Everett:   861,  888. 

v.  Hodge:  1214. 
Deanes  v.  Scriba:  2542. 
Dearborn  v.  Dearborn:  2186,  2212. 
Deatherage  v.  Henderson:  946. 
Deaton  v.  Lawson:  91. 
De  Bary  v.  Sauer:   488. 
De  Belran  v.  Gola:  1102,  1148,  1419. 
Debenham  v.  Mellon:   161,  162,  165. 
De  Bouchout  v.  Goldsmid:  894. 
De  Briar  v.  Minturn:  603,  1573. 
De  Bussche  v.  Alt:  316,  318,  319,  332. 
De  Camp  v.  Stevens:  1577. 
Decatur  v.  Paulding:  1493. 
Decell  v.  Hazelhurst:   1332. 

v.  Oil  Mill  Co.:  1343. 
Deck   v.   Baltimore   &   Ohio   R.   Co.: 

1916,  1973,  1979. 
Deckard  v.  Case:  2064. 
Decker,  Ex  parte:  213. 
Decker  v.  Fredericks:  882,  1995. 

v.  Klingman:  2438. 

v.  Lackawanna,  etc.,  R.  Co.:  1974. 
De  Comas  v.  Prost:   585,  2527. 
Decorah  v.  Dunstan:  2319. 
De  Cordova  v.  Barnum:  2480. 

v.  Knowles:   802. 
Decuir  v.  Lejeune:    358. 
Deegan  v.  Deegan:  2158. 
Deering  v.  Cunningham:   108. 

v.  Kelso:  952. 

v.  Thorn:   885,  903,  1152,  1176. 
Deering   Co.   v.   Grundy  Nat.   Bank: 

408,  411,  441,  436. 
Deering  Harvester  Co.  v.  Hamilton: 

1695. 

Deering  &  Co.  v.  Veal:  170. 
Deffenbaugh   v.   Jackson   Paper   Co.: 

395,  988,  1043. 
Deford  v.  Keyser:   1642. 

v.  Mercer:  142. 

v.  State:  141.  ' 
De  Forest  v.  Bates:  577,  581. 

v.  Fulton  F.  Ins.  Co.:  2521. 
De  Forrest  v.  Wright:   1917. 
Degg  v.  Midland  R.  Co.:  1644,  1658. 
Degginger  v.  Martin:  229. 


De  Graffenried  v.   St.  Louis  R.  Co.: 

2243. 

De  Groot  v.  Van  Duzer:  121. 
De  Hart  v.  De  Hart:  1296. 
Deitz  v.  Insurance  Co.:  317,  1054, 

1865,  2031. 

De  Jong  v.  Behrman:  2133. 
De   Kay  v.   Hackensack   Water   Co.: 

1818. 
Delafield  v.  J.  K.  Armsby  Co.:   296. 

v.  Smith:  1537,  2400,  2463,  2492. 

v.  State:  763. 
DeLand  v.  Hall:  226. 
Delaney  v.  Husband:  2162. 

v.  Levi:  395. 

v.  Rochereau:   1464,  14G5,  1474. 
Delano  v.  Jacoby:   212,  811. 
Delaware,  etc.,  Canal  Co.  v.  Carroll: 

1644. 

Delaware,  etc.,  R.  Co.  v.  Thayer:  2060. 
Delaware,  Lackawanna  &  W.  R.  Co. 

v.  Hardy:  1860. 

De  Lazardi  v.  Hewitt:  1268,  2504. 
Delbridge  v.  Beach:  110. 
De  Leon  v.  Trevino:   1332. 
De  Leonis  v.  Etchpare:   1342. 
Dellemand  v.  Saalfeldt:   1670. 
Dells  v.  Stollenwerk:   1915. 
Delory  v.  Blodgett:  1656,  1658,  1861. 
LeLouis  v.  Meek:  2156,  2161. 
Delta,  etc.,  Land  Co.  v.  Wallace:  2437. 
Demarest,  In  re:  2290. 
Demarest  v.  Inhabitants  of  New  Bar- 
badoes:    2089. 

v.Tube  Co.:  1535,  2467. 
De  Mets  v.  Dragon:  2183. 
Deming  v.  Bullitt:   1102. 

v.  Chase:   882,  886. 

v.  Terminal  R.  Co.:  1918. 
De  Minico  v.  Craig:  2049. 
De  Montague  v.  Bacharach:  2152. 
Dempsey  v.  Chambers:  357,  368,  386, 
483   506,  507. 

v.Dorrance:  2256. 

v.  Sawyer:  1630. 

v.  Wells:  372,  436. 
Den  v.  Jellers:  2323. 
Denew  v.  Daverell:   2333. 

v.  Dayerell:  2476. 
Deneau  v.  Lemieux:   2461. 
Denham  v.  Patrick:   610. 
Denike  v.  DeGraaf:    1734,  1735. 
2248 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  Ij  §§  1706-2588,  Vol.  II.] 


Denison  v.  Crawford  Co.:   94,  101. 

V.Foster:    367. 

v.  Seymour:   1485. 
Dennet  v.   Governor:    1493. 
Dennett  v.  Cutts:  2273. 
Denney  v.  Parker:    2187. 

v.  Wheelright:    1603. 
Denning  v.  Butcher:    2307. 

v.  Yount:   91. 

Dennis  v.  McCagg:   1192,  1223,  1225, 
1233,  1237. 

v.  Young:    285. 

Dennison    v.     Aldrich:     1195,     1210, 
1235. 

v.  Gault:    2474. 

v.Jeffs:   80. 
Denny  v.  Burlington:  1871. 

V.Lincoln:   1447. 

V.Manhattan  Co.:  1479. 

v.  New  York  Central  R.:  2457. 

V.Virginia  Bridge  Co.:   1911. 

Densmore  v.  Searle:  1225. 
m,  -     ,-„. 

Denson  v.  Thurmond:   585. 

Denston  v.  Perkins:  2574. 
Dent  v.  McGrath:  2344. 

v.Powell:   2441. 
Denton  v.  Abrams:  2426. 

v.Jackson:   2415. 

V.  Noyes:    2152,  2156,  2162. 

v.  Ontario  Bank:  1809,  1814,  2176, 

2177. 

Denunzio's  Receiver  v.  Scholtz:  2302. 
Denver  City  R.  Co.  v.  Brumley:  1796. 
Denver,  etc.,  R.  Co.  v.  Frame:  2050. 

v.Gannon:  1671. 

v.Norgate:    1615,  1664,  1671. 

v.Whan:  1681. 

Denver  Produce  Co.  v.  Taylor:  2020. 
Denver  Tramway  Co.  v.  Owens:  2308. 
Department  of  Public  Works,  In  re: 

2255. 
Department    of    Works,    Matter    of: 

2234. 

De  Pauw  v.  Bank  of  Salem:  978. 
DePoret  v.  Gusman:   963. 
Deposit  v.  Pitts:   2319. 
Deppe  v.  Chicago,  etc.,  R.  Co.:   1679. 
Deputron  v.  Young:   808,  811. 
Derby  v.  Gustafson:   1125. 

v.Johnson:   566. 
De  Remer  v.  Brown:  1169. 
Dern  v.  Kellogg:   1307,  1308,  1320. 


Derocher  v.   Continental  Mills:    155, 
1599. 

De  Roufigny  v.  Peale:   2201. 

Deroy  v.  Richards:  1139. 

Derr    Construction    Co.    v.    Gelruth: 
1871. 

Derrickson  v.  Quimby:    2467. 

Derry  v.  Board  of  Education:    1557. 
v.  Peck:  1996. 
v.  Peek:  1364. 

Desaman  v.  Butler:   2281,  2283. 

Desha  v.  Pope:   2563. 
v.Robinson:   1595. 

Deshler   v.    Beers:    1279,   2500,    2523, 
2544. 

Des  Jardins  v.  Hotchkin:   2417. 

Des  Moines  Cotton  Mill  Co.  v.  Coop- 
er:   2098. 

Des   Moines   Land   Co.   v.    Polk    Co. 
Homestead  Co.:  1782. 

Des  Moines  National  Bank  v.  Mere- 
dith:  435. 

Desmond  v. -Stebbins:    2430,  2431. 

De  Sollar  v.  Hanscome:   807,  2437. 

De  Souchet  v.  Dutcher:   2084. 

Despatch  Line  v.  Bellany  Mfg.  Co.: 
199,  212,  368,  419,  420,  483,  1004. 

Despatch  Printing  Co.  v.  Bank:    789. 

De  Steiger  v.  Hollington:   178,  1590, 
2474. 

De   Tastett  v.   Crousillat:    793,   1250, 
1266,  1298,  2415,  2531. 

Detroit  v.  Jackson:   219. 

Detroit,   etc.,  R.  Co.  v.   Hartz:   479. 
v.  Van  Steinburg:  1794. 

Detroit  Lumber  Co.  v.  Cleff:   169. 

De  Turck  v.  Matz:  300. 

Detwilder  v.  Heckenlaible:  301. 

Deutsch  v.  Baxter:  1590. 

De  Vail  v.  De  Vail:  2316. 

Devall  v.  Burbridge:   1353,  2532. 

De  Vaughn  v.   McLeroy:    479. 

Devaynes  v.  Robinson:  813. 

Development  Co.  v.  King:   610,  1562. 

Devenbaugh  v.  Nifer:   2162. 

Devendorf  v.  West  Virginia,  etc.,  Co.: 
1162. 

De  Vignler  v.  Swanson:    2063. 

Devine  v.  McMillan:    169. 

Devlnney  v.  Reynolds:   1115,  1116. 

Devlin  v.  Brady:   101,  120. 
v.  Smith:  1641,  1642. 


2249 


TABLE   OF    CASES    CITED 


[ReferenceH   are  to  «eetlon«:   §§  1-1 7O5,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Devonald  v.  Rosser:  598,  1511. 
Devoss  v.  Gray:  187,  188,  190. 
Dewalt  v.  Houston,  E.  &  W.  T.  R. 

Co.:   1799. 

De  Wandelaer  v.  Sawdey:  2276,  2283. 
Dewar  v.  Tasker:  1861. 
Deweese  v.  Muff:  664,  666. 
Dewey  v.  Bradford:  945. 
Dewing  v.  Button:   322,  1695,  1713. 
De  Winter  v.  Thomas:   2284,  2286. 
De  Witt  v.  Cullings:   1594. 

v.  De  Witt:   933. 

v.  Prescott:   291. 

v.Walton:  1124 
De  Wolf  v.  Ford:   1940. 

v.  Strader:   2309. 
Dexter  v.  Berge:  938. 

v.  Hall:    134,  135,  141,  143. 

v.  Morrow:  940,  965. 
Dexter  Horton  &  Co.  v.  Long:   368. 
De  Zavala  v.  Royaliner:   2459. 
Diamond  v.  Hartley:    2447. 
Diaz  v.  Chickering:   2579. 
Di  Bari  v.  Bishop  Co.:  1670. 
Dibbins  v.  Dibbins:   518,  538. 
Dibble  v.  Dimick:   2463. 

v.  Insurance  Co.:  2368. 

v.  Northern  Assurance  Co.:  300. 
Dicas  v.  Lord  Brougham:  1494. 

v.  Stockley:    2272. 
Dick  v.  Cooper:  1782. 

V.Gordon:  921. 

v.  Page:   664. 

Dickerman  v.  Ashton:   215,  218,  229, 
1086,  2390. 

v.  Quincy  Mut.  F.   Ins.  Co.:    285, 

1051. 
Dickerson  v.  Mashek  Eng.  Co.:   2251. 

v.  Matheson:  1803,  1804. 

v.  Pyle:   2236. 

V.Rogers:   169,  1764. 

v.  Wason:    1321. 
Dickey  v.  Linscott:   1582. 
Dickinson  v.  Bradford:   2294. 

v.  Conway:  395. 

v.  Central  Nat.  Bank:  389. 

v.  Gay:  2403. 

V.Norwegian  Plow  Co.:   1530. 

v.  Salmon:  296,  299. 

v.Updike:  797,  798,  2430. 

v.  West  End  St.  R.  Co.:  1657. 

v.Wright:   477,  519. 


Dickinson  County  v.  Mississippi  Val- 
ley Ins.  Co.:   69,  743,  1070. 
Dickie  v.  Abstract  Co.:  1480. 
Dickman  v.  Williams:  1782. 
Dickson  v.  Dickson:  2133. 

v.  Hollister:  1870. 

v.  Kittson:  105. 

v.  Luman:   216,  225,  1038. 

v.  Reuter's  Telegram  Co.:  1365. 

v.  Screven:    1245. 

v.  Waldron:  1937,  1939, 1940,  1973. 

v.Wright:   309,  2164,  2165. 
Didion  v.  Duralde:   2482. 
Diebold  Safe  &  Lock  Co.  v.  Dunne- 

gan:   870. 

Dieckman  v.  Weirich:   830. 
Dieckmann  v.  Robyn:  118. 
Diefenback  v.  Stark:   1576,  1578. 
Diehl  v.  Adams  Ins.  Co.:  395. 

v.  Friester:   2269,  2276. 

v.Robinson:   1861. 
Dienst  v.  McCaffrey:  2281. 
Dieringer  v.  Meyer:  607,  608,  609. 
Dierks,   etc.,   Co.   v.   Coffman   Bros.: 

291,  468. 

Dieter  v.  Kiser:  652. 
Dietrich   v.   Baltimore,  etc.,   R.   Co.: 
1798. 

v.  Hoefelmeir:   226. 
Dietz  v.  McCallum:   2279. 
Dike  v.  Drexel:  2093. 
Dildine  v.  Ford  Motor  Co.:  1536. 
Dilenbeck  v.  Rehse:  958. 
Dillaway  v.  Butler:   1815. 
Dillingham  v.  Russell:   475,  1790. 

v.  Snow:  1498. 
Dillman  v.  Hastings:  1343. 
Dillon  v.  Brown:  421. 

v.  Macdonald:  556,  1369. 

v.  Rand:    2154,  2155. 

v.Watson:   2166. 
Dimick  v.  Metropolitan  L.  Ins.  Co.: 

1073. 

Dimmick  v.  Sprinkel:   784,  812. 
Dimmitt   v.    Hannibal,   etc.,   R.    Co.: 

1867. 

Dimock  v.  United  States  Bank:  2415. 
Dingle  v.  Hare:    882,  2403,  2506. 
Dingley  v.  McDonald:    236,  306,  307, 

530,  960. 
Dirks  v.  Richards:  1691. 


2250 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Disbrow  v.  Cass  Co.:  86. 

v.  Durand:   1515. 

v.  Secor:   179,  1205,  1207,  1222. 
Dispatch    Printing    Co.    v.    National 

Bank:   710,  720,  952. 
Distilled    Spirits,    The:     1806,    1808, 

1809,  1813,  1814,  1815. 
District  Bank,  In  re:  1350. 
District  of  Columbia  v.   McElligott: 

1630. 

Diversy  v.  Kellogg:   628,  902. 
Dixon,  Ex  parte:  867,  2075,  2077,  2505. 
Dixon  v.  Bell:   2135. 

v.  Bristol  Savings  Bank:   430. 

y.  Dixon:   655,  660. 

v.  Ewart:    687,  691. 

v.Floyd:  2163. 

v.  Guay:   946,  950. 

v.Jackson  Exch.  Bank:  961. 

v.  Pace:   1447. 

v.  Stansfeld:   1689. 

v.  Volunteer   Co-op.   Bank:    2256. 
Doan  v.  Dow:  2308. 
Doane  v.  Chicago  City  R.  Co.:  97. 
Dobbins  v.  Etowah:  998. 

v. Little  Rock,  etc.,  R.  Co.:  1790, 

1798. 

Dobell  v.  Hutchinson:  72. 
Dockarty    v.    Tillotson:    1170,    1181, 

1411,  1424. 

Dockery  v.  McLellan:  2236,  2237. 
Dockham  v.  Potter:   2154. 
Dodd  v.  Brott:    2276,  2281. 

v.  Farlow:   2332,  2403. 

v.  Wakeman:   1194,  1225. 
Dodds  v.  Vannoy:   1346,  1347. 
Dodge  v.  Boston,  etc.,  Steamship  Co.: 
1936. 

v.  Childers:    2450,  2455. 

v.  Childs:   1794,  1796,  1798. 

v.  Favor:   1269. 

V.Hopkins:    194,    229,    515,    519, 
781. 

v.  Hatchett:   1334,  1344. 

v.  Lambert:   447. 

v.  McDonell:    265,  395,  741,  992. 

V.Perkins:  1337,  1341,  2549. 

v.  Schell:   2314. 

v.  Tileston:  1245,  1602,  2476,  2551. 

v.  Tullock:    2084. 

v.  Weill:  289. 
Dodson  v.  Swan:   102. 


Doe  v.  Abbott:  2152,  2154. 

V.Andrews:  2307. 

v.Campbell:  212. 

v.  Gold  win:   537. 

v.  Mizem:   836. 

v.  Phelps:   212. 

v.. Roberts:   141,  142. 

v.  Smith:   652. 

v.  Thompson:   2024. 

V.Walters:    537. 
Doggett  v.  Greene:    308,  2399. 

v.  Illinois  Cent.  R.  Co.:   1620. 
Doheny  v.  Lacy:   2302,  2309. 
Doherty  v.  Munson:   1494. 

v.    O'Callahan:   2311,  2312. 

v.  Schipper:    1553,  1554. 
Doing  v.  New  York,  etc.,  R.  Co.:  1635. 
Dolan  v.  Allen:   1124. 

v.  Alley:    1102. 

v.  Brooks:   165. 

v.  Hubinger:   1978. 

v.  Scanlan:   2435,  2445. 

V.Thompson:   2554. 

v.  Van  Demark:   2168. 
Dole  v.  Sherwood:   2445. 
Dolinski  v.  First  Nat.  Bank:  1226. 
Doll  v.  Hennessy  Mercantile  Co.:  438. 
Dollard  v.  Roberts:   1804. 
Dolliff  v.  Robbins:    1457,  2583. 
Dolphin    v.    American    Harrow    Co.: 

435. 
Dolvin  v.  American  Harrow  Co.:  410, 

446. 

Domasek  v.   Kluck:    245,   285,   722. 
Domingues  v.   Citizens'   Bank:    2309. 
Dompier  v.  Lewis:    1641. 
Donahoe  v.  McDonald:   2044. 
Donahue  v.  Buck:   1621. 
Donald  v.  Chicago,  etc.,  R.  Co.:  1681. 

v.Hewitt:   1686. 
Donaldson  v.  Eaton:    2241,  2251. 

v.  Noble:    808. 
Donaldson     Bond    &    Stock    Co.    v. 

Houck:   2463. 

Donason  v.  Barbero:   420. 
Donlan  v.  Scanlan:   2430. 
Donley  v.  Porter:  2437. 
Donnan    v.    Adams:     626,    797,    798, 

2430. 

Donnegan  v.  Erhardt:   1618. 
Donnell  v.  Currie:   229,  798. 

V.Lewis  County  Sav.  Bank:  760. 


2251 


TABLE   OF    CASES    CITED 


[References  are  to  sectional  §§  1-1705,  Vol.  I;  §g  1706-2588,  Vol.  IT.] 


Donohue  v.  Hungerford:  2158. 

v.  Padden:  1590,  2474,  2475,  2477. 
Donovan  v.  Board  of  Education :  1504. 

v.  Campion:   2138. 

v.  Daiber:   112. 

v.Hyde:    2439. 

v.  Laing,  etc.,  Syndicate:  •  1860. 

v.  Lang:   1860. 

v.  McAlpin:   1504. 

v.  Standard  Oil  Co.:   1046. 

v.  Weed:  2438,  2442,  2449. 

V.Welch:   1094,  1107. 
Donovan  Real   Estate  Co.  v.   Clark: 

441. 

Doolittle  v.  Murray:  1398. 
Doonan  v.  Ives:   2437,  2445. 

v.Mitchell:   285. 
Doran  v.  Thompson:  1859. 

v.  Thomsen:    156,  1912. 
Dorchester,  etc.,  Bank  v.  New  Eng- 
land Bank:  307,  316,  1314,  2514. 
Dord  v.  Bonnaffee:    488. 
Dore  v.  Glenn  Rock  Spring  Co.:  648. 

v.    Jones:  2457. 
Doremus  v.  Hennessy:   2133. 

v.  Lott:1  1515,  1517. 

v.Root:    2012. 
Dority  v.  Dority:   172,  203. 
Dorlon  v.  Forrest:    2447. 
Dorr,  In  re:  1332. 

Dorr   v.    Camden:    1207,    1355,    2236, 
2294,  2296. 

v.  Life  Ins.  Co.:  1845. 
Dorrance  v.  McAlester:   2175. 

v.Scott:   148. 

Dorrington  v.  Powell:    1533. 
Dorsey  v.  Abrams:    374. 

v.Kyle:   2152,  2156. 

v.  Packwood :   601. 

v.  Pike:   908,  982. 
Doss  v.  Board:   1588. 

v.  Missouri,  etc.,  R.  Co. :    2016. 
Dotson  v.  Milliken:  2447. 
Dotterer  v.  Pike:  1350. 
Doty  v.  Hawkins:  1331. 

v.  Miller:    2447. 

v.  Wilder:  2320,  2321. 

v.Wilson:   1611. 
Doubleday    v.    Kress:    935,    936,    945, 

958,  2180. 

Doud  v.  New  York,  etc.,  R.  Co.:  1667. 
Dougan  v.  Turner:   1537,  2463. 


Doughaday  v.  Crowell:  349. 
Dougherty   v.   Chciago,   etc.,  R.   Co.: 
1950. 

v.  Dobson:   1619,  1678. 

v.  Weeks:  1642. 

v.  Wells,   Fargo  Co.:    1941,   1984, 
2001. 

v.  West  Superior  Iron  Co.:  1637, 
IfifiS. 

v.  Whitehead:  1518,  1519. 
Douglas  v.  Carpenter:  2389. 

v.  Corry:    1346,  2208,  2209. 

v.  Wolf:  2050. 
Douglass  v.  Baker:  673. 

v.  Bernard:   2518. 

v.Lougee:   1221,  1236. 

v.  Merchants'  Ins.  Co.:  605,  1530. 

v.  Murphy:  1298. 

v.  Spears:   601. 
Douthart  v.  Congdon:    2479. 
Douvielle  v.  Supervisors:   553. 
Douville  v.  Comstock:  2435. 
Dove  v.  Martin:  447,  2174. 
Dover  v.  Harrell:   2307. 

v.  Mayes  Mfg.  Co.:  1913,  1950. 

v.  Pittsburg  Oil  Co.:  462,  2119. 

v.  Plemmons:   1577. 
Dovey's  Appeal:   2119. 
Dow  v.  Spenny:  361. 
Dowagiac  Mfg.  Co.  v.  Hellekson:  4 
905,  1016,  2557. 

v.Watson:    848,  905. 
Dowd  v.  New  York,  etc.,  R.  Co.:  1664, 

1665,  1672. 
Dowdall  v.  Borgfeldt:   953. 

v.  Pennsylvania  R.  Co. :   1782. 
Dowden  v.  Cryder:   60,  285,  375,  974, 

1775. 

Dowell  v.   Burlington,   etc.,  R:   Co. : 
1615,  1624. 

V.Chicago,  etc.,  R.  Co.:   2011. 

V.Chicago,  R.  I.  R.  Co.:   1487. 

V.Williams:   292. 
Dowlen  v.  George  Mfg.  Co.:  961. 
Dowler,  Succession  of:   2351. 
Dowler  v.  Swift  &  Co.:   2532. 
Dowling  v.  Allen:   1624,  1625,  1640. 

v.  Eggemann:  2269. 

v.  Morrill:  2435,  2447,  2458,  2461. 
Downard  v.  Hadley:  2290. 
Downer  v.  Lent:   1498,  1499. 

v.Morrison:   280. 


2252 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 


Downer    v.    South    Royalton    Bank: 

2082. 
Downes  v.  Poncet:   596. 

v.  Power:    1803. 
.Downey  v.   Burke:    1578. 

v.Gemini  Mining  Co.:  1618. 
Downing  v.  Buck:   1521,  2426. 
v.  Herrick:    1494. 
v.  Mt.  Washington  Road  Co. :  368. 
v.  Rugar:   199. 
v.  State:   2303. 
Downing's   Will,   In   re:   2309,   2311, 

2312. 
Dows  v.  Durfee:   2557. 

v.  Glaspel:    111,    112,    121,    1602, 

2481. 

v.  Morewood:    1691,  1692. 
v.  Morse:   55. 
Drain  v.  Doggett:  946. 
Drake  v.  Auburn  City  R.  Co.:   1622. 
v.Drake:   169. 
v.  Flewellen:   1139,  1153. 
v.  Hagan:  1474. 
v.  Lauer:  95,  98. 
v.  Pope:   1410,  2419. 
v.Weinman:   2417. 
Drakeford  v.  Piercy:    2400,  2492. 
Drakley  v.  Gregg:  351. 
Dranow  v.  MacDonald:  2333. 
Draper  v.  Arnold:    1505. 
V.Massachusetts:    1395. 
v.  Massachusetts   Steam   Heating 

Co.:    1125,  1161. 
v.  Rice:  952. 
Drayton  v.  Reid:    610. 
Dreiband  v.  Candler:   2286. 
Dreifus  v.  Colonial  Bank:  2230. 
Dreisback     v.     Rollins:     1536,     2435, 

2444. 
Dresden    School   Dist.   v.   Aetna   Ins. 

Co.:  2404. 

Dresha  v.  Pope:   2564. 
Dresner  v.  Becker:  411. 
Dresser  v.  Norwood:   868,  1803,  1808, 

1809,  1813,  2079,  2575. 
Drew  v.   Nunn:    676,   677,   678,   1380, 

1394. 

v.  Western   Steel   Car   Co.:    1624. 
Drexel  v.  Pease:  1197,  1700. 
v.  Raimond:   1339,  1347. 
Dreyer  v.  Rauch:   2458. 
Dreyfus  v.  Goss:   861,  869,  870,  885. 


Drinkall  v.  Movius  State  Bank:  935. 
Drinkwater    v.    Goodwin:    C87,    1689, 

2037,   2072,  2508,   2559,   2568,  2570. 
Driscoll  v.  Modern  Brotherhood:  374. 

v.  Scanlon:    1913. 

v.  Towle:    1861. 
Driver  v.  Galland:  992. 
Dr.  Miles  Med.  Co.  v.  Park:  28,  2499. 
Doyle  v.  Corey:   938. 


v.  Dixon:   226. 


v.  M.  K.  &  T.  Trust  Co.:    1661. 
v.  Phoenix  Ins.  Co.:  557. 
v.  St.    Paul,   etc.,   R.   Co.:    1779. 
v.  Teas:  1834. 

V.Toledo,  etc.,  R.  R.  Co.:    1623. 
Doylestown    Agr.    Co.    v.    Brackett: 

890,  1988. 

Dozier  v.  Davison:    1607. 
v.  Freeman:   707,  743. 
Drohan   v.    Merrill   &   Ring  L.   Co.: 

1043. 

Drovers'  Bank  v.  Roller:  1350. 
Drovers'  Nat.   Bank  v.  Anglo-Ameri- 
can Co.:   1314. 

Drovers'  &  Mechanics'  Bank  v.  Rol- 
ler: 2576. 

Drum  v.  Harrison:   308. 
Drumm-Flate  Com.  Co.  v.  Union-Meat 

Co.  2523. 

Drummond  v.  Humphreys:   1605. 
v.  Krebs:    291. 
v.  Wood:    1262,   2536. 
Drumright  v.  Philpot:   212. 
Drury  v.  Butler:  2197. 
v.Foster:   213. 
v.Newman:   2461. 
Dryburg  v.  Mercur  Gold  Mining  Co.: 

1650. 

Dryfus  v.  Burnes:  2002. 
Dubois'   Appeal:    2064,    2269,   2272. 
Dubois  v.  Delaware  &  H.  Canal  Co.: 

1735. 

Du  Bois  v.  City  of  New  York:   2255. 
v.  Mayor,  etc.,  of  N.  Y.:  2255. 
v.  Perkins:  867,  2075. 
Dubowski  v.  Goldstein:   113. 
Dubuque  Female   College  v.  District 

Township:   382. 
Ducarrey  v.  Gill:   1736. 
Duclos   v.    Cunningham:    2430,    2431, 

2437,  2441. 
Duckett  v.  Pool:   2133. 


2253 


TABLE    OF    CASES    CITED 


[References   are  to  s«-.-«i..iis:   SS   1-1705,  Vol.   I;   8§   1706-2588,  Vol.  II.] 


Duckwall  v.  Williams:   2230. 
Duckworth  v.  Orr:  663. 

V.Rogers:  2467. 
Duconge  v.  Forgay:  973. 
Ducre  v.  Sparrow-Kroll  Lumber  Co.: 

1941,  1959,  1977. 
Dudley  v.  Collier:   90. 

v.  Illinois,  etc.,  R.  Co.:  1463, 1474, 

1477. 

Duensing  v.  Paine:   51. 
Duff  v.  Combs:  2152. 

v.  Hutchinson:   2417. 

v.Russell:   643. 

Duffleld  v.  Michaels:   648.     .^T  .1 
Duffy  v.  Buchannan:   1432,  1442. 

v.  England :    2554. 

v.Hanson:    2163. 

v.  Hobson:   798,  2428,  2430. 

v.  Mallinkrodt:   1374,  1400. 
Dufresne  v.  Hutchinson:    1249,  1254, 

2415. 
Dugan  v.  Anderson:  1563,  1564.   old 

v.  Champion,  etc.,  Co. :  1039. 

v.  Lyman:   954. 

v.  United  States:  2065. 
Dugdale  v.  Lovering:   1603,  2349. 
Duggan   v.    Baltimore,   etc.,   R.   Co.: 
1973. 

v.Wright:   169. 

Duguid   v.    Edwards:    1350,    2502. 
Duke  v.  Graham:  2447. 

v.  Harper:    2236,  2237. 
Dukes  v.  Davis,  etc.:   2307. 
Dukette  v.  Northwestern  Co.:   1671. 
Dulaney  v.  Page  Belting  Co.:   1543. 
Dull  v.  Dumbauld:  241,  261. 
Duluth   National   Bank  v.   Fire   Ins. 

Co.:  319,  1064,  2368. 
Dumont  v.  Heighten:  668. 

v.Williamson:   2364. 
Dumright  v.  Philpot:  420,  1086. 
Dun  v.  City  Bank  of  Birmingham: 
1865. 

v.  City  Nat.  Bank:  1872. 
Dunbar  v.  Phenix  Ins.  Co.:  1073. 
Dunbar  Box  Co.  v.  Martin:   1162. 
Duncan,  In  re:  2188. 
Duncan  v.  Baker:   1578. 
V.Gilbert:    976. 

v.  Hartman:    830,  980,  1005. 

v.  Hill:  1608,  2481. 

v.  Jaudon:   2126. 


Duncan  v.  National  Mut.  F.  Ins.  Co.: 
1073. 

v.  Niles:  1395.  1397. 

v.  Spear:  1331,  2050. 
Dundee  Mortg.  &  T.  Co.  v.  Hughes:. 

2213. 

Dung  v.  Parker:   1397,  1401. 
Dunham  v.  Hartman:  2320,  2321. 

V.Hastings  Pavement  Co.:   96. 

v.Morse:   1060. 

v.  Salmon:  882. 
Dunkell  v.  Simons:   1581. 
Dunklin  v.  Harvey:  1809. 
Dunlap  v.  De  Murrieta  &  Co.:  307. 

v.  Hand:  1594. 

v.  Lambert:  2031. 

V.Mitchell:  1202. 
Dunlop  v.  Munroe:   1502..  1503. 
Dunn  v.  Boston,  etc.,  St.  R.  Co.:  1623 

v.  Crichfleld:  648. 

v.  Hall:    1980. 

v.  Hartford,  etc.,  R.  Co. :  435. 

v.  Hearst:  1980. 

v.  Johnson:  1343. 

v.  Macdonald:   1371. 

v.  Moore:  1577. 

v.  Price:    2426. 

v.  Sayles:  598. 

v.  Wright:   869. 
Dunne  v.  Herrick:    2236. 
Dunton  v.  Chamberlain:    1405. 
Dunwidie  v.  Kerley:   1334. 
Dunwoody  v.   Saunders:    982. 
Du  Peirat  v.  Wolfe:  2586. 
Dupignac  v.  Bernstrom:  386. 
Du  Pont  v.  Sanitary  Dist.:  2170. 
Dupont  v.  Wertheman:  395,  817. 
Duquesne  Distrib.  Co.  v.  Greenbaum: 

1981. 
Du  Quoin,  etc.,  Mining  Co.  v.  Thor- 

well:  1547. 
Durant  v.   Burt:    2480. 

v.  Fish:    2527. 

v.  Lexington  Coal  Min.  Co. :  1671. 
Durant  Lumber  Co.  v.  Sinclair  Lum- 
ber Co.:  2077. 
Durbrow  v.  Eppens:   661. 
Durden  v.  Barnett:  2135. 
Durfee  v.  Scale:  275. 
Durgin  v.  Somers:   132. 
Durham   v.    Strauss:    1912,   1913. 

v.  Stubbings:    1168,  1405. 


2254 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  g§  1706-2588,   Vol.  II.] 


Durham     Fertilizer    Co.    v.    Glenn: 

2229. 
Burkee  v.  Carr:    716,   838. 

v.  Central  Pac.  R.  Co.:  1783,  1798. 

v.  Gunn:   566,  1552. 
Durkin  v.  Kingston   Coal  Co.:    1647, 

1859. 

Durnford  v.  Patterson:    1320. 
Durrant  v.  Roberts:    386. 
Durst  v.  Burton:    1984. 
Durward  v.  Hubbell:  1207,  1208. 
Duryea  v.  Vosburgh:    262,  263,  1207, 

1225,  1226. 

Dusar  v.  Perit:   1262. 
Dusenberry  v.  Ellis:   1395,  1397. 

v.  McDole:   948. 
Dussoulas  v.  Thomas:    169. 
Butcher  v.  Beckwith:  281,  864. 
Butillet  v.  Chardon:    2349. 
Button  v.  Amesbury  Bank:  1870. 

v.  Marsh:   1136,  2024,  2031. 

v.  Willner:   179,  1225. 

v.  Warschauer:  215,  218,  1086. 
Buval  v.  Craig:  1102,  1419. 

v.  Moody:   2456,  2457. 

v.  Wellman:   117. 
Buvall  v.  Myers:    519. 
Swelling  House  Ins.   Co.   v.  Brodie: 

1073. 
Bwight  v.   Blackmar:    1198,   1202. 

v.  Lenz:    934. 

v.Simon:    2204,   2210. 

v.  Weir:    2172. 

v.Whitney:   2504. 
Bwinelle  v.  New  York  Cent.  R.  Co.: 

1934. 

Bwyer    v.    American    Express    Co.: 
1654. 

v.  Ells:    2246. 


v.  Raborn:    2443. 


•CI    .v 


v.  St.    Louis    Transit    Co.:    1975, 

1976. 

Bye  v.  Virginia  Midland  R.  Co.:  173. 
Byer  v.  Duffy:  707,  739,  814,  816,  819, 

2108.   2439. 

v.  Munday:   1977,  1999. 
v.  Pearson:  2115. 
v.Swift:   1423,  1424,  17G1. 
V.Winston:    290,   312. 
Dykers    v.     Townsend:     1731,     1732, 

2063. 
Dysart  v.    Railway  Co.:    246. 


E 

Eadie    v.    Ashbaugn:    396,    408,    411, 

412,  435,  888. 
Eads  v.  Williams:   310. 
Eagle  Bank  v.  Smith:  246,  276. 
Eagle  Iron  Co.  v.  Baugh:  285. 
Eaglesfield     v.     Londonderry:     1458 

1460. 
Eagleston  Mfg.  Co.  v.  West  Mfg.   Co: 

663. 

Eaken  v.  Harrison:  1548. 
Eakin  v.  Hotel  Co.:  2245. 
Eames  v.  Brunswick  Construction 

Co.:    1479. 
v.  Sweetser:   161. 
Earhart  v.  United  States:    2160. 
Earle  v.  Grout:  2308. 
Earley  v.  Whitney:   2246. 
Early  v.  Wilkinson:   1124,  1153,  1162. 
Earp  v.  Cummins:    2437,  2442. 

v.Tyler:  1578. 

Eason  v.  S.  &  E.  T.  R.  Co.:  1658. 
East  v.  Smith:   536. 
East  India  Co.  v.  Hensley:  542. 
East  Birmingham  Land  Co.  v.  Ben- 

nis:   2111. 

Eastern   Bank  v.  Taylor:    1222. 
Eastern   Counties  R.  Co.  v.  Broom: 

506,  507. 

Eastern  Mfg.  Co.  v.  Brenk:  858. 
Eastern  Railroad  v.  Benedict:    1176, 

1731,  1733,  2059,  2063. 
East  Haddam   Bank  v.  Scovil:    1314. 
Eastham  v.  Hunter:  420. 
East    Jersey    Water    Co.    v.    Slinger- 

land:   1048. 

Eastland  v.  Maney:  319,  1701. 
East  Line  R.  Co.  v.  Scott:   598,  1042, 

2163,  2170. 
Eastman   v.    Provident,   etc.,   Ass'n. : 

410. 

v.Wright:   2072. 
Easton  v.  Budley:  993. 
v.Ellis:    652. 
v.Hitchcock:    1858. 
v.  Snow:   1498. 

East  River  Bank  v.  Kennedy:   2163. 
East  River  Gas  L.  Co.  v.  Bonnelly: 

1494,  1498,  1499. 
East    Rome   Town    Co.    v.    Cothran: 

2204. 


2255 


TABLE   OF    CASES    CITED 


[References   ar«  to  aectioua:   g§  1-1705,  Vol.   I;   §§   1700-2588,  Vol.  II.] 


East  Tennessee,  etc.,  R.  Co.  v.  Duf- 

fleld:    1640,  1678. 
v.  Fleetwood:    1935. 
v.  Gurley:    1632. 

East  Tennessee  R.  Co.  v.  Staub:  1556. 
East  Texas  Fire  Ins.  Co.  v.  Brown: 

300,    2366,    2369. 
Eastwood  v.  Kenyon:   1516. 
Eaton  v.  Delaware,  etc.,  R.  Co.:  335, 

336. 

v.Eaton:    1579. 
V.European,   etc.,   R.    Co.:    1871, 

1873. 

v.  Knowles:  937,  954. 
V.Lancaster:  1909. 
v.  Provident  Ass'n:    285. 
v.  Truesdail:    2559,   2562,   2566. 
v.  Welton:  1336,  1340,  2544,  2549. 
Eau   Claire  Canning  Co.  v.  Western 

Brokerage  Co.:  462,  482,  2381. 
Ebel  v.  Springer:  2152. 
Eberhart  v.  Camp:  1515. 

v.Reister:   1339. 

EJberts  v.  Selover:  410,  411,  446,  448. 
Eccles    v.    Louisville,    etc.,    R.    Co.: 

1801,  1815. 

v.  Stephenson:  2211,  2212. 
Echols  v.  Cheney':    1100,  1093. 


v.  State:  26. 
Eckart  v.  Roehm: 
Eckert  v.  Collat: 
Eckrote  v.  Myers: 
Eckman  v.  Chicago 


30  r, 


914. 
2479. 
1217. 
,  etc.,  R.  Co.:  1681. 


Eclectic  Life  Ins  Co.  v.  Fahrenkrug: 

1054. 

Eddy  v.   American   Amusement  Co.: 
1176,    1419. 

v.  Badger:   2003. 

v.Davis:    1782. 

v.Livingston:   1281. 
Edgar  v.  Breck:   446,  447. 

v.  State:   2008. 

Edgecomb  v.  Buckhout:   693. 
Edgell  v.  Day:  1438,  1445. 
Edgerly  v.  Cover:    898,  1004. 

v.Emerson:    200. 


v.  Gardner:   187. 
v.  Whalan:    1457. 
Edgerton  v.  Brackett:   2161. 

v.  Michels:  2497,  2507,  2582. 
v.Thomas:    167. 


Eclipse   Wind   Mill   Co.  v.   Thorsonr 

867,  2075,  2079. 

Economy  Sav.  Bank  v.  GordoG:  1828. 
Edinburgh-American     Mtg.      Co.     v. 

Noonan:  938. 
v.  Peoples:  300,  1029. 
Edings  v.  Brown:   1390,  1393. 
Edison    Light   Co.   v.   United    States 

Elec.  L.  Co.:  2300. 
Edmiston  v.  Hurley:   285. 
Edmond  v.  Caldwell:   2072,  2574. 
Edmunds  v.  Bullett:   119. 
v.  Bushell:    1767. 
v.  Merchants'   Transp.  Co.:    2110. 
Edson  &  Foulke  Co.  v.  Winsell:  1803, 

1834. 

Edwards,  Ex  parte:  1441. 
Edwards  v.   Annan:    1764. 
v.Barnes:    372. 
v.  Bay  State  Gas  Co.:   2286. 
v.  Davenport:    134. 
V.Davidson:  816,  817,  946. 
v.-Dooley:  273,  285,  750,  848,  914, 

1192,  2082,  2107. 
V.Edwards:  2162. 
v.  Gildemeister:    1731. 
v.  Golding:    2059,   2063. 
v.  Goldsboro:    98. 
v.  Hillier:    1814,   2175. 
v.  Hodding:    1445,  2348. 
v.  Home  Ins.  Co.:    2366,  2368. 
v.  Kirkwood:  313. 
v.  Levy:    610,  1580. 
v.  Pike:  2457. 
v.  Randle:   104. 

v.  Scoharie  County  Bank:   2117. 
•  v.  Seaboard,  etc.,  R.  Co.:  603. 

v.Tyler:  167. 
Efta  v.   Swanson:    1734. 
Egan  v.  De  Jonge:   316,  844. 

v.  Kieferdorf :   1535. 
Egerton  v.  Logan:  1339,  1346. 
Eggleston  v.  Advance  Thresher  Co.: 

755,  948. 

V.  Austin:  2457,  2458. 
v.  Boardman:  174,  309,  499,  1526, 
1527,  1528,  1529,  2031,  2041, 
2067,  2164,  2165,  2167,  2194, 
2245,  2246. 
v.  Colfax:  2023. 
v.  Mason:  395,  435,  438. 
v.Wagner:  208. 
2256 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §9  1-1705,  Vol.   I;   §§   1706-2588,  Vol.  II.] 


Ehle  v.   Judson:    1516. 
Ehmcke  y.  Porter:  1630. 
Ehrhardt  v.  Breeland:   285. 

v.Stevenson:    2311. 
Ehrman  v.  Bartholomew:    643. 
Ehrmantraut  v.  Robinson:    187,.  191, 

239,  404,  427. 
Ehrsan  v.  Mahan:   435. 
Eichbaum   v.    Irons:    188,    191,   1389, 

1390. 

Eichel  v.  Sawyer:    1351,  2527,  2557. 
Eichelroth  v.  Long:   905. 
Eichengreen    v.    Louisville,    etc.,    R. 

Co.:  1973. 

Eickman  v.  Troll:    2155,  2251,  2307. 
Eidam  v.  Finnegan:   2162. 
Eikelman  v.  Perdew:   226. 
Eilenberger    v.    Protective    Mut.    P. 

Ins.  Co.:    2368. 
Einstein    v.    Holladay-Klotz    Land    & 

Lumber  Co.:  213. 
Einenstein   v.   Maiden  Lane   Deposit 

Co.:   94. 

Ela  v.   Smith:    1494. 
Elam  v.  Carruth:   410. 
Elbert  v.  Los  Angeles  Gas  Co.:   1559, 

1561. 

Elbin  v.  Wilson:  1498. 
Elbinger         Actien-G-esellschaft        v. 

Claye:  1417,  2027,  2055. 
Elbridge  v.  Walker:  1203. 
Elder  v.  Stuart:  919. 

v.  Talcott:    2481. 

Elderton  v.  Emmons:  1553,  1554. 
Eldred  v.  Mackie:    1871. 
Eldridge  v.   Benson:    48,   2499. 
v.  Finniger:    2074. 
v.  Holway:   315. 
v.  Pate:    2311. 
v.  Rowe:    1576,  1577. 
v.Walker:   1192,  2131. 
Electric  R.  Co.  v.  Carson:   1794. 
v.  Lawson:   1652. 
v.  More:    1622. 
Elevator  Co.  v.  Clark:  1350. 
Elevator  Safety  Co.  v.  Iron  Works: 

285. 

Elfring  v.  New  Birdsall  Co.:  849,  861. 
Elgin,  etc.,  R.  Co.  v.  Fletcher:  2170. 
Elias  v.  Enterprise  Building  &  Loan 

Ass'n:   135. 
Elias  Brewing  Co.  v.  Boeger:  170. 


Eliot  v.  Lawton:    2253,  2254,  2262. 
Elison  v.  Wulff:    2344,  2351. 
Elkhart  County  Lodge  v.  Crary:   92, 

93,  98. 

Elkington  v.  Holland:    2194. 
Elkins  v.  Boston,  etc.,  R.  Co.:   2059, 

2063. 
Ell   v.  Northern   Pac.   R.   Co.:    1644, 

1654. 
Elledge  v.  National  City  R.  Co.:  1618, 

1787. 

Ellefson  v.   Singer:    1866,  1867. 
Ellerslie    Fishing    Club    v.    Stewart: 

1951. 

Ellery  v.  Cunningham:   2549. 
Ellicott  v.  Kuhl:    1350. 
Ellinger  v.  Rawlings:   885,  903,  904. 
Ellington  v.  Beaver  Dam  Co.:  1657. 
Elliott,  In  re:  2302. 
Elliott  v.  Atkins:   2281. 

V.Bradley:    1686,  2562,  2563. 

v.Brady:    2064. 

v.  Bodine:    169,  1731. 

v.Chicago,  etc.,  R.  Co.:    1676. 

v.  Cox:    2562,   2563. 

v.Elliott:    2302. 

v.  Knights     of     Modern     Macca- 
bees:   1803. 

v.  Leopard  Mining  Co.:   2283. 

v.Maccabees:    1826. 

v.  Pray:    1642. 

v.  Stocks:   212,  257. 

v.  Swartwout:    1321,   1435,   1440. 

v.  Turquand:    690. 

v.Walker:  1601,  1603. 
Ellis  v.   Albany  City  Fire  Ins.  Co.: 
1055. 

v.  Batson:  124. 

v.Francis:    208. 

v.  Goulton:    1438,  1445. 

v.  Hamlen:    1577. 

v.  McNaughton:   1474. 

v.  National    Free    Labor    Ass'n.: 
1981. 

v.  Pond:   1601,  1602,  2481. 

v.  Pulsifer:   1099. 

V.Sheffield   Gas,   etc.,   Co.:    1918. 

v.  Snyder:  186. 

v.  Southern  R.  Co.:  1461,  1477. 

v.  State:  2308. 

v.Turner:  1959. 

v.  Wild:  2364. 


142 


2257 


TABLE   OF    CASES    CITED 


[References  are  to  flections:   §§  1-1705,  Vol.   I;  §g  1706-2588,  Vol.  II.] 


Ellison  v.  Branstrator:  781. 

v.  Kerr:   2348. 

v.  Simmons:   886. 
Ellner  v.  Priestly:   882. 
Ellsner   v.   Radcliff:    2576. 
Ellsworth  v.  Cordrey:    1216. 

v.  Metheney:   1620. 

v.Randall:    2073. 
Elmendorf  v.  Golden:   2458. 
Elmendorff  v.  Steel:   2437. 
Elmore  v.  Brooks:   1260,  1457. 

v.Johnson:   2294. 

v.  Overton:   1494. 
Elsee  v.  Getward:    1258. 
Eisner  v.  State:   267,  275. 
Elston  v.  Jasper:   138. 
Elting  v.  Sturtevant:    1529. 
Elwell  v.  Chamberlin:  411,  504,  1993, 
2084. 

v.  Coon:    55,  586,  642,  2563. 

v.  Dodge:   1147. 

v.  Roper:  1522. 

v.Shaw:   1093,  1100,  1103. 

v.  Skiddy:    1429. 

v.  Tatum:  1172,  1389,  1396. 
Elwood  v.  Telegraph  Co.:  1984. 
Ely  v.  Hanford:  1205. 

v.  James:   435. 

v.  Parsons:    1502,  1503,  1506. 

v.Wilde:   2463,  2464. 
Emblem  v.  Bicksler:  309,  2166. 
Embree  v.   German   Ins.   Co.:    1055. 
Embrey  v.  Jemison:  111,  112,  121. 

v.  Galbreath:    1442. 
Emerson  v.  Coggswell:  280. 

v.Lowe  Mfg.  Co.:   1975. 

v.  Patch:   1748. 

v.  Providence  Hat  Mfg.  Co.:  236, 
307,  972,  1124,  2520. 

V.Turner:    1286,  1291,  1353. 
Emery  v.  Fowler:  2012,  2141. 

v.King:   257. 

v.  Lord:  2370. 

v.  Smith:   1579. 

v.  Steckel:    1557. 
Emens  v.  St.  John:    2470. 
Emmens  v.   Elderton:    602,  603,  604, 

1510,  1559. 
Emmerson  v.  Fay:  1871. 

v.  Heelis:    72,  2320. 
Emmitt  v.  Brophy:   2064. 
Emmons  v.  Alvord:   1207,  1233,  2411. 


Empire  Cream   Separator   Co.   v.  De 

Laval  D.  Co.:  506,  1981. 
Empire       Manufacturing      Co.:      "T. 

Hench:  291. 
Empire   State   Ins.   Co.   v.   American 

Central  Ins.  Co:   2138,  2474. 
Empire  State  Nail  Co.  v.  Faulkner: 

285. 

Employers'    Assur.    Co.    v.    Commis- 
sioner of  Insurance:    1493. 
Employers'  Liability  Cases:   1680. 
Employing  Printers'  Club  v.  D.  Blos- 

ser  Co.:  2133. 

Empress  Engineering  Co.,  In  re:  380. 
Endsley  v.  Johns:   1458. 

v.  Strock:  1102. 

Emslie  v.  Ford  Plate  Glass  Co.:  2243. 
Eneri  v.  Clark:   692. 
Engel  v.  N.  Y.,  etc.,  R.  R.  Co.:   1623. 
Engelbach  v.   Simpson:    2163. 
Engelhart  v.  Farrant:    306. 
Engelking  v.   Spokane:    1636. 
Engell  v.  Eureka  Club:  1917. 
Engelmann  v.  Reuse:   300. 
England  v.  Garner:   2156. 
Englar  v.  Offut:  1350. 
Englebert  v.  Troxell:   143. 
Englehart  v.  Farrant:    1868. 
v.  Peoria  Plow  Co.:   976. 
Engler  v.  Offutt:  2102. 
Englert  v.  New  Orleans  R.  Co.:  1487. 

v.  White:   945. 
English    v.    Chicago,    etc.,    R.    Co.: 

1638. 

v.  Devarro:    1339. 
v.  Dycus:  426. 
T.  Rauchfuss:   1746. 
v.  Ricks:   2310. 
English-American  Loan  Co.  v.  Hiers: 

1817,  1853. 

English,  etc.,  Ins.  Co.,  In  re:  1569. 
English,  etc.,  Mtg.  Co.  v.  Globe  L.  & 

T.  Co.:   1126. 

English  Marine  Ins.  Co.,  In  re:  598. 
Ennis,  In  re:  2389,  2409. 
Ennis  v.  Edgar:    112,  1602,  2447. 

v.Pullman  Palace-Car  Co.:   2262. 
Enoch  v.  Wehrkamp:   2569. 
Enochs  v.  Paxton:   2442. 
Enos  v.   Rhode   Island,   etc.,   R.    Co.: 

1657. 
v.  St.  Paul  F.  &  M.  Ins.  Co.:  1074. 


2258 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §g  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Enright  v.  Beaumond:   618,  933. 

V.Oliver:   1632,  1644,  1654. 
Enslen  v.  Allen:  170,  1216. 
Entz  v.  Mills;    2320. 
Enyeart  v.  Figard:    2440. 
Eoff  v.  Citizens'  Bank:   970. 

v.  Irvine:    1209,  1210,  1235,  2190, 

2290,   2295. 

Episcopal  Church  v.  Wiley:   1731. 
Episcopal      Society      v.      Episcopal 

Church:   515. 
Epps  v.  Epps:  39. 
v.  Hinds:  2001. 
Eppstein  v.  Webb:  39. 
Equitable  Co.  v.  Green:   2308. 
Equitable  Life  Ass'n  Society  v.  Les- 
ter:  963. 
Equitable  Life  Assur.  Soc.  v.  Smith: 

1093. 
Equitable  Sureties  So.  v.  Sheppard: 

1803,  1809. 

Equitable  Mfg.  Co.  v.  Allen:  902. 
Equitable  Mut.  F.  Ins.  Co.  v.  McCrae: 

1331. 

Erb  v.  Great  Western  R.  Co.:  760. 
Erdman  v.   Illinois   Steel  Co.:    1630, 

1631. 
Ericksen  v.  Great  Northern  Ry.  Co.: 

41. 
Erickson  v.  Bell:  2005. 

V.Milwaukee,  etc.,  R.  Co.:   2297. 
v.  Sorby:   648. 
Ericsson  v.  Brown:  39. 
Erie    City    Iron    Works    v.    Barber: 

1987. 

Erie  Co.  v.  St.  Louis  Co.:  2509. 
Erlanger  v.  New  Sombrero  Phosphate 

Co.:   2139. 

Ermanntraut  v.  Robinson:   393,  395. 
Ermeling  v.  Canning  Co.:   2563. 
Ermentrout  v.  Girard  Fire  &  Marine 

Ins.  Co.:   1074. 
Ernest  v.  Stoller:   2523. 
Ernst,  In  re:  2207. 
Ernst  v.  Harrison:   711,  1767. 

v.  Thorn:  1405. 
Erskine  v.  Johnson:  905.        •rfinJr 

v.  Mcllrath:   1263. 
Erwin  v.  Blake:   2182. 
Esdalie  v.  La  Nauze:  780. 
Fshleman  v.  Lewis:   1192. 
Esley  v.  People:    2152. 


Espin  v.  Pemberton:   1803,  1834. 

Espy  v.  Bank  of  Cincinnati:  1801. 

Esser  v.  Linderman:  2389,  2416,  2480. 

Essex  Trust  Co.  v.  Enwright:   1209. 

Essick  v.  Buckwalter:   952. 

Essington  v.  Neill:  167. 

Estate  of  A.  B.:  2195. 

Estate  of  Cole:   2230. 

Estate  of  Huffman,  In  re:  2308. 

Estate  of  Nelson,  In  re:  2312. 

Estate  of  Ritchey:  1348. 

Estell  v.  Myers:  1597. 

Esterly  Harvesting  Mach.  Co.  v.  Frol- 

key:   410,  411. 
Estes   v.   Desnoyers   Shoe  Co.:    1556. 

1557. 

Es'evez  v.  Purdy:  2004. 
Estey  v.  Snyder:   86G. 
Etheridge  v.  Price:   354,  386,  2084. 
E.  T.  Kenny  Co.  v.  Anderson:  435. 
Etzel  v.  Duncan:   2234. 
Eubanks  v.  Anniston  Co.:   285. 
Eufaula  Grocery  Co.  v.  Missouri  Nat. 

Bank:    1433. 

Euneau  v.   Rieger:    177,  179,  1203. 
Eureka  Block  Co.  v.  Wells:    1646. 
Eureka  Co.  v.   Bass:    1630,   1631. 
Eureka  Laundry  Co.  v.  Long:    113. 
European  Bank,  In  re:  1815. 
European,  etc.,  R.  Co.  v.  Poor:   1189. 
Eustis  v.  Bolles:   701. 
Eustis  Mfg.   Co.   v.  Saco  Brick  Co.: 

1157,  1409. 

Euting  v.  Chicago,  etc.,  R.  Co.:   1948. 
Evangelical     Synod     v.     Schoenich: 

1350. 

Evangelista  v.  Ver:  55. 
Evans,  In  re:  2237. 
Evans,  Matter  of:    2283. 
Evars  v.  American  Iron  Co.:    1676. 

v.  Bennett:  1577. 

v.Chicago,   etc.,  R.   Co.:    473. 

V.Crawford  Co.  Ins.  Co.:  29,  167, 
205,  1993,  2084. 

v.  Crawford    County    M.    F.    Ins. 
Co.:  718. 

v.Davidson:  1890,  1874. 

v.  Evans:  1195,  2020. 

v.  Fearne:  585,  586. 

v.  Foster:  1494,  1495. 

v.  Funk:   2230. 

v.Gay:  592,  2445. 


2259 


TABLE   OF    CASES    CITED 


[References  are  to  Hectlonit  gg  1-17O5,  Vol.  I;  gg  1706-2588,  Vol.  II.] 


Evans  v.  Hughey:  1594,  1695. 

v.  Lawton:  1272. 

v.  Mohr:  2230. 

v.  Pierce:  300. 

v.  Railway  Co. :  603. 

v.  Root:   2525,  2526. 

v.  Potter:  2510,  2524. 

v.  Smallcombe :  463. 

v.  State:   2308. 

v.  Swan:  1410. 

v.  Wain:   2417. 

v.  Watrous:    2194,  2201. 

v.  Wells:  424,  1086. 

v.Wren:  1198. 

v.  Wrenn:  2411. 
Evans  Co.  v.  First  Nat.  Bank:   2583. 

v.  Holder:    937,   940. 
Evans-Snider-Buel  Co.  v.  Hilje:   435. 
Evansville  Bank  v.  German-American 

Bank:   1321. 
Evansville,  etc.,  R.  Co.  v.  Baum:  1959. 

v.  Freeland:   341,  994. 

v.  McKee:  1973. 

v.  Tohill:  1635. 
Evansville  &  Crawfordsville  R.  Co.  v. 

Baum:  1940. 
Evansville  &  Terre  Haute  R.  Co.  v. 

Geyton:   1G32. 
Evarts  v.  Kiehl:  1494. 
Everdell  v.   Carrington:    2058. 
Everett  v.  Coffin:   1456,  1457,  1692. 

v.  Drew:   43. 

v.  Marston:   2162. 

v.  Saltus:   1687,  1691. 
•v.  State:   2303. 

v.  United  States:   483. 

v.Warner  Bank:   2156. 
Everett  Co.  v.  Cumberland  Co.:  2463. 
Everhart  v.   Searle:    178,  1590,   2412, 

2474. 

Everingham  v.  Chicago,  B.  &  Q.  R. 
Co.:   1977. 

v.Chicago,  etc.,  R.  Co.:   475. 

v.  Halsey:   1351,  2542,  2551,  2557. 

v.  Meighan:  111. 

Everman  v.  Herndon:   807,  2397. 
Evers    v.   Krouse:    1948,   1950,    1969, 

1970. 

Eversole  v.  Holliday:   104. 
Everson  v.  Powers:  1556. 
Everston  v.  Sutton:  1494. 
Everts  v.   Lawther:    946. 


Evertson  v.  National  Bank  of  New- 
port:  2111. 

Evesson  v.  Ziegfeld:  1562. 

Eviston  v.  Cramer:  2015. 

Evit  v.  Bancroft:    2034,   2039,   2048. 

Ewald  v.  Chicago,  etc.,  R.  Co.:   1657, 
1896. 

Ewan  v.  Lippincott:    1655. 

Ewbank  v.  Nutting:  1457. 

Ewer  v.  Jones:    143. 

Ewing  v.  Freeman:    2207. 
v.  Janson:    1530. 
v.Lanark  Fuel  Co.:   1619,  1670. 
v.  Medlock:   2030. 

Ewins  v.  Gordon:  601. 

Excelsior  Needle  Co.  v.  Smith:   617. 

Exchange    Bank    v.    Lewis    County: 

1139. 

v.  Rice:   1176,  1731,  1733. 
v.  Thrower:    972,  974,  1001. 

Exchange  Bank  of  Virginia  v.  Lewis 
County:   1148. 

Exchange   Nat.   Bank  v.   Third   Nat. 
Bank:   328,  331,  1314. 

Exchange    Teleg.     Co.    v.     Gregory: 
2137. 

Executors  of  Luse  v.  Parke:   1984. 

Exum  v.  Brister:   506,  507. 

Eystra  v.  Cappelle:    169,  171. 

Ezell  v.  Franklin:   882,  886. 

F 
Fabens  v.  Mercantile  Bank:  1314. 

v.  Mercantile  Co.:  331. 
Fabian    Mfg.    Co.    v.    Newman:    869, 

870. 

Fadner  v.  Hibler:   263,  708. 
Fagundes  v.  Cent.  Pac.  R.  Co.:  1654 
Fahey  v.  Esterley  Mach.  Co.:  905. 
Fahnestock  v.   Bailey:    2576,   2577. 
Fahy  v.  Fargo:  1320. 

v.  North:   1572. 

Fail  v.  Western  Union  Co.:   241. 
Fair  v.  Bowen:   300. 
Fairbairn  v.  Hilliard:  2480. 
Fairbank  v.  Sargeant:   2286,  2485. 
Fairbanks   v.   Boston    Storage  Ware 
house  Co.:  1941,  1978. 

v.  Snow:   145. 

Fairchild  v.  Cunningham:  1516,  1533, 
2430,  2438,  2442. 

v.  Flomerfelt:  2386. 


2260 


[References   are  to  sections:   §§  1-1705,  Vol.  Ij  §§  1708-2588,  Vol.  II.] 


Fairchild  v.  King;   308. 

v.  McMahon:  411,  435,  1985,  1993. 

v.  Railroad  Co.:  1529. 
Fairfield   v.   Adams:    2030. 
Fairfield  City  Bar  v.  Taylor:   2188. 
Fairfield    Savings    Bank    v.    Chase: 
1808,  1809,   1820,  1833,  1843,  1848. 
Fairlie  v.   Fenton:    2026,   2035,   2487, 
2488. 

V.Hastings:   1783,  1792. 
Fairly  v.  Nash:  972,  997. 

v.  Wappoo  Mills:    91,   2447,  2463, 

2479. 
Fairmount,   etc.,   R.    Co.   v.    Stutler: 

2135. 

Fairthorne  v.  Blaquire:  148. 
Faist  v.  Dahl:    122. 
Falconi  v.  Larsen:   2281. 
Falihee  v.  Simmons:   861. 
Falk  v.  Moebs:  1125,  1145,  1156,  1162. 

v.  Wolfsohn:   1405. 
Fall  River  Nat.  Bank  v.  Buffington: 

364. 

Faloon  v.  Mclntyre:    1515. 
Falor  v.  Beery:   2156. 
Falsken  v.  Falls  City  Bank:   793. 
Fanset  v.  Garden  City  Bank:    1314. 
Fant  v.  Campbell:   430. 
Farady  Coal  Co.  v.  Owens:  635,  2449. 
Faraldo  v.  Gumbel:   2529. 
Farebrother  v.   Ansley:    2345,   2349. 

v.Simmons:   2033,  2320,  2475. 
Fareira  v.  Gabell:   2478. 
Faren  v.  Sellers  &  Co.:  1619. 
Fargo  v.  Cravens:  306,  307,  438. 
Faries  v.  Ranger:    2525. 
Farjeon  v.    Indian   Territory   Illumi- 
nating Oil  Co.:   2463,  2473. 
Farlardeau  v.  Washburn:  2269. 
Farley  v.  Peebles:   2308. 

v.Peters:  134. 

v.  Stroeh:   169. 
Farmer  v.  Crosby:    2219,  2220. 

v.  People:   2207. 

v.Robinson:   2585. 

v.  Stillwater  Co.:  2281. 
Farmers'  Bank  v.  Bennett:  946. 

v.  Butchers'  Bank:   246. 

v.  Kansas  City  Pub.  Co. :  654,  689. 

v.King:   2576. 

v.Logan:  1197. 

v.  Mackall:  2184. 


Farmers'  Bank  v.  Newland:  716. 
v.  Smith:  193. 
v.  Sprigg:    2162. 
v.  Vail:   1303. 
v.Wickliffe:   1783. 

Farmers'  Bank  of  Elk  Creek  v.  Farm- 
ers' Bank  of  Auburn:   446. 
Farmers'  Co-operative  Shipping  Ass'n 

v.  Adams:    725. 
Farmers'  etc.,  Bank  v.  Butchers',  etc., 

Bank:    60,  1801. 
v.  Germania  Ins.  Co.:   998. 
v.Logan:    1700. 
V.Payne:    1803,  1808,   1843,  1848, 

1851,  1852. 
v.  Sherman:  435. 

Farmers',  etc.,  Ins.  Co.  v.  Wiard:  442. 
Farmers'   L.    &   T.   Co.   v.    Memphis, 

etc.,  R.  Co.:  528,  533. 
v.  Westchester      County      Water 

Works  Co.:   2284. 
V.Wilson:  663,  664,  666. 
Farmers'   &   Drovers'    Bank   v.    Ben- 
nett: 946. 

V.Kansas  City  Pub.  Co.:  651. 
Farmers'  &  Mechanics'  Bank  v.  Col- 
by:   1141. 
v.  Day:   2065. 
v.King:    1350,    2090,    2091,    2094, 

2129. 
Farmers'    &   Merchants'    Ins.    Co.    v. 

Wiard:   1803,  1804. 
Farmers'  &  Trades'  Bank  v.  Kimball : 

1350. 
Farmers'   Trust  Co.  v.   Floyd:    1374, 

1383,  1386,  1391,  1398,  1400. 
Farmers'  Warehouse  Ass'n  v.  Mont- 
gomery:  1344. 
Farmington    Savings    Bank    v.    Buz- 

zell:   169,  974. 
Farnam  v.  Brooks:  1352. 
Farnham  v.  Thompson:  811,  812. 
Farnsworth  v.  Brunquest:   178,  2398. 
v.  Chase:   1269. 
v.  Hemmer:    178,  716,  1220,  1590, 

2411,  2412,  2474. 
Farnum  v.  Brooks:  1221. 

v.  Phoenix    Ins.    Co.:    1053,   1060, 

1062. 
Farquhar  v.   Alabama,   etc.,   R.   Co.: 

1676. 
Farquharson  v.  King:   848,  2127. 


226l 


TABLE   OF    CASES    CITED 


[References  are  to  sectional  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Fair  v.  John:  2322,  2323. 
Farrand  v.  Hurlbut:   1256. 

v.  Land  &  River  Impr.  Co.:  1217, 

2314. 
Farrar  v.  Brodt:   2457. 

v.  Chauffetete :   1457. 

v.  Duncan:  784,  789. 

v.  Oilman:   1146. 

v.  Lee:  1093,  1734. 

v.  Paine:   2388. 

v.  Peterson:  888. 
Farrel  Foundry  v.  Dart:   1852. 
Farrell  v.  Eastern  Mach.  Co.:    1621, 
1646. 

v.  Edwards:   798. 

v.  School    District:     1557,    1559, 

1561. 

Farrelly  v.  Hubbard:  1255,  1342. 
Farrer  v.  Caster:  274. 

v.  Lacy:   2325. 
Farrington  v.  Hayes:   768,  1043. 

v.  Meek:   1690,  1694. 

y.  South  Boston  R.  Co.:   754,  760, 

1801. 

Farrow   v.   Commonwealth   Ins.   Co.: 
2033,  2371,  2488. 

v.Wilson:   668. 
Farry  v.  Davidson:   2283. 

v.  Great  Northern  R.  Co.:   1973. 
Farson  v.  Fogg:   97. 
Farwell  v.   Boston  &  Worcester  R.: 
1615,  1643,  1649. 

v.Curtis:  1314. 

V.Howard:   463,  473. 

v.  Price:   2414. 
Fash  v.  Ross:  1158. 
Fassitt  v.  Middleton:  2183. 
Fatta  v.  Edgerton:   300. 
Faughnan  v.  City  of  Elizabeth:  2183. 

2314. 

Faulds  v.  Yates:   116,  308. 
Faulk  v.   Hobbie  Grocery  Co.:    2245. 
Faulkner  v.  Brown:    2050. 

v.  Simms:  246. 
Faulks   v.   People:    2007. 
Faurie  v.  Morin:   104. 
Fausler  v.  Parsons:   1498,  1499. 
Faust  v.  Goodnow:   2028. 
Faville  v.  Lundvall:   836. 
Fawcett  v.  Fowlis:    1494. 
Fawyer  v.  Fullingham:  2447. 


Fay  v.  Burditt:  134. 

v.  Lovejoy:   2002. 

v.  McGuire:   2202. 

V.Richmond:  246,  882. 

v.  Slaughter:    361,   436,  437,  974, 
2001. 

v.Walsh:    2020. 

V.Winchester:    805. 
Fayetteville  Wagon  Co.   v.   Keneflck 

Co.:  933. 

Fearing  v.   Kimball:    463. 
Fearnley  v.  De  Mainville:   98. 
Featherston  v.  Trone:  2411,  2477. 
Fechter  v.  Montgomery:  1510. 
Federal  Cold  Storage  Co.  v.  Angehrn: 

608. 

Federal  Trust  Co.  v.  Coyle:  2063. 
Fee  v.  Adams  Express  Co.:  285,  291, 

988. 

Fees  v.  Shadel:  915. 
Feeter  v.  Heath:  1395. 
Feigenbaum  v.  Howe:  134. 
Feild  v.  Farrington:   2416,  2527. 
Fein  v.  Weir:   1780,  1782. 
Feiner  v.  Boynton:  166. 

v.  Puetz:   960,  2181. 
Feise  v.  Wray:   1690,  1698. 
Feist  v.  Jerolamon:  2441,  2460,  2474, 

2475. 

Felch  v.  Allen:   1628. 
Feldman  v.   Detroit  United   R.  Co.: 
1793. 

v.Shea:    628. 
Felker  v.  Emerson:   167. 
Fell  v.  Northern  Pac,  R.  Co.:   2016. 

v.  Parkin:   1745. 

v.  Puponga  Coal  Co. :  780. 
Fellowes  v.  Gordon:  1258. 

v.  Lord  Gwydyr:   2042. 
Fellows   v.   Hartford,  etc.,   Co.:    628, 
634. 

v.  Longyor:   2003. 

v.  Northrup:  307,  958. 

v.  Smith:    2236. 

v.  Steamer  Powell:  1801. 
Felt  v.  School  District:   1280. 
Feltner  v.  Feltner:   110. 
Felton  v.  Le  Breton:  2293. 
Felts    v.    Butcher:    1536,    2431,    2447, 

2470. 
Fenaille  v.  Coudert:   2194. 


2262 


TABLE    OF    CASES    CITED 


[Reference*  are  to  section*:   §§  1-1705,  Vol.  I;  g§   1706-2588,   Vol.   II.] 


Feneran  v.  Singer  Mfg.  Co.:   1978. 
Fenn  v.  Dickey:    471. 

v.  Ware:   2437,  2447. 
Fenner  v.  Lewis:    284. 

v.  Succession  of  McCan:    2250. 
Fenno  v.  English:    2262. 
Fenton  v.  Clark:    1572. 

v.  Dublin  Steam  Packet  Co.:  1897. 

v.  Miller:    2435,  2456,  2457,   2458. 
Fentz  v.  Meadows:  2015. 
Fenwick,  In  re:  1837. 
Fenwick  v.  Reed:    2300. 
Ferchen  v.  Arndt:    1350,  2576,  2577. 
Fereira  v.   Sayres:    669,  1567. 
Ferguson  v.  Brooks:  150. 

V.Crawford:  2157,  2158. 

v.Davis:   707,  739. 

v.  Gooch:    1220,  2398,   2411,   2474. 

v.  Harris:    372. 

V.Houston,  etc.,  R.  Co.:  142,  145. 

v.  Hubbell:  1871. 

v.  McBean:      1420,      1713,      1733, 
2302. 

v.  Monroe  County:  208. 

v.  Neilson:  150. 

v.  Roblin:   1977,  1978. 

v.  Terry:  2227. 

v.  Willard:   2437. 
Ferneau  v.  Whitford:   261. 
Ferren  v.  Old  Colony  R.  Co.:   1674. 

v.  Railroad  Co.:    1667. 
Ferrier  v.  Trepannier:   1474. 
Ferris  v.  Baker:   169,  285. 

v.  Commercial  Nat.  Bank:   2152. 

v.  Irving:   652,  663. 

v.Kilmer:  1422,  2420. 

v.Paris:    1337,    1339,    1340,    2548, 
2549. 

v.  Snow:    386. 

v.  Thaw:   187,  1162. 
Ferry  v.  Home  Savings  Bank:   2098. 

v.  Laible:   813. 

v.Moore:   1424,  1758. 

v.Taylor:  361. 

Fessenden  v.  Forest  Paper  Co.:  1595. 
Fetrow  v.  Wiseman:   141,  143,  144. 
Fewings  v.  Tisdal:  1554. 
Feury  v.  McCormick  Harv.  Co.:  2184, 

2227. 

Fichthorn  v.  Boyer:  208. 
Fick  v.  Chicago,  etc.,  R.  Co.:   1934. 

v.  Runnels:  1299. 


Fickett  v.  Durham:   1194. 
Fidelity  Co.  v.  Courtney:   1840,  1842. 
v.  Gate  City  Nat.  Bank:  1840. 
v.Getty's  Admr's.:   1060. 
Fidelity,   etc.,   Co.   v.    Fresno   Flume 

Co.:    1063. 
Fidelity   Trust   Co.   v.    Baker:    1814, 

1876,   2131. 

Fidelity  T.  &  S.  V.  Co.  v.  Carr:   283. 
Fidelity   &  Casualty   Co.   v.   Haines: 

1783. 
Fidelity  &  Deposit  Co.  v.  Courtney: 

1815. 

Field  v.  Campbell:   1803,  1804,  1828. 
v.Maxwell:   2281. 
v.  Nantucket:    2151. 
v.  Small:    395,  807,  819,   2397. 
v.  Stagg:   213,  214. 
Fielder   v.    Camp    Construction   Co.: 

241. 

Fielding  v.  Kymer:   2510. 
Fields  v.  Blane:  2583. 
Fiero  v.  Fiero:   233. 
Fifth  Ave.  Bank  v.  Forty-Second  St. 

R.  Co.:   759,  760,  1801,  1984. 
Fifth  Nat.  Bank  v.  Ashworth:    1302. 
v.  Navassa  Phosphate  Co.:    717. 
v.  Village    of   Hyde    Park:    2091, 

2094,  2097. 
Fifth    Ward    Savings   Bank  v.    First 

Nat.  Bank:   717. 

Figley  v.  Bradshaw:   300,  1029,  2136. 
Files  v.  Boston,  etc.,  R.  Co.:    1913. 
Fillebrown  v.  Hayward:    759. 
Fillieul  v.  Armstrong:    1580. 
Filson  v.   Himes:    104,  122. 
Finance   Co.    v.    Charleston,    etc.,    R. 

Co.:    2264,  2267. 
Finch  v.  Causey:  833. 

v.  Conrade:   179,  1203,  1590,  2477. 
v.  Mansfield:   871. 
Finck  v.  Bauer:  1535. 
Findlay  v.  Hall:  488. 

v.  Hildebrand:      395,      432,     474, 

1041. 

v.  Pertz:  367,  1227,  2138. 
Findley  v.  Cowles:  1815,  1845. 
Fine  Arts  Soc.  v.  Union  Bank  of 

London:   1457. 
Finger  v.  Brewing  Co.:  603. 
Fink  v.  Missouri  Furnace  Co.:   1871. 
Finlay,  In  re:  2386. 


2263 


TABLE   OF    CASES    CITED 


[ReferenceH   are  to  nee-lions:  §§  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  II.] 


Finley  v.  Hey  ward:  2181,  2187. 
Finn  v.  Adams:  156. 

v.  Western  R.  Co.:   2031,  2050. 
Finnegan  v.  Brown:   781,  804. 

v.  Geoghegan:    1438. 

v.Lucy:   80,  82,  208. 

v.  Winslow    Skate    Co.:    1667. 
Flnneran  v.  Leonard:   2158. 
Finnerty  v.  Fritz:   2412,  2474. 
Finney  v.   Cadwallader:    1597. 

v.  Falrhaven  Ins.  Co.:   524. 

v.  Gallop:   2281. 
Fintel  v.  Cook:  471. 
Firbank  v.  Humphreys:   2421. 
Firbank's  Executors  v.  Humphreys: 

1374,  1386. 

Fire  Association  v.  Ruby:   2170. 
Fire  Association  of  Philadelphia  T. 
Fleming:   2227. 

v.  Masterson:   1064,  10G5. 
Fireman's     Fund     Ins.    Co.    v.    Me 
Greevy:    1203. 

V.Rogers:    756,  1077. 

v.  Schreiber:   1944. 
Firestone  v.  Firestone:   1194. 
Firor  v.  Taylor:   2018. 
First    Baptist    Church    v.    Bigelow: 
2320. 

v.  Harper:    1100,    1102. 
First  Commercial  Bank  v.  Newton: 

148,  169. 
First  Nat.  Bank  v.  Anderson:   1854. 

V.Alexander:   1782. 

v.Allen:   1842. 

v.  Babbidge:   1817. 

v.  Badger  Lumber  Co.:   435. 

v.  Bank  of  Monroe:  1321. 

v.  Bean:   976. 

v.  Bissell:   1195. 

v.  Boyce:  2509,  2510. 

v.  Bressler:   1004. 

v.  Briggs:  1815. 

v.  Chandler:  1644,  1632. 

V.Christopher:    1583,   1848,  1851, 
1852. 

v.  Commercial  Trav.  Ass'n. 

V.Craig:  1314. 

v.  Dean:  395. 

v.  Dutcher:   903,  905. 

v.  Ege:  2563. 


First   Nat.    Bank    v.    Farmers',    etc., 

Bank:  245,  1787. 
v.  First  Nat.   Bank:    2104. 
v.  Foote:   438,  1815,  1818,  1845. 
v.  Fourth  Nat.  Bank:   1320,  1823. 
v.  Free:  253,  282,  407. 
v.  Gay:   361,  974,  1128. 
V.German-American      Ins.      Co.: 

1815,  1845. 

V.German  Bank:   1313. 
v.  Gibert:    2093,  2423. 
v.  Gunhus:    1803. 
v.  Hall:    263,  615,  635,.  926,   1146, 

2030,  2065. 
v.  Hayes:   1291. 
v.  Hicks:    813,   840,  1004. 
v.  Kummel:  1350. 
v.  Jones:  2360. 
v.  Kimberlands:  374. 
v.  Kirby:    780,   1004. 
v.  Leland:  169,  170. 
v.  Leppel:    1332. 
v.  Manufacturing  Co.:   978. 
v.  Martin:   361,  2281. 
v.  Me  Andrews:    2563, 
v.  McGinty:    134. 
V.Mitchell:  148. 
v.  Mt.  Tabor:   199. 
v.  Nelson:  2509. 
v.  New  Milford:  1818. 
v.  Oberne:   436,  437,  1031. 
v.  Ocean  Nat   Bank:    1282,  1783. 
v.Omaha  National  Bank:    245. 
v.  Oskalocsa  Packing  Co.:   112. 
v.  Pennington :   914. 
V.  Prior:    946,  954. 
v.  Rector:   187. 
V.Richmond  Elec.  Co.:  1842. 
v.  Ridpath:   263,  265,  956. 
v.  Robinson:  60,  882,  886,  888. 
v.  Schween:      1335,     2498,     2499, 

2509,  2534. 
v.  Seass:   585. 
v.  Sprague:  1314. 
v.  St.  Anthony  Co. :  291. 
v.  Stuetzer:    1135. 
v.  Taliaferro:   2114,2129. 
v.  Tpnny:   1603. 
v.  Tompkins:  1845. 
v.  Town  of  New  Milford:  1825. 
v.Wallis:  1135,  1155,  1759. 


2264 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


First  Nat.  Bank  v.  Watkins:   1440. 

v.Wright:   1015. 
First  Nat.  Bank  of  Canton  v.  North: 

1783. 
First  Nat.  Bank  of  Chicago  v.  Reno 

County   Bank:    1321. 
First   Nat.    Bk.    of    Crown   Point    v. 
First    Nat.    Bank    of    Richmond: 
1321. 
First  Nat.   Bank   of  Emmetsburg  v. 

Gunhus:  1832. 
First    Nat.    Bank    of    Hightstown    v. 

Christopher:   1845. 
First  Nat.  Bank  of  Lynn  v.  Smith: 

1303. 

First    Nat.    Bank    of    Meadville    v. 
Fourth  Nat.    Bank   of  New   York: 
1303,  1304,  1305. 
First    Nat.    Bank    of    Monmouth    v. 

Dunbar:   1818. 
First  .Nat.  Bank  of  New  Milford   v. 

Town  of  New  Milford:    1847. 
First  Nat.  Bk.  of  Trinidad  v.  First 

Nat.  Bank:   1314. 
v.  First   Nat.    Bank   of    Denver: 

1308,  1320. 
First    Unitarian    Soc.    v.    Faulkner, 

285. 
Fischer  v.  Bell:  233,  2390,  2430,  2447. 

v.  Hetherington :  2184,  2227. 
Fischer-Hansen  v.  Brooklyn,  etc.,  R. 

Co.:   2243,  2280,  2283. 
v.  Tuohy:   1803. 
Fish  v.  Coolidge:    1912. 
v.Kelly:  1281,  2213. 
v.  Kempton:      867,      2075,      2077, 

2079. 

v.  Leser:  2138. 
v.  Seeberger:  2545,  2551. 
v.  Wood:  1748. 

Fish,  etc.,  Co.  v.  New  England  Home- 
stake  Co.:  386. 

Fishbaugh  v.   Spunaugle:    839. 
Fishbeck  v.  Phenix  Ins.  Co.:   1066. 
Fishburne  v.  Engledove:   963. 
Fisher  v.  Brown:  2129,  2529. 
v.Campbell:  280. 
v.Chesapeake,  etc.,  R.  Co.:   1618. 
v.  Con  way :  167. 
v.  Dynes:   2476. 
v.  Knox:   2252. 


Fisher  v.  Krutz:   1192. 

v.  Lee:  1198,  1201,  1221,  2411. 

v.  Lodge:   282. 

v.  Lutz:  156. 

v.  Marsh:  2020,  2024. 

v.  Mclnerney:  2290. 

v.  Meeker:  1431. 

v.  Metropolitan     Elev.     R.     Co.: 
2015. 

V.Monroe:  1557,  1580. 

v.  Mylius:    2280. 

v.  New  York,  etc.,  Co.:  659. 

v.  Oskaloosa:   2276. 

v.  Rieman:  2364. 

v.  Salmon:   1100,  1102. 

v.  Sanchez  &  Hays  Co. :   603. 

v.  Sargent:   716,  1269. 

V.  School  District:    465. 

v.  Seymour:   1209,  1219. 

v.  Smith:  1690,  2484. 

v.  Trust  Co.:  663. 

v.  Woods:  2434. 

v.  Warrall:  2042. 

v.  White:   285. 
Fisher  Co.  v.  Woods:  233. 
Fishkill   Savings   Inst.  v.   Bostwick: 

1818,  1847. 

Fisk   v.   Central   Pac.   R.   Co.:    1644, 
1646. 

v.  Greeley  Elec.  L.  Co.:   60,  983. 

v.  Offit:  2504. 
Fiske  v.  Eldridge:  1139,  1170. 

v.  Enders:    1912,   1914. 

v.  Holmes:   486,  530. 

v.  Soule:   1536,  2447. 
Fist  v.  Currie:   2445,  2447. 
Fitch  v.  Mill  Co.:  219. 

v.  Newberry:     1684,    1687,    2112, 
2565. 

v.  Scott:    2163,   2194,  2196,  2197. 

v.  Steam  Mill  Co.:   220,  1030. 
Fitler  v.  Commonwealth:   1750. 
Fittichauer  v.  Van  Wyck:   2449. 
Fitzgerald  v.  Connecticut  River  Pa- 
per Co.:  1667. 

v.  Dresler:   2534. 

v.  Fauconberg :   1808. 

v.  Fitzgerald  Const.  Co. :  178. 

v. Irby:  2280. 

v.  Kimball:  395. 

v.  Kimball  Bros.  Co. :  285. 


2265 


TABLE   OF    CASES    CITED 


[References  are  to  sections  i   §§   1-1705,  Vol.  I;   §g   1706-258?,  Vol.  II.] 


Fitzgerald  v.  Moran:  992. 
v.  Paper  Co.:  1674. 
V.Worcester,    etc.,    St.    R.    Co.: 

1635. 

Fitzgerald  Co.  v.  Farmers'  Co.:   246. 
Fitzgerald  Cotton  Oil  Co.  v.  Farmers' 

Supply  Co.:  982. 

Fitzherbert  v.  Mather:   1783,  1840. 
Fitzhugh  v.  McKinney:    2276. 

v.Wiman:  2050,  2354. 
Fitzpatrick  v.  Chicago,  etc.,  R.  Co.: 

1871. 

v.  Bngard:  208. 
V.  Gilson:  1536,  2431,  2447,  2461, 

2463,  2467. 
Fitzpatrick  v.  N.  A.,  etc.,  R.  Co.: 

1651. 

•v.  School   Commissioners:    361. 
Fitzpatrick  Ginning  Co.  v.  McLaney: 

611. 

Fitzsimons,  Matter  of:  2236,  2238 
V.Milwaukee,  etc.,  R.  Co.:    1893. 
v.  Southern     Express     Co.:     178, 

1592,    2139,   2398. 

Fitzsimmons,  Matter  of:   2236,  2238. 
Fitzsimons  v.  Duncan:  1980. 
Fitzwater  v.  Warren:   1661,  1671. 
Flach  v.  Gottschalk:   134. 
Flack  v.  Harrington:   1494. 
Flagg  v.  Baldwin:   111. 
Flaherty    v.    Atlantic    Lumber    Co.: 

369. 

v.  O'Connor:  42. 
Flanagan  v.  Brown:  586. 
Flanders  v.  Putney:  854. 

v.  Sherman:   2182. 
Flanigan  v.  Crull:  2326. 

V.Philadelphia:  2162. 
Flannagans,  Ex  parte:  48,  2499. 
Flannegan    v.    Chesapeake,    etc.,    R. 

Co.:  1652. 
Flannery  v.  Baltimore,  etc.,  R.  Co.: 

2015. 

v.Jones:   2331. 

Flatt  v.  Osborne  &  Co.:  885,  888. 
Flattery  v.  Cunningham:    2413. 
Fleckner  v.  Bank:   483. 

v.  Bank  of  United  States:   483. 
v.  United  States  Bank:   368. 
Fleet    v.    Murton:    1174,    1412,    1414, 

2419. 
Flegel  v.  Bowling:  230,  233. 


Fleishman  v.  Meyer:   2163. 
Fleischman  v.  Ver  Does:  441. 
Fleischner  v.  Durgin:   1900,  1906. 
Fleming   v.    Bank  of  New   Zealand: 
2056. 

v.  Culbert:  1346. 

v.  Hill:    1182,  1422. 

v.  Northern  Paper  Mill:  1625. 

v.Ryan:   285. 
Flemister  v.  State:  208. 
Flemmer  v.  Ainsworth:   608. 
Flemyng   v.    Hector:    187,    190,    188, 

189. 

Flesh  v.  Lindsay:   37,  150. 
Fletcher  v.   Baltimore,  etc.,   R.   Co.: 
1941. 

v.Boston  &  Maine  R.  Co.:  1279. 

v.  Dysart:  395. 

v.  Elevator  Co. :   760. 

v.  Great   Western   Elevator  Co.: 
1801. 

v.Marshall:  2481. 

v.  McArthur:    2236. 

v.  Nelson:   882,  902. 

v.Willis:    289. 

Fletcher  Bros.  v.  Hyde:  1670. 
Flewellen  v.  Mittenthal:   975,  998. 
Flexner  v.  Dickerson:   141,  143. 
Flike  v.   Boston   &  A.  R.   Co.:    1633, 

1640. 
Flint  v.  Comly:    2152. 

v.  Hubbard:   2283. 

v.  Railroad  Co.:  993. 
Flint,  etc.,  R.  Co.  v.  Dewey:   1202. 
Flood  v.  Leonard:  1536. 
Florance  v.  Richardson:    2319. 
Florence  v.  Adams:    1198,  1205. 
Florence,  etc.,  Co.  v.  Louisville  Bank- 
ing Co.:  435. 
Florida  Central  R.  Co.  v.  Ashmore: 

630. 
Florida    Central    R.    Co.    v.    Rogan: 

2281. 
Florida  East  Coast  R.  Co.  v.  Lassi- 

ter:  285. 
Florida,  etc.,  R.  Co.  v.  Mooney:  1676. 

v.  Varnedoe:   386,  1170. 
Florsheim  v.  Dullaghan:  1918. 
Flournoy  v.  Interstate  Electric  Co.: 

291. 
Flower  v.  Davidson:   1533,  2431. 

v.  Downs:  491. 


2266 


TABLE   OF    CASES    CITED 


[Reference*   are  to  Net-lions:   §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 


Flower  v.  Jones:  498. 

v.  O'Bannon:   1351. 

V.Pennsylvania     R.     Co.:     1658, 

1913. 

Floyd  Acceptances,  The:    707,  763. 
Floyd  v.  Barker:  1494. 

v.  Mackey:  306,  308. 

v.  Nangle:    2204. 

v.Patterson:   121,   2481. 

v.  Sudgen:    1644,  1654. 
Fluker  v.  Georgia  R.  Co.:   2135. 
Flury  v.  Grimes:  1202. 
Flynn  v.  Bank  of  Mineral  Wells:  98. 

v.Butler:    586,  2243. 

v.  City  of  Salem:   1644. 

v.  Jordal:    1536,  2430,  2431,  2437, 
2440. 

v.  Judge:   2201. 

v.  Messenger:  163.  ,»81 

v.  Prince  Collins  Co.:  1618. 
Flynt  v.  Taylor:  1803. 
F.  &  M.  Bk.  v.  King:  2098. 
Foddrill  v.  Dooley:  639, 
Foe  v.  Bennett:   2293. 
Foertsch  v.  Germuller:   169. 
Fogarty  v.  Sawyer:  811. 
Fogel  v.  Schmalz:   1984. 
Fogg  v.  Boston  &  Lowell  R.  Co. :  1980. 

v.  Pew:  1783,  1988. 

v.  Plumer:  2141. 

v.Tyler:   2493. 

Foley   v.    California   Horseshoe   Co.: 
1678. 

v.  Grand    Rapids,    etc.,    R.    Co.: 
2281. 

v.  Hill:   1343. 

v.  Kleinschmidt:   2244. 
Folger  v.  Peterkin:  169. 
Folks  v.  Falls:   2197. 
Follett  v.   Jefferyes:    2304. 

v.  United       States      Mut.       Ace. 

Ass'n:   1073. 
Folsom  v.  Batchelder:  2113. 

V.Lewis:   2447. 

v.  Mussey:   1279,  2523,  2541. 
Folts  v.  Ferguson:   824. 
Foltz  v.  Cogswell:  94,  101,  2250. 
Folwler  v.  Armour:  1554. 
Fonda  v.  Van  Home:    141,  142,  143, 

370. 

Fontaine      Crossing,      etc.,     Co.     v. 
Rauch:   285. 


Foot  v.  Tewksbury:  2279. 

Foote  v.  Getting:   435,  436,  438,  1831. 

v.  Robbins :   233. 

v.  Utah      Commercial      &      Sav. 

Bank:    1803,  1804,  1812. 
Forbes  v.  Baaden:   2003. 

y.  Chicago,    etc.,    R,    Co.:    '2169', 
2235. 

v.  Hagman:   369. 

v.  Halsey:  1192. 
Forbis  v.  Inman:  1517. 

v.  Reeves:  900. 

Forbush  v.  Leonard:  2276,  2278. 
Forcey  v.  Caldwell:  1148. 
Ford  v.  Brown:    2126,  2431,  2447. 

v.Charles  Warner  Co.:    2015. 

V.Chicago,  etc.,  R.  Co.:    1676. 

v.  Danks:  610,  1580. 

v.  Easley:  1536,  2447. 

v.  Fitchburg  R.  R.  Co.:  1624, 
1625,  1631,  1640. 

V.French:  1814,  2176. 

V.Gilbert:   2286. 

v.  Linehan:   386. 

v.Parker:   1503. 

v.  Postal  Tel.  Cable  Co. :  300. 

v.  Pulp  Co.:   1619. 

v.  Thomason:   2479. 

v.  Williams:     1731,     1732,     1733, 

2059,  2063,  2171,  2221,  2222. 
Fordtran  v.  Cunningham:  2175. 
Fordyce  v.  Peper:  2528,  2551. 

v.  Seaver:   82,  125,  236. 
Fore  v.  Campbell:  821. 
Foreman  v.  Archer:  2302. 

v.  German     Alliance     Ins.     Co. : 
1803. 

v.  German  Ins.  Co. :   1809. 

v.  Seeley:  2314. 

Forest  Coal  Co.  v.  Doolittle:   2163. 
Forked  Deer   Pants  Co.   v.   Shipley: 

1556. 
Forlaw    v.    Augusta    Naval       Stores 

Co.:    1225. 
Forman  v.  Liddesdale:   439,  992. 

v.  Sewerage,  etc.,  Board  of  New 
Orleans:    2230. 

v.  The  Liddesdale:  436,  1721. 
Formby  v.  Pryor:  108. 
Formby  Bros.  v.  Formby:  1771. 
Fornes  v.  Wright:  2172. 
Forney  v.  Shipp:  1410,  1429. 


2267 


TABLE   OF    CASES    CITED 


are  to  aectlon*:   88   1-1705,   Vol.   I;   §§   1708-2588,  Vol.  II.] 


Forniquet  v.   Tegarden:    1611. 
Forrest  v.  McCarthy:    1410,  1413. 

v.  Vanderbilt:    850. 
Forrest  City  v.  Orgill:   465. 
Forrester  v.  Evatt:  233. 

v.  Price:  2431,  2438. 
Forrester,  etc.,  Co.  v.  Evatt:  1199. 
Forrestier    v.    Bordman:     395,    1262, 

2541. 

Forrow  v.  Arnold:   2198,  2212. 
Forsee  v.  Alabama,  etc.,  R.  Co.:  2016. 
Forshaw  v.  Lewis:   2307. 
Forster  v.  Fuller:  1161. 

v.  Green:  1522. 

v.  Hayman:   2356. 

v.  Macreath:   977. 

v.Moore:    213. 

Forsyth  v.  Day:   349,  364,  1115,  1116, 
1128. 

v.  McKinney:  610. 
Forsythe  v.  Albright:    233. 

v.  Bonta:    364. 

v.  Brandenburg:  170. 

v.  Hooper:   1870. 
Fort  v.  Coker:   463. 

v.  Wells:   1457. 

v.Whipple:  1477. 
Fort    Dearborn    Bank    v.    Seymour: 

1815,   1818. 
Fort  Worth,  etc.,  R.  Co.  v.  Dysart: 

1783. 

Fortune  v.  Stockton:  934,  937. 
Forward    v.    Continental    Ins.    Co.: 

1066,  1068. 

Fosdick  v.  Greene:  2529.   „   ,:u;r 
Fosha  v.  Prosser:   2163. 
Foss  v.  Cobler:   2264,  2274. 
Foss  Investment  Co.  v.  Ater:  308,  401, 

474. 
Foss-Schneider    Brewing   Co.    v.    Mc- 

Laughlin:    246,  267,  280. 
Fossler  v.  Schriber:  2311. 
Foster,  Ex  parte:  1686,  1688. 
Foster  v.  Bates:   373,  377,  379. 

v.  Bookwalter:  698,  2314. 

v.  Bush:  2535. 

V.Chicago:  1871. 

V.Essex  Bank:   1281,  1959,  1984, 
2001. 

V.Graham:  2063,  2574. 

v.  Grand    Rapids    R.    Co.:    1937. 
1973. 


Foster  v.  Hall:  2310,  2311,  2312. 

v.Jack:    2231,  2262. 

v.Jones:   169. 

v.  Metts:  1502,  1503. 

v.  Persch:  1422,  1423. 

V.Pitts:  2227. 

V.Preston:   1247,  2548,  2550. 

V.Rockwell:    463,  793,  1266. 

V.  Smith:    1262,   1264,  2042,   2059, 
2063,  2536. 

V.  Waller:  2523,  2533. 

v.Watson:   1578. 

V.Wiley:   2161,  2169,  2221. 

v.  Wynn:  1536,  2447. 
Foster-Herbert    Stone   Co.    v.    Pugh: 

1913. 

Fottler  v.  Moseley:  2411. 
Fouche    v.    Merchants'    Nat.    Bank: 

1818, 

Foulks  v.  Falls:  2172. 
Fountain  v.  Bookstaver:   236,  970. 
Fountain  Coal  Co.  v.  Phelps:   1219. 
Fountaine,  etc.,  Co.  v.  Rauch:  296. 
Fourth  Nat.  Bank  v.  American  Mills 
Co.:  2567. 

v.Frost:   285. 
Fowlds  v.  Evans:  289. 
Fowle  v.  Kerchner:  1166. 

v.  Outcalt:  938. 
Fowler  v.  Armour:  1556. 

V.Atkinson:   1139,  1148. 

v.  Cooper:  2572. 

v.  Equitable  Trust  Co.:   2002. 

v.  Fowler:  239. 

v.  Hollins:   1457. 

v.Iowa  Land  Co.:  2161. 

V.Lewis'  Admrs.:   2280. 

v.  McKay:   1170,  1419. 

v.  New    York    Gold     Exchange: 
435. 

V.Payne:  1596,  1597. 

V.Pickering:  716. 

v.  Shearer:  1093,  1100,  1102,  1107. 

v.  Waller:  1557. 
Fowlkes  v.  Baker:  156. 
Foxall  v.  International  Land  Credit 

Co.:   603. 
Fox  v.  Byrnes:   2447. 

v.Chicago,  etc.,  R.  Co.:   320,  335, 
718,  1042,  1638,  1678. 

v.  Denargo  Land  Co.:   2441. 

v.  Drake:  1113. 


2268 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.   I;  §§   1706-2588,  Vol.  II.] 


Fox  v.  Fox:  2290. 

V.  Land  Co.:   2430,  2433. 

v.  McGregor:   1693. 

V.Norton:    421. 

V.Rogers:   96. 

V.  Rouse:    2430. 

V.Ryan:   2430,  2431,  2448. 

V.Simons:  1209,  1230. 

v.  Starr:  233,  2431. 

V.  State:    2007. 

v.  The  Davenport  Bank:  1320. 

v.  Wm.   Deering  &  Co.:    2169. 

V.Zimmerman:  1216,   1217. 
Foy  v.  Cooper:   2290. 
Foye  v.  Sewell:  1337. 
Fradley  v.  Hyland:  1748,  1766. 
Frail  v.  Ellis:  1803. 
Fralich  v.  Despar:  1211. 
Frambach  v.  Frank:  1172. 
Frame  v.  Coal  Co.:  2077. 

v.  The   William   Penn   Coal   Co.: 

2077,  2079. 
France  v.  Munroe:  2002. 

v.Rome,  etc.,  Co.:  1624. 
Francis  v.  Baker:  2430,  2448, 

V.  Cockrell:  1642. 

V.Edwards:   285. 

V.Evans:  1350. 

v.  Kerker:   1198,  2131,  2411. 

v.  Litchfield:  407,  827. 

v.  Morgan:   2441. 

v.  Reeves:  171. 

V.Spokane  Athletic  Club:   988. 
Frank  v.  Chemical  Nat.  Bank:  1842. 

v.  Herold:    2133. 

V.  Ingalls:    899. 

v.Jenkins:  447,  716. 

V.Kurtz:    2098. 

v.Lllienfeld:   978. 

V.Manhattan    Maternity 
pensary,  603. 

v.Morley's  Estate:   2305. 

V.  Tuozzo:  937. 

Frankel  v.  Michigan  Mut  L.  Ins.  Co.: 
1532. 

v.  Wathen:  1590. 

Frankfort  S.  T.  Co.  v.  Churchill:  483. 
Frankland    v.    Johnson:    1134,    1158, 

1395. 
Franklin  v.  Ezell:  447,  784. 

V.Lilly  Lumber  Co.:   606. 


&    Dl 


Franklin  v.  Stoughton  W.  Co. :  2499. 

v.  Winona,  etc.,  R.  Co.:    1646. 
Franklin  Bank  Note  Co.  v.  Mackay: 

295,  296. 
Franklin   Bank  v.   Pennsylvnia,  etc., 

Co.:   1782,  1783. 
Franklin  Co.    Lumber    Co.    v.  Grady 

Co.:  285. 
Franklin    F.    Ins.    Co.    v.    Bradford: 

1053,  1250,  1273. 
v.  Hart:   193. 
v.  Massey:  1056. 

Franklin  Ins.  Co.  v.  Sears:  1250. 
Franklin  Mining  Co.  v.  Harris:   602, 

603,  1573. 
v.  O'Brien:   1854. 
Franklin    Sav.    Bank    v.    Heinsman: 

2111. 
Franklin  Telegraph  Co.  v.  Harrison: 

644. 

Franklyn  v.  Lamond:   2342. 
Franks  v.  Morris:    1216. 
Franzen  v.  Hammond:  414,  1033,  2003, 

2004. 

Fraser  v.  Charleston:   659. 
v.  Freeman:    1979. 
v.  Haggerty:  2230. 
v.  McPherson:  914. 
v.  San  Francisco  Bridge  Co.:  994. 
v.  Sweet:  386. 
v.  United  States:  1522. 
v.  Wyckoff:  1536. 
Frassi  v.  McDonald:  1871. 
Fraternal  Alliance  v.  Mallalieu:  1980. 
Fraternal  Army  of  America  v.  Evans: 

411,  435. 
Fraudsen    v.    Chicago,    etc.,    R.    Co.: 

1678. 

Fray  v.  Blackburn:  1494. 
Frazee  v.  Frazee:  148. 
Frazer  v,  Howe:  1579. 

v.  Wyckoff:    2430,   2435. 
Frazier  v.  Cox:  619,  625,  2449,  2456. 
v.  Parks:    2182. 
v.  Poindexter:    2077,  2079. 
v.  Willcox:   2023. 
Fredendall   v.   Taylor:    1389. 
Fredenthal  v.  Brown:  1795. 
Frederick's  Appeal:  563,  652. 
Fredericks    v.  North    Cent    R.  Co.: 
1866. 


2269 


TABLE   OF    CASES    CITED 


[References  are  to  section*:  g§  1-1705,  Vol.  I;  88  1706-2588,  Vol.  II.] 


Fredricks  v.  Mayer:  643. 
Fredrickson  v.  Locomobile  Co.:  1526. 
Freedman  v.  Gordan:  2470. 
Freeholder  v.  State  Bank:   1287. 
Freedland  v.  Heron:  1351. 
Freeland  v.  Hughes:  624,  635. 
Freeman  v.  Boynton:  534. 

v.  Brehm :  2170. 

v.  Brewster:  2300. 

V.Buckingham:   1800. 

v.  Foss:   1579. 

v.  Harwood:    2529. 

v.Otis:   1113. 

V.Paulson:   2356. 

V.  Robinson:    156. 

v.  Rosher:  2222. 

Freeman,   The  v.   Buckingham:    760. 
Freeman's  Appeal:    148. 
Freeman's    Bank    v.    National    Tube 

Works:  1321,  2104. 
Freibaum  v.  Brady:  1912. 
Freiberg  v.  Stoddard:    1350. 
Freidman  v.  Kelley:   861. 
Fremont  Mfg.  Co.  v.  Thomsen:  410. 
French  v.  Armstrong:   2194. 

v.Brookes:  1557. 

v.  Cresswell:   1893. 

v.Cunningham:   1552,  2244,  2250, 
2256. 

v.  McKay:   2458,  2468. 
French  Lumbering  Co.  v.  Theriault: 
134. 

7.  Price:    1755,   1760,   2581. 

v.Wade:    285,  291. 

French  Piano  &  Organ  Co.  v.  Card- 
well:  854,  858,  865. 
Frenkel  v.  Hudson:  1815,  1845. 
Frerker  v.  Nicholson:   1861. 
Frether  v.  Durant:  1343. 
Fretwell  v.  Troy:  2319. 
Fretz  v.  Stover:  695,  946. 
Freudenheim  v.  Gutter:   2511. 
Freyer  v.  McCord:  1995. 
Friar  v.  Smith:  2413,  2475. 
Friberg  v.  Builders,  etc.,  Co.:  1632. 
Frick  v.  Lamed:  1324. 

V.Morgan:   903. 
Fricker  v.  Van  Grutten:  2212. 
Fried  v.  Nelson:  80,  82. 
Friedlander  v.  Cornell:  999. 

v.  Railway  Co.:  760. 

V.Texas  &  Pac.  R.  Co.:   1801. 


Friedman  v.  Kelly:  859. 

v.  Suttle:   233,  2434. 
Friend  v.  Hamill:  1498. 

v.  Triggs  Co..  2459. 

v.  Yahr:  978. 

Fries-Breslin  Co.  v.  Bergen:    2370. 
Friesenhahn   v.    Bushnell:    177,    179, 

1205. 

Friestedt   v.   Dietrich:    2447,    2448. 
Frink  v.  Gilvert:   2458,  2459. 

v.  Roe:  586,  773,  825. 
Friswell  v.  King:    2268. 
Fritchey  v.  Bosley:    2163,   2185. 
Frith  v.  Cartland:   1350,  2090. 

v.  Frith:  563,  566,  590,  611. 
Fritz   v.   Chicago   Elevator  Co.:    285. 

v.  Chicago  Elevated  R.  Co. :    243. 

v.Kennedy:    1410,  1413,  2419. 
Frixione    v.    Tagliaferro:    500,    1604, 

1605,  1609. 

Frizzell  v.  Rundle:    1457,  2345,  2583. 
Frontin  v.  Small:  1100. 
Frorer  v.  Baker:    1463. 
Frost  v.  Belmont:   92,  1853. 

v.  Cattle  Co.:   198. 

v.  Deering:  208. 

v.  Erath  Cattle  Co.:  174,  779,  780, 
784,  824. 

v.  Fisher:   938,  955,  958. 
Frothingham  v.  Everton:   1245,  2526, 

2527,  2528,   2540,  2554. 
Fruchey  v.  Eagleson:  145. 
Fruit  Dispatch  Co.  v.  Gilinsky:   263, 
276. 

v.  Roughton  -  Halleburtoa      Co. :. 

2057. 

Fry  v.  Platt:   1202. 
Frye  v.  Calhoun:  529. 

v.  Estes:  2246. 

v.  Lockwood:    1440. 

v.  Menkins:  1030. 

v.  Saunders:  132. 

v.  St.  Louis,  I.  M.  &  S.  Co.:  1798. 
Fryer  v.  Harker:    1523,   1592. 
Ft.  Hill  Stone  Co.  v.  Orm:   1644. 
Ft.    Wayne   v.    Lake    Shore,   etc.,   R. 
Co.:  367. 

v.  Rosenthal:    1202. 
Ft.    Wayne,    etc.,    R.    Co.    v.    Gilder- 
sleeve:    1615,  1624. 

Ft.  Wayne,  etc.,  Traction  Co.  v.  Cros- 
bie:  1783,  1794. 


2270 


TABLE   OF    CASES    CITED 


[Referenceti   are  to  sections:  §§   1-1705,  Vol.  I;   g§   1706-25SS,  Vol.  II.] 


Ft.   Worth,   etc.,  R.   Co.   v.   Car  lock: 
2243. 

v.Peters:    1652. 
Fuchs  v.  Koerner:   1559,  1561. 
Fudge   v.    Seckner   Contracting   Co.: 

306,  1701. 

Fulkerson  v.  White:  2549. 
Fullam    v.    West    Brookfield:     1093, 

1102,  1111. 
Fuller  v.  Benett:   1803. 

v.  Brown:   1572.       • 

V.Carson:    2280. 

v.  Dame:  105,  118. 

v.  Downing:    594. 

v.Ellis:   395,  1249. 

v.Fremont  Lbr.  Co.:    1624,  1646. 

V.Gould:  1494. 

v.  Hooper:    1135,    1138. 

v.  Janett:   1640. 

v.  New  York,  etc.,  R.  Co.:  1641. 

v.  Pooper:  1161. 

v.  Smith:   143. 

v.  Stevens:   2234. 
Fuller  v.  Wilson:  1996. 

v.  Wood:   2302. 

Fuller  &  Trim  well's  Case:   507. 
Fullerton  v.  Carpenter:  1535,  2467. 

V.Kennedy:  2118. 

v.  McLaughlin:   902. 
Fullwood  v.  State:    2008. 
Fulton  v.  Brown:  963,  2172. 

v.  Fisher:  1987. 

V.Harrington:  2286. 

v.  Heffelinger:  1554. 

v.  Maccracken :   2307. 
Fulton  v.   Sword  Medicine  Co.:    854. 

v.Whitney:   2131. 

V.Wilmington     Star     Min.     Co.: 

1859. 
Fulton  Bank  v.  New  York,  etc.,  Canal 

Co.:  1851. 

Fults  v.  Munro:  1973. 
Fultz  v.  Wimer:   1533,  2438. 
Funk  v.  Church:   810. 

v.  Mohr:    2305. 
Fuqua  v.  Sholem:  143. 
Furber  v.  Dane:  2389,  2408,  2409. 
Furculi  v.  Bittner:  1734. 
Furlong  v.  Hysom:  163. 
Furman  v.  Bon  Marche:   2162. 

v.Clark:    654. 


Furnace    Run,    etc.,    Lumber    Co.    v. 

Heller:  775. 

Furnace  Run  S.  Co.  v.  Heller:   908. 
Furnas  v.  Frankman:   306,  710,  2514. 
Furneaux  v.  Easterly:   888,  905. 
Furry  v.  Ferguson:  1828. 
Furst  v.  Tweed:  797,  800. 
Furth  v.  Miler:  2504. 

G 

Gaar  v.  Patterson:   885,  888. 

v.Rose:   880. 

Gaar,  Scott  &  Co.  v.  Rose:  903. 
Gable  v.  Crane:   1432,  1436,  1438. 
Gabriel  v.  McMullin:   2297. 

v.  Schillinger  Asphalt  Co.:  2207. 
Gadd  v.  Houghton:   2031,  2418. 
Gadski  v.  Graff:   2217. 
Gaetana,  The:    778. 
Gaff  v.  Theis:   1154. 
Gaffner  v.  Johnson:   1292. 
Gaffney  v.  Hayden:   155,  1599. 

v.Jones:   2290. 
Gage  v.  Allison:  671,  2559. 

v.  Callanan:   910. 

v.  Gage:   212. 

v.  Stimson:   2094,  2129. 

v.Whittier:    1457. 
Gager  v.  Watson:   2276,  2281. 
Gaillard  v.  Smart:  2156,  2162. 
Gaines  v.  Bard:   1861. 

v.  McKinley:    882,  886. 

v.  Miller:   1321. 
Gaiocchio  v.  State:   2006. 
Gaither  v.  Dougherty:   2247. 

v.  Myrick:  1275,  1279,  1286. 
Galbraith  v.  Elder:   2290. 

v.  Gaines:   1332. 

v.Weber:   814,  854,  855,  856,  946. 
Galbreath  v.  Cole:   285. 

v.Condon:   850. 

v.Epperson:   1257. 
Galceran  v.  Noble:   1782. 
Gale  v.  Chase  National  Bank:   244. 

v.  Kalamazoo:   313. 

V.Lewis:  1837. 

v.  New  York  Hay  Co.:  1352. 

v.  Tappan:   652,  663. 
Galena  R.  Co.  v.  Ennor:  2529. 
Galigher  v.   Jones:    2386,   2414,  2415, 

2529. 
Galindo  v.  Walter:  313. 


2271 


TABLE    OF    CASES    CITED 


[Reference*  are  io  Bectlon*:  §§  1-1705,  Vol.  I?  g§  1706-2588,  Vol.  II.] 


Gas 


L.  Co.: 


1681. 


994. 


1461, 


Gallagher   v.    Equitable 
1828. 

V.Williamson:   2305. 
Gallaher  v.  Lincoln:    119. 
Galloway  v.  Hendon:  134. 

v.  Western,  etc.,  R.  Co.: 
Gallup  v.  Lederer:  868,  2405. 

v.  Liberty:   465. 
Gait,  In  re:  2499. 
Gait  v.  Galloway:   664. 
Galveston,  etc.,  R.  Co.  v.  Allen: 

v.  Currie:  1948,  1950. 

v.  Donahoe:  507. 

v.  Drew:  1630,  1631. 

v.  Garrett:   1619. 

v.Ginther:   2243,  2286. 

v.  Gormley:  1618,  1624. 

v.  House:   991,  1020. 

v.  Smith:   1654. 

v.  Stockton:   2050. 
Galvin   v.   Brown   &   McCable: 

1487. 

Gambill  v.  Fuqua:  285. 
Gamble  v.  Grether:   2437. 

V.Hamilton:   1216,  1236. 
Gambrill   v.    Brown   Hotel   Co.:    241, 

261,  970. 

Gammon  v.  Chandler:  2279,  2281. 
Gammons  v.  Guloranson:   2240. 

v.  Honerud:   2240. 

V.Johnson:    224T»,  2241,  2242. 
Gandy  v.  Orient  Ins.  Co.:  1067. 
Gangwere,  In  re:  134. 
Ganley  v.  Ledwidge:   1457. 
Gann  v.  Railroad:   1661. 

v.  Zettler:   2474. 

Gannan  v.  Housatonic  R.  Co.:  1657. 
Gannon    v.    Scottish    American    Mfg. 

Co.:  2002. 

Gano  v.  Chicago,  etc.,  R.  Co.: 
Gans  v.  St.  Paul,  etc.,  Ins.  Co. 

2368. 

Ganus  v.  Tew:    2301. 
Garber  v.  Blatchley:   285. 

v.Myers:   662. 

v.  Spirak:  169. 

Garbon  v.  Union  City  Bank:   2065. 
Garcelon    v.     Tibbetts:     1533,     1534, 

2437. 

Garden  v.  Allen:   2077. 
Gardenhier  v.  Smith:    1553. 

2272 


762. 
1066, 


Gardiner  v.  Davis:   2031,  2048. 

v.  Griffith:   804. 

V.Nichols  Co.:    2329. 
Gardner  v.  Baillie:  971. 

v.  Bean:   1423,  1424,  1761. 

V.Detroit  St.  R.  Co.:   1790. 

V.Gardner:  63,  208,  216. 

v.  First  Nat.  Bank:   662. 

v.  Goddard:    2305. 

v.  Insurance  Co. :   2368. 

v.  Kinney:«1601. 

v.  McCutcheon:  609,  1229. 

v.  Mobile,  etc.,  R.  Co.:  2183,  2187. 

v.  Ogden:  1202,  1225,  2131. 

v.  Pierce:  563,  2463. 

v.  Schenectady   R.   Co.:    1798. 

v.  Smith:  40. 

v.  Southern  R.  Co.:   2011. 

v.  Southern  R.  Co.  and  Pierson: 
1459. 

v.  Tatum:   91. 

v.Wiley:  867. 
Garfield  v.  Douglass:  1494. 

v.  Peerless    Motor   Car   Co. :    565, 

1532. 

Garfield     Coal    Co.    v.    Pennsylvania 
Coal  Co.:   1780. 

v.  Rockland  Line  Co.:   1782. 
Gargano  v.  Pope:  2237. 
Garland,  Ex  parte:  2146. 
Garland  v.  Reynolds:  2020,  2065,  2072. 

v.  Salem  Bank:  1432,  1435. 

v.  Wells:   2123. 

Garman  v.  United  States:  98. 
Garner  v.  Brewing  Co.:  988. 

v.  Garner:   2276. 

v.  Mangam:    411,  1993. 
Garnet  v.  Ferrand:   1494. 
Garnett  v.  Ferrand:  1496. 

v.  Phoenix  Bridge  Co.:  1626. 
Garnhart  v.  Rentchler:  2553. 
Garrard  v.  Haddan:   737. 
Garrels  v.  Morton:  937,  945. 
Garrett  v.  Handley:  2033,  2068. 

v.  Hanshue:   2162. 

v.  Janes:  315. 

v.  Sparks:   1458. 

v.  Trabue:    652,  667,  1422. 
Garrett  Co.  v.  McComb:   506. 
Garretzen  v.  Duenckel:   1874,  1892. 
Garrigan  v.  Dickey:  2162. 

v.  Huntimer:    2281. 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  g§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  H.l 


Garrison  v.  Combs:   1124. 

v.  Electrical  Works:  369. 

V.Vermont  Mills:  2562,  2563. 
Carrey  v.  Stadler:  1519. 
Garth  v.  Davis:  2320. 

v.  Runner:   1035. 
Garten  v.  Trobridge:   446,  483. 
Garton  v.  Union  City  Bank:  2030. 
Garvey  v.  Harvey:  390. 

v.  Jarvis:     386,     390,     469,     501, 
1237. 

v.  Scott:  253. 
Garvin  v.  Lowry:  2183. 

v.  Wiswell:  2111. 
Gas  Co.  v.  Pinkerton:  934. 
Gashe  v.  Young:  1192. 
Gaspard    v.    Fourteenth    St.     Store: 

1808. 
Gassenheimer    v.    Western    R.    Co.: 

1936. 

Gasser,  In  re:  2152. 
Gast  v.  Buckley:  2362. 
Gaston  v.  Drake:  103,  106. 
Gasway  v.  Atlanta,  etc.,  R.  Co.:  1935, 

2015,  2016. 

Gates,  Matter  of:  2280. 
Gates  v.  Bill:  1894. 

v.  Brower:   1423. 

v.  Chicago,  etc.,  R.  Co.:  1644. 

v.  Dudgeon:  312. 

V.Max:  296,  1774. 

v.  Rifle  Boom  Co.:  1783. 

v.  School  District:   1557,  1562. 
Gates  Iron    Works    v.    Denver  Engi- 
neering Works  Co.:  896,  989. 
Catling  v.  Central  Spar  Verein:  1535, 

2467. 

Gaty  v.  Foster:  2430,  2447. 
Gauf    v.    Milwaukee    Athletic    Club: 

1557. 

$aus  v.  Hathaway:  895. 
Gaussen  v.  Morton:  573,  577,  585. 
Gauthier  v.  West:  1536,  2462. 
Gavigan  v.  Lake  Shore,  etc.,  R.  Co.: 

1637. 

Gaw  v.  Bennett:  112. 
Gay  v.  Kelley:   1750,  1758.  1762. 

v.Paige:  1231. 

v.  Roanoke  R.  Co.:   1917. 
Gayle    v.    Missouri    Car,    etc.,    Co.: 

1870. 
Gaynor  v.  Jones:  606. 


Gazette  Printing  Co.  v.  Moss:  155T. 
Gazzam  v.  German  Union  F.  Ins.  Co.: 

1051,  1782. 

Gearity  v.  Strashourger:   1973. 
Gee  v.  Bolton:  802. 
Geel  v.  Goulden:  1803. 
Geer  v.  Darrow:  1871. 
Geery  v.  Pollock:  1590. 
Gehrke  v.  Jod:  2161. 
Geib  v.  International  Ins.  Co.:   1064. 
Geier  v.  Howells:  2426. 
Geiger  v.  Bolles:  780. 
V.Harris:   1230. 
v.  Kaiser:  2437. 
v.  Kiser:  2468. 
Geiss  v.  Taxicab  Co.:  1867. 
Gelatt  v.  Ridge:  500,  1536,  2430,  2431, 

2435,  2447. 
Gellshannon  v.  Stony  Brook,  etc.  R. 

Co.:  1896. 

Gelpcke  v.  Quentell:  564. 
Gemberling  v.  Spaulding:  471. 
General  Cartage  Co.  v.  Cox:  246,  285, 

726,  989. 
General    Convention    v.    Torkelson: 

938,  940. 

General  Elec.  Co.  v.  Clark:  3305. 
V.Gill:  1126. 
v.  Southern  R.  Co.:  285. 
General  Hospital  Co.  v.  New  Havenr 

etc.,  R.  Co.:  268,  285. 
General  Ins.  Co.  v.  United  States  Ins. 

Co.:  1848,  1852. 
Geno   v.    Fall    Mountain   Paper   Co.: 

1624. 

Genovecia  v.  Pelham  Co.:  1861. 
Genrow  v.  Flynn:  2254. 
Gentry   v.   Connecticut  Mut.   L.    Ins. 

Co.:  236P. 

Geoghegan  v.  Kelly:  1537. 
George   v.    Clagett:    867,   2033,    2075, 

2077,  2078. 
v.  Gobey:  2000. 

V.  McNeill:  2526,  2527,  2528,  2540 
v.  New    England    Mortgage    Co. : 

300. 

v.  Sandel:    253. 
v.  School  District:  200. 
Georges  v.  Georges:  2267. 
Georgia  Coal  Co.  v.  Bradford:  1654. 
Georgia  Military  Academy  v.  Estill: 
980. 


143 


2273 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:   8§  1-1705,  Vol.  I;  §g   17O6-2588,  Vol.  II.] 


Georgia  Pac.  R.  Co,  v.  Davis:  1654. 
v.  Propst:  320,  335,  718,  989,  1042, 

1624. 
Georgia    R.    Co.    v.    Newsome:    1945, 

1950. 

v.  Richmond:   1935,  1936. 
Georgia   Railroad   &   Banking   Co.   v. 

Wood:   1978. 

Georgia  Steel  Co.  v.  White:  285. 
Georgia  S.  &  P.  R.  Co.  v.  Marchman: 

2031. 

Gerard  v:  McCormick:  754,  760,  2099. 
Gerard  v.  Moody:  1410. 
Geraty  v.  National  Ice  Co.:   1906. 
Gerber  v.  Stuart:  1162. 
Gerding  v.  Haskin:   2435. 
Gereg    v.    Milwaukee    Gaslight    Co.: 

1654. 

Gerety  v.  CTSheehan:  2302. 
Gerhardt  v.  Boatmen's  Savings  Inst. : 

1313. 

Gerhart  v.  Peck:  233,  1536. 
Gerhart,  etc.,  Co.  v.  Majorie,  etc.,  Co. : 

2435,  2458; 

Gerrish  v.  Maher:  956. 
German  v.  Browne:   2264,  2269,  2272. 
German-American    Bank    v.    Schwin- 

ger:  446,  448. 

German-American  Ins.  Co.  v.  Commer- 
cial F.  Ins.  Co.:   2394. 
V.Humphrey:  1062. 
v.  Hyman:    1053,  1064. 
v.  Yeagley:  1067. 
German-American    Provision    Co.    v. 

Jones:  1017. 

German  Bank  v.  Himstedt:  2099. 
German    Fire    Ins.    Co.    v.    Columbia 
Tile    Co.:     756,     1053,    1054, 
1077. 

v.  Grunert:  980,  1010. 
German    Insurance    Co.    v.    Emporia 

Ass'n:  435. 

v.  Goodfrlend:   907,  1803,  1831. 
v.  Gray:  1064,  1065. 
v.  Shader:  1062,  1067. 
German  Nat.  Bank  v.  Burns:  1314. 

v.  First  National  Bank:   368. 
German  Sav.  Bank  v.  Citizens'  Nat. 

Bank:  1984. 
v.  Des   Moines    Nat.    Bank:    435, 

464. 
V.  Renshaw:   2389. 


German  Savings  Society  v.  De  Lash- 
mutt:  134. 
Germania  Co.'s  Assignee  v.   Hargis: 

2246. 

Germania  Fire  Ins.  Co.  v.  Hick:  1073. 
Germania  Ins.  Co.  v.  Ashby:  1066. 

v.  Rudwig:  1070. 

v.  Wingfleld:  442. 

Germania  L.  Ins.  Co.  v.  Koehler:  1070. 
Germania  Nat.  Bank  v.  Manner:  1127. 
Getchell  v.  Clark:  2279'. 

v.  Welday:   110. 

Getman  v.  Second  Nat.  Bank:  1852. 
Gettins  v.  Scudder:   2410,  2470. 
Getty  v.  Milling  Co.:  982. 
Getzlaff  v.  Seliger:  2309. 
Getzelsohn  v.  Donnelly:   227. 
Geyer  v.  Deckley:   2504. 
Gheen  v.  Johnson:  2399. 
G.  H.  Montague,  The:  853. 
Gibbes     Machinery     Co.     v.     Roper: 

1803. 

Gibbons  v.  Sherwin:  1536,  2460. 
Gibbs  v.  Consolidated  Gas  Co.:  113. 

v.  Dickson:  1097,  1734. 

V.Frost:  213. 

Glberson  v.  Patterson  Mills:  1794. 
Gibraith  v.  Lineberger:   280. 
Gibson  v.  Bailey  Co.:  1588. 

v.  Buckner:   2280. 

v.Erie  R.  Co.:  1615,  1624. 

v.  Goldthwaite:  1333. 

v.  Gray:  1536,  2430. 

v.  Hunt:  2447. 

v.  Hunter:   263. 

v.  Manufacturers'  Ins.  Co. :  640. 

v.  Milwaukee    Light,    etc.,    Co.: 
1641. 

v.  Soper:  134,  138. 

V.Stevens:  2559. 

v.  Ward:  946,  949. 

v.  Winter:   2045,  2568. 
Gibson's  Estate:  2458. 
Giddings  v.  Eastman:  2290. 
Gieson  v.  Magoon:  2236. 
Gifford  v.  Thorn:  2126. 
Glhon  v.  Stanton:  1692,  2554. 
Gil  v.  Williams:  92,  93. 
Gilbert  v.  American  Surety  Co.:  1332. 

v.  Coons:   2445. 

v.  Fay:  2247. 

v.  Garber:  945,  946. 


2274 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§   1-1 7O5,   Vol.  I;  g§  1706-2588,  Vol.   II.  1 


Gilbert  v.  Holmes:  586,  619. 

v.  How:   194,  781,  784. 

v.James:   285. 

v.  Judson:  1514,  2425. 

v.  McCullough:    2435,    2436,   2437, 
2445,  2451,  2460,  2461. 

v.  Schwenck:  2134. 

v.  Williams:      2194,     2196,     2197, 

2206. 
Gilbert-Arnold   Land   Co.   v.   O'Hare: 

2237. 
Gilchrist  v.  Clarke:   1534,  2428,  2431, 

2440. 
Gilder    v.    Davis:     2431,    2437,    2443, 

2448. 
Gill  v.  Bicknell:  2320. 

v.  Brown:  1428. 

v.  General     Electric     Co.:     1170, 
1426. 

v.  Hewett:  2320. 

v.  Kymer:  2510. 

v.  Middleton:  1275,  1282. 

v.  Truelson:  2284. 
Gillaspie  v.  Kelley:  978. 

v.  Wesson:  1397. 

Gillenwaters  v.  Miller:  1192,  1194. 
Gillespie,  In  re:  2284. 
Gillespie  v.  First  Nat.  Bank:  1782. 

v.  Mulholland:  2207. 
Gillespy  v.  Hollingsworth:  1086,  1093. 
Gillet  v.  Shaw:  135,  136. 
Gillett  v.  Ball:  2050. 

v.  Corum:   2447. 

v.  Insurance  Co. :  2036. 

v.  Insurance  Co.  of  North  Amer- 
ica:  1600. 

V.Missouri  Valley  R.  Co.:  1976. 

v.  Whiting:  471,  2481. 
Gillette  v.  Logan  County:  110. 

v.  Murphy:  2243,  2286. 
Gillham  v.  Walker:  186. 
Gilliam  v.  Brown:  1332. 
Gillies  v.  Gibson:  277. 
Gillig  v.  Lake  Bigler  Road  Co.:  1420, 

1423,  1713,  1733. 
Gilliland  v.  Ellison:  285. 

v.  Gasque:    2162,  2183. 

v.  Jaynes:  2430,  2431. 

v.  Southern  R.  Co.:   268. 
Gillin  v.  Patten  &  S.  R.  Co.:   1671. 
Gillinger  v.  Lake  Shore  Traffic  Co.: 
472. 


Gillingham    v.    Ohio    River    R.    Co.: 

1973. 
Gillis  v.  Bailey:  306,  830,  2415. 

V.Pennsylvania  R.  R.  Co.:   1642. 
Gillman  v.  Card:  1529. 
Gillshannon    v.    Stony    Brook   R.    R. 

Co.:  1654,  1657. 
Gillum  v.  Fire  Ass'n:  1059. 
Gilman  v.  Andrews:  2529. 

v.  Eastern  R.  R.  Co. :  1632. 

V.German  Lith.  Stone  Co.:  2020. 

v.  Gilman:  2157. 

V.Robinson:  60. 

v.  Stock:  861. 
Gilman   Linseed   Oil   Co.  v.   Norton: 

848,  2110,  2112. 
Gilmay  v.  Hovey:  2202. 
Gilmer  v.  Veatch:  663,  692. 
Gilmore  v.  American  Cent.  Ins.  Co.:. 
2162. 

v.  Bolio:  2437. 

V.Bradford:  1398. 

v.  Casualty  Co. :  652. 

v.  McBride:  2246. 
Gilmour  v.  Simon:  229,  797,  807. 

v.  Snow :   878,  879. 
Gilpin  v.  Howell:  2059,  2063. 
Gilruth  v.  Decell:  2102. 
Gilson  v.  Collins:  1291,  1293. 

v.  Gwinn:  1687. 
Giltinan  v.  Bergey:  869. 
Gimon  v.  Terrell:  289. 
Gindre  v.  Kean:  2534. 
Gingrich  v.  Rogers:  134,  138. 
Ginn  v.  Almy:  1231. 
Ginochio  v.  Porcella:  1378. 
Ginsberg  v.  Friedman:   593. 
Girardeau  v.  Gibson:  2459. 
Girard  v.  Hirsch:  628. 

v.  Taggart:  2059,  2063,  2356,  2574. 
Girvin  v.  New  York  Central  R.  Co.: 

1916. 

Gist  v.  Hanly:  2276,  2280. 
Githens  v.  Murray:   1803,  1804. 
Given  v.  Lemoine:  2504,  2539. 
Givens  v.  Briscoe:   2163. 

v.  Cord:    463. 
Givhan  v.  Dailey:  1577. 
Glacius  v.  Black:  992. 
Glade  v.  Mining  Co.:   2447,  2463. 
Gladiator   Consol.    Gold   Min.    Co.   T. 
Steele:  1197,  1344. 


22/5 


TABLE   OP    CASES    CITED 


are  to  Hectiong:   §§   1-1705,   Vol.  I;   §g   1706-2588,  Vol.  II.] 


Gladney  v.  Rush:  2280. 

Gladstone  v.  King:  1840. 

Glamorgan  Coal  Co.  v.  South  Wales 

Miners'  Fed.:  2133. 
Glascock  v.  Vanfleet:  2457. 
Glaser  v.  National  Alumni:  609. 
Glasgow  v.  Hood:  611. 

v.  Lorimer:   1981. 
Glass  v.  Glass:  141,  143. 

v.  Rowe:   798. 
Glatt  v.  Fortman:  281. 
Gleason  v.  Amsdell:  317,  1866. 

V.Clark:  225,5. 

v.  Dodd:  2157,  2314. 

v.  McKay:  1550. 

v.  Nelson:   1533,  2435. 

v.  Sanitary  Milk  Co.:   1125. 
Glen  Falls  Ins.  Co.  v.  Hopkins:  1078, 

1204. 

Glenmont  Lumber  Co.  v.  Roy:  1674. 
Glenn  v.  Bergmann:   1383. 

v.  Davidson:  2457. 

v.  Savage:  69. 
Glentworth    v.     Luther:     797,     2430, 

2447. 

Glick  v.  Blamer:  2005. 
Glidden    Varnish    Co.    v.    Interstate 

Bank:  972,  998. 
t>lobe,    etc.,    Ins.    Co.    v.    Firemen's 

Fund  Ins.  Co.:  2133. 
Globe  Insurance  Co.  v.  Jones:  620. 

v.  Robbins:  2369. 

Globe  Works  v.  United  States:   92. 
Glover  v.  Duffy:  2467. 

V.Henderson:  596,  598,  600,  1550, 
1552,  2450,  2482. 

v. Patten:  2311  2312. 

v.Richardson:  1870. 
Gloucester  Mfg.  Co.  v.  Howard  Fire 

Ins.  Co.:  1057. 

Glucina  v.  Goss  Brick  Co.:   1670. 
Oodair  v.  Ham  National  Bank:  268. 
Goddard  v.  Gardner:  2302. 

v.  Grand    Trunk    R.    Co.:     1874, 

1934,  2015,  2016. 
Godefroy  v.  Dalton:  2194,  2195,  2198. 

V.Dayton:   2204. 

v.  Jay:   2201. 
Godfrey  v.  Furzo:  2560. 

v.  New  York  Life  Ins.  Co.:  395. 

v.  Saunders:  198. 
Godman  V.  Meipsel:  1602. 


Godsey  v.  Standifer:  218,  224. 
Godshaw  v.  Struck  Bros.:  341,  994. 
Godwin  v.  Francis:   1398,  1400. 

v.  State:  2162. 

Goesling  v.  Gross:  2362,  2526,  2540. 
Goetz  v.  Flanders:  1985. 

v.  Goldbaum:  426,  485. 
Goff  v.  Hurst:   2435. 

V.Toledo,  etc.,  R.  Co.:  1042. 
Goffe  v.  Gibson:   2435,  2439. 
Going  v.  Alabama  Steel  Co.:  1624. 
Gokey  v.  Knapp:  2003. 
Goldberg  v.  Gellis:    2447. 
Golden  v.  Levy:  2574. 

v.  Newbrand:  1979,  2001. 
Golden  Gate  Packing  Co.  v.  Farmers' 

Union:  565,  1532. 
Gold  in   v.    Northern   Assurance   Co.: 

2369. 
Golding  v.  Brennan:   435. 

v.  Merchant:  710,  755. 
Goldizer  v.  Poole:   2212. 
Gold  Mining  Co.  v.  National  Bank: 

368,  463. 

Goldring  v.  Reid:  424. 
G-oldsborough  v.  Turner:   946. 
Goldschmidt  v.  MacDonald:    2020. 
Goldsmith   v.    Manheim:    1417,   2548, 
2584. 

v.  Schroeder:  836,  954. 
Goldstein  v.  Tank:  869. 

v.  White:  1533. 
Goldthwait  v.  Haverhill,  etc.,  St.  R. 

Co.:    1624. 

Goldthwaite  v.  Dent:  2231. 
Golinsky    v.   Allison:    779,   971,    998, 

1004. 

Golson  v.  Ebert:  488. 
Gombert  v.  McKay:  1621. 
Gompertz  v.  Cook:   1984. 
Gonsales  v.  Broad:  2447. 
Gonsior  v.  Minneapolis,  etc.,  R.  Co.: 

1654. 

Gonzalia  v.  Bartelsman:  1216. 
Gooch    v.    Case    Threshing    Machine 
Co.:  1532. 

V.Peebles:  2289,  2290. 
Good  v.  Johnson:  1871. 

v.  Rumsey:  1169,  1183,  1411,  2216. 
Goodale  v.  Middaugh:  492. 

V.  Page:   1750. 

v.  Wheeler:   814. 


2276 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   g§  1-1705,  Vol.  15  §§  1.700-2588,  Vol.   II.] 


Goodbar  v.  Daniel:  1808. 

Goode    v.    Georgia    Home    Ins.    Co.' 

332,  1053,  1841. 
Goodenough  v.  Thayer:   1172. 
Goodenow  v.  Tyler:  716,  867,  2504. 
Goodfellow  v.  First  Nat.  Bank:   2032. 
2488. 

v.  Landis:  960. 
Goodin  v.  Hays:  2210,  2256. 
Gooding  v.  Northwestern  Mut.  L.  Ins. 

Co.:   1532. 

Goodloe  v.  Godley:  741. 
Goodman  v.  Pocock:   1553,  1554,  1559. 

v.  Saperstein:   299. 

V.Walker:   2024,  2030,  2194,  2195, 

2196,  2199,   2200,   2202. 
Goodmanson  v.  Rosenstein:  2451. 
Goodnough  v.  Kinney:    2430,  2463. 
Goodrich  v.  McDonald:   2273,  2287. 

v.  Musgrave   Fence   &  Auto  Co. : 
1859. 

v.  Tenney:   110. 

v.Willard:  1684. 
Goodridge  v.  Holladay:   2447. 

v.  Wood:  1170,  1444. 
Goodtitle  v.  Woodward:   537. 
Goodwillie  v.  McCarthy:   1262. 
Goodwin  v.   Bowden:    564,   581,  1447, 
1448,  1449. 

V.Francis:  227. 

v.Kelly:  160. 

v.Kraft:  1296. 

v.  Seimer:   2431. 

v.  Wertheimer :    1457. 
Goodwin  Co.,  Appeal  of:   2302. 
Goodwin's  Appeal:   2309. 
Goodwynne  v.  Bellerby:   1830. 
Goodyear  v.  Williams:  300. 
Goodyear     Metallic     Rubber    Co.    v. 

Baker's  Estate:  2208. 
Goodyear  Rubber  Co.  v.  Baker:  1346. 
Googe  v.  Gaskill:  946. 
Goom  v.  Aflalo:  2379. 
Gordon  v.  Brewster:   1556. 

v.  Brinton:  1410. 

v.Buchanan:    920. 

v.  Bulkeley:  212. 

v.  City  of  Omaha:   2182. 

v.  Cobb:   2527,  2567,  2585. 

v.  Farrar:   1498. 

v.  Hostetter:  1342. 

v.  Jennings :  39. 


v.  Loan  &  Trust  Co.:  273,  708. 

v.  Rosenthal:  2447. 

V.Vermont  Loan  Ass'n:    285. 

V.Vermont    Loan    &    Trust    Co.: 
263. 

V.Wright:   2531. 

v.  Zachaire:  1341. 

Gordon  Malting  Co.  v.  Bartels  Brew- 
ing Co.:   1170. 

Gordon  &  Co.  v.  Cobb:  2523,  2554. 
Gore  v.  Campbell:  2557. 

V.Canada  Life  A.   Co.:    292,  738, 

740,  743,  1054. 
Gorham  v.  Felker:  707,  753. 

v.Gale:   2184. 
Gorman  v.  Banningan:  2246. 

v.  Hargis:    1536,   2447. 

v.  Scholle:  2447. 
Gorrell  v.  Payson:  2230. 
Gormley  v.  Ohio,  etc.,  R.  Co.:  1644. 

v.Vulcan  Iron  Works:  1640,  1651, 

1654. 

Gorum  v.  Carey:  2572. 
Gosch  v.  Fire  Ins.  Ass'n:  943. 
Goshorn  v.  People's  Nat.  Bank:  1984. 
Gosliner  v.  Grangers'  Bank:  245,  722. 
Goss  v.  Broom:  2441. 

v.  Helbing:  908,  982. 

v.Stevens:  418,  483,  500,  2426, 

2430,  2447. 

Gosselin  v.  Chicago:  126,  823. 
Gosslin  v.  Martin:  1438,  1445. 
Gott  v.  Dinsmore:  555,  1778,  1779, 

1783. 

Gottschalk  v.  Stein:   654. 
Gottlieb  v.  N.  Y.,  etc.,  R.  R.  Co.:  1623. 
Gottstein  v.  Harrington:    2267,  2272, 

2274. 

Gouge  v.  Hoyt:   2435,  2447. 
Gough  v.  Coffin:  2437. 
Gould  v.  Aurora,  etc.,  R.  Co. :  1798. 

v.  Blodgett:  894. 

v.  Cates  Chair  Co.:   285,  716,  788, 
861,  2394. 

V.Hammond:  1498. 

v.  Magnolia  Metal  Co.:  607. 

V.Norfolk  Lead  Co.:  291,  972. 

v.  Rich:  1262. 

v.Richard  B.  &  E.  Co.:  2463. 
Gouldy  v.  Metcalf :  236,  779,  824,  1009. 
Gourlay  v.  Carson:  825. 
Gourmany  v.  Manitoba  Club:  610. 


2277 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   §g   1-1705,  Vol.  I;  §§  1706-2588,  Vol.   II.] 


Govan  v.  Gushing:    2540. 
Govaski  v.  Downey:    1974,  1975. 
Govern  v.  Bennett:   43,  2447. 
Governor  v.  Daily:  158. 
Goward  v.  Waters:   2454. 
Gowen  v.  Klous:  1178. 
Gowen  Marble  Co.  v.  Tarrant:  219. 
Gower  v.  Andrew:   1193. 
v.Emery:  1603,  2307. 
Cowling  v.  American  Exp.  Co.:  1302. 
Grabbs    v.    Farmers'    Mut.    F.    Ins. 

Ass'n:  1067. 
Grace  v.  American  Central  Ins.  Co.: 

1071,  2368. 
Grace   &   Hyde   Co.   v.   Probst:    1860, 

1864. 

Gracie  v.  Stevens:   1591,  2475. 
Grady  v.  American  Central  Ins.  Co.: 

315,  317. 

Graff  Bros.  v.  Lena  Lumber  Co.:  277. 
Gragg  v.  Brown:  2566. 

v.  Home  Ins.  Co.:  264,  628. 
Graham  v.  Ackroyd:  1692,  2534,  2554, 

2555. 
v.  Chapman     Separator     Works: 

2302. 
v.  Cummings:     184,     1224,     1225, 

1226,  1234,  1327. 
v.  Dubuque,    etc.,    Works:     2236, 

2246. 
v.  Duckwall:      869,     2035,      2405, 

2492,  2505,  2568,  2574,  2575. 
V.  Dyster:   2510. 
V.  Holt:   212. 

v.  Newbury,  etc.,  Coke  Co.:   1676. 
v.  Orange  Co.  Bank :   1815. 
v.Reno:   2227. 

v.  St.  Charles  St.  R.  Co. :   1980. 
v.  United     States    Saving     Inst.: 

952. 

v.Williams:   530. 
Graham's  Estate:  1329. 
Graig  v.  Milling  Co.:  2540. 
Granat  v.  Kruse:   2237,  2242,  2243. 
Grand  v.  Michigan,  etc.,  R.  Co.:  1676. 
Grand  Ave.  Hotel  Co.  v.  Friedman: 

877,  878. 

Grand  Court  v.  Downs:  2161. 
Grandin  v.  Emmons:  659. 
Grand  Lodge  v.  Ohnstein:  2161,  2162. 
Grand  Pacific  Hotel  Co.  v.  Pinkerton: 
265,  988. 


Grand  Rapids  Co.  v.  Moral:  285. 
Grand  Rapids,  etc.,  R.  Co.  v.  Circuit 
Judge:   2281,  2283. 

v.  Huntley:  1641. 

Grand  Trunk  R.  Co.  v.  Latham :  1292. 
Grandy  v.  Ferebee:  285. 
Granger  v.  Batchelder:  2163. 

v.  Griffin:    1536. 

v.  Hathaway:  1432. 

v.  Warrington:  2308. 
Granite    Roofing   Co.    v.    Casler:    48, 

2499. 

Grannis  v.  Brandon:  1279,  1280. 
Grant  v.  Beard:  351. 

V.  Ede:797,  798,  800. 

V.Fletcher:  2379,  2380. 

v.  Gold,  etc.,  Syndicate:   2137. 

v.  Humerick:  246,  274,  287,  933. 

v.  Keystone  Lbr.  Co.:   1646,  1654. 

v.  Lookout    Mountain    Co.:    2280, 
2286. 

v.  Ludlow:    1281. 

V.Norway:   760,  1723,  1801. 

v.  Shaw :   74. 

v.  White:  167. 

Grant  City  v.  Simmons:  2162. 
Grantz  v.  Mining  Co.:  2314. 
Grapel  v.  Hodges:   668,  2259. 
Grape  Sugar  Co.  v.  Small:  382. 
Grasinger  v.  Lucas:   2413,  2474,  2475. 
Graton  &  Knight  Mfg.  Co.  v.  Redels- 

heimer:  953. 

Grattan  v.  Suedmeyer:  475. 
Grattis  v.  Kansas  City,  etc.,  .R.  Co.: 

1624,   1651,   1653. 
Gratz    v.    Land,    etc.,    Improvement 

Co.:  636. 

Grau  v.  McVicker:    1171. 
Graul  v.  Strutzel:   889. 
Grauley  v.  Jermyn:   639. 
Grauman  v.  Reese:  1694. 
Graves  v.  Bain:   2436. 

v.  Baines:   2447. 

v.  Cook:    2447. 

v.  Horton:  210,  262,  263,  273,  290, 
708,  790,  807. 

V.  Legg:  882,  2403. 

v.  Long:    2189. 

V.Miami  S.  S.  Co.:  1014. 

v. Woodward:   2435. 
Gray  v.  Agnew:  2509. 

V.Boston  &  Maine  R.  Co.:   1953. 


2278 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,   Vol.   I;  §8   1706-2588,   Vol.  II.] 


Gray  v.  Conyers:   2252. 
v.  Cooper:    2314. 
v.  Emmons:    2289,  2290. 
v.  Fox:  2299. 
v.  Gutteridge :  1445. 
v.  Hook:   84,  104,  1523. 
v.  Howell:   2163,  2183. 
v.  Journal,  etc.,  Pub.  Co.:  2216. 
v.  Journal  of  Finance  Pub.   Co.: 

2028. 
v.  La     Societe     Francaise,     etc. : 

992. 

V.Murray:   318,  1298,  2415,  2531. 
v.Otis:  160,  167. 
v.  Publishing  Co.:   2025. 
v.  State:   1493. 
v.  Van  Blarcom:  2003. 
v.  Wass:  2182. 
Graydon  v.  Patterson:  946. 
Grayson  v.  Wilkinson:  2212. 
Gray  son  County  'Nat.  Bank  v.  Hall: 

1803,  1848. 
Grayson-McLeod  Lumber  Co.  v.  Car 

ter:  1621. 
Gray  Tie  &  Lumber  Co.  v.  Farmers' 

Bank:  974. 
Great    Lakes    Touring    Co.    v.    Mill 

Transp.  Co.:    2059,  2063. 
Greatorex  v.  Shackle:   2458. 
Great  Western  Elevator  Co.  v.  White: 

977,  1000. 

Great    Western    Gold    Co.    v.    Cham- 
bers: 1208. 
Great    West.    Min.    Co.    v.    Woodmas 

Min.  Co.:  60,  2158. 
Great   Western   R.    Co.    v.   Wheeler: 

1813,  1832. 
Greb   v.   Pennsylvania  R.   Co.:    1936, 

1962. 

Greef  v.  Miller:    2246. 
Greek  v.  McDaniel:  2262. 
Greek-American   Produce  Co.  v.   Illi- 
nois-Cent. R.  Co.:  2063. 
Greeley   v.    Bartlett:    716,    867,   1268, 
1279,   2504,    2523,    2532,    2533,    2541, 
2554. 

Greeley  etc.,  R.  Co.  v.  Yeager:   2014. 
Green  v.   American   Car  &  Foundry 

Co.:  1671. 

v.  Babcock  Lumber  Co. :   1627. 
v.  Banta:  1645. 
V.  Bartlett:   2435. 


Green  v.   Boston,  etc.,  R.  Co.:    1778, 
1779,  1782. 

v.  Cape  May:    367. 

v.Clark:  491. 

v.Clarke:  2050. 

v.  Cole:  1550,  1552,  2450,  2451, 
2454. 

v.  Gilbert:  1572,  1577. 

v.  Green:  2158. 

v.  Hinkley:  262,  263,  708. 

v.  Hugo:  1203. 

v.  Kopke:  1172,  1417. 

v.Lucas:  1535,  2447,  2467. 

v.  Miller:  198. 

v.  Opher,  etc.,  Co.:  1783. 

v.  Peeso:  1198,  1201,  1221. 

v.  Reed:  2467. 

v.Robertson:    1591. 

v.  Skeel:    1124,   1162. 

v.  Soule:  1871. 

v.  Southern  States  L.   Co.:    1590, 
2412,  2474,  2475. 

v.  Star  Fire  Ins.  Co.:   1075,  2368. 

v.  Talbot:  1495. 

v.  Tanner:   1760. 

v.  Town  of  Woodbury:  1984. 

v.  United  States:  2362,  2497. 

V.Williams:    1336,  1340,  1346. 

v.  Winter:  1202. 

v.  Worman:  809. 
Greenberg  v.  Whitcomb  Lumber  Co. : 

1474,  1477,  1619. 
Greenbrier     Distillery     Co.     v.     Van 

Frank:  911. 
Greenburg  v.  Early:   669,  1567. 

v.  Palmieri:    1731,   1752,  1755. 
Green  Co.  v.  Blodgett:  98. 
Green,  etc.,  R.  Co.  v.  Bresmer:   1676. 
Greene  v.  Corey:   2414. 

v.  Dockendorf :   848. 

v.  Goddard:  1603. 

v.  Freund:  1533. 

v.  Haskell:  2129. 

v.  Linton:    1582,  1583. 

v.  Minneapolis    &    St.    Louis    R. 
Co.:   1630,  1631. 

v.  Owings:   2430. 

V.Williams:   2544. 
Greenfield  v.  Monaghan:  2003. 

v.  Stout:  1112. 

Greenfield  Bank  v.  Crafts:   156,  361, 
363,  468. 


2279 


TABLE   OF    CASES    CITED 


[References  are  to  sectional  §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 


Greenfield  Savings  Bank  v.  Simons: 

1202,  1225,  1226. 
Green-Greib-Sherman  Co.   v.   Quinlen 

Co.:  173. 

Greenhill  v.  Bowling:   2280. 
Greenhood  v.  Keator:  869,  870. 
Greenleaf  v.  Moody:  1262. 
Greenlee  v.   Southern  R.   Co.:    1624, 

1671. 
Greenough  v.  Gaskell:   2302. 

v.  Greenough:   208. 
Greenstine  v.  Borchard:    1268. 
Greentree  v.  Rosenstock:   1342,  1354. 
Greenwald  v.  Marquette,  etc.,  R.  Co.: 
1644. 

v.  Metcalf:  961. 
Greenway  v.  Fisher:  1457. 
Greenwich    Ins.    Co.    v.    Waterman: 

716. 
Greenwood  v.  Burns:  894,  946. 

v.  Burton:   1536,  2468. 

v.  Spring:  178,  2398,  2412. 
Greenwood  Ice  &  Coal  Co.  v.  Georgia 

Home  Ins.  Co.:  178,  1078,  1204. 
Greer  v.  First  Sat.  Bank:  909,  970. 

v.  Ferguson:   2280. 

v.  Greer:  2302. 
Gregg  v.  Baldwin:  1803,  1809. 

v.  Berksshire:   292,  908. 

v.  Wells:   2115. 

v.Wooliscroft:    519,  921. 
Gregory  v.  Bonney:  2445,  2454. 

v.  Brown:  1494. 

v.  Loose:    263,  273,   285,  708,  989. 

V.  Pike:   2276. 

v.Stryker:    1684,   1694. 

V.Wendell:    111,  112,   2386,   2399, 

2480. 

Gregson  v.  Ruck:  2379. 
Gresh  v.  Wanamaker:   1874. 
Gresham  v.  Connolly:   2447. 

v.  Galveston  Co.:  1695. 
Grether  v.  McCormick:  2443. 
Greusel  v.  Dean:   2431,  2469,  2470. 
Greve  v.  Coffin:  805. 
Growing    v.    Minneapolis    Threshing 

Machine  Co.:   283. 
Grey,  Ex  parte:  313. 
Gribben  v.  Maxwell:  134. 
Gribble  v.  Columbus  B.  Co.:   2151. 
Grice   v.    Kenrick:    2033,    2037,    2045, 
2326,  2570. 


Grider  v.  Tally:   1494,  1501. 
Griffin,  Ex  parte:  2147. 
Griffin  v.  Baust:   229. 

v.  Blanchard:   1350. 

v.  Boston,  etc.,  R.  R.  Co  :  1624. 

V.Brooklyn     Ball     Club:      1557, 
1559. 

V.  Chase:    1350. 

v.  Colver:   2528. 

v.Erskine:   949,  951. 

v.  Griffin:  2302. 

v.  Ransdell:  169. 

v.  Sbciete    Anonyme    la    Floridi- 
enne:   285. 

v.  Stoddard:  259. 

v.  Weatherby:   1447. 
Griffith    v.    Blackwater    Boom    Co.: 
1569. 

v.  Fields:  1017. 

v.  Frifendly:  1977. 

V.Johnson:   1432. 

v.  Stewart:   483. 

v.  Woolworth:    233. 
Griffiths  v.  Earl  of  Dudley:  1681. 

v.  Hardenbergh :  1611. 

v.  Wolfram:  1483,  1647. 
Griggs  v.  Day:  2529. 

v.  Swift:   669,  1567. 

v.  White:   2281. 
Grignon  v.  Schmitz:  2155. 
Grimes  v.  Taylor:  1603. 

v.  Young:  1979. 
Grimshaw  v.  Kent:  2309. 
Grind  ley  v.  Barker:   199. 
Grindstaff   v.    Merchants'    Inv.    ft   T. 

Co.:   2431. 
Grinnell  v.  Buchanan:  307,  315. 

v.  Cook:    1684,  1687,  1694. 

v.  Illinois   Central  R.   Co.:    2050. 

v.  Schmidt:    2568,  2571. 

v.  Simpson:   2435,  2457. 

v.  Western  Union  Tel  Co.:  716. 
Grinton  v.  Strong:  51. 
Grisby  v.  Nance:  2024. 
Grissom  v.  Bank:  281. 

v.  Commercial     National     Bank : 

716. 

Grist  v.  Backhouse:  2065. 
Gristock  v.  Royal  Ins.  Co.:  1066,  1067. 
Griswold  v.  Dugane:  2004. 

v.  Gebbie:    724,    809,    1987,    1989, 
1995. 


2280 


TABLE   OF    CASES    CITED 


[References  are  to  (lections:   §§  1-1705,  Vol.  I;  §§  1700-258S,  Vol.  II.] 


Griswold  v.  Haas:  291. 
v.  Haven:  357,  1800. 
v.  Pierce:  2439. 
Grizzle  v.  Frost:   1625. 
Grobe,  In  re:  in. 

Groel  v.  United   Electric  Co.:   640. 
Groeltz    v.    Armstrong:     1374,    1398, 

1400. 

Groff  v.  State:   2008. 
Grogan  v.  San  Francisco:   385. 
Grojan  v.  Wade:  2067. 
Groneweg  v.  Estes:  285. 

v.  Kusworra:    263,  1026. 
Groneweg,   etc.,    Co.    v.    Estes:    2406, 

2407. 
Groneweg  &  Schoentgen  Co.  v.  Estes: 

552. 

Groom  v.  Parkinson:  1174. 
Groome  v.  Gwinn:  1493. 
Grooms  v.  Neff  Harness  Co.:   946. 
Groover  v.  Warfield:  2035,  2048,  2570, 

2590. 
Gropp    v.    Great    Atlantic    Tea    Co.: 

1804. 
Groscup  v.  Downey:    296,  308,  2399, 

2425. 

Gross,  Ex  parte:  2090. 
Gross  v.  Milligan:    1032. 
v.Owen:  274,  933. 
v.  Pennsylvania,     etc.,     R.     Co. : 

1889. 

v.Pigg:    169,  203. 
Grosse  v.  Cooley:   2441. 
Grosvenor  v.  Danforth:  2163. 

V.Phillips:  2563,  2564,  2566. 
Groton  v.  Waldoborough:  106. 
Groufe  v.  Moran  Bros.  Co.:  1654. 
Grove    v.    Dubois:    1322,    2033,    2034, 

2504. 

v.Harvey:  532. 
V.Hodges:  420. 
v.  Van  Duyn:  1494. 
Grover  v.  Hawthorne:  410,  1782. 

v.Morris:  1440. 

Grover  &  Baker  Sewing  Mach.  Co.: 
v.    Polhemus:    246,    285,    605,    864, 

878. 

Grubbs  v.  Ferguson:   1013. 
v.  Nixon:  996. 
v.Wiley:  1093. 
Grubel  v.  Busche:  872. 
Gruber  v.  Baker:  2302,  2311. 


Gruby  v.  Smith:   1352,  2290. 
Gruesel  v.  Dean:   1533. 
Grulle  v.  Campbell:   1978. 
Gruman  v.   Smith:    2386,   2387,   2415, 

2529. 
Grumley  v.  Webb:    1193,   1198,   1209, 

2163. 

Grumon  v.  Raymond:   1494. 
Grund  v.  Van  Vleck:   386. 
Grundysen,  In  re:  2182. 
Gruner  v.  Stucken:   1017. 
Guarantee  Trust  Co.  v.  Farmers'  Nat. 

Bank:    1346. 

Guaranty  Trust  Co.  v.  Koehler:  1086. 
Guardian  Mut.  L.  Ins.  Co.  v.  Kashaw: 

2002. 
Gude    v.    Exchange    Fire    Ins.    Co.: 

2369. 
Guelick  v.  National  State  Bank:  331, 

1314,  1330. 

Guernsey  v.  Cook:  105,  1170. 
Guerin    v.    New    England    Tel.    Co.: 

1783,  1792. 
Guernsey  v.  Davis:    1342,  1346,  1347, 

2132,  2137,  2209. 

Guerreiro  v.  Peile:  895,  2334,  2513. 
Guest    v.    Burlington    Opera    House 

Co.:  1710,  1731,  1748,  1755. 
Guffin  v.  First  Nat.  Bank:  1515. 
Guggenheime  v.  Youell:  2082,  2115. 
Guiding    Star,    The:     316,    317,    782, 

1801. 

Guilford  v.  Stacer:  937. 
Guille  v.  Swan:  1873. 
Guilleaume  v.  Rowe:  2227. 
Guirney   v.   St.    Paul,   etc.,   R.    Co.: 

1603. 

Guitar  v.  McGee:   285. 
Gulf    City    Const.    Co.    v.    Louisville, 

etc.,  R.  Co.:   1432,  1438. 
Gulf,  C.,  etc.,  R.  Co.  v.  Delaney:  1641. 
Gulf  C.  &  S.  F.  R.  Co.  v.  Pierce:  1797. 
v.  Redeker:   2135. 
v.  Tullis:  1799. 
v.  White:  1046. 

Gulf,  etc.,  R.  Co.  v.  Brentford:  1630. 
v.  Brown  &  Williamson:  2063. 
v.  Cole:  993. 
v.  Compton:  1787,  1790. 
v.  Donahoe:  506,  1974, 
V.Donnelly:    1630. 
v.  Gaskill:   1860. 


228l 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§  1-17O5,  Vol.  I;  g§   1706-2588,  Vol.   II.] 


Gulf,  etc.,  R.  Co.  v.  Gibson:  2308. 

v.  Hodge:  993. 

v.  Hume:  993. 

v.Larkin:   1626,  1641. 

v.Luther:   1936. 

v.  Miller:  675,  660,  2255. 

v.Newman:   1637. 

v.  Reed:   475,  2000. 

v.  Shelton:  1860. 

v.  Stanley:   2055. 

v.  Trawick:   1020. 

v.Warner:    1624. 

V.York:  1783,  1790. 
Guliano  v.  Whitenack:  2246. 
Gulich  v.  Ward:  1523. 
Gulick  v.   Grover:    64,   295,   437,  443, 

736,  776,  783,  1003. 
Gullett  v.  Lewis:  2183. 
Gullickson  v.  Gjorud:   2000. 
Gund  Brewing  Co.  v.  Peterson:   954, 
1987. 

v.  Tourtelotte:   395,  403,  810. 
Gunderson     v.     Northwestern     Elev. 

Co.:   1913. 

Gundlach  v.  Fischer:  551. 
Gunn   v.    Bank   of   California:    2430, 
2431,  2432. 

v.  Canine:  2020. 

v.  Howell:   1341. 
Gunnaldson  v.  Nyhus:  2319. 
Gunster  v.  Company:  1831. 

v.  Scranton,  etc.,  Co.:  1805,  1815. 

1820. 
Gunter  v.  Astor:   2133. 

v.  Graniteville    Mfg.     Co.:     1640, 
1644,  1654. 

V.Robinson:   946. 
Gurley  v.  Armstead:  1457. 

v.  Park:  2297. 

Gurney  v.  Womersley:  2364. 
Gussner  v.  Hawks:   2110. 
Gustafson  v.  West  Lumber  Co.:  1671. 
Gustine  v.  Stoddard:  2255. 
Gutchess  v.  Daniels:  2546. 
Gutheil  v.  Gilmer:   369,  435. 
Gutherless  V.  Ripley:  1369. 
Guthrie  v.  Armstrong:  198. 

v.  Bright:   2417. 

v.  Field:  2123. 

v.  Imbrie:  1136. 

v.  Merrill:    1522. 
Guy  v.  Oakley:  2519,  2575. 


G.   V.   B.   Mining  Co.   v.    First   Nat. 

Bank:  368. 
Gwilliam  v.  Twist:  306,  320,  321,  718, 

1042,  1263. 

Gwinn  v.  King:  1562. 
Gwyn    v.    Richmond    &    Danville    R. 

Co.:  1698. 


H 

<!>&  .v  nii^oiO 

Haakensen  v.  Fibre  Co.:   1621. 
Haar  v.  Benefit  Ass'n:   372. 
Haas    v.    Damon:    1327,    1334,    1339, 

1340,   2417,   2542. 
v.  Fenlon:  104,  105. 
v.  Gaddis:   2162. 
v.  Malto-Grapo  Co.  :   775,  1532. 
v.  Ruston:  2362,  2400,  2481. 
V.  Sternbach:    504,  2175,  2177. 
Haase  v.  Ullman:    2435. 
Haberman  v.  Gasser:  162. 
Habhegger  v.  King:   156,  341. 
Hackensack    Water    Co.    v.    DeKay: 

762. 

Hacket  v.  Tilley:  1611. 
Hackett  v.  Reynolds:  2104. 

v.  Van  Frank:   245,  789,  921,  982. 
Hackleman  v.  Moat:  1341. 
Hackworth    v.     Hastings    Industrial 

Co.:  292. 

Hadden  v.  Clark:  2163. 
Haden     v.     Farmers'     &     Mechanics' 

Fire  Ass'n:   1055. 
Hadley  v.  Baxendale:   2528. 
Hadlock  v.  Brooks:  2237. 
Hadwin  v.  Fiske:  2509. 
Haebler  v.  Luttgen:   1340,  1346,  1695, 

2559. 
Haehl  v.  Wabash  R.  Co.:   1969,  1979, 

2015. 
Haffner  v.   Herron:    177,   1535,   1536, 

2447,  2477. 

Hafner  v.  Herron:   1588,  2411. 
Hagan  v.  Wellington:  110. 
Hagar  v.  Cochran:   2152. 

v.  Donaldson:  1538,  2473. 
v.  Rice:   1143,  1152,  1161,  1162. 
Hagedorn     v.     Oliverson:     377,     524. 

2031,  2033. 

Hager  v.  Catlin:  104. 
Hagerman  v.  Bates:  265. 


2282 


TABLE   OF    CASES    CITED 


[Referenced   are  to  sections:   §§  1-17O5,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Hagerty  v.  Montana  Ore  Purchasing 

Co.:    1474. 
Haggerty  v.  Juday:   2187. 

v.  Powers:   156. 

Haglns  v.  Bell  Telephone  Co.:   Ifil9. 
Hague  v.   Philadelphia:    367. 
Hahl  v.  Brooks:    1778,  1981 
Hahlo  v.  Mayer:  722. 
Hahn  v.  Concordia  Society:   643. 

v.  Guardian  Assur.  Co. :   300,  756 
1077,  2369. 

v.  Southern  Pac.  R.  Co.:  1946. 
Hahnenfeld  v.  Wolff:   869,  870. 
Haight  v.  Continental  Ins.  Co.:   1067. 

v.  Haight:  2417. 

V.  Holcomb:   2281. 

v.  McVeagh:  169. 
Haile    v.    Peirce:    1153,    1159,    1162, 

1176. 

Hailey-Ola  Coal  Co.  v.  Parker:   1641. 
Haille  v.  Smith:   2563. 
Hailparn  v.  Joy  Steamship  Co.:  1046. 
Haines  v.  Busk:  121. 

V.Christie:   1295. 

V.  Elf  man:   2063. 

V.Lewis:   102,  108. 

V.Nance:    1139. 

v.  Pohlmann:    936,  937. 

v.  Starkey:  1813,  1827,  2063. 

V.Wilson:    552. 
Hair  v.  Edwards:  935. 
Hairston  v.  Garwood:    2162. 
Halbert  v.  Gibbs:   2253,  2254,  2287. 
Halbot  v.  Lens:   1366,  1370,  1379. 
Halbronn     v.     International     Horse 

Agency:  1604. 

Halbut  v.  Forrest  City:  831. 
Haldeman  v.  Chambers:   519. 

v.  Massachusetts    Mut.    Ins.    Co.: 

2002. 

Halden  v.  Crafts:  1346,  2548,  2549. 
Hale  v.  Brooklyn  L.  Ins.  Co.:  1532. 

v.  Goodell:  395,  474. 

v.  Kellogg:    1588. 

v.  Knapp:  1516. 

v.  Kumler:    1533,   2431. 

v.Wall:  946. 

v.  Woods:  1089,  1102,  1106. 
Haley  v.  Bank:   2302. 

v.  Belting  Co.:  1734. 

v.  Case:  1661,  1668. 

v.  Mobile  R.  Co.:   2016. 


Halff  v.  O'Connor:   919. 

Hall  v.  Ayer  &  Lord  Tie  Co.:   908. 

v.  Bank  of  Commonwealth:    978. 

v.  Bliss:   689. 

v.  Cockrell:    1099. 

v.  Crandall:    1396,  1397. 

v.  Finch:  1515. 

v.  French- American  Wine  Co. : 
2362,  2553. 

V.Gambrill:   556,  806,  1588. 

v.  Hall:  1515. 

v.  Harper:   156,  472. 

v.  Hinks:    2561. 

v.  Hopper:    710,  739. 

v.  Huntoon:    1172,  1611. 

V.Jameson:  1138,  1139. 

v.  Lauderdale:  1168,  1180,  1181, 
1183,  1367,  1422,  1428,  1431, 
1438. 

v.  Laver:   2278. 

v.  Lees:   1862. 

v.  Marston:    1321. 

V.  Maudlin:    414,  2002,  2004. 

V.Norfolk  &  W.  R:CO.:  2009. 

v.  Noyes:   1225. 

v.  Peck:  2549. 

v.  Presnell:  2163. 

v.Rixey:    2305. 

v.Sloan:  1351. 

v.  Soule:  601. 

V.  Storrs:  318,  716,  895,  949,  1249, 
1268,  1302,  2502,  2504,  2530. 

v.  Union  Cent.  L.  Ins.  Co. :  739, 
1075,  1782. 

v.  Wakefield.  etc.,  R.  Co.:   1622. 

v.  West,  etc.,  Mill  Co.:  1671. 

v.  Wine  Co.:    2497. 

V.Wisconsin:   131. 

v.Wright:    2163. 
Hall,    etc.,    Mach.    Co.    v.    Haley    F. 

Mfg.  Co.:   1808. 
Hall    Safe   &   Lock    Co.    v.    Harwell: 

1012,  2181. 
Hallack  v.  Hinckley:  1537,  2441,  2447, 

2448. 

Hallady  v.  Underwood:   708,  789,  957. 
Hallam  v.  Coulter:  2280. 

v.  Tillinghast:    2152. 
Hallett  v.  Oakes:  2230. 
Hallett's  Estate,  In  re:  2090. 
Halley  v.  Troester:  134,  138. 
Halliday  v.  Stuart:   2162,  2163. 
2283 


TABLE   OF    CASES    CITED 


[Reference*  are  to  mectlonmi  §§  1-1705,  Vol.  I;  ««  17O6-J588,  Vol.  II.] 


Hallock  v.  Loft:   2163. 
Halloway   v.   Arkansas   City    Milling 
Co.:  463. 

v.  Lacy :   1577. 

v.  Milling  Co.:   459. 

v.  Talbot:  1559. 
Hallstead  v.   Perrigo:    567,   619,   625, 

2430,   2445,   2446,   2456. 
Halprin  v.  Schachne;   2443. 
Halsell  v.  Renfrew:  814,  934,  2430. 

v.  Turner:  2264. 
Halsey  v.  Meinrath:   1556. 

v.  Monteiro:       797,      798,      2397 

2430. 

Halsley  v.  Bird:  2509. 
Halsted  v.  Rabb:  1343. 
Haluptzok  v.  Great  Northern  R.  Co.: 

322,  338,  1041,  1866. 
Halverson  v.  Nisen:  1644. 
Ham  v.  Boody:   447. 

v.  Goodrich:   1579. 
Hamberger  v.  Marcus:   39,  74,  75i 
Hamblet  v.  City  Ins.  Co.:  2368. 
Hambleton  v.  Fort:    2435. 

v.  Rhind:   1990. 

Hambro  v.  Burnand:  1721,  1723,  1801. 
Hamburg-Bremen  Ins.  Co.  v.  Lewis: 

1826,  2031,  2371. 
Hamburger  v.  Thomas:  2447. 
Hamel  v.  Brooklyn  Heights  R.  Co.: 
2184,  2227,  2228. 

v.  People:   2207. 
Hamet  v.  Letcher:    2110. 
Hamil   v.    American    Freehold    Land 
Mtg.  Co.:  300,  933,  1029. 

v.  England:    2304. 
Hamill  v.  Ashley:    710,  739,  1458. 
Hamilton  v.  Allen:  2290. 

v.Bell:    2576. 

v.Campbell:  2662. 

v.  Dwelling  House  Ins.  Co.:  1804. 

v.  Frothingham :    1524. 

v.Georgia  R.  Co.:  1988. 

V.Hamilton:  1334. 

v.  Home    Ins.    Co.:     1051,     1054, 
1070. 

v.  Hooper:   169. 

v.  Love:   1556,  1557. 

v.  McLaughlin:    1691. 

v.  Mining  Co.:  1667. 

v.  People:  2311. 

v.  Railway  Commissioners:   1974. 


Hamilton  v.  Vought:  976. 

v.Wright:    2152,  2154,  2158. 

v.Williams:  1494. 
Hamilton  Bank  v.  Nye:  952. 
Hamm  v.  Drew:   219. 
Hammatt  v.   Emerson:    1782. 
Hammett  v.  Brown:   1340. 
Hamm  Brewing  Co.  v.  Wiggam:  838. 
Hammond   v.   Bookwalter:    177,  178, 
1590. 

v.  Buckwalter:   2477. 

V.Crawford:   2428,  2443. 

v.Christie:  1332. 

v.  Hannin:  236,  424,  427,  509,  52S. 

v.  Hussey:  1281. 

v.  Mau:    2445. 

v.  Schofield:  1716. 
Hammonds   v.    Barclay:    1683,    2586, 

2586. 

Hamond  v.  Holiday:  2476. 
Hampshire  Land  Co.,  In  re:  1837. 
Hampton  v.  Lackens:   178,  1590i 

v.Matthews:    901. 

v.  Moorhead :   817. 
Hamrick  v.  Combs:   2183. 
Hamlin  v.  Abell:   2364. 

v.  Meeting  House:  1112. 

v.  Schulte:  2447. 

v.  Sears:    386,  392,  463,  469,  506. 
Hannau  v.  Ehrlich:    226. 
Hanback  v.  Corrigan:  1701,  1702. 
Hancock  v.   Byrne:    628. 

v.  Dodge:    233. 

v.  Fairfield:   1162. 

V.Norfolk,  etc.,  R.  Co.:  1679. 

V.Stacy:   2439,  2451,  2454. 

v.  Younker:   1105,  1109. 

v.  Yunker:   1395,  1397. 
Hancock  L.  Ins.  Co.  v.  Schlink:  1071. 
Hancock  Mut.  L.  Ins.  Co.  v.  Schlink: 

1060. 
Hand  v.  Cole:    39. 

v.  Conger:   2399,  2426,  2437. 
Handlan  v.  Miller:  285. 
Handley  v.   Daly   Mining  Co.:    1632, 
1644. 

v.  Shaffer:    2435,  2447. 
Handy  v.  Globe  Pub.  Co.:  359. 

v.  Johnson:    1796. 
Handyside  v.  Cameron:  208. 
Hand-Stitch    Sewing-Machine    Co.   v. 
Blood:    1547. 


2284 


TABLE   QF    CASES    CITED 
[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.    I  I.I 


Haner  v.  Furuya:  246,  276. 
Hanesley  v.  Bagley:  1535,  2447,  2467. 
Haney  v.  Caldwell:  603. 

v.  Donnelly:    285. 

v.  Manning:  90. 

Haney  Mfg.  Co.  v.  Perkins:  1980. 
Haney    School    F.    Co.    v.    Hightown 

Baptist  Institute:  435. 
Hanford  v.   McNair:    212,  420. 

v.  People:    1338. 
Hanger  v.  Fowler:  2280. 
Hankins  v.  Baker:  483. 

v.N.  Y.,  etc.,  R.  Co.:  1654. 

v.  Rockford  Ins.  Co. :  1065. 
Hanks  v.  Drake:  473,  491. 
Hanley  v.  National  Loan  Co.:  134. 
Hanna  v.  Coal  Co.:   2243,  2281. 

v.Collins:    2430,  2435. 

v.  Haynes:  2412,  2474. 

v.  Island  Coal  Co.:   2279. 

v.  Phelps:   1690,  1691,  1692. 
Hannan  v.  Prentis:  233,  2474,  2475. 
Hannan's   Express,    etc.,   Co.,    In  re: 

80,  573,  577,  585. 
Hannibal,   etc.,   R.    Co.   v.   Kanaley: 

1624,  1635. 
Hannon  v.  Moran:  1536,  2447. 

v.  Siegel-Cooper  Co.:   246. 
Hannum  v.   Curtis:    1339. 
Hanold  v.  Bacon:   1237. 
Hanover  Nat.  Bank  v.  American  Dock 
&  Trust  Co.:  244,  405,  754,  755,  760, 
1801. 

Hanover  R.  Co.  v.  Coyle:   1796,  1799. 
Hanrathy  v.  Northern,  etc.,  R.  Co.: 

1615,  1644. 
Hansard  v.  Menderson  Clothing  Co.: 

1557. 

Hanscom  v.  Street  R.  Co. :  994. 
Hansen  v.  Rolison:    435. 
Hanson  v.  Bean:   2305. 

V.European,    etc.,    R.    Co.:    1935, 
2016. 

v.  Hammell:  1668. 

v.  Hoitt:   2162. 

V.Kline:    2308. 

v.  Roberdeau:   2342. 

v.  Waller:   1010,  1974. 
Hapgood  v.  Batcheller:  2504,  2557. 

v.Hewitt:    1214. 
Haralson  v.  Stein:  306. 
Harbach  v.  Colvin:  949. 


>H    .7 


ifiH 


Harback  v.  Colvin:   2181. 
Harbert  v.  Neill:    2504. 
Harbin  v.  Masterman:  2198. 
Harby  v.  Hot  Springs:   2362. 
Harcourt  v.  Common  Council:  313. 
Hard  v.  Burton:    2247. 

v.  Kelley:  1170. 

v.  Vermont,  etc.,  R.  Co. :  1654. 
Hardaker  v.  District  Council:  1918. 

v.  Idle  Dist.  Council:   1871. 
Hardee  v.  Hall:   789. 
Hardeman  v.  De  Vaughn:  2562,  2563. 

v.  Ford:   395. 

v.Williams:   1077. 
Hardenbrook  v.  Harrison:  167". 
Harder  v.  Continental  Printing  Co.: 

1748,  1766. 
Hardesty  v.  Gavin:  2438. 

v.  Newby:  960. 
Hardie  v.  Colvin:  2162. 
Hardin  v.  Alexandria  Ins.  Co.:  1051. 

v.  Ho-Yo-Po-Nubby's  Lessee:  2152, 

2155. 
Hardin  Grain  Co.  v.  Chicago,  etc.,  R.. 

Co.:    1831. 
Harding  v.  Boston:   1871. 

v.  Conlon:    2277. 


H 


v.  Hagar:   2479. 

v.  Helmer:    2191. 

v.  Norwich    Union    F.    Ins. 
1054,  1068. 

V.Oregon-Idaho  Co.:  285. 

v.  Parshall:   436.     • 

v.  St.   Louis   Stock  Yards : 

1861,  1864. 

Hardman  v.  Kelley:  1410,  1419,  1424. 
Hardoncourt  v.   North  Pennsylvania 

Iron  Co.:  1980. 
Hardten  v.  State:  1803. 
Hardwick  v.  Kirwan:  432,  2397,  2401, 
2402. 

v.  Marsh:    2451,  2454. 
Hardy  v.  American  Exp.  Co.:  1441. 

v.  Chenault:    283. 

V.Chesapeake:  1842. 

v.Chesapeake  Bank:   1984. 

V.Chicago,    R.    L,    etc.,   R.    Co.: 
1619. 

v.  Keeler:   2222. 

v.  Martin:  2307. 

v.  Pilcher:   1152,  1159,  1162. 

v.  Shedden  Co.:   1623. 


2285 


TABLE   OF    CASES    CITED 


[  Reference*   are  to  neetlon*:   §§  1-170.',  Vol.  I;  §§  1706-25S8,   Vol.   11.] 


Hardy  v.  Sheedy:  2439. 

v.  Stonebraker:    96. 

v.  Waters:   144. 
Hare  v.  Bailey:  938,  940. 

v.  Hooper:    2004. 

v.  Mclntire:    1483,   1647. 

v.  Winterer:   2002,  2004. 
Harger  v.  Jenkins:   1559. 
Hargett  v.  McCadden:  2281,  2286. 
Hargis  v.  Louisville  Gas  Co. :  2249. 
Hargrave  v.  Conroy:  2249. 

v.  King:   1192. 

v.  Le  Breton:  2221. 
Harington  v.  Hoggart:   2336. 
Harker  v.  Dement:  285,  1331,  2050. 
Harkins  v.  Murphy:  181. 

v.  Queen    Ins.    Co.    of    America: 
1798. 

v.  Standard       Sugar       Refinery: 

1644. 

Harkless  v.  Smith:  2309. 
Harkness  v.  Briscoe:   1590,  2475. 

v.  Western  U.  Tel.  Co.:  2063. 
Harlan  v.  Ely:  895,  1249,  1302. 
Harland  v.  Lilienthal:  91. 
Harless  v.  Harless:    2308. 
Harley    v.     Buffalo     Car     Mfg.    Co.: 

1624. 

Harley  Co.  v.  Barnefield:   309. 
Harlow  v.  Bartlett:   1282,  1296,  1324, 
2410. 

v.  Spar:  2336,  2349,  2351. 
Harman  v.  Brotherson:  1494. 
Harmon  v.  Salmon  Falls  Mfg.  Co.: 

1586. 

Harms  v.  McCormick:  1093,  1112. 
Harnen  v.  State:   2314. 
Harner  v.  Dipple:  143,  145. 
Harnickell  v.  Orndorff:   672. 
Harp  v.  Osgood:  2024. 
Harpending  v.  Haight:    1493. 
Harper  v.  Bail:    167. 

v.  Devene:    360. 

v.  Godsell:  1001. 

v.  Goldschmidt:   230. 

v.Harvey:  946,  2183. 

v.  Hassard:  599,  1573. 

V.Indianapolis,  etc.,  R.  Co. :  1632, 
1640,    1644. 

v.  Lemon:  156. 

v.  Little:  663,  664   652,  1397. 

v.  Perry:  2290. 

2286 


Harper  v.  Ragan:  2030. 

v.Ray:  1594. 

v.  Sinclair:    17G4. 

v.  Tiffin  Nat.  Bank:  1731,  1755. 
Harper  &  Co.  v.  Vigers:    1403,  1771, 

2043. 

Harr  v.  Roome:  1342,  1344. 
Harralson    v.    Stein:     30G,    316,    333, 

2514. 

Harrel  v.  Zimpleman:  1517,  2445. 
Harrell  v.  Broocks:    1804. 

V.Cleveland,  etc.,  R.  Co.:  1915. 
Harriman  v.  Baird:   2194. 

v.  Beard:    2250. 

V.Pittsburgh  R.  Co.:  1893. 

v.  Railway  Co.:   1944. 

v.  Stowe:    1477,  1796. 
Harrington  v.  Bean:    2281. 

v.  Brockman     Commission     Co.: 
592. 

v.  Bronson:    285,  732,  739. 

v.  Commissioners:  1498. 

v.  Fall  River  Iron  Works:    1582. 

V.  Fuller:   1505. 

v.  Gies:    1559,  1562. 

V.Kansas  City  Cable  Co.:   604. 

v.  Victoria    Graving    Dock    CQ.^ 

118,  2137. 

Harris    v.     Carstens     Packing    Co.: 
1798. 

v.  Chamberlain:   104. 

v.  City  R.  Co.:  1657. 

v.  Coleman,  etc.,  Lead  Co.:  1126. 

V.  Cuddy:   628. 

v.  Daugherty:    2309. 

V.Fitzgerald:    295. 

v.  Flat  Motors:  306,  320,  1867. 

v.  Gamble:    1595. 

V.Harris:    2302. 

v.Johnston:   184,  194,  782. 

v.Louisville,  etc.,  R.  Co.:  1893. 

V.  Miner:  441. 

v.  Mcore:   2439. 

v.  More:   110. 

v.  Nickerson:    2346. 

v.  Csbourn:    2253,   2262. 

v.  Railroad   Co. :    993. 

v.  Reynolds:    2426. 

v.  Richmond,  etc.,  R.  Co.:  2509. 

v.  Roof:  92,  1523. 

V.Root:   2244. 

v.  San  Diego  Flume  Go.:  245,  308 


TABLE   OF    CASES    CITED 


>ou  .v 


)J  -V 


Co.: 


tM.v 


1262. 


[Reference,  are  to  section*:  §§  1-17O5,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

Hart  v.  Farmers',  etc.,  Bank:   1843. 

v.  Frame:    2199. 

V.Francis:    1595. 

v.Gould:    1352. 

v.Hoffman:    2441. 

v.  Hudson :  894. 

V.Lewis:   1109. 

v.  Maney:    1925. 

v.  Marquand:   2389. 

v.  Ten  Eyck:  1335. 

v.  Vidal:    2246. 

v.  Waterhouse:    285. 

v.  Withers:   63.  f'' 

v.  Woods:    2320. 
Hart's  Appeal:   1346. 
Harten  v.  Laffler:  2474,  2475. 
Hartenbower  v.  Uden:   807. 
Harter  v.  Blanchard: 

v.  Norris:   2212. 
Hartford  v.   McGillicuddy:    556,   806, 

2439,   2454. 

Hartford  Deposit  Co.  v.  Calkins:  407. 
Hartford  Fire  Ins.  Co.  v.  Clark:  198. 

v.  Farrish:    1053. 

v.  Keating:  1053,  1062,  1067. 

v.  Landfare:  1062,  1066. 

v.  McKenzie:    487. 

v.  Reynolds:      2302,     2305, 
2368. 

v.  Wilcox:  198,  673. 
Hartford  Ins.  Co.  v.  Wilcox:   775. 
Hartford    Life    Ins    Co.    v.    Hayden: 
979,  980. 

V.Sherman:    1988. 
Hartjen  v.  Ruebsamen:  162,  165,  167, 

484. 
Hartley  v.  Anderson:  2435. 

v.Harmon:    1557. 

v.    Phillips:    42,   43. 
Hartley's  Appeal:   563,  586,  2259. 
Hartley    State   Bank    v.    McCorkell: 

441. 

Hartlove  v.  Fait:   430,  480,  498. 
Hartman  v.  Hicks:   1342. 

v.Rogers:    1554. 
Hartman  Steel  Co.  v.  Hoag:  374,  486, 

2181. 
Hartmann  v.   Schnugg:    1345. 

v.  Schrugg:    1327. 
Hartness  v.  Brown:    2302,  2304. 
Hartop,   Ex  parte:  1710. 
Hartshorne  v.  Thomas:  55,  563. 


Harris  v.  Shaw:   604. 

v.  Silverman:  170. 

v.  Simmerman:  441. 

v.  Simonson:  92. 

v.  Story:    208. 

v.  Tinder:  361. 

v.  Tremenheere:  2292. 

v.  Weir-Shugart  Co.:   169. 
Harris  Loan  Co.  v.  Elliot,  etc., 

285. 
Harrisburg  Baseball  Club  v.  Athletic 

Association:   644. 
Harrisburg  Nat.  Bank  v.  Bradshaw: 

169. 
Harrison  v.  Augerson:  566,  2454. 

v.  Birrell:    2036. 

v.  Burlingame:  954. 

v.  Collins:  1871,  1917. 

v.  Cravens:   1192,  1547,  1588. 

v.Detroit,  etc.,  R.  Co.:  1654. 

v.  Fink:  1935. 

v.  Jackson:    212. 

v.Kansas  City  R.  Co.:  709. 

v.  Kiser:   1871. 

v.  Legore:  246,  263,  264,  938,  939, 
958.  1813,  1827. 

v.    Long:   1341. 

v.  Magoon :   780. 

v.  McClellan:  53. 

v.  McHenry:   358,  359,  1202,  1205, 
1728,  2138,  2412. 

V.Missouri  Pacific  R.  Co.:  993. 

v.Mitchell:   386. 

v.  Mora:   2563,  2566. 

v.  Otley:    134. 

v.  Perea:   2284,  2286. 

v.Ross:    2075. 

v.    Smith:  1350. 

Harrison  Nat.  Bank  v.  Williams:  938. 
Harrod  v.  McDonald:  4G3. 

v.  Wineman:   592. 
Harrow  v.  Farrow:   2163. 

v.  Farrow's  Heirs:   2183. 
Harsant  v.  Elaine:  1341. 
Harshaw  v.  McKesson:   212,  216. 

v.  Merryman:    162. 
Harshey   v.    Blackmarr:    2152,   2156, 

2157,  2158. 
Hart  v.  Aldridge:  2133. 

v.  Bank:  1808,  1814,  2176. 

v.  Bier:    1815. 

v.  Dixon:  463. 


2366, 


aernanaH 
'.V  eaucH 


;ol 


2287 


TABLE   OF    CASES    CITED 


riteferenee*   are   to  »ectioii»:   gg  1-1705,  Vol.  I;   §8  170«  2388,  Vol.   11. 1 


Hartung  v.  Shaw:  2224. 
Hartwell  v.  Loveland:  462. 

v.  Young:   1579. 
Harvey  v.  Childs:  55. 

v.Cook:    1594,  2473. 

v.  Doty:   2481. 

y.  Drew:  2556. 

T.  Linville  Improvement  Co. :  116, 
308,   585. 

T.  Mason  City  R.  Co. :   838. 

v.  McAdams:   132,  185. 

V.Merrill:  2388,  2478,  2481,  2558. 

v.  New  York  Cent.,  etc.,  R.  Co.: 
1644. 

T.  Schuylkill  Trust  Co.:   1981. 

v.  Shelton:    310. 

v.  Stevens:  2320. 

v.  Trust  Co.:    273. 

v.Turner:   1245,  1353,  2532. 
Harvey  &  Co.  v.  Doty:  1602. 
Harvin  v.  Blackman:   2162. 
Hardwick  v.  Kirwan:  854. 
Harwood  v.  Diemer:    1536. 

v.  La  Grange:   2269,  2286. 

v.  Triplett:    2437. 
Hasbrouck,   Matter   of:    2280. 
Hasbrouck  v.  New  York,  etc.,  R.  Co.: 
2001. 

v.  Western  U.  Tel  Co.:   1723. 
Haseltine  v.  Mahan:   2169. 
Haselton      v.       Florentine      Marble 

Works:    2181. 
Hasher  v.   Hasher:   2209. 
Haskell  v.  Boston  District  Messenger 
Co.:   1862. 

v.  Przczdziankowski:   1619. 

v.  Starbird:    1987,  1995. 
Haskin  v.   Haskin:   1607. 
Haskins  v.  Royster:  2133. 
Haskit  v.  Elliott:   2084. 
Hass   v.   Philadelphia,    etc.,    R.    Co.: 
1917. 

v.  Sternbach:  1814,  1835. 
Hassenfus    v.    Phila.    Packing    Co.: 

1569. 

Hastings   v.   Bangor   House   Proprie- 
tors:  412,  435,  444. 

v.  Dollarhide:    142,  144. 

v.  Halleck:    2195. 

v.  Hopkinson:    778. 

V.Montana  Union  R.   Co.:    1644. 

V.Pearson:    2114. 


Hasty  v.  Sears:  1656,  1C58,  1860. 
Haswell  v.  Standring:  403,  2084. 
Hatch  v.  Ccddington:  628,  637,  1028. 

v.    Dwight:   1102. 

v.  Ferguson:    1853. 

v.  Leonard :    161. 

v.  McBrien:   45. 

v.  Smith:    1397. 

v.  Squires:    285. 

v.Taylor:   737,  850,  854,  922. 
Hately  v.  Kiser:  2362,  2389. 

v.  Pike:   1145. 
Hatfield  v.  McWhorter:  1333. 

v.  Phillips:    2125,   2127. 

v.Reynolds:    936,  937. 
Hathaway  v.   Johnson:    411,  2006. 

v.  Michigan   Cent.   R.    Co. :    16ir>, 

1624. 
Hatton  v.  Robinson:  2297,  2305,  2309, 

2311,  2312. 

Hatcher  v.  Cromer:   2525,  2526,  2551. 
Hatchett  v.    Molton:   667. 
Hatchett    &   Large   v.    Sunset   Brick 

Co.:    1410. 

Hatzfield  v.  Gulden:   108. 
Haubelt  v.  Mill   Co.:    246. 

v.  Rea  &  Page  Mill  Co. :  76$. 
Hauenstein  v.  Run:    1432. 
Haughton  v.  Maurer:   286. 
Haupt  v.  Vint:   1395. 
Hausard  v.  Menderson  Clothing  Co.: 

1557. 

Hauser  v.  Lane:   1410. 
Hausman  v.  Herdtfelder:   1536,  2447. 
Hauss  v.  Niblack:    435. 
Hauxhurst  v.  Hovey:  1341. 
Haven  v.  Adams:  1104,  1108,  1109. 

v.  Brown:   1782.  1783. 

v.  Central    Railroad    Co.:     1934, 
1935,  1936. 

v.  Hobbs:    208. 

v.  Snow;   1814,  2176. 
Havens   v.   Church:    980. 

v.  Suburban  R.  Co.:   1798. 
Haverhill  Ins.  Co.  v.  Newhall:    11 2-J. 

1139. 

Haverty  v.  Haverty:   2191. 
Hawaiian    Agricultural    Co.    v.    Nor- 

ris:    798. 
Hawes  v.  Forster:  2379,  2380. 

v.  Glover:   208. 

v.  State:    2310. 


TABLE   OF    CASES    CITED 


[References   are  to  sections:  §§  1-1703,  Vol.  I;   §§   1706-2588,  Vol.   II.] 


Hawk  v.    Ament:  2281. 

Hawke  v.   Dorf:    2234. 

Hawker   v.    Baltimore,   etc.,   R.   Co.: 

1783,  1798. 

Hawkes,  In  re:  2300. 
Hawkes  v.  Dunn:  1698. 
Hawkins  v.   Chace:    227. 

v.  Chandler:   2461. 

v.  Governor:   1493. 

v.  Insurance  Co.:    1071. 

v.  Kittredge:    229. 

v.  Lange:   473. 

v.  McGroarty:   426,  427. 

v.  Windhorst:   280,  2068. 
Hawkins  &  Co.  v.  Riley:   2016. 
Hawks  v.  Locke:  1889. 
Hawley  v.  Curry:   52. 

v.  Keeler:    198. 
Hawtayne  v.  Bourne:  718,  1001,  1026, 

1263. 

Hawver  v.  Whalen:   1918. 
Hawxhurst  v.  Rathgeb:  813,  897. 
Hay  v.   Goldsmidt:    780. 

v.Mayer:    802. 

v.  Reade:    2554. 
Hay's  Case:   1227. 
Hayard  v.  Fiske:  2509. 
Hayball  v.  Detroit,  etc.,  Co.:   1631. 
Hayden    v.    Alton    National    Bank: 
2046. 

v.  Grille:    2431. 

v.  Smithville     Mfg.     Co.:      1615, 

1624,  1625. 

Haydock  v.   Stow:    798,  2430. 
Hayes  v.  Atlanta:    215. 

v.  Brubaker:    1141,    1154,    1422. 

v.City  of  Atlanta:    424. 

v.'portlrAsoi. 

v.Wilkins:    1888. 

v.Walker:   169. 
Hayes     Woolen    Co.     v.     McKuinon: 

1177. 

Haygood  v.  McKenzie:    2207. 
Hayman,  Ex  parte:  1768. 
Hayne  v.  Union  St.  R.  Co.:  1936. 
Hayner  v.  Churchill:   882,  887. 
Haynes  v.  Carpenter:   961. 

v.  Carter:    634. 

V.Foster:    897. 

v.  Gay:    1803,   1804. 
144 


Haynes  v.  Tacoma,  etc.,  R.  Co.:   395, 

2170. 
Haynes    Automobile    Co.    v.    Woodill 

Auto    Co.:    1533. 
Haynie  v.  Johnson:  2131. 

v.  Waring:    1281. 

Haynor  Mfg.  Co.  v.  Davis:  890,  1987. 
Hays  v.  Crutcher:   1154. 

v.  Hathorn:    2023,  2034. 

v.  Houston,  etc.,  R.  Co.:  2015. 

v.  Merkle:    2151,  2155. 

v.  Riddle:    1688. 

v.  Stone:   1346. 

v.  Warren:    2548,    2583. 
Hay  ward  v.  Langmaid:   386. 

v.  Miller:   1338. 

v.  Xational  Ins.  Co. :   1808. 

v.  Nordberg  Mfg.  Co.:   98. 
Hay  ward    Lumber    Co.    v.    Cox:    90S, 

911. 

Hay  wood  v.  Hamm:   2015. 
Hazard  v.  Israel:    2016. 

v.  Spears:   416,  491. 

v.  Treadwell:    284,   915. 
Hazelhurst    Lumber    Co.    v.    Carlisle 

Mfg.   Co.:    1717. 
Hazeltine  v.  Brockway:  2231,  2236. 

v.  Keenan:   2126,  2264,  2267,2272. 

v.  Miller:    245,  262,  263,  783,  998. 
Hazelton  v.   Batchelder:    489. 

V.Florentine  Marble  Co.:   956. 

v.Locke:    1342. 

v.  Scheckells:   92. 


Hazlett    v.    Commercial    Nat.    Bank: 

1302. 
v.Gill:  2255. 


Head  v.  Breeders'  Club:    1780. 

v.  Pacific  Exp.  Co.:   1046,  1987. 
Heald  v.  Kendy:  908,  985. 

v.  Kenworthy:    1740,    1742,    1743, 

1744,  1748,  1750. 
Healey  v.  Dillon:   642. 
Healey  v.  Lothrop:    1973. 
Healy  v.  Allen:  642. 

v.Johnson:    1893. 
Heard  v.  Brewer:  1686,  2561,  2572. 

v.  Clegg:    1395. 

v.  Flannagan:    1909. 

Y.  Hall:    1100. 
2289 


TABLE   OF    CASES    CITED 


[Referenced   are  to  aectlomis   §§  1-1705,  Vol.  I;  §g  1706-2588,  Vol.  II.] 


Heard  v.  Harris:   1494,  1495. 

v.March:    198. 

v.  Pilley:    229,    1194. 
Hearshy  v.   Hichox:    2020. 
Hearsey  v.  Pruyn:  1440. 
Heath,  In  re:  2162. 
Heath  v.  Bates:   2217. 

v.  Crealock:    1350. 

v.  Goslin:  187,  188,  191. 

v.     New    Bedford    Safe    Deposit 
Co.:    296,   972. 

v.  Nutter:   212,  420. 

v.Paul:    1001. 

v.Springfield  Fire  Ins.  Co.:  1064. 
Heathfield  v.  Van  Allen :  910. 
Heaton  v.  Edwards:  1550,  2447,  2455. 

v.  Stoddard:    848,   2112. 

v.    Myers:   1736. 
Heavenrich  v.  Alpena  Circuit  Judge: 

2283. 

Hebbard   v.   Haughian:    2309. 
Heber    v.    United    States    Flax    Mfg. 

Co.:    1580. 

Heblich  v.    Slater:    2246,  2247. 
Hechmer  v.  Gilligan:   1333. 
Hecht  v.  Hall :   2447. 
Heck   v.   Shener:    1596. 
Heckman's  Estate:    382,  1384. 
Hedden  v.  Griffin:    1458. 
Heddens  v.  Younglove:   1327,  1339. 
Hedge  v.  Williams:   1870. 
Hedin    v.    Minnesota    Medical    Inst: 

1458. 

Hedrick  v.  Beeler:   1803,  1804. 
Hefferman  v.   Boteler:    245,  934,  945. 

v.  Burt:    2156,    2162. 
Heffner  v.   Brownell:    1126,   1157. 

v.  Gwynne-Treadwell   Cotton  Co. : 
2525,   2527. 

v.  Wise:   2220. 
H  ffron  v.  Pollard:   1176,  1403,  1406, 

1420,   1423,   1773. 
Hefner  v.  Dawson:  364. 

v.  Vandolah:   361. 
Hege,  Hackez  &  Phillips  Co.  v.  Hes- 

sel:   2430. 
Hesenmeyer    v.    Marks:     1206,    1353, 

2137,  2407. 

Heiberger  v.  Worthington:   2234. 
Heidenheimer  v.  Boyd:   2091. 

v.    Walthew:    51,   2477. 
Heilbonn's  Case:   360. 


Heilbroner  v.  Douglass:  2529. 
Heilbronn  v.  McAleenan:    897. 
Heilman   Machine   Works   v.    Dollar- 
hide:    903. 
Heine  v.  Chicago,  etc.,  R.  Co.:   1644, 

1657. 

Heinemann  v.  Heard:    1275,  1279. 
Heinlein  v.  Martin:    218. 
Heinrich  v.  Railroad  Co.:    718. 
Heinz  v.   American  Nat.  Bank:    933. 
Heinzerling  v.  Agen:   403,  405. 
Heirs   v.   Trustees   of   Glasgow   Aca- 
demy:   1101. 
Heistand  v.  Kuns:    143. 
Heister  v.  Mount:   2276. 
Helbig  v.  Citizens'  Ins.  Co.:   2309. 
Held  v.  Walker:    296. 
Helder,  Ex  parte:  687. 
Helena  Nat.  Bank  v.  Rocky  Mt  Tel. 

Co.:  998. 

Heifer  v.  Spunner:  2163. 
Helfferich  v.  Sherman:   1556. 
Helfrich  v.  Ogden  City  R.  Co.:   1622. 

v.   Williams:    1644. 
Hellen  v.  Anderson:  117. 
Helm  v.  Annis:  2386. 

v.  Ennis:    2389. 

v.  O'Rourke:    1638. 
Helmke  v.  Thilmany:   1671. 
Helms  v.  Northern  Pac.  R.  Co.:  2011. 

v.  Telegraph  Co. :    2086. 
Helyear  v.  Hawke:   886. 
Hermberger   v.   Rudd:    2435,   2447. 
Hemlngs  v.  Pugh:   1343. 
Hemstreet  v.  Burdick:   220,  777,  811. 
Henbach  v.  Rother:   1337,  2548. 
Henchey  v.  Chicago:  2278,  2279. 
Henck  v.  Todhunter:   2151. 
Hencke    v.    Ellis:    1668. 
Henderson  v.   Barbee:    208. 

v.Beatty:  462. 

v.  Botts:    2074,  2075. 

v.  Coleman:   285,  1789. 

v.  Cummings:    410,  481. 

v.  Eckern:  1603. 

v.  Ford:    692,  701. 

v.  Hydraulic    Works :    607. 

v.  Mayhew:    299,    1731,   1755. 

v.  McNally:    868,  2076. 

v.  Palmer:  102. 

v.  Planters'    Bank:    2163. 

v.  Railroad   Co.:    1985. 


2290 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   S3  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Henderson  v.  State:  171. 

v.  Stiles:    1577. 

v.  Stringer:    161. 

v.Terry:    2302,   2411. 

V.Vincent:   2435,  2477. 

V.Williams:   2115,  2127. 
Henderson   Bridge   Co.    v.    McGrath: 

992. 

Henderson-Mizell  Co.  v.  C.  D.  Chap- 
man Co.:    1783. 
Hendrick   v.  Lindsay:    2055. 

v.  Whittemore:    2158. 
Hendricks  v.  American  Express  Co.: 
29. 

v.  Middlebrooks    Co.:    1980. 
Hendrickson   v.   Woods:    1538. 
Hendrix  v.  Fuller:    2163. 
Hendry    v.    Benlisa:    309,    946,    2182, 

2183. 

Henke  v.  McCord:    1495. 
Henken  v.  Schwicker:    1029. 
Henn  v.  Conisby:   2180. 
Henneberger  v.  Matter:    285. 
Hennessee  v.  Johnson:   660. 
Hennessey    v.    The    Western    Bank: 

2064. 

Hennessy,  In  re:  1803. 
Henninger  v.  Heald:    2137,  2411.  .^H 
Hennings  v.   Parsons:    2457. 
Henricus  v.  Englert:  1102, 1734, 1735', 

2064. 

Henry  v.  Allen:  407,  1815,  1819,  1831, 
2085. 

v.  Black:    2071. 

v.  Buckner:    850,    1249. 

v.  Fine:    134. 

v.  Halter:    395,  2163. 

v.  Heeb:    361,  363. 

v.  Lane:   779,  806,  807. 

v.Marvin:    897. 

v.  Nubert:    2308. 

v.Omaha     Packing     Co.:      1803, 
1804,    1809. 

v.  Raiman:    2290. 

v.  Ritenour:    137. 

v.Sargent:    167. 

V.Seattle  Elec.  Co.:   1798. 

v.  Sneed:    169,  1804. 

v.  Stanley     Hod     Elevator     Co. : 
1861. 

v.  State  Bank:    358,  371. 

V.Stewart:    1536,   2435,  2463. 


Henry  v.  Traynor.  2276,  2281. 

V.Vance:    2255. 

Henschell  v.  Gates   Land  Co.:    2428. 
Henshaw  v.  Noble:    1477. 

v.  Root:   259. 

Hensley   v.   McDonald:    285. 
Henson  v.  Hampton:    1577. 

v.  Keet   Merc.   Co. :    1004. 
Kenyan  v.  Trevino:   1602,  2291. 
Hentz  v.  Booz:    111,  112. 

v.  Miller:    2110. 
Hepburn  v.   Dunlop:    463. 
Herbert  v.  Huie:    1984. 
Hercules   Mut.   L.   Assurance   Co.   v. 

Brinker:    1532. 

Herdler  v.  Buck's  Stove  Co.:   1641. 
Herd  v.   Bank   of   Buffalo:    386,   550, 

910. 

Herlihy   v.    Smith:    1912. 
Herman    v.    Martineau:     1728,    2138, 
2412,    2413,   2475. 

v.  Schlesinger:    2302,    2307,   2311. 

v.  Street  Railway  Co.:  2236. 
Herman  Const,   v.   Woods:    2283. 
Hermann  v.  Charlesworth:   117. 

v.Niagara   F.    Ins.   Co.:    2368 
Hermes  v.  Chicago  &  N.  W.  R.  Co.: 

1799. 
Hern  v.  Iowa  State  Agric.  Soc:  1974. 

v.Nichols:    1995. 
Herndon   v.   Lammers:    2244. 
Herpolsheimer     v.    Acme     Harvester 

Co.:   902,  904,  991. 
Herr   v.    Payson:    2290. 
Herrick    v.    Gallagher:     1434. 

v.  Woodson:    2447. 
Herriman  v.   Shomon:    2183. 
Herrin  v.  Abbe:   2302. 
Hermann    Saw    Mill    Co.    v.    Bailey: 

920. 
Herring  v.   Hottendorf:    954. 

v.    Skaggs:    882,   889,  2403,  2506. 
Herrington  v.  McCollum:    1814,  2176. 
Hersher   v.    Wells:    2431,   2441,   2470. 
Hershy  v.  Du  Val:    2280. 
Hertzog  v.  Hertzog:  .1516. 
Hervey  v.  Locomotive  Works:  48. 
Heryford  v.  Davis:   48. 
Herzfelder  v.   McArthur:    1225,  1589. 
Heslop-  v.   Metcalfe:    2274. 
Hess  v.   Baar:    432. 

V.  Cole:    2158. 


2291 


TABLE   OF    CASES    CITED 


Preference*  are  to  aectloni:  §§  1-1705,  Vol.  I;  §8  1706-2588,  Vol.   II.] 


Hess  v.  Lowrey:  2204. 

v.  Rau :   585. 

v.  Realty  Co.:   2447. 

v.  Voss:    2290. 

Hesse  v.  Columbus,  etc.,  R.  Co.:  1671. 
Hessig-Ellis    Drug    Co.    v.    Sly:     48, 

2499. 

Hetrick  v.   Smith:    2291. 
Heusinkveld  v.  Insurance  Co.:   285. 
Houston  v.  Simpson:    2311. 
Hevia  v.  Lopardo:    2467. 
Hewes  v.  Andrews:    1405. 
Hewett  v.  Lichty  Mfg.  Co.:   2477. 

v.Swift:    1459,  1460,  1463,  2011. 

v.  Woman's  Hospital:  1619. 
Hewison  v.  Guthrie:   1690. 
Hewitt  v.  Flint,  etc.,  R.  Co.:   1624. 

v.Hayes:   1350. 

v.  Thorson:    2025. 

v.  Torson :    2032. 

Hexamer  v.  Webb:  1870,  1871,  1917. 
Hey  v.  Dolphin:   585. 

v.  Simon:    2163. 
Heyert  v.  Reubman:   167. 
Heyn  v.  O'Hagen:   456,  457,  463. 
Heyward  v.   Maynard:    2264. 
Hey  wood  v.  Andrews:  -2063. 

v.  Doernbecher:    2162. 
-   v.  Doernbecher  Mfg.  Co.,  48,  2499. 
Heyworth  v.  Knight:  2379,  2380. 
Hibbard  v.  Peek:   243,  709. 
Hibbard,  Spencer,   Bartlett  &  Co.  v. 

Stein:    879. 

Hibberd  v.  Knight:    35. 
Hibernia    Ins.    Co.     v.    Malevinsky: 

1061,  1067. 

Hibblewhite  v.  McMorine:    213. 
Hichhorn  v.  Bradley:   1232. 
Hick   v.   Tweedy:    1170. 
Hickam  v.  Hickam:    1517. 
Hickey  v.   Klam:    598,   604. 

v.  Merchants'  Transp.   Co.:    1861. 

v.  Stringer:    2162. 

v.Thompson:    169. 
Hlckman  v.  Green:    1803,  1804,  1826, 

1831. 
Hickox  v.  Bacon:    156. 

v.  Pels:    483. 
Hicks,  Matter  of:   1350. 
Hicks  v.  Blanchard:    2297. 

V.British   Am.  Assur.   Co.:    1053,  - 
1055. 


Hicks  v.  British  Amer.  Ins.  Co.:  1074. 

v.  Dorn:    312. 

V.Marshall:  134. 

v.  Minturn:   2333. 

v.  Southern  R.  Co.:   1813. 

v.  Whitmore:    2320. 
Hidalgo  v.  Gulf,  etc.,  R.  Co.:  1979. 
Hidden  v.  Jordan:   1194. 

v.    Waldo:   2545,  2559. 
Hler  v.  Miller:   754. 
Hiern  v.  Mill:    1808. 
Hiestand   v.   Kuns:    141. 
Higbee  v.  Trumbauer:   436. 
Hlgginbotham  v.  May:   463. 
Higgings  v.  Senior:   1423,  1424. 
Hlggins  v.  Fanning:    1631. 

v.  Lodge:   1457,  2345. 

v.  McCrea:  112,  2579. 

v.  Miller:    2457. 

T.  Mcore:     716,    869,    1029,    1269, 
2400,  2405,  2430,  2492. 

v.  Scott:    2274,  2285. 

v.  Seulor:   1119,  1176,  1731,  1733. 

v.  State:    235. 

v.  Watervliet   Turnpike  Co.:  1874, 
1875,  1883. 

v.  Western  Union  Tel.  Co.:   1860. 
Higham  v.  Waterman:   1861,  1870. 
Highland  Ave.,  etc.,  R.  Co.  v.  Robin- 
son:  1916. 
Highland  Buggy  Co.  v.  Parker:   610, 

1249. 
Hightower  v.  Bamberg  Cotton  Mills: 

1619. 
Highway      Commissioners     v.      Van 

Duson:   367. 
Higlnbotham  v.  McKenzie:   2457. 

v.  Pauch:  749. 
Higley  v.  Dennis:  945. 

v.  White:   2280. 
Higman  v.  Camody:   1813. 
Hilary  v.   Minneapolis,  etc,  R.   Co.: 

2310. 
Hildebrand    v.    American    Fine    Art 

Co.:  1548,  1578. 

Hildenbrand  v.  Lillis:    2431,  2443. 
Hilgar  v.  Walla:    1674. 
Hill  v.  Adams  Exp.   Co.:    1046,  1779. 

v.  Balkcom :    1576. 

v.  Bean:    291. 

v.  Bess:  827. 

v.  Big  Creek  Lumter  Co.:    1636. 


2292 


TABLE   OF    CASES    CITED 
[lieferenceg  are  to  *«•<•< ions:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

Hill  v.  Boston,  etc.,  R.  Co.:  1046.  Hilton,  etc.,  Lbr.  Co.  v.  Ingram:  1640. 

v.  Brinckley:    2278.  Himmebreich  v.  Shaffer:    1768,  2129. 

v.  Caverly:    1475.  Hinchey    v.    Keam:    563. 

v.  Coates:    473,  1048.  Hinchcliffe    V.    Koontz:     1557,    1559, 

v.  Coburn:    1236.  1561. 

v.Conrad:    1095.  Hinckley  v.  Arey:    178,  2398,  2412. 

V.Cunningham:    2236,   2244.  v.  Horazdowsky:    1619,    1644. 

v.  Day:    676,  679.  v.  Krug:    2212,   2251. 

v.  District  Council:    1918.  Hinde  v.  Smith:   2528. 

v.Gould:     193.  v.  Whitehouse:    2320. 

v.  Gray:   2341.  Hinde  &  Dauch  P.  Co.  v.  Atterbury 

v.  Gust:   1619,  1625.  oH       Bros:   982. 

v.Helton:    261.  Hindel  v.  Holcomb:    1208,  1233. 

v.  Hill:    2280,   2290,  2356.  Kindle  v.  Holcomb:  1207,  1279,  1327, 

v.  Hunt:    1341.  1352. 

v.  Jamieson:   226.  Hindman  v.   First  Nat.   Bank:    1987, 

v.  Jebb:    2435,  2445,  2446.  1995. 

v.Jones:    2482.  Hinds  v.  Harbou:   1483. 

v.  McCoy:    2435.  v.  Henry:   1536,2390,2426,2430. 

v.  Mendenhall:    2154.  v.  Overacker:    1483,  1647. 

V.Montgomery:    2212.  Hindson  v.  Markle:   1477. 

v.  Morey:    1859.  Hine  v.  Gushing:   287. 

v.Morris:   1701.  v.  Steamship  Ins.  Syndicate:  946. 

v.  Mynatt:    2193.  Hines  v.  Stephens:   2187. 

v.  Nation  Trust  Co.:   1801.  Hinkley  v.  St.  Anthony  Falls  W.  P. 

V.Packard:    2558.  Co.:    2163. 

v.  Postley:    1009.  Hinricks  v.  Brady:  1326,  2410. 

v.  Saugestad:    1671.  Hinsey  v.  Supreme  Lodge:   359. 

v.  Sheehen:    1867.  Hinson  v.  Gamble:   2280. 

v.  Smith:    2529.  Hinton  v.  Coleman:   2477. 

v.  Southwick:    1595.  Hipp  v.  State:  2008. 

v.  Van  Duzer:   961.  Hippisley  v.  Knee:   1589. 

v.  Western   Union   Tel.   Co.:    991.      Hippie  v.  Laird:  2447,  2448. 

v.Williams:     1341.  Hirsch  v.  Oliver:    285. 

Hille  v.  Adair:  881.  Hirschmann  v.  Iron  Range,  etc.,  Ry. 
Ililloary    &    Johnson    v.    Thompson:  Co.:   909. 

2331.  v.  Railroad  Co. :   287. 

Hillegrass     v.     Bender:     2182,     2195,      Hirsohorn  v.  Bradley:   710,  739. 

2315.  Hirsh  v.  Beverly:   2163. 

Hilliard  v.  Beattie:   659.  Hirsh  &  Co.  v.  Beverly:  236. 

v.Richardson:    1917.  Hirshback  v.  Ketchum:  105. 
Hilliker  v.  Northwest  Thresher  Co.:       Hirshfleld  v.  Landman:  963. 

1533,   1536.  v.  Waldron:    863,  864. 

Hills  v.  Bannister:   1139.  Hirst  v.  West  Riding,  etc.,  Bank:  125. 

v.  McMunn:    2024,    2026.  Hiss  v.  Rau:   579. 

v.  Strong:    1869.  History  Co.  v.  Flint:  742. 

v.Upton:    971,   973.  Hitchcock  v.  Buchanan:   1135,  1137. 
Hillsboro  Nat.  Bank  v.  Hyde:  1230.  v.  Cosper:    1296. 

Hillyard  v.  Crabtree:    1572.  v.  Griffin:   2403. 

v.Hewitt:    739.  v.  Griffin  &  Skelley  Co.:    368. 

Hilton  v.  Crocker:   309,  2164.  v.  Supreme  Tent:   1552. 

v.    Vanderbilt:   2527.  v.  Watson:  1192. 

2293 


TABLE   OF    CASES    CITED 


[ReferenceM   nr«   to  *<•<•<  Ionn:  §§  1-1705,  Vol.   I;   SS   1700-2588,  Vol.  IT.] 


Hitchinga  v.  Van  Brunt:  2234. 
Hitchman  Coal  &  Coke  Co.  v.  Mitch- 
ell:  2133. 
Hitte  v.  Republican  Valley  R.   Co.: 

1860. 

Hittson  v.  Browne:   91. 
Hix  v.  Eastern  Steamship  Co.:    2C3, 
462,  1044,  1046. 

v.Edison:   2447. 

v.Edison     Electric     Light    Co.: 

1536,  2473. 

H.,  Matter  of:  2255,  2287. 
Hoadley  v.  Danbury  Savings  Bank: 
2435. 

v.  Northern  Transportation   Co.: 
2457. 

v.  Savings  Bank:    2435. 
Hoag  v.  Graves:   306,  332,  1288. 

v.  Hay:  156. 

v.  Town  of  Greenwich:  1800. 
Hoar  v.  Maine  Central  R.  Co.:   1913. 

v.  Tilden:  2308. 
Hobart    v.     Sherburne:     1590,     2412, 

2477. 

Hobbit  v.  London,  etc.,  R.  Co.:    1897. 
Hobbs  v.  Beavers:    2323. 

v.  Cowden:   1154. 

v.Edgar:   1536. 

v.  Massasoit  Whip  Co.:  453. 
Hobedy  v.  Peters:  2290. 
Hobirk  v.  Green:  435. 
Hobson  v.  Bassett:  1139. 

v.  Peake:  177,  179,  1547,  1588. 

v.  Watson:    2276,  2281. 
Hochster  v.  De  la  Tour:   1563. 
Hockenbury  v.  Carlisle:  2290. 
Hockfield  v.  Southern  R.  Co.:   1831. 
Hocomb  v.  Kempner:  112. 
Hoddesdon    Gas    Co.    v.    Haselwood: 

601. 
Hodge  v.  Combs:  780,  802. 

v.  Insurance  Co.:    2368. 
Hodgens  v.  Kelly:   2278. 
Hodges  v.  Bankers  Surety  Co.:   979, 
989. 

v.  Bayley:   2463. 

v.  Electric  Co.:  994. 

v.  GUI:   659. 

v.  Kimball:    2563. 

v.  New  England  Screw  Co.:  1202. 
Hodges'  Estate,  In  re:  1335. 


Hodgson  v.  Anderson:    564,  581. 

v.  Davies:   2379. 

v.  Dexter:  1113,  1428. 

v.  Payson:  2559. 

v.  Raphael:    179,   894,   946,   1198, 

2131. 
Hodkinson  v.  McXeal  Co.:   308,  333, 

2108. 

Hodnett  v.  Tatum:   410. 
Hoene  v.  Pollak:  169,  171,  372. 
Hoerling  v.  Lowry:    2138. 
Hoey  v.  MacEwan:   669. 
Hofer  v.  Silberberg:  1343. 
Hofstetter  v.  Gash:  1577. 
Hoffard   v.    Illinois    Central   R.    Co.: 

1620. 

Hofflin  v.  Moss:   1588. 
Hoffman    v.    Anderson:     1424,    1757, 
1759. 

V.  Carow:    1457,  2345. 

v.  Hancock  Mut.  L.  Ins.  Co. :  1060. 

V.Harrington:    1202. 

v.  Insurance  Co.:   866,  946. 

v.Kramer:   2512. 

V.Livingston:  395. 

v.  Mayaud:    1803. 

v.  McFadden:   169,  171. 

v.  Noble:    2509. 

v.  New  York  Cent.  R.  Co. :  1953. 

v.  Savings    Institution:    663,   664, 

666. 

Hoffman  Steam  Coal  Co.  v.  Cumber- 
land Coal  Co.:  1854. 
Hoffmaster  v.  Black:   263,  932,  945. 
Hogan  v.  Klabo:    2059. 

v.  Providence,  etc.,  R.  Co. :   2015. 

v.  Shorb:   867,  2075,  2079,  2575. 

v.  Slade:  2458. 

v.  Titlow:    1577. 
Hoge  v.  Turner:   285,  286. 
Hogen  v.  Klabo:  2075,  2077. 
Hogg  v.  Jackson  &  Sharp  Co.:  919. 

v.  Snaith:  780,  952,  2520. 
Hoggan  v.  Cahoon:  1603,  1605. 
Hogle  v.  Franklin  Mfg.  Co.:    1941. 

v.  Meyering:    1206,  1227,  2474. 
Hogue  v.  Simonson:   399,  927. 
Hoit  v.  Cooper:  447. 
Holbert  v.  Montgomery:   2162. 
Holbrook,  Ex  parte:  2174. 
Holbrook   v.   Chamberlain:    421,   422. 

v.  Investment  Co. :  2449.     • 


2294 


TABLE   OF    CASES    CITED 


IReferences  are  to  sections:   §§  1-1705,  Vol.  I;  §§   1706-2588,   Vol.   II.] 


Holbrook  v.  McCarthy:    807. 

v.  New  Jersey  Zinc  Co. :    237. 

v.  Oberne:  1007. 

V.Wight:  1331,  1691,  1694,  2564, 
2566,  2572. 

v.  Zinc  Co.:  2119. 

Holbrook-Blackwelder    Co.    v.    Hart- 
man:    227. 
Holcomb  v.  Cornish:   1494. 

v.  Stafford :   2437. 

v".  Weaver:  105. 
Holcraft  v.  Mellott:   1597. 
Holden  v.  Bank:    1350. 

v.  Curry:    141. 

v.  Greve:   2151. 

v.  Kutscher:  171. 

v.  New  York  &  Brie  Bank:   1812, 
1818,   1825,   1837,   1843,   1847. 

v.  Piper:   1350. 

V.Rutland  R.  Co.:    2045. 

v.  Starks:    2426.   2447. 
Holker  v.  Parker:  2162. 
Holladay  v.  Daily:    194,  777,  781. 

v.Patterson:    118. 
Holland  v.  Hatch:  978. 

V.King:  538. 

v.  Russell:   1435. 

v.  Van  Beil:   450,  952. 

v.  Vinson:    2458. 

v.  Von  Beil:   869. 

Holland  Coffee  Co.  v.  Johnson:   495. 
Holleman  v.   Bradley  Fertilizer  Co.: 

48,  2499. 

Hollenback  v.  Todd:  2304. 
Hollenbeck  v.  Glover:    2162. 
Holler   v.   Ross:    1979. 
Holley     v.     Townsend:      2390,     2442, 

2459. 
Holliday  v.  Distilling  Co.:    2467. 

v.  National  Telephone  Co.:   1871. 

v.  McWilliams:   227. 
Hollidge  v.   Duncan:    321,  1867. 
Hollingsworth  v.  Dow:  1705. 

v.  Holbrook:     396,    1984. 

v.Moulton:   2028. 

. 

v.  Tooke:  2560. 
Hollins,  In  re:  2255,    2267. 
Hollins  v.  Fowler:  2423,  2583. 

v.  Hubbard:   1698. 

v.  Railroad  Co.:  2154. 
Hollinshead  v.  Stuart  &  Co.:  281,  934, 
940. 


Hollis  v.  Claridge:   2267. 

v.  Meux:  2224. 

v.  Weston:   1526,  1528,  2425. 

v.  Widener:   1630. 
Holloway  v.   Appelget:    2262. 

v.Lowe:    2237. 

v.  Stephens:   740,  1043. 

v.  Talbot:    1564. 
Hollums  v.  Hubbard:   2566. 
Hollweg  v.  Schaefer  Brokerage  Co.: 

2465,  2585. 

Hollway  v.  Covert:    2447. 
Holly  v.   Boston  Gaslight  Co.:    1275, 
1279. 

v.  Gosling:    2447,    2467. 

v.  Huggeford:     1685,    2132,    2561, 

2566,  2576,  2578. 
Hollyday  v.  Southern  Agency:   2435, 

2459. 
Holman  v.  Frost:  2089. 

v.  Holman:    1225. 

v.  Johnson:   1611. 

v.  Kimball:   2310. 

v.  Loynes:    2296. 
Holm  v.  Atlas  Nat.  Bank:  1844. 

v.  Bennett:  438. 
Holmes  v.  Bell:  2276. 

v.  Board  of  Trade:  2426. 

v.  Carman:  1100. 

v.  Cathcart:   1207,  1225,  2411. 

v.Clarke:    1630,  1631. 

V.Evans:   2286. 

V.Griffith:    1406. 

v.  Hall:    767. 

v.  Langston:    946,    948,    1302. 

v.  McAllister:  341,  474,  994.       . 

v.  Murdock:   652,  1334. 

V.  Neafie:   2426,  2473. 

v.  North  Eastern  R.  Co.:  1658. 

v.  Peck:   1279,  1280,  2194. 

v.  Stummel:    1577. 

V.Tennessee   Coal,   etc.,   R.    Co.: 
1889. 

v.  Thomason:  2368. 

v.  Turner     Falls     Lumber     Co. : 
1782. 

v.  Tutton:   2037. 

v.  Union:   1897. 

v.  Wakefield  et  al:  1459. 

V.Washington   Real   Estate   Co.: 
1795. 

v.  Waymire:   2280. 


2295 


TABLE   OF    CASES    CITED 


[Reference*  are  to  *eclion«:   §§  1-1705,  Vol.  I;  83   1706  2688,  Vol.  II.] 


Holmes  Lumber  Co.,  In  re:  2002. 
Holroyd  v.  Breare:  1494. 
Holshue  v.  Morgan:   2150. 
Holson  v.  Watson:  2279. 
Holt  v.  Green:  91,  2479. 
v.Kirby:  2002. 
v.Ross:  1410,  1439. 
v.  Schneider:  246,  946. 
v.Winfield     Bank:     1367,     1396, 

1397,  1422. 
Holt    Manufacturing    Co.    v.    Dunni- 

gan:  904. 

v.  Odenrider:  859. 

Holthouse  v.  Poling:  1343. 

Holton  v.  Hubbard:   2509. 

v.  Job   Iron  Co.:    2428,   2449. 
v.  Smith:   894,  2512,  2513. 
Holtsinger  v.  Bank:  971. 

v.Nat.  Bank:  952. 
Holum  v.  Chicago,  etc.,  R.  Co.:   1671, 

1676. 

Holy  v.  MacEwan:  1567. 
Homan  v.  Brooklyn  L.  Ins.  Co.:  1702, 

1703. 

v.Payne:  1405. 
Homans  v.  Lombard:   1750. 
Honiaus  v.  Tyng:  2160. 
Home    Bank    v.    Peoria    Agr.    Soc.: 

1852. 
Home   Banking   Co.   v.    Baum:    2430, 

2447. 
Home     Banking    &     Realty     Co.     v. 

Baum:  2447. 

Home  F.  Ins.  Co.  v.  Garbacz:   1051. 
Home   Ice   Factory   v.   Howells   Min. 

Co.:   1780. 

Home    Ins.    Co.    v.   Baltimore   Ware- 
house Co.:  2031. 
v.Gibson:   1062. 
v.  Oilman:  1060. 
v.Hancock:    1073. 
v.  Mendenhall:   1804. 
v.  Stone  River  Nat.  Bank:   1067. 
Home  Library   Ass'n  v.   Wiltherow: 

1102. 

Home  Life  Ins.  Co.  v.  Pierce:  710. 
Home  National  Bank  v.  Waterman: 

663. 
Honaker    v.     Board    of     Education: 

1984,  2084. 

Hone  v.  Henriqtiez:   2351. 
Hong  Yen  Cheng,  In  re:  2147. 


1828, 


OH 


Honig  v.  Pacific  Bank:   2099. 
Honor  v.  Albrighton:   1676. 
Hood  v.  Adams:  2331. 
'    v.  Fahnestock:    1808,    1814, 
2176. 

v.  Hendrickson:  285,  841. 

v.  Hollenbeck:    1135,    1136. 
Hooe  v.  Oxley:   246,  266,  274. 
Hoogewerff  v.  Flack:   316,  333,  2414, 

2415. 
Hook   v.    Crowe:    867,    871,   894',   946, 

2074. 

Hooker  v.  Chicago,  M.  &  St.  P.  R.  Co. : 
1799. 

v.  Midland  Steel  Co.:  1202. 

v.  Village      of     Brandon:      2163, 

2229,  2230. 
Hooper  v.  California:   2362. 

v.Chicago,  etc.,  R.  Co.:   2031. 

V.Welch:  2267,  22270,  2279. 
Hoopes  v.  Burnett:    2290. 
Hoover    v.    Perkins    Windmill    Co.: 
592,  603. 

v.Wise:     333,    1314,    1316,    1321, 

1841. 
Hope  v.  Dixon:  333. 

v.  Glendinning:   1694,  2484. 
Hopkins  v.  Armour:   243,  788,  861. 

v.  Blane:  921. 

v.  Burr:    1350. 

v.Clark:    479,  481,  1326,  2410. 

v.  Everly:  542. 

V.Logan:   601. 

v.  Mehaffy:  1093,  1099,  1101. 

v.  Mollinieux:  160. 

v.  Moseley:    2457. 
Hopkinson  v.  Jones:  1352. 
Hopper  v.  Haines:  2529. 

V.  Ludlum:    2230. 

Hoppin  v.  First  Nat.  Bank:  2316. 
Hopping  v.  Quin:    2251. 
Hopson  v.  Johnson:   1139. 
Hopwood  v.  Corbin:    793. 
Horan    v.   Long:    1352,    2030,   2065. 

v.  Strachan:   40,  2394. 
Hord  v.  Grimes:  1282. 
Horgan  v.  Boston  Elev.  R.  Co.:  201 :. 
Horkan  v.  Nesbitt:    2002. 
Hormann  v.  Sherin:   500,  1327. 
Horn  v.  Baker:   2576. 

v.  Luntz:  648. 


H 


2296 


TABLE    OF    CASES    CITED 


[References   are  to  section*:   §§  1-1705,  Vol.  I;  §§  1706-2588,   Vol.  II.] 


Horn  v.  Western  Land  Association: 

602,  603,  1557,  1558. 
Hornbeck  v.  Gilmer:  332,  499,  1702. 
Hornby  v.  Lacy:    1322,  2059,  2534. 
Homer    v.     Lawrence:     1455,     1459, 

1461. 

Hornsby  v.   Fielding:    2527,   2528. 
Hornstein  Co.  v.  Crandall:  2169. 
Hornthal  v.  Western  Ins.  Co.:   1067. 
Horseshoe    Min.    Co.    v.    Miner's    Ore 

Samp.  Co.:  2152. 
Horsey  v.  Chew:   2163. 
Horsfall  v.  Fauntleroy:  1744,  1750. 
Horst  v.  Lightfoot:  441. 

v.  Lovdal:  2553. 
Horton  v.  Champlin:   2276,  2283. 

v.  Garrison:   199. 

V.  Immen:  2438. 

v.  Long:   220. 

v.  McCarty :    2320. 

v.  McMurtry:  609. 

v.  Morgan:  2389. 
Hortons  v.  Townes:   977. 
Horwitz  v.  Pepper:  2475. 
Hoskins  v.  Johsnon:   870. 
Hosman  v.  Kinneally:    189. 
Hoster  v.  Lange:  954. 
Hot  Springs  R.  Co.  v.  Dial:  306. 
Hotchin  v.  Kent:    374. 
Hotchkiss  v.  Cutting:   208. 

v.  Godkin:   603. 

v.  Gretna   Gin   &   Compress   Co.: 
593,  1543. 

v.  Kuchler:   2437. 

v.  Middlekauf :    784,  802. 

v.Thompson:  964. 
Hotchkiss,    etc.,    Co.    v.    Union    Nat 

Bank:   1844. 

Hoth  v.  Peters:  1644,  1654. 
Houck  v.  Houck:  1515. 
Hough  v.  City  Fire  Ins.  Co.:  1073. 

v.  Doyle:   710. 

v.  Hill:   1095. 

v.  Railway  Co.:   1630,  1631. 
1644. 

v.  State:   110. 

Hough taling  v.  Marvin:   655,  662. 
Houghton  v.  Dodge:    435. 

v.  First  National  Bank:   1146. 

v.Matthews:     1322,     1683,     2504, 
2559. 

v.Todd:   1815. 


Houghton  Implement  Co.  v.  Vavrow- 

ski:  904. 

Houlden  v.  Smith:  1494. 
Houldsworth  v.  Glasgow  Bank:    411, 

1995. 
Houlton  v.  Dunn:  92,  95. 

v.  Nichol:  95. 
Housatonic,    etc.,    Bank    v.    Martin: 

1854. 
House  v.  Easley:  2457. 

v.  House:   2305,  2309. 
Housel  v.  Thrall:    2525,  2533,  2538. 
Houseman    v.    Girard    Mut.    B.    &    L. 

Ass'n:    1480,  1805,  1808,  2213. 
Houser  v.  Tully:  2001. 
Houston  v.  Boagni:  2479. 

v.  Young:   1594. 
Houston  Cotton  Oil  Mill  &  Mfg.  Co. 

v.  Bibby:  333,  1701. 
Houston,  etc.,  R.  Co.  v.  Bell:  1977. 

v.  Boiling:  1913. 

v.Bradley:  157. 

v.  Cowser:   2015. 

v.DeWalt:    1676. 

v.  Miller:    1644. 

v.Meyers:   1644. 

Houston  &  T.  R.  Co.:  v.  Bulger:  1893. 
Hoveland    v.    Hall    Bros.,    etc..    Co.: 

1671. 

Hovenden  v.  Millhoff:   2137. 
Hover  v.  Barkhoof:   1501. 
Hoverson  v.  Noker:  156. 
Hovey  v.  Aaron:  2436,  2457. 
Hovey  v.  Blanchard:   1808,  1831.  70H 

v.  Brown:  156,  395. 

v.  Hobson:  134. 

v.  Magill:    1102,  1124,  1153,  116-2, 
1166. 

v.  Pitcher:  1182,  1422. 

v.  Storer:  98. 
How  v.  Barker:   2509. 
Howard  v.  Ames:  1693. 

V.Baillie:   971. 

v.  Behn:    2556. 

v.  Carpenter:  830. 

V.Daly:    1553,    1554,    1557,    1558, 
1563. 

v.Duncan:   361. 

v.  First    Independent    Church    of 
Baltimore:  97. 

v.Grover:  1279,  1280,  1282. 

v.  Ives:  1303. 


2297 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:   S3  1-1705,  Vol.   I;  88  17O«-25SS,   Vol.  IT.1 


Howard  v.  Ludwig:  1861. 

v.  Murphy:   2477. 

v.  Osceola:  2279. 

v.  Patent     Ivory     Manufacturing 
Co.:  380. 

v.  Sheward:  88(5. 

v.  Vaughan-Monnig      Shoe      Co.: 
1560. 

v.  Ward:    2242,  2243. 
Howard  College  v.  Pace:    587. 
Howard  Ins.  Co.  v.  Halsey:   1808. 

v.  Norwich   &   New   York   Trans- 
portation Co.:  2457. 

v.Owen:   1077. 

v.Owen's  Admr'x:    1053. 
Howatt   v.   Davis:    1279. 
Howay  v.  Going-Northrup  Co.:   1556 
Howden  v.  Simpson:  96. 
Howe  v.  Anderson:  2152,  2154. 

V.Buffalo,  etc.,  R.  Co.:  1606,  1611, 
2349. 

v.  Finnegan:   167,  1026. 

v.Howe:  138. 

V.Kerr:    2115. 

v.  Kenyon:  2235. 

v.Klein:    2281. 

v.Lawrence:   2161. 

v.Martin:   1987. 

v.  Newmarch:  1951,  1977. 

v.  Northern    Pac.    R.    Co.:    1646, 
2011. 

v.  Stuart:  2306. 

V.Sutherland:  2532. 
Howe  Machine  Co.  v.  Ashley:   875. 

v.  Ballweg:   8'6">,  866. 

v.  Bryson:  1552. 

v.Clark:   285,  291. 
Howell  v.  Caryl:  2169,  2227. 

v.  Denton:   1593. 

v.  Gordon:  695,  1010. 

v.  Harding:  2267. 

v.  Kinney:   2217. 

v.  Maas:   2381. 

v.  McCrie:  360,  361. 

v.  Shewell:  2320. 

v.  Smith:   2246. 

Howell,  etc.,  Co.  v.  Caryl  &  Co. :  2184. 
Howes  v.  Ball:  591. 
Howie  v.  Bratrud:   2430. 
Rowland  v.  Blake  Mfg.  Co.:  1980. 

V.Davis:    2526',  2527,  2528. 

V.  Milwaukee,  etc.,  R.  Co. :  1644. 


Howry  v.  Eppinger:  710. 
Hoy  v.   Morris:    2302,  2305. 
Hoyt  v.  Gouge:   2458. 

v.  Macon:  110. 

v.  Shipherd:    807,   2447. 

V.Thompson:   368,  374,  473. 
Hroch  v.  Aultman:   2281. 
H.  &  St.  L.  R.  Co.  v.  Davis:  1798. 
Hub   Publishing   Co.   v.   Richardson: 

1383. 
Hubachek    v.    Hazzard:    1536,    2430, 

2437,  2447. 
Hubbard  v.  Belden:   1582,  2249. 

v.  Ellithorpe:   2281,  2283. 

v.Elmer:   820,  1783. 

v.  Irrigating  Co.:   1350. 

v.  Leiter:  2435. 

v.  Matthews:   151,  175. 

v.  Moore:   121. 

v.  Sayre:  2481. 

v.  Swofford  Bros.  Dry  Goods  Co.: 
1094,  1107. 

v.  Tenbrook:    246,    711,   732,   915, 

1767. 

Hubbart  v.  Phillips:  2206. 
Hubbersty  v.  Ward:   760. 
Hubbert  v.  Borden:   1731. 
Hubble  v.  Dunlap:   2281. 
Huber  v.  Johnson:   2243. 

V.Zimmerman:   1023,  2406. 
Hubgh  v.  N.  O.  &  C.  R.  Co.:  1644. 
Huddleston  v.  Lowell  Machine  Shop: 

1624.  ' 

Hudgins  v.  Morrow:   659. 
Hudson  v.  Allison:   2162. 

v.  Archer:  2028. 

v.  Granger:  691,  2072,  2568,  2575. 

V.Herman:  1216,  1238. 

V.Missouri,    etc.,    R.    Co.:     1939, 
1941. 

V.Randolph:   1815,  1826. 

v.  Revett:  208,  216,  217. 

v.  Sholem  &  Sons:   162. 

v.  Swan:   2566. 
Hudson    Trust,    etc.,    Inst.    v.    Paper 

Mills:  2255. 

Huebner  v.  Erie  R.  Co.:  1780. 
Huesinkveld  v.  St.  Paul  Ins.  Co.:  260. 
Huff  v.  Farwell:   1804. 

v.  Ford:    1861. 

v.  Hardwick:    233. 

v.  Watkins:   2133. 


2298 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Huffman  v.  Cartwright:  229. 

v.Chicago,  etc.,  R.  Co.:  1632. 

V.Ellis:   2437. 

v.Newman:  1438,  1445. 
Huggins  v.  Hearne:  2432., 

v.  Insurance  Co.:  2368. 
Hughes  v.    Abston:  2583. 

v.  Barrell :   2386. 

v.  Boone:    2302. 

V.Cincinnati,  etc.,  R.  Co.:  1871. 

v.Dougherty:   2230. 

v.  Ferriman:    2247. 

v.  Graeme:  1398. 

v.  Gross:  669,  1567. 

v.  Houghton  &  Co.:  2436. 

v.  Insurance  Co.:   435,  442. 

v.  Jones:   680. 

v.Lansing:   236,  990. 

v.  McCoy :   1494,  1495. 

v.  Mullins:  110. 

v.  New  York,  etc.,  R.  Co.:  267. 

v.  Oregon,  etc.,  R.  Co. :  2064. 

v.  Osborn:  2155. 

v.  School  District:  1562. 

v.  Snell:  91,  2479. 

v.  Toledo,  etc.,  Cash  Register  Co.: 
1584. 

v.  Toledo  Scale  Co. :   609. 

v.  Wamsutta  Mills:    1587. 

V.Washington:    1192,  1198,   1203, 
2131. 

v.  Willson:   2290. 

v.  Zeigler:  2229. 
Hughes  County  v.  Ward:  2155. 
Hughson  v.  Richmond  R.   Co.:    1644. 
Hugill  v.  Weekley:    2430,  2433,  2447, 

2448. 

Huguley  v.  Morris:  882. 
Huhn  v.  Missouri  Pacific  R.  Co. :  1661. 
Huie  v.  Allen:   976. 
Hulin  v.  Richards:   2378. 
Hull  v.  Boston  &  M.  R.  Co.:  1934,  1973. 

V.Marshall  County:    763. 

v.  Pickersgill:    507,  545. 

v.  Thomson  Transfer  Co. :  1888. 
Hulme  v.  Brown:   1595. 
Hulse  v.  Young:   2035,  2326. 
Humbird  v.  Davis:    1207,  1224,  1226, 

1234. 

Humble  v.  Hunter:  1771,  2070. 
Hum'ooldt  B.   Ass'n   Co.   v.   Ducker's 
Ex.:   2193,  2194,  2195. 


Humboldt  Co.  v.  Ducker:  2202. 

v.  Stern:  122. 
Hume   v.   Fort   Halifax   Power    Co.: 

1619. 

Humfrey  v.  Dale:  1412,  1414,  2419. 
Hummel  v.   Bank   of  Munroe:    1815, 
1818,  1847. 

v.  Kistner:   2305. 
Humphrey  v.  Browning:   2278,  2280. 

v.  Eddy  Transport  Co. :   2477. 

v.  Havens:  395,  436,  439. 

v.Jones:   1367,  1422. 

v.  McGill:  2356. 

v.  Thorp:    2187. 
Humphreys  v.  Finch:   212,  213,  215. 

v.  Guillow:  213. 

v.  Jacoby:   2230. 

v.  McLachlan:  2236. 

v.  National  Ben.  Ass'n:  1804. 
Humphreys  Co.  v.  Frank:  1460. 
Humphries  v.  Smith:  2443,  2445. 
Hungerford  v.  Hicks:  2426,  2430,  2445. 

v.Moore:  1331. 

v.Scott:  2044. 
Hunn  v.  Ashton:  2442. 
Hunsaker  v.  Sturgis:  1223. 
Hunt  v.  Blackburn:  2311. 

v.  Crane:  1557. 

v.  Douglass:   308. 

v.  Ennis:    654. 

v.  Ennis,  et  al.  Admr.:   658. 

v.  Gregg:  2320. 

v.  Haskell:  1693. 

v.  Hunt:  2162. 

v  Johnson  &  Lorimer  Dry  Goods 
Co.:  1015. 

v.  Listenberger:  435,  1154. 

v.  McClanahan :  22-76,  2280. 

V.Mississippi  Central  R.  Co.: 
1801. 

v.Otis:  1586. 

V.Philadelphia:   2319. 

V.Pitts  Agricultural  Works:  393, 
395. 

v.  Poole:  943. 

v.  Printup:   2220,  2221. 

v.  Railroad  Co.:  760. 

v.Rhodes  Bros.:  170. 

v.  Rousmanier:  563,  572,  575,  584, 
586,  652,  653,  654,  655,  656, 
658,  662,  767,  2259,  2585. 

v.  Test:    2244,  2256. 


2299 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   gg  1-1705,  Vol.   I;   gg   17<HJ  258S,  Vol.   II.l 


Hunter  v.  Allen:   2023. 
v.Bryant:   2152. 
v.  Caldwell:   2197. 
v.  Cobe:  489. 

v.  Eastham:  815,  825,  2108. 
v.  Giddings:     1114,     1176,     1731, 

1733,  2059,  2063,  2070. 
V.Hudson  River  Co.:  924. 
v.  Jameson:  882. 

v.  Lyons:  2474. 

v.  Math  is:  1498. 

v.  Miller:   1108. 

v.  Mutual   Reserve   P.   L.    Ass'n; 

640. 

v.  Nolf:   104. 
v.  Rutledge:    2063. 
v.  Sacramento  Valley  Beet  Sugar 

Co.:  802. 

v.  Southern  R.  Co.:  1918. 
v.  Wabash  R.  Co.:  .2175. 
v.  Waldron:  1582. 
v.Watson:  1803,  1808,  1814,  2176, 

2297,  2305. 

v.  Wenatchee  Land  Co.:   2445. 
Hunter  Realty  Co.  v.  Spencer:   2138, 

2412. 

Huntemer  v.  Arent:  2437. 
Huntingdon    Coal    Co.    v.    English: 

2529. 
Huntingdon,  etc.,  R.  Co.  v.  Decker: 

1632. 
Huntlngton  v.  Knox:  1176,  1731,  1733, 

1734,  2059,  2063,  2072,  2574, 
2575. 

v.  Ogdensburgh,     etc.,     R.     Co:: 

1562. 

rfuntley  v.  Mathias:  789,  875,  1085. 
Hunton  v.  Marshall:  2435. 
Huntsman,  The:  1745. 
Hupfer    v.    National    Distilling    Co.: 

1780,  1793,  1799. 
Hurd  v.  Consolidated  Steel  Co.:   869. 

v.  Maple :  1035. 

v.  Marple:  435. 

v.  Morning:   2307. 

v.  Neilson:   1533,  2437. 

v.Taylor:  112. 
Hurlbert    v.    Brigham:     2267,    2269, 

2270. 

Hurlburt  v.  Hurlburt:  2302,  2311. 
Hurlbut  v.  Marshall:  130. 


Hurley  v.  Packard:  1291,  1323. 

v.Watson:  395,  468,  707,  743,  752, 

894,  946. 
Huron  Printing  Co.  v.  Kittleson:  382, 

1844. 

Hurr  v.  Metropolitan  St.  R.  Co.:  2281. 
Hurst  v.  Holding:  1602,  1608,  2476. 

v.  Sheets:  2281. 

v.Williams:  2439,  2463. 
Hurt  v.  Jones:   1703,  2425,  2426. 

V.Salisbury:  1383,  1396. 
Hussey  v.  Crass:  1015. 

v.  Franey:  1861. 

v.  Norfolk,  etc.,  R.  Co.:  1460, 1976, 
1980. 

v.  Sibley:  2364. 
Hustis  v.  Pickands:  91,  2479. 
Huston  v.  Cantril:  652,  653,  654,  662. 

v.Mitchell:  2183. 

v.  Tyler:  1406,  1422,  1458,  2364. 
Hutchen  v.  Gibson:  98. 
Hutcheson  v.  Eaton:  2419. 
Hutchings  v.  Clark:  954,  962,  1021. 

v.Ladd:   318,  410,  716,  1268. 

v.  Munger:   956. 
Hutchins  v.  Brackett:   1503. 

v.  Gilman:  1346. 

v.  Hebbard:  563,  585. 

v.  Olcutt:    1680. 
Hutchinson  v.  Brooks:  986. 

V.Fleming:  1226,1234,1334,1588. 

v.  Gordon:  2336,  2352. 

v.  Howard:   2267,  2271. 

v.Johnson:   2162. 

V.Manhattan  Co.:  2104. 

v.  Railway  Co.:   1615. 

v.  Smith:   532. 

v.  Tatham:   1412,  1414. 

v.  Van  Voorhis:  1349. 

v.  Washburn :   610. 

v.  Wetmore:  1577. 

v.Worthington:  2281,  2287. 

v.  York,  etc.,  R.  Co. :  1644. 
Hutchinson  Mfg.  Co.  v.  Henry:   867, 

870,  2075. 

Hutten  v.  Renner:   1536. 
Hutto  v.  Stough:  2430,  2437. 
Hutton  v.  Bragg:  1690. 

v.  Bullock:   1417. 
Huzzard  v.  Trego:  1216. 
Hyams  v.  Miller:  1534,  2428,  2431. 


2300 


TABLE   OF    CASES    CITED 


[References  are  to  section*:  §§  1-1705,   Vol.  I;   gg   1706-2588,  Vol.  II.] 


Hyatt  v.  Clark:   402,  407. 

v.  Fromme:   2163. 
Hyde  v.  Bank:  1314. 

v.  Bloom inp-dale:   2175. 

v.  Cooper:   507. 

v.  First  Nat.  Bank:  1321. 

v.  Johnson:  125. 

v.  McCabe:    2224. 

v.  Moxie  Co.:    2247. 

v.  Planters'  Bank:  331,  1313. 

v.  Wolf:    1731,  1746,  1750. 
Hydecker  v.  Williams:  1543. 
Hydes  v.  Joyes:  313. 
Hyman  v.  Barmon:   1814,  2175. 

v.  Grant:  2304. 

v.  Gray:   1341,  1346. 

v.  Tilton:    1889,  1971. 

v.  Wass:  296. 

Hynes'  Gxp.  v.  Brettelle:    2447. 
Hynson  v.  Nolan:  563,  585. 
Hypes    v.    Griffin:    1131,    1141,   1158, 
1161. 

v.  Southern    R.    Co.:    506,    1980, 
1981. 

I 

Ice  v.  Maxwell:  2437,  2439,  2461. 
Idaho   Forwarding  Co.  v.  Firemen's 

Fund  Ins.  Co.:  1783. 
Ide  v.  Brady:  859. 
lerzino  v.  Toronto  General  Hospital: 

1944. 

I  jams  v.  Hoffman:  2320. 
llfield  v.  Ziegler:  386,  461. 
Ilgenfritz  v.  Mutual  B.  L.  Ins.  Co.: 

940. 

lllidge  v.  Goodwin:  1865. 
Illinois  Cent.  R.  Co.  v.  Bryant:  1803, 
1804. 

v.  Coley:  1461,  2011. 

v.  Cotter:  1799. 

v.  Cox:   1615. 

v.  Downey:   1959. 

v.  Fitzpatrick:   1661. 

v.  Foulks:  1474. 

v.  Handy:  2001. 

v.  Houchins:  1461,2011. 

v.Jewell:   1644. 

v.  Jonte:  1046. 

v.  Josey:  1652. 

v.Latham:  1955. 


v.  Schenk:   2572. 


Illinois   Cent.   R.    Co.   v.    Tronstine: 

1779,  1782. 

v.  Wells:   2276,  2280,  2281. 
Illinois,  etc.,  R.  Co.  v.  Cox:   1644. 

V.Marshall:  1646. 
Illinois  Linen  Co.  v.  Hough:  1344. 
Illinois  Steel  Co.  v.  Bauman:  1650. 
v.  Warras:    2161. 
v.  Ziemkowski :   1650,  1654. 
Illingworth  v.  De  Mott:  1226,  1236. 
Illingsworth  v.  Slosson:   2425. 
Ilslcy  v.   Merriam:    2063,   2079,  2568, 

2574. 
Imbrie    v.    Manhattan    L.    Ins.    Co.: 

1060. 

Imhoff  v.  House:  1405. 
Imperial  Bank  v.  London,  etc., R.  Co.: 

1698. 
Improved  Match  Co.  v.  Michigan  Mut. 

Ins.  Co.:  1067. 

Independent  Dist.  v.  King:  1350. 
Indermaur  v.  Dames:   1642. 
Indian    Head    Nat.    Bank   v.    Clark: 

1815. 
Indian  River  State  Bank  v.  Hartford 

Fire  Ins.  Co.  1074. 
Indiana    Asphalt    Co.    v.    Robinson: 

1536. 

Indiana,  etc.,  Coal  Co.  v.  Neal:   1671. 
Indiana,  etc.,  R.  Co.  v.  Adamson:  261, 

266. 

v.Davis:  1154. 

Indiana  Fruit  Co.  v.  Sandlin:  285. 
Indiana  Ins.  Co.  v.  Capehart:  1074. 
v.  Hartwell:      300,     1051,      2366, 

2368,  2369. 
Indiana  Nitroglycerine  Co.  v.  Lippiiv 

cott  Glass  Co.:   2011. 
Indiana  Pipe  Line  Co.  v.  Neusbaum : 

1645. 
Indiana  Road  Machine  Co.  v.  Lebanon 

Carriage  Co.:   1532. 
Indiana  Trust  Co.  v.  Building  &  Loan 

Association:    933. 
Indianapolis  v.  Indianapolis  Gas  Co.: 

313. 

v.  Skeen:   1332. 
Indianapolis,    etc.,    Co.    v.    Kinney: 

1679. 
Indianapolis,    etc.,    R.    Co.    v.    Flani- 

gan:  1630. 
v.  Foreman:   1632. 


2301 


TABLE   OF    CASES    CITED 


[Refercnoen   are   to  aectlong:  §§  1-1705,  Vol.   1}  gg   1706-2588,  Vol.   II.] 


Indianapolis,  etc.,  R.  Co.  v.  Morris: 
365,  368,  994. 

v.Watson:    1630,  1631. 
Indianapolis,  etc.,  Transit  Co.  v.  Fore- 
man: 1644,  1657. 
Indianapolis  Mfg.  Carpenters'  Union 

v.  Cleveland,  etc.,  Ry.  Co.:    830. 
Indianapolis    Rapid    Transit    Co.    v. 

Foreman:  1632. 
Indianapolis  Rolling  Mill  v.  St.  Louis, 

etc.,  Ry.:  904,  991. 
Indianapolis   St.   R.   Co.  v.   Dawson: 

1940. 

Indianapolis   Traction   Co.   v.   Holts- 
claw:   1622. 
v.  Kinney:   1654. 
Indianapolis  &   St.    Louis   R.   Co.   T. 

Watson:   1630. 

Indig  v.  National  City  Bank:  1314. 
Ingalls  v.  Allen:   1530. 
v.  Averitt:    276. 
v.  Sprague:   2156. 
Ingerman  v.  Moore:  1619. 
Ingersoll  v.  Coram:   2249,  2286. 

v.  Van  Bokkelin:  2050. 
Ingersoll,  etc.,  Co.  v.  McCarthy:  235. 
Ingerson  v.  Starkweather:   1202. 
Ingle  v.  Hartman:  1221. 
Inglehart  v.  Thousand  Islands  Hotel 

Co.:  1731. 

Ingold  v.  Symonds:   2436,  2437,  2445. 
Ingraham  v.  Slockomore:   1950. 
v.Taylor:  2386. 
v.  Whitmore:  2406. 
Ingram  v.  Little:  213,  420. 

v.  Rankin:    2529. 
Inhabitants  v.  Henshaw:  2311. 
Inhabitants    of    Westfield    v.    Mayo: 

1292. 

Inland  Steel  Co.  v.  Yedinak:   1670. 
Inman  v.  Crawford:    849. 
Innerarity  v.  Merchants'  Nat  Bank: 

1815,  1817,  1820,  1845,  1853. 
Innis  v.  Steamer  Senator:  1783. 
Inos  v.  Winspear:   1494. 
Insley  v.   Shire:    2140. 
Insurance  Co.  v.  Buchanan:  2230. 
v.Davis:   695. 
v.  Eshelman:   317. 
v.  Guardiola:    1789. 
v.  Kiger:  2509. 
v.  McCain:   628. 


Insurance  Co.  v.  Mosley:  1788,  1796. 
v.  Pinner:   2154. 
v.  Railroad  Co.:    2399. 
V.Thornton:  317,  756. 
v.WIlkinson:  1073. 
V.Williams:    1066. 
V.Wisconsin  Cent.  R.  Co.:   2366, 

2368. 
Insurance  Co.  of  N.  A.  v.  Thornton: 

1054,  1055,  1076. 
International    Bank   v.    Ferris:    395,. 

463. 
International  Bldg.  &  Loan  Ass'n  v. 

Watson:   1830. 
International,   etc.,  R.   Co.  v.  Clark: 

2230. 

v.  Cooper:  1948. 
v.  Kernan:  1624. 
v.  McDonald:    475. 
v.  Munn:    17D8. 

International  Harvester  Co.  v.  Camp- 
bell: 285. 
International    Sponge    Co.    v.    Watt: 

949. 
International     Text     Book     Co.     v. 

Heartt:    1981. 

International  Trust  Co.  v.  Norwich 
Union  Fire  Ins.  Soc.:  1054,  1056, 
1075. 

International  &  G.  N.  R.  Co  v.  Dun- 
can:   2308. 
Interstate  Amusement  Co.  v.  Martin : 

1939,  1981. 

In  the  Matter  of  Bateman:  1424. 
Investment  Co.  v.  Ganzer:   1815. 
lonnone  v.  N.  Y.,  etc.,  R.  Co.:  1G57. 
Iowa  Loan  &  Trust  Co.  v.  McMurray: 

997. 
Iowa  R.   Land  Co.  v.  Fehring:    809, 

1783. 

Iowa  State  Bank  v.  Taylor:  432. 
Irby  v.  Laushe:  1533. 
Iredale  v.  Kendall:  1457. 
Ireland  v.  Hyde:  836. 

v.Livingston:  793. 
Irion  v.  Lewis:   1494,  1495,  1496. 
Iron   City   Nat.   Bank  v.   Fifth   Nat. 

Bank:   403,  455,  461. 
Iron  Mountain  R.  Co.  v.  Knight:  1801. 
Irions  v.  Cook:  831. 
Ironwood  Store  Co.  v.  Harrison:  374. 
Irish  v.  Webster:  2065. 


TABLE   OF    CASES    CITED 


^References  are  to  sections:  §§  1-1705,   Vol.  I;  §§   1706-25SS  Vol.  II.] 


Irvin  v.  Cohen:   291. 

v.  Strother:    2230. 

V.Thompson:   208. 
Irvine  v.  Grady:   1806,  1832. 

v.  Watson:  1742,  1743,  1744,  1745, 

1748,  1750,  1753. 
Irving  v.  Shethar:   296. 
Irving  Bank  v.  Wetherald:   1801. 
Irwin  v.  Curie:  2239. 

V.Buffalo  Pitts  Co.:  439,  463. 

v.  Judge:    1859. 

v.  Levy:   90. 

v.  Reeves  Pulley  Co.:  331,  1314. 

V.Waterloo    Taxi-cab    Co.:    1861, 
1912. 

v.  Williar:     111,    112,    121,    1602, 
2394,  2478. 

v.  Workman:  946. 
Isaacs  v.  Davies:   1554. 

v.  Lugsmith:   2163. 

v.  Third  Ave.  R.  Co.:  1898. 
Isbell  v.  Anderson  Carriage  Co.:  1552. 

v.  Carriage  Co.:  593. 
Isberg  v.  Bowden:  2046. 
Iselin  v.  Griffith:    2430,  2441. 

V.Rowlands:    2023,  2034. 
Ish  v.  Crane:   664. 
Isham  v.  Burgett:  1403,  1730. 

v.Parker:    2235,    2245. 

v.  Post:  1282,  1283,  1295,  1296. 
Isphording  v.  Wolf:   227. 
Ives  v.  Ashley:   2131. 

v.  Freisinger:  2523,  2535. 

v.  Ives:  2187. 

v.Jones:  1611. 

v.  South  Buffalo  R.  Co. :  1679. 

v.  Tregent:  2323. 

Ivey  v.  Kern  County  Land  Co.:  488. 
Ivy    Courts    Realty    Co.    v.    Barker: 
2064. 


Jablon  v.  Traynor:  1753. 

Jackel  v.  Caldwell:   1550,  1552,  2450, 

2451,  2482. 
Jackson  v.  American  Tel.  Co.:   1916. 

v.  Badger:    798,   807,   814. 

v.  Baker:   2542. 

v.  Bank:  718. 

v.  Bartlett:   2163,  2185. 

v.    Blodget:   1102. 

-v.  Clopton:  2269,  2277,  2278,  2279. 


Jackson  v.  Combs:   2209. 

v.  Cummins:  1684. 

v.Evans:    2529. 

v.  French:  2305. 

v.  Hough:  2362,  2479. 

v.  Ludeling:   1202. 

v.  McNatt:    1410. 

v.  McVey:  2307. 

v.  Moore:  2207. 

v.  Napper:   80,  125. 

v.  National  Bank:    707,  952. 

v.  Norfolk,  etc.,  R.  Co.:  1652,  1654. 

v.  Old  Colony  R.  Co.:   1935,  1936. 

v.  Parrish:    646,   649. 

v.  Pleasanton:   1192,  1588. 

V.Roberts:    1102. 

v.  Second  Ave.  R.  Co.:  1874,  1953. 

v.  Seevers:    1229. 

v.  State:   48,  2499. 

v.  Stearns:  2243,  2281. 

v.  Stevens:  1192. 

v.  St.  Louis,  etc.,  R.  Co:  1972. 

v.  Telegraph  Co. :  1866, 1900,  1968. 

v.  Union  Bank:    318,  331,  1314. 
Jackson  Co.  v.  Schmid:  1804. 
Jackson  Insurance  Co.  v.  Partee:  675, 

2586. 
Jackson  Paper  Mfg.  Co.v.  Commercial 

Nat.  Bank:  722,  952,  972,  998. 
Jackson  School  Township  v.  Far  low: 

1154. 
Jacksonville,  etc.,  R.  Co.  v.  Hooper: 

368. 

Jacksonville  Ice  Co.  v.  Moses:  1874 
Jacobs  v.   Beyer:    2474,  2475. 

v.George:   2137. 

v.  Morris:    780,    925,    1001,    1026, 
1721. 

v.Omaha  Life  Ass'n:   1060. 

v.  Pollard:   1611. 

v.  Warfield:  592,  1543. 
Jacobson  v.  Connecticut  Mut.  L.  Ins. 
Co.:   1532. 

v.  Hendricks:   227. 

v.  Rotzien:  2470. 
Jacobus  v.  Munn,  1206. 
Jacoby  v.  Payson:  751,  952,  971,  1025. 
Jacques  v.  Todd:   914. 
Jacquin  v.  Boutard:  1533,  1537. 
Jaeger  v.  Glover:   2439. 

v.  Kelley:   285. 

v.  Koenig:   2281. 


2303 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:  §g  1-1705,  Vol.  I;  §8  1706-2588,  Vol.  IT.1 


J.  A.  Fay,  etc.,  Co.  v.  Causey:  895. 
Jaffray  v.  Jennings:  2006 

v.  King:  609,  1557. 
Jagger  v.  National  German-American 

Bank:  1303. 
Jahn  v.  Kelly:  798. 

v.  McKnight:  1861. 
Jahnke  v.  State:    2297. 
Jahren  v.  Palmer:  291. 
Jameison  v.  Calhoim:  1611. 
James  v.  Allen  County:  1553.  1554. 

v.  Bixby:  2581. 

v.  Boston  Elevated  R.:  1782. 

v.  Citizens'  Bank :  1153. 

v.  Darby:  186. 

v.  Jellison:   117. 

V.Lewis:  933. 

v.  McCredie:    2504. 

v.  McMinimy:  1917,  1918. 

v.  Muehleback:  306,  321,  1867. 

v.  O'Driscoll:    1516,   1517. 

v.  Parsons:  1553,  1554. 

v.  Rapides  Lbr.  Co.:    1637. 

v.Russell:    274. 

v.  Smith:  42,  43,  1194. 

v.  Stookey:   285. 
Jameson  v.  Coldwell:   347. 
James  T.  Hair  Co.  v.  Dailey:  1225. 
Jamestown   &  F.   R.   Co.   v.   Egbert: 

2170. 

Jamieson  v.  Wallace:  112,  2481. 
Jamison  v.  Chesapeake,  etc.,  R.  Co.: 
1792. 

v.Hyde:   233. 
Jammison  v.  Chesapeake  &  Ohio  R. 

Co.:    1783. 

Janes  v.  Citizens'  Bank:  1162. 
Jangraw  v.  Perkins:   117. 
Janney  v.  Boyd:  869. 

v.  Robbins:  772,  804. 
Jansen  v.  McCahill:   63,  208,  216. 

V.Williams:      1189,     1198,     1201, 

1221,  1588,  2477. 
Jaques  v.  Edgell:   1229. 

v.    Weeks:  1833. 
Jaquith  v.  Davenport:  1803. 
Jardine  v.  Leathley:    536. 
Jarvis  v.  Manhattan  Beach  Co.:  1801, 
1987,  2490. 

V.Rogers:  1696,  2566. 

v.  Schaefer:  169,  1590,  2413,  2458, 
2475. 


Jasper  Trust  Co.  v.  Kansas  City,  etc., 

R.  Co.:  1984. 

Jaudon  v.  City  Bank:   2091. 
Jayne  v.  Mickey:    1346. 
Jeanes  v.  Fridenberg:  2307. 
Jefferds  v.  Alvord:  171,  908,  984,  986, 

1789. 

Jefferson  v.  Chapman:   1918. 
v.  Leithauser,  1803,  1804. 
Jefferson  County  v.  Slagle:  199. 
Jefferson  County  Bank  v.  Commercial 

Bank:  716. 
v.  Dewey:   1803. 
Jefferson  County  Sav.  Bank  v.  Eborn : 

2015. 
Jefferson   Fertilizer  Co.  v.  Houston: 

1798. 
Jefferson   Hotel   Co.   v.   Brumbaugh: 

435,  909. 
Jefferson   Ins.   Co.   v.   Cotheal:    2371, 

2488.    " 
Jeffersonville,    etc.,    Co.    v.    Rogers: 

2015,  2016. 
Jeffrey  v.  Bigelow:   65,  741. 

v.  Hursh:   813. 
Jeffries  v.  Ankeny:   1498. 

v.  Mutual  Life  Ins.  Co.:  660,  223G, 

2258. 

v.  Robbins:  1547,  1588. 
Jefts  v.  York:  1124,  1369,  1395,  1398. 
Jelinek  v.  St.  Paul,  etc.,  R.  Co.:  1668. 
Jellett  v.  St.  Paul  R.  Co.:  2529. 
Jemison  v.   Citizens'   Savings  Bank: 

173,  1358,  1411. 
Jenkins,  Will  of:    208. 
Jenkins  v.  Alpena  Cement  Co.:  850. 
v.Atkins:   652,  664,  666,  1378. 
v.   Barber:  2189. 
v.  Eichelberger:  1686. 
v.  Eldredge:  1192,  1194. 
v.  Gillespie:  2162. 
v.Hollingsworth:       1536,.    2431 

2441,  2470. 
v.  Hutchinson:   1398. 
V.Montgomery:  1870. 
V.Phillips:  1139. 
v.  Renfrew:  907,  1804. 
V.Richmond,  etc.,  R.  Co.:  1654. 
v.  St.  Paul  R.   Co:    1641 
v.  Waldron:    1498. 
V.Walter:  1335. 
V.Wilkinson:  2028. 


2304 


TABLE    OF    CASES    CITED 


[Referenet-w   are  to  section*:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Jenkins    S.   S.    Co.   v.    Preston:    979, 

988. 

Jenkinson  v.  State:   2301. 
Jenks  v.  Thompson:   1671. 
Jenne  v.  Sutton:  1460. 
Jenner  v.  Joliffe:  1501. 
Jenney  v.  Delesdwernier:   2161,  2162. 
Jennings  v.  Bacon:  2276. 

v.  Davies:   1731. 

v.  GVand    Trunk    R.    Co.:    1046, 
1047. 

V.Lyons:  1572,  1576,  1582. 

v.  McConnell:   2289. 

v.Moore:    1803. 

v.  South  Whitely  Hook  Co.:  2163. 

v.  Sturdevant:    2308. 

v.  Trummer:   2458. 
Jennison  v.  Parker:  463. 
Jensen  v.  Lewis  Investment  Co. :  301. 
Jepsen  v.  Marohn:    2437. 
Jerman  v.  Neef  Bros.  Brewing  Co.: 

395. 
Jerome  v.  Bigelow:  120. 

v.  Cycle  Co.:    611,   1593. 

v.  Queen  City  Cycle  Co. :  610. 
Jervis  v.  Hoyt:   1262,  1264,  2536. 
Jesse  v.  Parker:    208. 
Jesson  v.  Texas  Land  Co.:   261. 
Jessup  v.  Steurer:    1731. 
Jesup  v.  City  Bank:  1086. 
Jeter  v.  Haviland:    2183. 
Jett  v.  Hempstead:   1327,  1337,  1339, 

1346,  1347,  1348,  2290. 
Jewell  v.  Bolt  &  Nut  Mfg.  Co.:   1487. 

v.  Colonial  Theater  Co.:  1422. 

v.Jewell:  1346. 

V.Kansas    City    Bolt    Co.:    1642, 
1661. 

v.  Posey:  296. 

v.  Thompson:  1577. 
Jewell  Nursery  Co.  v.  State:  366,  395. 
Jewett  v.  Alton:  199. 

v.  Carter:   1987. 

v.  Dringer:  1335. 

v.  Lawrenceburgh,    etc.,    R.    Co.: 
280. 

v.  Wadleigh:  2183,  2185. 
Jhons  v.  People:  219. 
J.  I.  Case  Machinery  Co.  v.  Gidley: 

285. 

J.  I.  Case  Plow  Works  v.  Pulsifer: 
1787. 


J.    I.    Case   Threshing   Mach.   Co.'  v. 
Fisher:  1782. 

V.Gardner:   1609. 
J.  M.  Robinson,  Norton  Co.  v.  Corsi- 

cana  Cotton  Factory:  2497. 
Jobe  v.   Hunter:    171. 
Joel  v.  Morison:  1898. 
Joest  v.  Williams:   137. 
Johannson    v.    Gumundson:    62,   142, 

145. 

Johanson  v.  Pioneer  Fuel  Co. :  1978. 
John    Hancock    Mut.   L.    Ins.    Co.    v. 

Schlink:   1053,  1068. 
John  Monks  &  Son  v.  West  St.  Imp. 

Co.:  1803. 
Johns  v.  Cleveland,  etc.,  R.  Co.:  1671. 

v.  Cummings:  1026. 

v.  Jaycox:  859,  2058. 

v.  Trick:  2356. 
Johnson  v.  Aetna  Ins.  Co.:  1062. 

v.  Alabama    Fuel    &    Iron    Co. : 
1979. 

v.  American     Freehold    L.     Mtg. 
Co.:  800. 

v.  Armstrong:   1413,  2419. 

v.  Ashland  Water  Co.:  1042,  1633, 
1658. 

v.  Baca:   2164. 

v.  Ballard:   2281. 

v.  Barber:   1456,  1909. 

v.  Bird:   2583. 

v.  Blasdale:  97S. 

v.  Boston,  etc.,  R.  Co.:  1661. 

T.  Boston    Tow    Boat    Co. :    1615, 
1629. 

v.  Brewing  Co.:    264. 

v.  Briscoe:  165. 

v.  Buchanon:   566. 

v.  Buck:  2320,  2325,  2326. 

V.Campbell:  2531,  2559. 

v.  Carrere:  498. 

v.Catlin:    2030. 

v.  Charleston,  etc.,  R.  Co. :    1681. 

v.  Chicago,  R.  I.  &  P.  R.  Co.:  1977. 

V.Christian:   628. 

v.  Clark:  2559. 

v.  Cole:  287. 

v.  Corser:  1389, 

v.  Craig:   814. 

v.  Credit  Lyonnals:  2112. 

V.Cunningham:     309,     316,    318, 
319,  2514. 


145 


2305 


TABLE   OF    CASES    CITED 


T  Reference*  are  «o  Meotlong:  §§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.   M.I 


Johnson  v.  Davern.  2307. 
v.  Devoe  Snuff  Co.:  1661. 
v.  Dodge:    212,  227,  229,  810. 
v.Doll:  386. 

v.  Ehrman  Brewing  Co.:  831. 
v.  Far  West  Lumber   Co. :    1671. 
v.  First    Nat.    Bank:    1618,    1640, 

1828. 

v.  Hay  ward:   1192,  2082. 
v.  Haywood:    233. 
v.  Hill:    1687. 

V.Hudson:    2033,  2034,  2035. 
v.  Hulett:  834. 
v.  Hurley:    246. 
v.  Hulings:  91,  2479. 
v.  Hunt:  117. 
v.  Insurance  Co. :   386 
V.Johnson:  577,659. 
v.Jones:   172. 
v.  Judge:   1567. 
v.  Leman:   1694. 
v.  Mammoth  Vein  Coal  Co.:  1671, 

1673,  1676. 

V.Martin:   1284,  1858,  2536,  2583. 
v.  Mason:    259.   • 
v.  McCurry:  2281,  2283. 
v.  McGruder:    814. 
v.  McLain  Investment  Co.:   1795. 
v.  McMillian:   2276,  2283. 
v.  Memphis:    1463. 
v.  National  Exchange  Bank:  1809. 
v.  New  York  Cent.  Transp.  Co. : 

1248. 
v.  North    British    Insurance    Co: 

300,  487,  2368. 

v.  Ogren:    403,  404,  405,   435. 
v.  O'Hara:   2542. 
v.  Outlaw:   2290. 

v.  Pacific  Bank  Fixture  Co. :   594. 
v.  Pietsch:    110. 
v.  Railway  Co.:  841,  843. 
V.Richmond  etc.  R.  Co.:  1681. 
v.  Rovitch:    2255,  2256 
v.Russell:   2162. 
v.  School  Corp. :   435,  465. 
v.  Seidell:   2435. 
v.  Semple:   2210. 
v.  Smith:  1395. 
v.  Southern  Pac.  R,  Co. :  1671. 
v.  Spear:  1624. 
v.  State:   2008. 
v.  Stone:    156. 


9 1 
Ol. 


Johnson  v.  St.  Paul  R.  Co.:   1679. 

v.Thompson:   1528. 

v.  Tompkins:   1494. 

v.  Tribbey:    1803. 

v.  Valido  Marble  Co.:   1831. 

v.  Van  Velsor:  208,  216. 

v.  Wade:    2525,  2528. 

V.Walker:  606,  1585. 

v.  Weed,  etc.,  Mfg.,  Co.:   471. 

V.Welch:    1174,  1181;  1406,  1422, 
1424 

v.  Whalen:   1516,  2426. 

v.  White    Mt.    Creamery    Ass'n : 
1594,  1597. 

v.  Wilcox:    652. 

v.Williams:    1768,  2129,  2479. 

v.Wilson:   954. 

v.  Wingate:  463,  708. 

v.Wright:   2431. 

v.  Youngs:   635. 

Johnson  Bros.  v.  Wright:   2460. 
Johnson  County  Bank  v.  Richardson: 

285. 
Johnson    R,    Signal    Co.    v.     Union 

Switch  &  Signal  Co.:  849. 
Johnson  Signal  Co.  v.  Union  Switch 

Co.:  1007. 
Johnston  v.  Baca:  309. 

v.  Berry:  463,  473. 

v.  Bingham:   198. 

v.  Brown:  185. 

v.Chicago,  etc.,  R.  Co.:  1973. 

v.  Commissioners:   2258. 

v.  Fargo:    1665,  1672,  1675,   1681. 

v.  Gawtry:   148. 

v.  Gerry:  1601,  1694. 

v.  Investment  Co. :   246,  938. 

v.  Kershaw:  920. 

v.  McCain:  1348. 

v.  Milwaukee,  etc.,  Co.:    485. 

v.  Milwaukee     Investment     Co. : 
443,  726. 

v.  Milwaukee,     etc.,     Investment 
Co.:    435,  436. 

v.  Moorman:   1494,  1496. 

v.  Shortridge:    1815. 

v.  Sumner:  29,  205. 

v.  Syracuse  Lighting  Co.:  676. 

v.  Usborne:  2558. 

v.Wright:    782. 
Johnston  County  Sav.  Bank  v.  Scrog- 

gin  Drug  Co.:   998. 
2306 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.J 


Johnston    Harvester    Co.    v.    Miller: 

446,  448,  1804,  2084. 
Johnston-Reynolds      Land      Co.      v. 

Fuqua:    2445,  2446. 
Joliet  v.  Harwood:   1918. 
Jolly  v.  Huebler:   936,  2084. 

v.  Rees:    161,  163. 
John  Gund  Brewing  Co.  v.  Peterson: 

285. 
Jonas     Glass    Co.    v.     Glass    Bottle 

Blowers'   Ass'n:    2133. 
Jones'  Estate,  In  re:  2189.' 
Jones,  Ex  parte:  2161,  2163. 
Jones  v.  Aetna  Ins.  Co.:  1410. 

v.  Alder:  1532,  2430. 

v.Ames:   123. 

v.  Atkinson:  445,  489. 

v.  Avery:   39. 

v.  Bank   of   Northern   Liberties: 
2098. 

v.  Blocker:  2133. 

v.  Bloomgarden:  289. 

v.  Brown:   1494,  1495,  1498,  1499. 

V.  Buck:   2442. 

v.  Chesebrough :   1350. 

v.  Circuit  Judge:   2287. 

v.Clark:   908. 

v.  Commercial   Bank:    618. 

v.  Cotton  Mills:   1633. 

v.  Downman:    1395. 

v.  Duff  Grain  Co.:    2283. 

v.  Eilenfeldt:   1533,  2443. 

v.  File  Co.:   1630. 

v.  Florence  Mining  Co. :  1619. 

v.  Ford:    2447. 

V.Gallagher:  2484. 

v.  Gay:   2004. 

v.  Gibfcs:  824. 

v.Gould:    1168,  1170,  1172,  1419. 

v.  Graham,  etc.,  Transp.  Co. :  615. 

v.  Granite  Mills:   1624. 

v.  Gregg:    1339. 

v.  Gutman:  161,  163,  165. 

v.  Harrell:  169,  285. 

V.Harris:   695. 

v.  Hay:  1579. 

v.  Hodgkins:  624,  1457,  2585. 

v.  Hoge:    1950. 

v.  Holladay:  798,  807,  2430. 

v.Horn:    1387,  2529. 

v.  Horner:   2064. 

V.Howard:  798. 


.3021 


Jones  v.  Hughes:  1494. 

v.  Inness:  2163. 

V.Johnson:  1731,  1757. 

v.  Judge:    2273. 

v.  Lake  Shore,  etc.,  R.  Co.:  1637. 

v.Leslie:   2133. 

v.  LeTombe:   1113. 

v.  Linde  Refrigerator  Co. :  1230. 

V.  Littledale:  2342. 

V.Liverpool:   1861. 

v.  Loving:  1500. 

v.  Maher:   2133. 

v.  Mansfield  Lumber  &  Mercantile 
Co.:    255,   292. 

v.  Marble  Co.:   2311. 

V.Marks:  798,  2414. 

v.Moore:   2463. 

V.Morgan:    2279. 

v.  Morrill:  1687. 

v.Morris:   1097,  1100,  1102,  1734. 

v.  New  York,  L.  E.  &  W.  R.  Co.: 
1046. 

V.Norton:   2002. 

v.  Null:  2356. 

v.  Ortel:   2415. 

v.  Peppercorne :  2484. 

v.Perkins:  134. 

v.  Railroad  Co. :  1979. 

v.  Ranson:  2183. 

v.  Read:   169. 

v.  Reilly:    2300. 

V.Richards:  895. 

v.  School  District:   1626. 

v.  Scudder:   105. 

v.  Scullard:   1861. 

V.Sinclair:   1685,  2561,  2578. 

v.  Smith:    1254,  1342. 

v.  State:  2311. 

V.Stevens:    1536,  2430,  2447. 

v.  St.  Louis,  etc.,  R.  Co. :  1658. 

v.  Stoddart:  219. 

v.  Vestry  of  Trinity  Parish:  603. 

v.  Weigand:  1901,  1906. 

v.Williams:  395. 

v.Williamson:   2162. 

v.  Witter:   2072. 

v.  Yazoo,  etc.,  R.  Co.:  1631. 
Jones  Cotton  Co.  v.  Snead:  922. 
Jonesboro  Turnpike  v.  Brown:  3493. 
Joor  v.  Sullivan:  315. 
Joost  v.  Racher:  676,  680. 
Joplin  v.  Freeman:   169. 
2307 


a(«  io  section  A:  §ff<l-170r,,  Vol.  I;  g«  1706-2588,  Vol.  II.1 


Jordan  v.  Ames*  2559. 
v.  Collins:   220. : 

v. Delaware  Tel.  &  Tel.  Co.:  169. 
v.  Greig:  277. 
v.Hanson:    1494. 
V.Humphrey:    506,   2003,   2004. 
V.James:   2560,  2561,  2566. 
v.Jordan:   1522. 


v.  Kirkpatrick:  134,  135. 


J.T 


Lapp's    Adm'r; 


v.  Longhenry:   2437,  2438. 

v.  Smith:  2319. 

v.  State:   2305. 

v.  Underbill:   1343. 

v.Walker:  808. 

v.  Wells:    1644. 

v.  Westerm'an:   2208,  2236. 
Joseph  v.  Fisher:   218,  692,  777,  798. 

v.  Knox:   2031,  2048. 

V.Lapp:   2256. 

v.  Shutler:    291. 

v.  Sulzberger: 
Joseph's    Adm'r    v. 

2255. 
Joslin  v.  Conell:   2536. 

v.  Cowee:    178,    1592,    2398,    2412, 
2474,-  2536. 

v.  Grand   Rapids    Ice'  Co.:    1861, 

1897: 

Joslyn  v.  Cadillac  Auto  Co.:  48,  291, 
1780,  2499. 

v.  Smith:   1690. 
Josselyn  v.  McAllister:  546. 
Joy  v.  Vance:  245,  940. 
Joyce  v.  Duplessis:   789,  963,  216B. 
Joynson  v.  Hunt:   594. 
Jubilee  Placer  Co.  v.  Hossfeld^  2162. 
Judah  v.  Dyott:  1339,  1346. 

v.Kemp:   1691. 
Judd  v.  Letts:  1651. 

v.  Mosely:   1192. 

v.  Walker:  357,  435,  546. 
Judd    Linseed    Oil    Co.    v.    Hubbell: 

1759. 
Jude's  Church  v.  Van  Denberg:  1516, 

1517. 

Judge  v.  Booge:   2356. 
Judik  v.  Crane:  435. 
Judith    Inland    Transp.    Co.    v.    Wil- 
liams: 1339,  1340. 
Judson  v.  Etheridge:   1684. 

v.  Gray:  2217.  » 

v.Sierra:   692. 

2308 


W  . 


'Judson  v.  Stflwell:   867. 

v.  Sturges:  1262,  2536. 
Jummel  v.  Mann:  1834. 
Jungeblut  v.  Gindra:  2435,  2437. 
Jungk  v.  Reed:  1815. 
Jungworth  v.   Chicago,  etc.,  R.'  Co.-. 

1792. 
Jurgens  v.   N6w  York  L.   Ins.   Co.: 

1060. 
Just  v.  State  Bank:  169. 

v.  Township  of  Wise:   217. 

v.  Wise  Township:  208. 
Justh  v.  National  Bank:   2093: 
Justice  v.  Justice:   2281. 

v.  Lairy:  700;  2314. 

V.Lang:   601. 


lo 

Kaffer  v.  Walters:  471. 

Kahl  v.  Love:   14C4. 

Kahn  v.  Walton:   Hi;  121,  1523. 

v.Watson-:  248il 

Kahner  v.  Otis  Elevator  Co.:  1642. 
Kaiser  v.  Hancock:   2163. 

v.  McLean:  1978: 
Kalbitzer  v.  Goodhue:   188. 
Kalina  v.  Robert  Gair  Co. :  2463. 
Kalley  v.  Baker:  1536,  2470,  2471. 
Kalmanowitz   v.  Kalmanowitz:    2315. 
Kanada  v.  North:   1226. 
Kane  v.  Barstow:   285,  710. 

v.  Bristow:   869,  870. 

v.  Cbok:   2549. 

v.Rose:  2255. 

v.  Sherman:  2426. 

v.  Sholars:   804,  812. 
Kann  v.  Meyer:  1625. 
Kannally  v.  Renner:  2191. 
Kansal  v.  Minnesota,  etc.,   Ins.  Co.: 

1865. 

Kansas  Bank  v.  State  Bank:   1350. 
Kansas  City  Elev.  R.  Co.  v.  Service: 

2242,  2243. 

Kansas  City,  etc.,  R.  Co.  v.  Becker: 
1646. 

v.  Flippo't   1671. 

v.  Higdon:   710. 

v.  Ivy  Leaf  Coal  Co.:  953. 

v.Kelly:  1977. 

v.Ryan:   1641. 

v.  Thornhill:   1C68. 


TABLE   OF    CASES 


CITED 


[References   are  to  sections:   §§   1- 

Kansas   City   Paper   House   v.   Foley 

Railway  Ptg.  Co.:   86,  98. 
Kansas  City  R.  Co.  v.  Ivy  Leaf  Coal 

Co.:  974. 
Kansas    City    Southern    R.     Co.    v. 

Moles:   1799. 

Kansas,  etc.,  R.  Co.  v.  Pointer:  1798. 
Kansas  Loan  &  Trust  Co.   v.  Love: 

260. 
Kansas  National  Bank  v.  Bay:   1367, 

1369. 

Kansas  Pacific  R.  Co.  v.  Bayles:  993. 
v.  McCoy:  92   94.  ';   '  ,{ 
v.Peavey:   1681. 
v.Roberson:   602. 
v.  Thacher:   2276. 
Kansas  &  Texas  Coal  Co.  v.  Millett: 

273. 

Kantzler  v.  Bensinger:   116. 
Karcher  v.  Gans:  956. 

v.  Green:   143. 
Karnak,  The:  778. 
Karns  v.  Olney:   1178. 
Karr  v.  Brooks:  2435. 
Karrick  v.  Hannaman:  566. 
Karstendiek,T.  Jackson  Brewing  Co.: 

1888. 
Karsner  v.  Union  Central  L.  Ins.  Co.: 

557,  593. 
Kaskaskia   Bridge   Co.    v.    Shannon: 

259. 

Kasson  v.  Noltner:  866. 
Kast  v.  Miller:   291. 
Kastner  v.  Long  Island  R.  Co.:  1973. 
Kastor  Adv.  Co.  v.  Coleman:    983. 
Katz  v.  Nast:  2408. 
Katzenstein  v.  Raleigh,  etc.,  R.  Co.: 

322,  338. 

Kauffman  v.  Beasley:    2504,  2538. 
v.  Maier:   1628. 
v.Philllps:   2237,  2243. 
v.  Robey:  1808. 
Kaufman  v.  Keenan:   2281. 
Kaulback  v.  Churchill:   1417,  2584. 
Kausal  v.   Minnesota  Farmers'  Mut. 

F.  Ins.  Ass'n:  1071. 
Kaw  Brick  Co.  v.  Hogsett^   1250. 
Kawanankoa  v.  Puahi:   1343. 
Kaye  v.  Brett:  60. 
v.  Crawford :  1515. 
v.  Rob  Roy  Hosiery  Co.:   1641. 
Kayton  v.  Barnett:    1731,  1736,  2043. 


1705,  Vol.   I;   §§   170«  2588,  Vol.   II.] 

Kean  y.  Davis:  1153,  1160,  116?,  1405. 

v.'Landrum:    230,  2a9,  291. 

v.  Rolling  Mills:    1632. 
Keane  v.  Keane:    2280. 
Kearley  v.  Tonge:   2008. 
Kearney  v.  Glutton:  1457,  2345. 
Kearney  Bank  v.  Froman:  1848,  1852. 
Kearns  v.  Nickse:  789,  895. 
Keating  v.  Hyde:  106,  107. 

v.Michigan  Cent.  R.  Co.:  1913. 
Keating  Imp.  Co.  v.  Terre  Haute  Car- 

riage  Co.:   765. 
Keay  v.  Fenwick:   186. 
Keech  v.  Sandford:  1225. 
Keedy  v.  Crane:  1553. 

v.Howe:   2000. 

v.Long:   1553. 
Keefe  v.  Sholl:  506,  1995. 
Keefer  v.  Keefer:   2280. 
Keegan  v.  Malone:    1515. 
Keehn  v.  Keehn:   2280. 
Keeler  v.  Fassett:   157. 

v.  Salisbury:   441. 

Keeley  v.  Boston,  etc.,  R.  Co.:  1783. 
Keen,  In  re:  2207. 
Keen  v.  Henry:  1894. 

v.James:  1995. 
Keenan  v.  Cook:  1498. 

v.Edison,  etc.,  Co.:  1671,  1676. 

v.  Empire  State  Surety  Co.:  1071. 

v.  Lauritzen  Malt  Co. :  368,  989. 

v.  N.  Y.,  etc.,  R.  Co.:  1654. 

v.Scott:   2295. 

v.  South  worth :   1502. 

v.  Waters:  1624.. 
Keene  v.  Lizardi:   2015. 

v.  Sage:  1449.  •      '•] 
Keener  v.  Harrod:   7*41,  1395. 
Keershaw  v.  Kelsey:   151,  694. 
Kehler  v.  Schwenk:  1624,  1637,  1678. 
Kehlor  v.  Kemble:  463. 
Kehrig  v.  Peters:   2000. 
Keidan  v.  Winegar:   1154,  1162. 
Keighan  v.  H9pkfns:  1985. 
Keighler  v.  Savage:  1334. 

v. Savage,  Mfg,  Co.:  179,  1188, 
1205,  2524,  2542,  2544,  2545, 
2547,  2557. 

Keighley  v.  Durant:   346,  386,  387. 
Keim  v.  Lindley:  463,  810. 
Keith  v.  Atkinson:   788. 

v.  Globe  Ins.  Co.:   1051. 


TABLE   OF    CASES    CITED 


[References  are  to  sectional  §§  1-1705,  Vol.  I;  §g  1700  2588,  Vol.  II.] 


Keith  v.  Hirschberg  Optical  Co.:  900. 

V.Howard:  1501. 

v.  Kellermann:   643,  644. 

v.  Marcus:   2212. 

v.  Smith:   227. 

v.  Walker  Iron  &  Coal  Co.:  1644. 

v.Wilson:  2154. 
Keiwert  v.  Meyer:   488. 
Kelchner  v.  Morris:  361. 
Kell  v.  Nainby:  2061. 
Kellam  v.  Brown:  48,  2449. 
Keller  v.  Halsey:   2386,  2415. 

V.Phillips:  162. 

v.Scott:    2183. 

v.  Singleton:  1755. 
Kelley  v.  Andrews:  170. 

v.  Boettcher:  2314. 

v.  Boston  Lead  Co. :  1644. 

v.  Citizens'  Mut.  Ass'n:  1803. 

v.  Kelley:  1691. 

v.  Maguire:  1601,  2502,  2523,  2554. 

v.  Munson:  2037,  2574,  2576. 

v.  Newburyport    Horse    R.    Co.: 
393,  395. 

v.  Newburyport  R.  Co. :  438. 

v.  Phelps:   2447. 

v.  Repetto:  2207. 

v.Richardson:   2246. 
Kellogg,  In  re:  2246. 
Kellogg  v.   Church   Charity  Founda- 
tion:  1861. 

v.  Citizens'  Ins.  Co.:   603. 

V.Gilbert:    2163,   2185. 

v.  Norris:  21G4,  2165. 

v.Payne:  1917. 

v.  Smith:    937. 
Kellogg  Lumber  -Co.  v.  Webster  Mfg. 

Co.:  1236. 
Kelly  v.  Allin:   2289. 

v.  Babcock:   1447. 

v.  Board  of  Pub.  Works:  1601. 

v.  Brennan:    615,    619,    625,    631, 
698,  2456. 

v.  Burke:   1803,  1804. 

v.  Carter:  441. 

v.Carthage  Wheel  Co.:   603,  605, 
1510,  1552,  1556. 

v.  Green:  2356. 

v.  Cummens:  2311. 

V.Durham  Traction  Co.:  1873. 

v.  Fejervary:  992. 

v.  Herb:  181,  2150. 


Kelly  v.  Horsley:  2280. 

v.  Kauffman    Milling    Co.:     2394, 
2406. 

v.  Kelly:  2237. 

v.  Ning  Yung  Ben.  Ass'n:  2151. 

v.  Norcross:  1644. 

v.  Phelps:   460,  468,  624. 

v.  Railroad  Co.:   2163. 

-v.  Rembert:    1494. 

v.  Scott:   1768,  2129. 

v.  Stone:   2435. 

V.Thuey:   1177,  2059,  2063. 

v.  Tracy  and  Avery  Co. :  910. 

v.  Tyra:  1656,  1658. 

v.Wright:  2163. 

Kelly  Co.  v.  Barber  Co.:  219,  2068. 
Kelly    Island,    etc.,   Co.    v.    Pachuta: 

1640,  1644. 

Kelly  Plow  Co.  v.  London:   607,  611. 
Kelmar  v.  Souden:  607. 
Kelner  v.  Baxter:  378,  379,  380,  1170, 

1383. 

Kelsay  v.  Taylor:  2183. 
Kelsey  v.  National  Bank:    246,   368, 
463,  473. 

v.  National    Bank    of    Crawford 

Co.:   463,  464. 
Kelso  v.  Steiger:   2152. 
Kelton  v.  Leonard:  741. 
Kemmitt  v.  Adamson:  2002. 
Kemp  v.  Burt:  2194. 

v.  Division,  etc.:   2049. 

v.Neville:  1494. 
Kemper  v.  Kemper:  1611. 
Kempke  v.  Roblyer:  1279. 
Kempner  v.  Dillard:  2082. 

v.  Rosenthal:  817,  824. 

v.  Thompson:  2115. 
Kendal  v.  Johnson:  1918. 
Kendall  v.  Garland:  421. 

V.Hamilton:  1755,  1759. 

v.  Mann:  1192,  1194. 

v.Morton:  1131,  1154. 

v.  West:   593. 
Kenilworth,  The:   994. 
Kennebec  Co.  v.  Augusta  Ins.  &  Bank. 

Co.:  1064. 

Kenneday  v.  De  Trafford:  38. 
Kennedy,  In  re:  2207. 
Kennedy  v.  Baltimore  Ins.  Co.:  1433. 

v.  Bank:   1255. 

v.  Barnett:  1494. 


.v 


.7 


2310 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   g§  1-1705,  Vol.  I;  §§   1706-2588,   Vol.  II.] 


A3  .v 
TomrrrDI 


sM  .an  15! 


Kennedy  v.  Chase:  1618,  1620. 

v.  Ehlen:    236. 

v.  Gibbs:  2556. 

v.  Gouveia:  2024,  2031. 

v.  Graham:  208. 

v.  Green:  1802,  1803,  1815. 

V.Hodges:   110. 

v.  McCain:  1295. 

v.  McKay:  411,  1995. 

v.  Merickel:   233. 

v.  Shea:  2135. 

v.  Spring:   1621. 

v.  Stonehouse:  1374,  1395,  1400. 

v.  Strong:   2509,  2545. 

v.  Terrill:  1494. 

v.  White:   1978. 

v.  Whitwell:   2529. 
Kennedy  Bros.  v.  Sullivan:  2000. 
Kennell  v.  Boyer:  2320,  2322. 
Kenner  v.  Southwestern  Oil  Co.:  610. 

v.  Whitelock:   2246. 
Kennerly  v.  Somerville:  1528,  2444. 
Kennesaw    Guano    Co.     v.     Wappoo 

Mills:  1335. 
Kenney  v.  Anderson:  903. 

v.  Lane:  1483. 

v.  Shaw:  1654. 
Kent  v.  Addicks:  1401. 

v.  Bornstein:   2044,  2513. 

v.  Borstein:  895,  961. 

v.  Cecil:  663. 

v.  Chapman:   2183. 

v.  Dawson  Bank:  1314. 

v.  De  Coppet:  2079,  2492. 

v.  Quicksilver  Mining  Co.:  457. 

V.Richards:  946. 

V.Rockwell:   2207. 
Kenton  Insurance  Co.  v.  McClellan: 

148. 

Kentucky  Bank  v.  Combs:  1527,  2246. 
Kentucky  Cent.  R.  Co.  v.  Gastineau: 

1913. 

Kentucky  Stove  Co.  v.  Page:  1789. 
Kenyon   v.   Charlevoix   Improvement 
Co.:  2394. 

v.Williams:  1154. 
Keough  v.  Leslie:   1985. 

v.Meyer:  2447. 
Keoughan  v.  Equitable  Oil  Company: 

2162. 

Keown  v.  Vogel:  2032. 
Kepler  v.  Jessup:  2193. 


Kepley  v.  Irwin:   2158. 
Kepner  v.  Ford:   233. 
Kerby  v.  Ruegamer:-  1127. 
Kerfoot  v.   Hyman:    179,  1198,   1226, 
1334. 

v.  Steele:  2428,  2431. 
Kerford  v.  Mondel:  1691. 
Kern  v.  Chalfant:  1100. 

v.  Chicago,  etc.,  R.  Co.:    2276. 

v.  Kern:  2311,  2312. 
Kern's  Estate,  In  re:  663,  752. 
Kerns  v.  Piper:  972. 

v.  Swape:  1833. 
Kerrains  v.  People:  1338. 
Kerr   v.    American   Pneumatic    Serv- 
ice Co.:   96,  98,  100. 

v.  Cotton:    1247,  2548. 

v.  Kerr:  2305. 

v.  People's  Bank:  2099. 

v.  Sharp:   395. 

Kersey  v.   Garton:    2235,  2244,   2253, 
2256. 

v.  Kansas  City,  etc.,  R.  Co. :  1632. 
Kershaw  v.  Merritt:   2110. 
Kershishian  v.  Johnson:  1918. 
Kerslake  v.  Clark:  778. 
Kerwin,  Ex  parte:  213. 
Kessee  v.  Mayfield:   1548. 
Kessler  v.  Ensley  Co.:   368. 
Keswick  v.  Rafter:   45. 
Ketcham  v.  Axelson:  2438,  2447,  2448. 
Ketchum  v.  Sears:  1422. 

v.  Thorp:  2210. 

v.  Verdell:    444,  1748. 
Kettlewell  v.  Watson:  1803. 
Kevane  v.  Miller:    1223. 
Key  v.  Des  Moines  Ins.  Co.:  1073. 

v.  Goodall:   2057. 

v.  National  Life  Ins.  Co.:   410. 

v.  Parnham:   1422. 

v.  Vattier:  2243. 
Keys'  Estate:   654,  657,  660. 
Keys   v.    Johnson:    2390,    2426,    2430, 

2437,  2447. 
Keyser  v.  Adair:  1036. 

V.Chicago,    etc.,    R.    Co.:     1784, 
1796,  1799. 

v.  Hinkle:   1815. 

Keyes    v.    Second    Baptist    Church: 
1870. 

v.  Union  Pac.  Tea  Co.:    4G2,  896, 
915,  982. 


2311 


TABLE  OF    CASES    CITED 
[References  ar«  to  H.M  tions:   §§  1-1705,  Vol.   I;   §§  170G-258S,  Vol.   If.] 


Keyes,  etc.,  Co.  v.  Union  Pac.  Tea  Co. : 

910,  911.- 

Keyes  &  Co.  v.  Tea  Co.:  246. 
Keyl  v.  Westerhaus:   616.  , 
Keystone    Bridge   Co.    v.    Newberry: 

1644,  1654. 

Kibbe  v.  Hamilton  Ins.  Co.:    1093. 
Kickland  v.  Menasha  Wooden  Ware 

Co.:   407,  843. 
Kidd  v.  Huff:  2163. 

v.Williams:  2293. 
Kidder  v.  Biddle:    1256,   1342. 
Kiddle  v.  Lovett:  1641.  , 
Kidman  v.  Howard:  2445. 
Kiefer  v.  Klinsick:   898. 
Kieran  v.  Sanders:  1331. 
Kternan  v.  New  Jersey  Ice  Co.:  1913. 
Kierstad  v.  Orange,  etc.,  R.  Co.:  1102, 

1734,  1735. 

Kiewert  v.  Rindskop:    1332. 
Kifer  v.  Yoder:  2435,  2442,  2457. 
Kilborn,  In  re:  652. 
Kilborn  v.  Prudential  Ins.  Co.:  1060. 
Kilduff  v.  Boston  El.  R.  Co.:   1657. 
Kiley  v.  Chicago,  etc.,  R.  Co..  1679. 

v.  Forsee:  219,  246. 
Killingsworth  v.  Trust  Co::  173. 
Killion  v.  Power:  1888. 
Killough  v.  Cleveland:   921. 
Killpatrick  v.  Helston:  1515. 
Kilmer  v.  Gallaher:  2162. 

v.  Hutton:    2119. 

Kilpatrick    v.    America-West    Africa 
Trading  Co.:    2059,  2063. 

v.  Grand    Trunk    R.    Co.:    1671, 
1676. 

v.Haley:  2015. 

v.  Henson:  1352. 

v.Wiley:  308,  566,  775,  810,  2399. 
Kilts  v.  Board  of  Supervisors:  1917, 
Kimball  v.  Billings:  1456,  1457. 

v.  Cushman:  1860. 

v.Hayes:   2467. 

v.Payne:   2169. 

v.  Ranney:  1601,  1200,  1327. 
Kimberly  v.  Henderson:   2443. 
Kimble  v.  McDermott:    1457. 
Kimbro  v.  New  York  Life  Ins.  Co.: 

1075. 

Kimbrough  v.  Boswell:  '1479. 
Kimmel  v.  Bean:   2100,  2099. 


Kimmell  v.  Powers:   671. 

v.  Skelly:    1533,  2445,   2454. 
Kimmer  v.  Weber:  1621. 
Kinahan  v.  Parry:   1767,  1768. 
Kinder  v.  Pope:   1519,  2426. 

v.  Shaw :   2509. 
Kindig  v.  March:   585. 
Kindley  v.  Dunham:   870. 
King,  In  re:  2287. 
King,  Matter  of:   2273,  2288,  2304. 
King  v.  Ashley:   2305. 

V.Atlantic    City    Gas    Co.:    1783, 
1784. 

v.  Batterson:  2040,  2067. 

v.  Boston,  etc.,  R.  Co.:  1644. 

v.  Canal  Co.:  1686. 

v.  Council  Bluffs  Ins.  Co.:   1067. 

v.Fourchy:   2197. 

v.  Handy:  1102,  1124. 

v.  Herb:   1890. 

v.  Illinois  Cent.  R.  Co.:   1973. 

v.Kelly:  1515. 

v.King:   2162. 

V.Livingston     Mfg.     Co.:      1778, 
1987. 

V.London     Improved     Cab    Co.: 
1894. 

v.  MacKellar:    395,  1339,  1347. 

v.  New  York,  etc.,  R.  Co.:    1642, 
1917. 

v.  North  Duffield:   1101. 

v.  Pope:  309. 

v.Raleigh,  etc.,  R.  Co.:   106. 

v.  Rea:   461,  463. 

V.Richards:  1331. 

v.  Rowlett:   1803,  1831.    H.v 

v.  Sarria:   778. 

v.  Seaboard  Air  Line  'R.  <&.: 
988. 

v.  Songor:  208,  216. 

v.  Sparks:  977. 

v.  Steiren:  1559. 

V.  Tell:  2415. 

v.'Zleil:   2414. 
King  Powder  Co.  v.  Dillon:  1532. 

v.  Dutton:  2463. 
Kingam  v.    Silvers:    37. 
Kingsbury  v.  Joseph:   2166. 

v.  School  District:  life. 
Kingsley  v.  Davis:  1424,  1759. 

v.Fitts:    755. 


TABLE   OF    CASES    CITED 
[References  are  to  factions:  §§  1-1705,  Vol.  I;  §§  170O-2588,  Vol.  II.] 


TCoM.v 


Kingsley  v.  Slebrecht:  2063. 

v.  Wheeler:  2477. 
Kingston,  Ex  parte:  2090. 

v.  Kincaid:   1310. 

v. Wilson:  1297,  2531. 
Klnloch  v.  Craig:    2562. 
Kinney  v.   Mathews:    813. 

V.Robinson:    2276,   2278. 

V.Rochester    German    Ins.    Co.: 
2368. 

v.  Scarborough  Co. :  113. 

v.Showdy:  2323. 

Klnser  v.  Calumet  Fire  Clay  Co. :  859. 
Klnsey  v.  Leggett:   2565. 

v.  Stewart:    2269. 
Kinsland  v.  Grimshawe:   2412. 
Kinsman  v.  Fisk:   620. 
Kirchner  v.  Grnban:   1211. 

v.  Smith:    2302. 
Kirk  v.  Glover:  2183. 

v.  Hartman:   563,  592,  1543. 

v.  Hiatt:   946. 

v.  Rich -2479. 
Kirk's  Appeal:    2183. 
Kirkeys  v.  Crandall:    1306. 
Kirkland  v.  Benjamin:    102. 
Kirklin  v.  Atlas  Sav.  &  Loan  Ass'n: 

236,  1030. 
Kirkman  v.  Farmers'  Ins.  Co.:   1065, 

1074. 
Kirkpatrick  v.  Adams:  1270. 

v.  Pease:    372,  420,  426,   489. 

v.  Peshine:  2064. 

v.San  Angelo  Bank:   1487. 

v.  Stainer:   1417,  2584. 
Kirksey  v.    Jones:    2014,    2222,    2223. 
Kirkstall,  etc.,  Co.  v.  Furness  R.  Co.: 

555. 

Kirkwood  v.  Autenreith:  20.08. 
Kirschbaum  v.   Scott:    2158. 
Kirschbon  v.  Bonzel:   1098,  1735. 
Kirtland  v.  Montgomery:  1280. 
Kirtley  v.  Morris:   1691. 
Kirtstall  Brewery  Co.  v.  Furness  R. 

Co.:    1782. 
Kirwin  v.  Washing  Machine  Co.:  464. 

v.  Washington  Match  Co.:  435. 
Kipling  v.  Shaw:  2290. 
Kissack  v.  Bourke:  2302. 
Kissam  v.  Squires:   2293. 
Kissick  v.  Hunter:  2163,  2186. 

7    TT-; 


Kister  v.  Insurance  Co.:  2369. 

v.  Lebanon  Ins.   Co. :    1865. 

v.  Lebanon  Mutual  Ins.  Co.:  1071* 

1073. 

Kisterbock's  Appeal:   1801. 
Kitchen  v.  Cape  Girardeau  &  State  !>. 
R.  Co.:  130. 

v.  Holmes:   1139,  2059,  2063. 
Kittrell  v.  State:   2006,  2008. 
Kivett  v.  Western  U.  Tel.  Co.:  1779. 
Klay  v.  Bank  of  Dallas  Center:  1405. 
Klein,  In  re:  2207. 

v.  Borcliert:   2290. 

v.  Mechanics'    Bank:    1093,    1734. 
Kleine  Bros.  v.  Gidcomb:  1458. 
Kleinfelt  v.  Somers  Coal  Co.:  1671. 
Kletschka    v,    Minneapolis,    etc.,    R. 

Co.:    1621. 

Kliegel  v.  Aitken:   1619,  1782. 
Kllndt  v.  Higgins:   945. 
Kline  v.  Bank:  1126. 

v.  Bank  of  Tescott:   1153. 
Kline  Bros.  v.   Royal  Ins.   Co.:    519, 

524. 
Kling  v.  Fries:  488. 

v.  Tunstall:    2305. 
Klostermann  v.  Loos:  1153. 
Klotz  v.  Gordon:  1439. 
Klump  v.   American   Hardware   Co.: 

910. 
Knahlta  v.  Oregon  Short  Line  R.  Co. : 

1644,   1657. 

Knape  v.  Munn:  1251. 
Knapp,  In  re:  2267,  2269,  2276. 
Knapp  v.  Alvord:   575,  655,  659,  2559, 
2585. 


v.  Reed:  1193. 

v.  Simon:    1748,  2419,   2480. 


v.  Smith:  148,  167,  438. 
V.Wallace:   2447,  2471. 
v.  Wells,  Fargo  &  Co.:    1046. 
Knappen  v.  Freeman:    169,  170,  410, 

411,  436. 

Knatchbull  v.  Hallett:   1350,  2090. 
Knauss  v.  Krueger  Brewing  Co. :  2413, 

2475. 

V.Gottfried  Brewing  Co.:   1501. 
Kneeland  v.  Coatsworth:   1169,  1410, 

1413. 
v.  Rogers:    1611. 

Kneff  v.  Sanford:  1912. 

-•   . 

2313 


TABLE   OF    CASES    CITED 


[Referencea   are  to  sections:   gg  1-1705,  Vol.  I;  gg  17041-2588,  Vol.  II.] 


Knicely  v.  West  Virginia,  etc.,  R.  Co.: 

1658,  1870. 
Knickerbocker  v.  Gould:  1351. 

v.  Wilcox:    1396,    1397,    1422. 
Knight  v.  Clark:   1113,  1149. 
v.  Eureka:   313. 
v.  Nelson:    1611. 
v.  North  Metropolitan  Tramways: 

1973 

v.RUSs:"2245,  2246. 
Knippenberg  v.  Greenwood  Min.  Co.: 

1153,  1162. 

Knisley  v.  Pratt:  1661,  1671. 
.Knittel  v.  United  R.  Co. :  1790. 
Knobelock     v.      Germania      Savings 

Bank:  1815,  1817. 
Knoch  v.  Haizlip:   1396. 
v.  Whiteman:  954. 

•.![>{ 


Knott  v.  Tidyman:  1803,  1804. 
Knotts  v.  Tarver:  1343. 
Knowles  v.  Bullene:   1973. 

v.Dow:  716. 

v.Rome  Tribune  Co.:  1346,  1348. 

v.  Scott:   42. 

v.  Savage:   2523. 
Knowlton  v.  School  City:   495. 

v.  Fitch:  2386,  2414. 

v.Hoit:   1871. 
Knox  v.  Eden  Musee:  1986,  1992,  2125. 

v.  Flack:   141,  143. 


lHOl/1 


v.  Munro:   1576,  1577, 
v.  Parker:   592,  2455. 


)  .v 
231 


Knox  Co.  v.  Goggln:   300. 
Knoxville  Iron  Co.  v.  Dobson:  1642. 
Knoxville  Traction  Co.  v.  Lane:  1934'. 
Knuckey  v.  Butte  R.  Co.:  1487. 
Knudson  v.  Hekla  Fire  Ins.  Co.:  1074. 

v.  La    Crosse    Stone    Co. :     1621, 
1654. 

v.Laurent:   2451,  2461. 
Knupp  v.  Brooks:   1216,  1236. 
Knut  v.  Nutt:  101. 
Kmitter  v.  New  York,  etc.,  Tel.  Co.: 

1654. 
Koch  v.  Branch:  1457,  2345. 

v.  Milwaukee:  367. 

v.  Williams:  1579. 
Kock  v.  Emmerling:  2430,  2447. 
Koehler  v.  Hunt:   229. 
Koen  v.  Miller:    932,  945,  2057. 
Koenig  v.  Union  Depot  R.  Co.:  1796, 
1798. 


19V  o  10  .v 


Koenitsky  v.   Matthews:    1861. 
Koerner  v.   St.  Louis  Car  Co  :    1619, 

1651. 

Kohl  v.  Beach:   306,  307,  940. 
Kohn  v.  Jacobs:   1701. 
v.  McNulta:    1615. 
v.  Washer:    869,  879. 
Kolb  v.  Bennett  Land  Co.:  565. 
Kollitz  v.  Equitable  Mut.  F.  Ins.  Co.: 

1060 

Komorowski  v.  Krumdick:  914. 
Konta  v.  St.  Louis  Stock  Exchange. 

2177. 

Koons  v.  Beach:  2286. 
Koppel  v.  Massachusetts  Brick  Co.: 

382. 

Korbel  v.  Skoepol:   2332. 
Kornemann   v.   Monaghan:    285,   864, 

869,  870. 

Kops  v.  Smith:    893. 
Koschman  v.  Ash :   1626.  ,   '    . 

Kost   v.   Reilly:    1533,   2431,    2445 
Kostopolos  v.  Pezzetti:  389. 
Kozel  v.  Dearlove:   427. 
Kraber  v.  Union  Ins.  Co.:  1244,  1250. 
Kraemer  v.  Deustermann:   1192. 
Krafft  v.  Citizens'  Bank:   1307,  1309. 
Kraft  v.   Fancher:    2502,  2554. 

v.  Neuffer:   42. 
Krahner  v.  Hellman:    2430. 
Kramer  v.  Blair:  797,  798. 

"7 

v.  Compton:   982. 

rr.  ,         „„«.- 
V.  Kister:   2305. 

v.  Winslow:    1207,  1233. 

v.  Wolf  Cigar  Stores:    617,  1562. 
Kraniger     v.     Peoples'    Bldg.     Soc.: 

1152. 

Kranz  v.  Udelhofen:   936. 
K —  v.  Raschen:    1584. 
Krause  v.  Dorrance:   1315,  1346. 

v.  Equitable  L.  Assur.  Soc.:  1060. 

v.Morgan:    1676. 
Krauser  v.   Ruckel:    39. 
Krebs  v.  O'Grady:    167. 
Kreigh   v.    Westinghouse,   etc.,    Co.: 

1667. 

Kreissel  v.  Distilling  Co.:    116. 
Kreiter  v.  Nichols:  2000. 
Kreitzer  v.  Crovatt:  2290. 
Krekeler,  Succession  of:   1517. 
Krenshaw  v.  Ware's  Exr.:   285. 
Kreutzer  v.  Lynch:   229. 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I ',  §§  1706-25SS,  Vol.  II.] 


Krhut  v.  Phares:   1198,  1225. 
Kribben  v.  Haycraft:   108. 
Krider  v.  Western  College:  410. 
Kriger  v.  Leppel:    1579. 
Kroeger    v.     Pitcairn:     1374,     1400, 

1458. 

Kroffe  v.  Springfield:   419. 
Krogg  v.  Atlanta,  etc.,  R.  Co.:  1780. 
Krohn  v.  Bantz:  601. 

v.  Lambeth:   55. 

Krolik  v.  Curry:   396,  1458,  1987. 
Kromer  v.  Friday:  143. 
Krone    v.    Klotz:     2264,    2269,    2270, 

2271. 

Kronenberger  v.  Fricke:   1590. 
Kroy  v.  Chicago,  etc.,  R.   Co.:   1624. 
Kruger's  Estate,  In  re:  2211. 
Krulder  v.  Ellison:  2031. 
Krulevitz  v.  Eastern  R.  Co.:   1973. 
Krumm  v.  Beach:    407,  411. 
v.  Beack:   411 
v.  Insurance  Co.:  317. 
Krumdick  v.  White:  663. 
Kruse  v.  Steffens:   1192,   1202. 
Krutz  v.  Fisher:  1192. 
Krzikowsky  v.  Sperring:  1900. 
Kuh  v.  Santa  Barbara  Ice  Co.:   1918. 
Kuhlman   r.   Hart:    870,    1015,    1018, 

1019. 
Kuhnert    v.    Angell:     316,    323,    333, 

1474. 

Kuite  v.  Lage:  784. 
Kullman  v.  Simmens:  112. 
Kult  v.  Nelson:   2246. 
Kumler    v.    Junction,    etc.,    R.    Co.: 

1657. 

Kunklee  v.  Locke:   2276. 
Kuney  v.  The  Amazon  Ins.  Co.:  1054. 
Kuntz  v.  Tonnele:  2l37.   .,      j 
Kupfer  v.  Augusta:  198. 
Kurtz  v.  Fisher:  1216,  1217; 

v.  Potter:  169. 

Kurzawski  v.  Schneider:   1438,  1445. 
Kuser  v.  Wright:  701. 
Kusterer    v.    City    of    Beaver    Dam: 

2279. 

Kutner  v.  Fargo:  1975. 
Kwiechen  v.  Holmes,  etc.,  Co.:  475. 
Kyle,  Ex  parte:  2276,  2278. 
Kyle  v.  Gaff:  2449. 

v.Rippey:   1536,  2447. 


Kymer  v.  Suwercropp:   1744,  1750. 
Kyner     v.     Portland     Mining     Co.: 

1798. 
Kyte  v.  Comercial  Union  Assur.  Co.: 

1064,  1065. 

v.  Comercial     Union     Ins.     Co.: 
1063. 


Labadie  v.  Hawley:  1474. 

La   Banque   Provinciale  v.   Charbon- 

neau:   1296. 

Labbe  v.  Corbett:   1831,  1834. 
Labinsks  v.  Hoist:  120. 
Labouve,    Succession   of:    2258,    2260, 

2314. 

La  Brie  v.  Cartwright:  1815. 
Lacey,  Ex  parte:  1202. 
Lacey  v.  Hill:  1608,  2480. 

v.Thomas:  615. 
Lacher  v.  Gordon:   309,  2164. 
Lachine  v.  Manistique  R.  Co. :  1522. 
Laclede  Bank  v.  Keeler:  2290. 
Lacoste  v.  Eastland:   2162. 
Lacy  v.  Dubuque  Lumber  Co.:    1162. 
v.  Getman:   668,  1566. 
v.  Osbaldiston:   609. 
Ladd    v.    Arkell:     2035,    2568,    2574, 

2575. 

v.    Grand  Isle:   246. 
v.  Hildebrant:  468. 
v.  Indemnity  Co.:   1026. 
v.  Newell:   167. 
Ladenberg  v.  Beal-Doyle  Dry  Goods 

Co.:  263. 
Ladenburg,    etc.,    Co.    v.    Beal-Doyle 

Dry  Goods  Co.:   442. 
Ladonia  Dry  Goods  Co.  v.  Conyers: 

317. 

Ladue  Tate  Mfg.  Co.,  In  re:  1532. 
La  Du-King  Mfg.  Co.  v.  La  Du:  1579. 
Lady  Franklin,  The:   1801. 
La  Farge  v.  Kneeland:  1432,  1435. 
La  Farge  Fire  Ins.  Co.  v.  Bell:  1852. 
La    Favorite    Rubber    Mfg.    Co.    v. 

Channon:  1532. 

Lafayette  Co.  Bank  v.  Metcalf:  1457. 
Lafayette,    etc.,    R.    Co.    v.    Ehman: 

1779,  1782. 

Lafayette  R.  Co.  v.  Tucker:  241,  296, 
710,  743. 


2315 


TABLE   OF    CASES    CITED      ' 
[Reference*  are  to  HeetioiiH:   §§  1-1705,  Vol.   I;  88   1706-2888,  Vol.  II.] 


Sins- 


L 

Co.      V. 


Lafferty  v.   Hall:    2559. 
v.  Jclley:    1225. 
v.  Lafferty:    213,  231. 
Lafflin  v.  Billington:    J10. 
Lafitte  v.  Godchaux:    463,  473. 
Laflin,     etc.,    Powder    Co.    v. 

heimer:   1143,  1152,  1153,  1162. 
Lafond  v.  Deems  f  187. 
La  Force  v.  Washington  University: 

2438. 

Lafourche     Transportation 
Pugh:    285,   969,   970,   998. 
La  France  Fire  Engine  Co.  v.  Syra- 
cuse:  359. 

Lagerwall  v.  Wilkinson:  1510,  1557. 
Lagrone  v.  Timmerman:  1383,  1396. 
Laidler  v.  Burlinson:  1576. 

v.Elliott:    2194. 

Laing  v.  Butler:   914,  1748,  1766. 
Laird   v.   Farwell:    1974,   19'75.. 
Laishley  v.  Goold  Bicycle  Co.:   1552. 
Lake    v.    Campbell:    229. 

v.  Tyree:   809,  833. 
Lake  City  Elec.  L.  Co.  v.  McCrary: 

2152. 

Lake  Erie,  etc.,  R.  Co.  v.  Craig:  1676. 
Lake  Erie  &  W.  R.  Co.  v.  Tierney: 

593. 
Lakeman  v.  Pollard:  1529,  1572,  1580, 

1582,  1583,  2249. 
Lake  Shore,  etc.,  R.  Co.  v.  Foster: 

265. 

v.  Goldberg:    2012. 
v.  Knittal:   1647. 
v.  McCormick:   1624. 
v.  National  L.  S.  Bank:   1801. 

v.  Prentice:    2015. 

_ .  ,      ,      ., _„_  .1 

v.  Richards:    1563. 

Lake    Shore    Nat.    Bank    v.    Butler 

Colliery  Co.:    1405. 
Lake  Side  Press,  etc.,  Co.  v.   Camp- 
bell: 869,  870,  872. 

Lakin  v.  Oregon  Pac.  Co.:  1866,  1868. 
Lalance,  etc.,  Co.  v.  Haberman  Mfg. 

Co:   2189. 

Lalande  v.  Aldrich:   605,  1530. 
Lally  v.  Cantwell:    1556. 
Lalor  v.  Chicago,  etc.,  R.  Co.:   1637. 

v.  Tooker:    652. 
Lamb  v.  Baxter:   1&90,  2474. 
v.Evans:   1211. 
v.  Hirschberg:    865,  872,  909. 


1731, 


Lamb  v.  Palk:   1898,  1904. 
v.  Prettyman:    253. 
V.Thompson:      711,     915, 

1767. 

v.  Vice:  2066. 
v.Williams:    2162. 
Lamb  Knit  Goods  Co.  v.  Lamb:  1195, 

1231. 

Lambert  v.  Gerner:  797,  798. 
v.Gillette:   2187. 
v.Jenkins:   1803. 
v.Phillips:    1423. 
v.  Pulp  Co.:    1621. 
v.  Sanford:    2163. 
Lamberton  v.   Connecticut  Fire  Ins. 

Co.:   1070. 

Lambeth  v.  Turnbull:  2559. 
La  Marchant  v.  Moore:   1350. 
Laming  v.  Peters  Shoe  Co.:  988,  1043. 
Lamkin  v.  Crawford:   2356. 
Lamm   v.   Port  Deposit,   etc.;'Ass'n: 

1783,  1988. 

Lamon  v.  Speer  Hardware  Co.:  858. 
Lamont  v.  Hamilton:    1717,  1743. 
V.Washington,  etc.,  R.  Co.:  2243, 

2279. 

Lamoreux  v.  Morris:    2217. 
Lamothe  v.  St.  Louis,  etc.,  Co.:   628. 
Lamoure  v.  Caryl:    2246. 
Lampkiri    v.    First    National    Bank: 

504. 

v.Louisville  &  N.  R.  Co.:   1936. 
Lampley  v.  Scott:  1281,  1286. 
Lamprecht  v.  State:  2389. 
Lamson  v.  American  Axe  Co.:   1661, 

1668,  1674. 

Lamson,  etc.,  Co.  v.  Russell:  2055. 
Lancashire   Waggon   Co.   v.   Nuttall: 

958. 
Lancaster    v.    Knickerbocker:     1735, 

'  2064,  2072,  2076. 
V.Knickerbocker    Ice    Co.:    1098. 
v.  Springer:   652,  1347. 
Lancaster  National  Bank  v.  Taylor: 

2111. 
Lancaster's    Admr.    v.    Central    City 

Light.  Co.:    1676. 

Lance  v.  Butler:    48,   51,  1335,  2499. 
Lancy  v.  Havender:  2237. 
Land  Co.  v.  Wallace:  2447. 
Land,  etc.,  Co.   v.  Gillam!   173. 

v.Preston:    943. 
2316 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§   1700-25S8,  Vol.  II.] 


Land  Mortgage  Co.  v.  Gillam:   300. 

v.Preston:    300,  933,  1029. 
Landa    v.    Shook:     2258. 

v.  Traders'  Bank:  331,  1314. 
Landgraf  v.  Kuh:  1671. 

v.  Tanner:    386. 
Landis  v.  Scott:    1341. 
Landman  v.  Entwistle,  1396. 
Landon  v.  Humphrey:   1279. 
Landry,  In  re:  2163. 
Landry,  Succession  of:   2236. 
Landusky  v.  Beirne:   1387. 
Landyskowski   v.    Lark:    1411,   1419, 

1424. 
Lane  v.  Albright:  2447. 

v.  Black:    357,  504,  2290. 

v.  Boston  &  Albany  R.  Co  :   1779. 

V.Boston,  etc.,  R.  Co.:  555. 

v.Bryant:   1798. 

v.  Corr:    1374,   1398. 

v.  Cotton:    1464,  1501,  1503. 

V.Dudley:  886. 

v.  Duhac:  937. 

v.  Hallum:    2276. 

v.  Ironmonger:    163. 

v.  Lockridge:   986. 

V.Washington     Life     Ins.     Co.: 

2003. 

Lane  Bros.  &  Co.  v.  Bauserman:  1654. 
Lanfear  v.  Sumner:  1457. 
Lang  v.  Friedman:    1432. 

v.  Ingalls  Zinc  Co.:    2305. 

v.  Metzger:    2126. 

v.  Waters:    167. 
Langbein  v.  Tongue:  257. 
Langdon  v.  Conlin:   105. 

v.  Mut.  L.  Ins.  Co. :   1054. 

v.  Potter:  946,  2183. 

v.  Roanes:  1351,  1352. 

v.     Union    Mut.    Life    Ins.    Co.: 

1073. 
Lange  v.  Benedict:   1494. 

v.  Kaiser:  1516. 
Langenheim    v.    Anschutz-Bradberry 

Co.:  1808. 

Langford  v.   Issenhuth:    2435. 
Langhorn  v.  Bennett:    608. 
Langlands  F.  Co.  v.  Worth  ington  P. 

Eng.  Co.:  504. 

Langley    v.    Surtevant:     1340,    2542, 
2549. 

V.Warner:    1435,  1437,   2225. 


Langlois    v.    Dunn    Worsted    Mills: 

1664,  1671. 
Langston  v.  Postal  Tel.  Co. :  989, 1041. 

v.  Roby:   2281. 

Langstroth  v.  Toulmin:   2044. 
Laning  v.   New  York  Cent.   R.   Co.: 

1615,  1624,  1631,  1632,  1644,  1654. 
Lanning  v.  Johnson:   1806,  1844,1853. 
Lansden  v.  McCarthy:   2040. 
Lansing  v.  Bliss:    1590. 

v.  Coleman :    506. 

v.  New  York  Cent.  R.  Co.:   1046. 
Lanterman  v.  Travous:  1350. 
Lantry  v.  Parks:  1577. 
Lanum  v.   Patterson:    2304,  2311. 
Lanusse   v.    Barker:    637,   977. 
Lapaugh  v.  Wilson:  2314. 
Lapham  v.  Flint:  2445,  2454.   , 

v.  Green:   2024,  2075. 

v.  Osborne:   1579. 

La  Point  v.  Scott:   838.  'aj 

Laporte  v.  Laporte:  1344.  •• 

Laramee  v.  Tanner:  1170. 
Large  v.  Coyle.   2252.  .    • 

Largey  v.  Bartlett:  1209,  1219. 

v.  Leggat:    1405. 
Larivee   v.    A'Hearn:    915. 
Larkin  v.  Buck:  1577. 

v.  Hapgood :   1441. 

v.  Hecksher:    1576. 

Larminie  v.  Carley:   2386,  2551,  2566. 
Lamed  v.  City  of  Dubuque:  2244. 

v.  Dubuque:   2281,  2285. 

v.  Wheeler:   1498. 
Lamer,  Matter  of:   2269. 
Larsen  v-.  Home  Telephone  Co.:  1871. 

v.  Le  Doux:    1644. 

v.  Thuringia  Am.  Ins.  Co.:  487. 
Larson  v.  American  Bridge  Co.:  285. 

v.  Aultman:    716. 

v.  Aultman  &  Taylor  Co.:    882. 

V.  Fidelity    Mut.    Life    Ins.    Co.: 
1974,  1975,  1976. 

V.Lombard  Investment  Co.:   301. 

v.  Metropolitan  St.  R.  Co. :    1780. 

v.  Minneapolis      Thresh.      Mach. 
Co.:   905. 

v.Newman:    474,   674. 

v.  Thoma:    1207,   1235. 
La  Salle  Nat  Bank  v.  Tolu:  1162. 

v.  Tolu,  etc.,  Co.:   1135,  1137. 

v.  Tolu  Rock  &  Rye  Co.:  1158. 


2317 


TABLE   OF    CASES    CITED 


I  Reference*  aw  to  Meedon*:   89  1-170S,  Vol.  I)  gg  1700  2588,   Vol.   II. 1 


Lashbrook  v.  Patten:    156,  1859. 

Lasher  v.  Stimson:   1387. 

Lassen  v.  Bayliss:   2449. 

Last  Chance  M.  &  M.  Co.  v.  Ames: 

1624. 
Lasure     v.     Graniteville     Mfg.     Co.: 

1644. 

Later  v.  Hay  wood:  2309. 
Latham  v.  Bank:   285. 

v.  Field:   2495. 

v.  First  Nat.  Bank:   403. 

v.  Flour  Mills:   1125. 

v.  Roach:   1642. 
Lathrop  v.  Amherst:   2237. 

v.  Amherst  Bank:    2237. 

v.  Hallett:  309,  2166. 

v.  Harlow:  920. 

v. Printing  Co.:  617. 
Lathrop-Hatten   Lumber  Co.   v.   Bes- 
semer Sav.  Bank:   148. 
Lathrope  v.  State:  2008. 
Latimer  v.  York  Cotton  Mills:   1557. 
Latshaw  v.  Moore:   2435. 
Latta  v.  Kilbourn:   1213,  1228. 
Latterett  v.  Cook:   2157. 
Laubach  v.  Cedar  Rapids  Supply  Co.: 
1530. 

v.Leibert:   2099. 

Lauchheimer  v.  Jacobs:  788,  S72,  879. 
Laucenstein  v.  Fond  du  Lac:  313. 
Lauer  v.  Bandow:   229. 

v.  Banning:  2311. 

Lauer  Brewing  Co.  v.  Schmidt:   789. 
Laufer  v.  Powell:   169.  ^'ri 
Laughlin  v.  Campbell:   2435. 

v.  Excelsior  Powder  Co.:    2281. 

v.  Hibben:   679. 

Laughy  v.  Bird  Lumber  Co.:  1667. 
Laumur  v.  Dolph:  883. 
Laurence  v.  Miller:  1533. 
Laussatt  v.  Lippincott:   318. 
Laux  v.  Hogl:   2439. 
Lavassar  v.  Washburne:   169. 
Lavenson  v.  Wise:  2234. 
Laverty  v.  Snethen:  1253,  1255,  1256, 

1257,  1342,  2415,  2529. 
Lavery  v.  United  States  Gypsum  Co.: 

1918. 

Law  v.  Cross:   368,  459,  463,  473. 
v.  Grant:    1987,  2084. 
v.  Law :    104. 


Law  v.  Nunn:   1432. 

v.  Stokes:   708,  753,  865,  869,  870. 
Lawall    v.    Groman:     291,    292,    296, 

2202,  2211. 

Lawler  v.  Androscoggin  R.  Co.:  1615, 
1654. 

V.Armstrong:     426,    1590,     2428, 
2477. 

v.  Keaquick:   1262. 
Lawless  v.  Lawless:   1328. 
Lawrence  v.  Holmes:  1852. 

v.Johnson:    956. 

v.  Kilgore:  1226. 

v.Maxwell:   2389. 

v.  McArter:   141,  143. 

v.  Pederson:    1533,   2430,    2443. 

V.Rhodes:    1536,   2430,    2443. 

v.  Stonington  Bank:    1314. 

v.  Stoughton  Bank:   331. 

v.  Sullifer:  1548. 

v.Taylor:  227,  229,  424,  483,  515. 
Lawrence  University  v.  Smith:  1346 
Lawrens  Tel.  Co.  v.  Bank:   1782. 
Lawson  v.  Bettison:  2183. 

v.Carson:   937. 

v.  Dickenson:    2267. 

v.King:   233,  2430. 

v.  Mining  Co.:  2439. 

v.Nicholson:   935,  937. 

v.Thompson:  1521,  2447. 

v.Williams:   229. 
Lawton  v.  Waite:  1647. 
Lawyer  v.  Post:   2028. 
Layman's  Will:    2311,  2312. 
Layne   V.    Chesapeake,   etc.,    R.    Co.: 

1935,  1937,  1973. 
Laythoarp  v.  Bryant:  601. 
Layzell  v.  Coal  Co.:  1798. 
Lazard     v.     Merchants     &     Miners' 
Transp.  Co.:    443. 

v.  Merchants'    Transp.    Co. :    760, 

1801. 
Lazarus  v.  Commonwealth:  2033. 

v.  Commonwealth  Ins.  Co.:   2371, 
2488. 

v.  Shearer:   1153,  1162. 
Lazenby  v.  Lazenby:  110. 
Lea  v.  Iron  Belt  Co.:   1831. 

v.  Iron  Belt  More.  Co.:  1803, 1808, 

1844. 
Leach,  In  re:  2147. 

318 


TABLE   OF    CASES    CITED 


[Reference**   are  to  .sections:   §§  1-1705,  Vol.  I;  gg  1706-25SS,  Vol.  II.l 


Leach  v.  Blow:   1134. 

v.Hannibal,  etc.,  R.  Co.:  1229. 

v.  Hill:   2023,  2026. 

v.  Oregon     Short    Line    R.    Co.: 

1661. 

Lead  v.  Applegate:   2190. 
Leadbitter  v.  Farrow:   1119,  1129. 
Leahey  v.  Cass  Ave.  R.  Co.:   1794. 
Leahy  v.  Lobdell:   2484. 

v.  Stone:    2162. 
Leake  v.  Sutherland:  1225,1336,2544. 

v.Wilson:  2423. 

Learmonth  v.  Bailey:  1195,  1198. 
Learn  v.  Upstill:  1389,  1390. 
Learned  v.  Johns:    2574. 

v.  McCoy:    550. 

v.  Tillotson :    463. 
Learock  v.  Paxon:  2389,  2415. 
Leary  v.  Boston  &  Albany  R.:   1661, 

16G8. 
Leask  v.  Hoagland:  2264., 

v.  Scott:   2423. 
Leather  Mfgs.  Nat.  Bank  v.  Morgan: 

1842,  2547. 

Leathers  v.  Canfield:   178,  1590,  2474. 
Leavenworth  E'lec.  R.  Co.  v.  Cusick: 

1866,  1868. 
Leavenworth,  etc.,  R.  Co.  v.  Meyer: 

199: 
Leavitt  v.  Bangor,  etc.,  R.  Co.:   1917. 

v.  Fairbanks:    386. 

v.  Fisher:    655,  659. 
Lebanon  v.  Bank:  1350. 
Lebanon  Bank  v.  Blanke:   246. 
Lebanon    Mut.    Ins.    Co..  v.    Hoover: 

1060. 
Lebanon    Savings    Bank    v.    Hollen- 

beck:    1808,   1809. 
Lecatt  v.  Sallee:  2290,  2294. 
Leckie  v.  Rothenbarger :   1410. 
Lecklieder   v.   Chicago   City   R.   Co.: 

1798. 

Le  Clair  v.  Railroad  Co.:  1630. 
Lecour  v.  Bank:    2302. 
Lederer  v.  Union  Sav.  Bank:  960. 
Ledoux  v.  Anderson:    2583. 

v.  Porche:   2557. 

Ledwith  v.  Merritt:    232,   1432,  1442. 
Ledyard  v.  Hibbard:    1268. 
Lee  v.  Adsit:  1297,  2521. 

v.  Agricultural  Ins.  Co. :   257. 

v.  Ashbrook:  1578. 


Lee  v.  Clements:  1594,  1596. 

v.Conrad:   316,  332. 

v.Dixon:  2194. 

v.  Dodd:   1477. 

v.Elliott:   1845. 

v.  Grimes:    2161,   2162. 

v.  Hampton:   1562. 

v.  Lee:   1517. 

v.Livingston:  186. 

v.  Lord:    2162. 

v.  Mathews:    1456,   1547.. 

v.  Munroe:   762,  1783. 

v.  Percival:   1126,  1157.- 

v.  Smith:   754,  1801. 

v.  Tinges:    901. 

v.  Vacuum  Oil  Co.:  2243,  2283. 

v.  West:   357. 
Lee  Mining  Co.   v.  Omaha  Smelting 

Co.:   979. 

Lee  S.  M.  Co.  v.  Smelting  Co. :  989.  • 
Leech,  In  re:  2245. 
Leeds  v.  Bowen:   2349. 

v.  Marine  Ins.  Co.:   2045. 
Leekins  v.  Nordyke:    178,  2412. 
Lees  v.  Nuttall:   1194,  1195. 

v.  Whitcomb:   601. 
Leese  v.  Martin:  1690. 
Leet  v.  Wadsworth;   2509. 
Leete  v.  Norton:  2443. 
Leffel  v.  Piatt:  446. 
Lefkovitz  v.  Sherwood:    1487. 
Lefkowitz  v.  Iba:   291. 
Legan  v.  Dishman:    652. 
Leggate  v.  Clark:   677,  680. 
Leggett  v.  New  Jersey  Mfg.  &  Bank- 
ing Co.:   483. 

Lehigh  Coal  &  Nav.  Co.  v.  Mohr:  675. 
Lehigh  Valley  Coal  Co.  v.  Jones:  1644. 
Lehman,  Ex  parte:  2278,  2279,  2281. 
Lehman  v.  District  of  Columbia: 
2008. 

v.  Feld:    111,   1523,   1405,   1602. 

v.  Pritchett:   2525,  2526,  2539.    • 

v.  Schmidt:   2566. 
Lehmann  v.  Schmidt:    2498. 
Lehnen  v.  Hines:    1940. 
Leigh  v.  American  Brake-Beam  Co.: 
2089. 

v.  Macaulay:    1350. 

v.  Mobile,  etc.,  R.  Co.:    1691. 
Leighton  v.  Sargent:  1275, 1279, 1280, 
2194. 


2319 


TAIU.li   OF    CASES    CITED 
e fort-nee*   are  to   *«•<•»!  ons:   §8   1-1705,   Vol.   1$   §g   1700-2588,  To  I.   II.] 


'Leimbach  v.  Regner:    2434. 
Leipziger  v.  Van  Saun:  2002,  2004. 
Leisen  v.  St.  Paul  Fire  &  Marine  Ins. 

Co.:   1061. 
Leishman    v.     Union     Iron    Works: 

1621 
Leland  v.   Douglass:    318,   716,   1268, 

2504. 

Le  Lievre  v.  Gould:  1480. 
Le  Marchant  v.  Moore:  2082,  2389. 
Lemelln,  In  re:  2063. 
Lemon  v.  Grosskopf:    1332. 

v.  Little:   1206,  1590. 
Lempriere  v.  Ware:   1209. 
Lenahan  v.  Casey:   2302. 

v.  Pittson  Coal  Company:    1670, 

1676. 

Le  Neve  v.  Le  Neve:  1803,  1808. 
Lengrsfield  v.  Richardson:   2302. 
Lenney  V.  Firiley:  1093,  1098. 
Lenoir  v.  Linville  Improvement  Co.: 

620. 

Lenz  v.  Harrison:    48,  2499. 
Leo  v.  McCormack:    2045,  2489. 
Leonard,  In  re:  2147. 
Leonard  v.  Boyd:  2237,  2241. 

v.  Eldridge:   2455,  245*9. 

v.Herrmann:  1631. 

v.  Omstead:    241,  1207,   1226. 

v.  Poole:   113,  1332. 
Leopold  v.  Salkey:   1582. 
Leouis  v.  Bancroft:  1651. 
Le  Prohon's  Appeal:  2311. 
Lerch  v.  Bard:  972,  998. 
Lerned   v.    Johns:    1178,    1731.    1733, 
1766,  2063. 

v.  Wannemacher:    2320. 
Le  Roy  v.  Beard:  789,  793,  812,  1266. 

v.  Jacobosky:    1369,  1398,  1400. 
Lesch    v.    Great    Northern    R.    Co.: 

1977. 

Leschen  v.  Brazelle:    2300. 
Leschzener  v.  Bauman:  2428,  2449. 
Lesher  v.  Loudon:  982. 

v.  Radel:    2182. 
Lesley  v.  Rosson:    233,  2434. 
Leslie  v.  Boyd:   2439,  2445. 

v.Fischer:   2152,  2154. 
Lessee  of  Clarke  v.  Courtney:    1108. 
Lessee  of  Rhoades  v.  Selin:  2307. 
Lessee  of  Wright  &  Deklyne:  2322. 


Lester  v.  Jewett:    601. 
Lester  v.  Kinne:   395,  413. 

v.  Snyder:    295,  743,  945,  958. 
Leterman    v.    Chalottesville    Lumber 

Co.:    1170,  1410,  1413,  1429. 
Letts    v.    Hoboken,    etc.,    Co.:    1952, 
1953. 

v.  Hoboken   R.    Co.:    1979. 
Leu  v.  Mayer:   285. 
Leupold  v.  Weeks:  2435,  2485. 
Leuthold  v.  Fairchild:  1457,  2583. 
Levara  v.  McNeny:  312,  2290. 
Lever  v.  Lever:  1346. 
Leverick  v.  Meigs:    1279,  1322,  2534, 

2548. 

Leverone  v.  Arancio:  992. 
Leveroos  v.  Reis:  119. 
Levesque  v.  Janson:    1630. 
Levi  v.  Booth:  848,  894,  2112. 

v.  Brooks:    1977. 

v.  Missouri,  etc.,  R.  Co.:   1779. 

v.  Reid*' 1522. 

Levin  v.  Standard  Fashion  Co.:  1553. 
Levine  v.  Field:  1438. 

v.  Standard  Fashion  Co.:  1560. 
Le  Vine  v.  Whitehouse:  229,  239. 
Levins  v.  New  York,  etc.,  R. "Co:  2001. 
Levis  v.  Pope  Motor  Cat  Co.:  884. 
Levison  v.  Balfour:  1249,  2526. 
Levinson  v.  Sands:   2246. 
Levy  v.  Abramsohn:    357,  369. 

v.  Brown:    2161. 

v.  Brush:  2131. 

v.  First  Nat.  Bank:  953,  980. 

v.  Loeb:.  2386. 

v.Lord  Herbert:   1558. 

v.  Pope:   2307. 

v.  Rothe:   2445,  2446. 

v.  Spencer:  2412,  2477. 

v.  Terwilliger:  1723. 

v.  Wolf:  435. 
Lew  v.  Nolan:  2162. 
Lewin  v.  Dille:    458. 
Lewis  v.  Amorous:    1950. 

v.Atlas  Ins.  Co.:   1552. 

v.  Atlas   Mut.    L.    Ins.    Co. :    600, 
1569. 

v.  Bourbon:    741. 

v.  Brass:  2379. 

v.  Brehme:  1162,  1322,  2534. 

v.  Brown:  245,  2236,  2290. 


2320 


TABLE   OF    CASES    CITED 


^References   are  to  sections:   §§   1-1705,   Vol.   I;  §g  1706-2588,  Vol.  II.] 


Lewis  v.  Burns:  1788,  1789. 
v.  Commissioners:    707. 

v.  Coxe:   126. 

v.  Dennison:  1226. 

v.  Denison:   2412. 

v.  Duane:  2162. 

v.  Equitable  Mortgage  Co. :    1831, 

v.  Fisher:   39. 

v.  Galena  R.:   2564. 

v.  Gamage:   2185. 

v.  Hillman:    2131,   2290. 

v.  Hoeldtke:   11F8. 

v.  Imhof :    1046. 

v.  Ingersoll:    307. 

v.  Kerr:   652,  663,  664,  666. 

v.  Kinealy:  2269. 

v.  Lee:   148. 

V.Lewis:  752,  783,  815,  826,  2243. 

v.  Long   Island   R.   Co.:    1861. 

T.Mansfield:    2468. 

v.  Mansfield  Elevator  Co. :   2470. 

v.  Mason:   2345,  2351,  2354. 

v.  McDonald:    2457. 

v.  New  York,  etc.,  R.   Co:    1631, 
1661,  2001 

v.  Nicholson:    1398. 

v.  Northern  Pac.  R.  Co.:  1679. 

v.  Peck:    1315. 

v.  Read.    393,  395,  398,  507. 

v.  Schultz:   1916. 

v.  Seifert:  1616,  1654. 

v.  Shreveport:    714. 

v.  Slack:  992 

v.  State:    2006. 

v.  Summer:   2161,  2162,  2178. 

v.  Tilton:    187,   1389,  1396. 

v.  Trickey:   1518,  1519. 

v.Tyler:    1684. 

v.Watson:  63.  208. 

v.  Weidenfeld :  1170,  1410. 

v.  Wells:   672,  2320. 

v.  Willoughby :   2005. 
Lewis  Co.  v.  Scott:  1557. 
Lexington  R.  Co.  v.  Cozine:  2015, 
Leyner  v.  Leyner:   2308. 
Lichtenberger  v.   Graham:    169. 
Lichtenstein  v.  Mott:   1588. 
Lickbarrow  v.  Mason:  749. 
Liddell  v.  Sahline:   739,  915. 
Liddle  v.  Needham:  601. 
Lieberman  v.  Weil:   593. 
Liebhardt  v.  Wilson:  2592.  - 
146 


Liebscher  v.  Kraus:   1125,  1162. 
Lienkauf  v.  Morris:    2014. 
Liesmer  v.  Burg:    1344. 
Lifschitz  v.  O'Brien:   2306. 
Liggett  v.  Glenn:    2300. 
Lightbody    v.    North    Am.    Ins.    Co.: 

756,  1077. 

Lightbourn  v.  Walsh:    189. 
Li§rhtfoot  v.  Horst:  403,  479,  816. 
Lightner  v.   Brooks:    2011. 
Lilienthal  v.  Campbell:   1494,  1498. 

v.  Carpenter:  1441,  1487. 
Lilley  v.  Doubleday:    1248. 

v.  Elwin:  1548: 

v.  Foad:   997. 

Lillian  Realty  Co.  v.  Erdurm:  836. 
Lillie  v.  Hoyt:  1337,  1339,  2207,  2208. 
Lilly  v.  Hamilton  Bank:  1815,  1817. 

v.  Pryse:   2230. 

v.Robinson:    2246. 

v.  Smales :   1369. 

v.Waggoner:  134. 
Lima  R.  Co.  v.  Little:   191-5. 
Limberg  v.  Glenwood  Lbr.  Co.:  1661. 
Lime,  etc.,  Clay  Co.  v.  Hileman:  986. 
Lime  Rock  Bank  v.  Plimpton:    2102, 

2577. 

Limestone  Mine  Co.  v.  Lehman:   848. 
Lim-Juco  v.  Lim-Yap:   1401. 
Limpus  v.  London  General  Omnibus 

Co.:  1916,  1964. 
Linck  v.  Matheson:   1977. 
Lincoln  v.  Emerson:    652,  663. 

v.  Hapgood:   1498. 

v.  Levi  Cotton  Mil's  Co.:   2419. 

v.  McClatchie:  2435. 

v.Morrison:    1350. 
Lindauer  v.  Meyberg:  486. 
Lindblom  v.  Ramsey:   1782,  1783. 
Lindeke  Land  Co.  v.  Levy:  1731, 1733. 
Linder  v.  Adams:  563. 

v.  Carpenter:    118. 
Lindgren    v.    Williams    Bros.:    1803, 

1813. 

Lindley   v.    Atchinson,    etc.,    R.    Co.: 
2178. 

v.  Fay:   1533,  2431. 

v.  Keim:   797,  798,  2430. 

v.  Lupton:  962,  1015,  1019. 
Lindmeier  v.  Monahan:   1987. 
Lindner  v.  Brewing  Co. :   610. 
Lindow  v.  Cohn:  901,  1014. 
2321 


TABLE  OF   CASES    CITED 


[Referenced  are  to  section*  i  88  1-1705,  Vol.  I;  §8  1706-2588,  Vol.  II.] 


Lindquist  v.  Dickson:  241,  277,  1424, 
1755,   1759. 

v.  North  Western,  etc.,  Co. :  1803. 
Lindroth  v.  Litchfield:    441. 
Lindsay  v.  Carbon  Steel  Co.:  2463. 

v.  Carpenter:   2234,  2235. 

v.  Singer  Mfg.  Co.:  1872. 

v.  Steel  Co.:   2443. 
Lindsey  v.  Pettigrew:  2281. 

v.  St.    Louis,    etc.,    R.    Co. :    506, 

1981. 
Lindsey   Lumber   Co.   v.   Mason:    48, 

2499. 
Lindt    v.    Schlitz    Brew.    Co.:     2412, 

2426. 

Lindus  v.  Melrose:    1133. 
Lincss  v.  Hesing:   104. 
Linforth,  In  re:  48,  1350,  2499. 
Lingenfelder  v.  Leschen:  542. 
Lingenfelter  v.  Bowman:    2162. 

v.  Phoenix  Ins.  Co. :  333. 
Lingke  v.  Wilkinson:   2131. 
Lingood  v.  Eade:   310. 
Link  v.  Page:  1095. 
Linn  v.  Alameda,  etc.,  Co.:  386. 

v.  Linderoth:  1517,  1518. 
Linn    Boyd   Tobacco   Co.   v.   Terrill: 

2320. 

Linnehan  v.  Rollins:    1871. 
Linsey  v.  Rutherford:    2479. 
Linton  v.  Moorhead:   778,  804. 
Linton    v.    National    Life    Insurance 
Co.:   148. 

v.  Smith:    1917. 

v.Walker:    157. 
Liotard  v.  Graves:   9537 
Lipe  v.  Ludewick:  2442. 
Lipman  v.   Noblit:    300. 
Lippman  v.  Aetna  Ins.  Co.:  1065. 

V.Carroll:   2142. 

v.  Brown:    2536. 
Lipscomb  v.  Cole:  616,  2435,  2445. 

v.  Piston,  etc.,  R.  Co.:   1042 

v.  r  mston  &  Texas  R.  Co.:  1803. 

v.   Citrell:   889. 

v.  Masten:  2412. 

v.Mastin:   2435,  2474. 

v.  Talbott:   485 

v.  Watrous:   186. 
Liska  v.  Lodge:    247. 
Lissak  v.  Crocker  Estate  Co.:  1798. 
Lissberger  v.  Kellogg:  1252. 


Lister  v.  Allen:  710. 

v.  Stubbs:   1227. 
List's  Executrix  v.  List:   2302. 
Litchenstein  v.  Brooks:  1553,  1556. 
Liter  v.  Mining  Co.:   291. 
Litka  v.  Wilcox:  124. 
Litt  v.  Stewart:  2162. 
Littauer  v.  Houck:  1804. 
Little  Butte  Consol.  Min.  Co.  v.  Gir- 

and:  1554. 
Little  v.  Caldwell:  2258,  2314. 

v.  Chadwick:  1350. 

v.  Fosett:   2050. 

v.  Gallus:    1211. 

v.  Hackett:  1861. 

v.  Hazlett:  70i. 

v.  Hooker  Steam  Pump  Co. :  2002. 

v.Liggett:   2467. 

v.  Moore:  1494,  1495. 

v.Newton:  310. 

V.  Phipps:  1206,  1227,  1234,  1334, 
1344,  1588,  1589. 

v.  Phoenix  Ins.  Co.:  1074. 

v.  Sexton:  2281. 

v.  Southern  R.  Co.:   1678. 

v.  Rees:  2468. 
Little  Miami  R.  Co.  v.  Stevens:  1052. 

v.  Wetmore:   1935,  1950. 
Little  Pittsburgh  Mine  Co.  v.  Little 

Chief  Min.  Co.:  755. 
Little  Rock,  etc.,  R.  Co.  v.  Newman: 
1799. 

v.  Cagle:   1623.  see  -^oBiJ 

v.  Eubanks:    1618,   1681. 

v.  Leverett:    1799. 

Little  Rock  &  Ft.  S.  Ry.  Co   v.  Wig- 
gins:   958. 

Little  Rock  T.  &  Elec.  Co.  v.  Nelson: 
1798. 

v.Walker:   1974. 

Littlefield  v.  Dawson:  797,  798,  1517. 
Littleton  v.  Loan  Ass'n:    752. 
Livermore  v.  Agency:    699. 

v.  Crane:    2034. 

Liverpool,  L.  &  G.  Ins.  Co.  v.  Richard- 
son Lumber  Co.:   10G3. 
Livezy  v.  Miller:  2430,  2435,  2459. 
Livings  v.  Wiler:  361. 
Livingston  v.  Ackeston:   1516. 

v.  Cox:   2197,  2204. 

v.  Page:    106. 

v.Wagner:   2302. 


2322 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   §§  1-1705,  Vol.  I;   HS   170«  -2588,  Vol.  II.] 

Livingstone  v.  Kodiak  Packing  Co.:      London  Commercial  Bank  v.  Kitson: 


1654. 
Lloyd  v.  Brewster:   447. 

v.Colston:    1590. 

v.  Grace:   1990. 

v.  Guibert:  778. 

v.  Hanes:    1624,   16G8. 

v.  Matthews:    2436,  2457. 
Lloyds  v.  Harper:    2031,  2066. 
Loan  Co.  of  Alabama  v.  Deans:  2467. 
Lobdell  v.  Baker:  60,  710,  1783,  2579.' 

v.  Mason:   212,  218. 
Locators  v.  Clough:   2435,  2436. 
Loche  v.  Lewis:    2574,   2575. 
Locke  v.  Alexander:  1100,  1102. 

V.Lewis:   2575,  2077,  2115. 

v.  Stearns:  1984,  1987. 
Lockett  v.  Baxter:  2527. 
Lockhart  v.  Rollins:    1209,  1219. 

V.Washington,     etc.,    Min.     Co.: 
1823. 

V.Washington  Gold  Mining  Co.: 
1803,  1815 

v.  Wryatt:   2163. 
Lockwood,  Ex  parte:  2147. 
Lockwood  v.  Abdy:  306,  333. 

v.  Halsey:    1536,  2447,   2468. 

v.Levick:  1514,  1538. 

v.  Robbins:   1515. 

v.  Thome:  1351,  2547. 
Lockwood,  Adm'r  v.  Robbins:  1517. 
Lockwood's    Case:    2147. 
Loder  v.  Whelpley:  2311. 
Loeb  v.  Barris:   1093,  1111. 

v.  Drakeford:   198. 

v.  Pierpoint:  1009. 

v.  Selig:   931. 

v.  State:    2006,  2008. 
Loehde  v.  Halsey:   1410. 
Lofink  v.  Schuette:  2G. 
Lofrano  v.  New  York  &  M.  V.  Walter 

Co.:  1637. 

Loftin  v.  Crossland:   838. 
Loftus  v.  Farmers  &  Merchants'  Nat. 

Bank:   148. 

Logan  v.  Agricultural  Society:   285. 
Logan    County   Bank   v.    Townsend: 

441. 

Logre  v.   Galveston  Elec.  Co.:    2179. 
Lohnes   v.    Insurance   Co.   of  N.   A.: 

1053,  1074. 
Londegan  v.  Hammer:   1494. 


1374. 
London    G.    &    A.    Co.   v.    Hartman: 

1058. 
v.Missouri   &   Illinois  Coal  Co.: 

1058. 
London  &  Globe  Finance  Co.,  In  re: 

2484. 
London  Guaranty  &  Accident  Co.  v. 

Hartman:  1053. 

London    Joint    Stock    Bank   v.    Sim- 
mons:   2111. 
London    Life    Ins.    Co.    v.    Molson's 

Bank:    1984. 

London  Realty  Co.  v.  Riordan:   2002. 
London'  &  Lancashire  F.  Ins.  Co.  v. 

Gerteison:   1054,  1068. 
Long,   Appeal  of:    112. 
Long  v.  Chicago,  etc.,  R.  Co.:    1842. 
v.  Citizens'  Bank:   1383. 
v.  Colburn:  1124,  1395,  1398. 
v.  Hartwell:    212,   215,  1086. 
v.  Herr:    2454. 
v.  Ins.   Co.:    1060. 
v.  Jennings:  996. 
v.  King:    42. 

v.Martin:    169,    171,   933. 
v.  McKissick:     1169,    1181,    1183, 

1411. 
v.  North    British    Fire    Ins.    Co. : 

285. 

v.  Osborn:    485. 
v.  Pool:   793,  1266. 
v.  Poth:   407,  426,  427. 
V.Richmond:   1869. 
v.  Thayer:  664,  666. 
Long  Creek  Bid.  Ass'n  v.  State  Ins. 

Co.:   69. 

Long  Island  Ins.  Co.  v.  Great  West- 
ern Mfg.  Co.:   1062. 
Lonier  v.  Ann  Arbor  Savings  Bank: 

952. 

Longmeid  v.  Halliday:    1642. 
Longpre  v.  Big  Blackfoot  Mill.  Co.: 

1641. 

Longstreth  v.  Korb:    227. 
Longworth  v.  Conwell:    628. 
Lonwrens  v.  Clulee:    386. 
Loofbourow  v.  Hicks:  2280. 
Look  Tin  Sing,  In  re:  2147. 
Loomis  v.   Barker:    2108,   2129,   2576. 
v.  Hollister:   1900,  1901. 


2323 


TABLE   OF    CASES    CITED 


[  11  «•  forenoon   are  to  sections:   g§  1-1705,   Vol.  I;   §§  17O«-2588,  Vol.  II.] 


Loomis  v.  Jefferson  County  Patrons' 
Fire  Relief  Ass'n:   1055. 

v.  New  York,  etc.,  R.:  1782,  2179. 

V.Simpson:    306,  329,  2514,  2550. 

v.  Vawter:  885. 

Loomis  Milling  Co.   v.  Vawter:    410. 
Loop  V;  Litchfield:   1949. 
Loos  v.  Walter  Brewing  Co.:    617. 
Looschen    Piano   Case    Co.   v.    Stein- 
berg:   435. 

Lopes  v.  Connolly:   2049. 
Loraine  v.  Cartwright:  793,  1266. 
Lord  v.  Bigelow:  21G2. 

v.  Burbank:    2183. 

v.Goldberg:   604. 

v.  Hall:  315. 

V.Hamilton:    2193. 

v.Jones:   1684. 
1  v.<Lord:  63,  208. 

v.  Moran:   2467. 

v.  Oconto:  313. 

v.  Smith:   1211. 

v.  Thomas:    563,  566. 

v.  Wakefield:    1669. 
Lorie  v.  Connecticut  Mut.  L.  Ins.  Co.: 
1070. 

v.  North    Chicago    City    R.    Co.: 

463. 

Lorimer  v.  Lorimer:  2297. 
Loring  v.  Bodie:   2114. 

v.  Brodie:   1813,  1815,  1818,  1844. 

v.  Mulcahy:   1457. 
Lorton  v.  Russell:   870,  953. 
Los    Angeles    Traction    Co.    v.    Wil- 

shire:  2452. 
Losee  v.  Clute:   1642. 
Lotard  v.  Graves:  1262. 
Lothian  v.  Wood:  1852. 
Lothrop  v.  Adams:   1980. 
Lottman  v.  Barnett:  1477. 
Lotz  v.  Hanlon:  1912,  1950. 
Louchheim  v.  Printing  Co.:   620. 
Loud  v.  Hall:  2394. 

v.  Lane:  1G29. 

London    Savings   Fund   Soc.   v.    Sav- 
ings Bank:   60,  69. 
Lougarre  v.  Haas:    2525/2526,   2528. 
Lough  v.  Davis:    260,   278,  1474: 

v.Thornton:    2075. 
Lo'ighery  v.  Huxford:   2049. 
Loii-rhridge  v.   Burkhart:    2163. 
Louis  v.    Smellie:    1211. 


Louis  Bank  v.  Ross:   2576. 
Louisiana    Nat.    Bank    v.    Laveille: 

760,  1801. 
Louisiana    State    Bank    v.    Senecal: 

1815,   1845,   1852. 
Louisville  Bank  v.  Gray:  1198. 
Louisville  Coffin  Co.  v.  Stokes:    167, 

169,  982. 
Louisville,  etc.,  R.  Co.  v.  Allen:  1624. 

v.  Allgood:   2050. 

v.  Ballard:  2016. 

V.Blair:   317,  332,  1872. 

v.  Boland:   1619. 

v.  Brown:    1650. 

v.  Buffington:    1309. 

v.  Caldwell:   1143,  1154. 

v.Collins:   1644. 

v.  Cox:  604,  1020. 

v.  Dillard:   1651,  1652. 
•P*>    v.Edmund's  Adm'r:  1650. 

v.Ellis:   1794. 

v.  Oarrett:    2016. 

v.  Ginley:   320. 

v.  Gollehur:    1487. 

v.  Hall:   1619. 

v.  Hanning:  1638. 

v.Harvey:   593. 

v.  Henly:  555,  1782. 

v.  Hibbitt:   1650. 

v.  Hocker:  1620. 

v.  Kelly's    Administratrix:    2015- 

V.Lome:    1651. 

V.Louisville    Trust    Co.:    762. 

v.  McVay:   483,  979,  994. 

v.  Melton:   1679. 

v.  Offuth:    593,    1556. 

v.  Orr:    1624,  1681. 

v.  Petty:  1654. 

v.  Routt:   1962. 

v.  Smith:   341,  994. 

v.  Stuber:    1657. 

v.  Stutts:   1618,  1624. 

V.Wallace:   2245,  2246. 

v.Williamson:   1798. 

v.Willis:    2135. 

v.Wright:  1619. 
Louisville  Foundry  Co.  v.  Patterson : 

991. 

Louisville   Gas   Co.   v.   Hargis:    2261 
Louisville   R.   Co.   v.   Johnson:    1794, 

1799. 
Louisville  Times  v.  Lancaster:   1783. 


2324 


TABLE   OF    CASES    CITED 


are  to  flections:  §§  1-1705,  Vol'.  I?  §§  1706-2588,  Vol.  II.] 


Louisville  Trust  Co.  v.  Louisville  R. 
Co.:   1801,  1844. 

v.Sloan:   2162. 
Louisville  &  N.  R.  Co.  v.  Bohan:  1787. 

v.  Ellis'  Adm'r:   1798. 

v.  Hill:  2311. 

v.  Lahr:    1G52. 
Louk  v.  Woods:  199. 
Lounsbury  v.  Duckrow:  2036. 
Love  v.   Harris:    2320. 

v.  Love:    1112. 

v.  Miller:   1536,  2430,  2447. 

v.Owens:    2447. 

v.  Peel:    671,  2314. 

v.Sierra  Nevada,  etc.,  Co.f  1735. 
Loveless  v.  Fowler:   1254. 

v.  Standard  Gold  Min.  Co. :   1646. 
Lovell  v.  Howell:  1654. 

V.Williams:    277. 
Lovemah  v.  Brown:   1543. 
Loverin-Brown  Co.  v.   Bank   of  Buf- 
falo:   289. 
Lovett   v.    Brown:    1685,    1694,    2272. 

v.  Moore:    2280. 

v.Sullivan:    1039. 

Lovejoy    v.     Campbell:     1900,    1901, 
1916. 

V.Kaufman:    1332,  2417,  2481. 

v.  Murray:   507. 

v.Richardson:   208. 
Loving  Co.  v.  Cattle  Co.:  485,  563. 
Low  v.  Clear  Creek  Coal  Co.?  1671. 

V.Connecticut,   etc.,  R.  Co.:    382, 
435. 

v.  Moore:  894,  2115. 

v.Perkins:    198. 

v.  Settle:  2152. 

v.  Towns:  1493. 

Lowden  v.  Wilson:    1803,  1831. 
Lowe  v.  Benz:   462. 

v.Jones:    1350. 

v.  Miller:   2470. 

v.  Sinklear:    1578. 

v.  Southern    R.    Co.:    1670,'   1678. 
Lowe  Mfg.  Co.  v.  Payne:  1678. 
Lowell  v.  Hessey:    563,  564,  567,  619. 
Lowell    Sav.    Bank1   v.    Winchester. 

1801. 

Lowenburg  v.  Wolley:   1296. 
Lowenstein  v.  Bresler:   955. 

v.  Lombard :    980. 


Lowery  v.  Gate:    147. 

v.  Steward:    2582. 
Lowey  v.  Granite  State,  etc.,  Ass'n: 

90. 

Lowman  v.  Nye,  etc.,  Bank:   432. 
Lowrey  v.  Scargill:   1410. 
Lowry  v.  Atlantic  Coast  Line:   298. 

v.Clark:    21G3. 

v.  Commercial,  etc.,  Bank:    2126. 

V.Harris:    483. 
Lowther  v.  Carlton:  1808,  1814,  2176. 

v.  Earl  of  Radnor:   1494. 
Loxley     v.     Studebaker:     775,     2438, 

2449. 

Lubliner  v.  Tiffany  &  Co.:    1974. 
Luby  v.  Hudson  River  R.  Co.:    1798. 
Lucas  v.  Allen:   110. 

v.  Bank   of  Darien:    132,   1815. 

V.Godwin:    1519. 

v.  Peacock:  2278. 

v.Pico:   110. 

v.  Rader:    309,   854,  2399,   2401. 
Luce,  In  re:  2189. 
Luce  v.  Cook:   2479. 

V.Foster:   '2170,    2172,    2173. 

v.  Holloway:   1918. 

v.San   Diego  Land   Co.:    602. 
Lucena  v.  Craufurd:    377,   524,   2521. 
Luckes  v.  Meserole:   1424,  1427. 
Luckie    v.    Johnston:    753,    864,    870, 

872. 

Luco  v.  De  Toro:   2249. 
Ludden  v.  Sumter:    2163. 
Ludeke,  In  re:  2245. 
Ludeman  v.  Third  Ave.  R.  Co.:  2162. 
Ludgater  v.  Love:   1996. 
Ludlow,    etc.,    Co.    v.    Fribley,    etc., 

Co.:    2395,    2402. 
Ludlow-Saylor   Wire   Co.    v.    Fribley 

Hdw.  Co.:    854. 
Ludwig  v.  Cory:   80,  82. 

v.  Gillespie:      1411.     2024,     2025, 
2037. 

v.  Gorsuch:  901. 

Lufburrow  v.    Henderson:    1595. 
Lufkin  v.  Mayall:    155. 
Luhn  v.  Fordtran:  596. 

v.  Griggs:   827,  902. 
Luken    v.    Lakeshore,    etc.,    R.    Co.: 

1671. 
Lukens  v.  Hazlett:  2002. 


2325 


TABLE   OF    CASES    CITED 


[Reference  tire  to  *<•<•< IOIIM:   §§  1-1705,  Vol.  I;  §8   1700-2588,  Vol.  II.] 


Lukin  v.  Halderson:  2309. 

Lull   v.    Anamosa   Nat.    Bank:    1410, 

1414,  1426. 

Lully  v.  Morgan:    121. 
Lum  v.  McEwen:   118. 
Lumbard  v.  Aldrich:   804. 
Lumberman's  Mut.   Ins.  Co.  v.  Bell: 

1066,  1865. 
Lumley  v.  Corbet:   867,  868,  2075. 

v.  Gye:  2133. 

v.  Kinsella  Glass  Co.:    1125. 

v.  Wagner:  643. 

Lumpkin  v.  Louisville,  etc.,  R.  Co.: 
2281. 

v.Wilson:   816,  817,  2513. 
Lund  v.  Babb:   2447. 

v.  Bapp:  2447. 

v.  Seaman's  Bank:   1333. 

v.  Thackery:    213,   225,  798. 

v.  Tyngsborough :   1796. 
Lundberg  v.   Davidson:    679,   2281. 
Lundeen  v.  Ottis:  2468. 
Lundy   v.   Gardner:    230. 
Lungerhausen  v.  Crittenden:   2246. 
Liming  v.  Wise:   977. 
Lunn    v.    Giuthrie:     436,    491,    1251, 

1272,  2414. 
Lunney  v.  Healey:   1534,  2447,  2448, 

2470. 

Lupton  v.  Taylor:   2204. 
Lurie  v.  Public  Bank:  2081. 
Lusk  v.   Belote:    2001. 
Luske  v.  Hotchkiss:  1522. 
Luster  v.  Robinson:   2030. 
Lustgarten  v.  Hecht:   2334. 
Lutes   v.   Thompson:    141,   142. 
Lutjeharms  v.  Smith:  489. 
Luttrell  v.  Hazen:    1924. 

v.Martin:    316,  332. 
Lutz  v.  Atlantic,  etc.,  R.  Co.:   1644. 

v.  Linthicum:    1093,    1100,    1102. 
Lydall,  In  re:  2189. 
Lyden  v.  McGee:   1975. 
Lyell  v.  Kennedy:  377. 

v.  Sanbourn:    246. 
Lyle  v.  Addicks:  463. 

v.  Burke:    42. 

v.  Murray:  1336,  1337,  2544,2548. 
Lyman  v.  Norwich  University:    441. 

v.  White  River  Bridge  Co.:    130. 
Lynch  v.  Commonwealth:  2184,  2219. 

v.  Cowell:   2162. 


Lynch  v.  Fallon:  177,  178,  1590,  2412, 

2474. 
V.Florida,    etc.,    R.    Co.:     1939, 

1941,   1972. 
v.  Florida,     etc.,     Traction     Co. : 

1978. 

v.  Jennings:    1346. 
v.  Kineth:  1803,  1804. 
v.  Mercantile  Trust  Co. :    1987. 
v.  Metropolitan     Blev.     R.     Co. : 

1973. 

v.  Poole:   2064. 
v.  Rabe:  628,  634. 
v.  Richter:   364,  463. 
V.  Saginaw  Val.  Tr.  Co. :   1661. 
v.Smyth:     351,     395,     461,     463. 

468. 
Lynchburg  Tel.  Co.  v.  Bokker:  1779. 

1780. 
Lynde  v.  Lynde:  2207,  2236. 

v.  McGregor:   2308. 
Lyndeborough    Glass    Co.    v.    Mass- 
achusetts Glass  Co.:  368,  374. 
Lyndon   Mill   Co.   v.   Lyndon   Lit.   & 

Bib    Inst:    374,    1820. 
Lyne   v.    Bank    of   Kentucky:    184S. 

1852. 

Lynn  v.  Burgoyne:   306,  308,  318. 
v.  Lyerle:  2302. 
v.Morse:   2290. 
Lyon  v.  Adamson:  1148. 

v.Culbertson:      111,     716,     1268, 

2502. 

v.  Hires:    2162. 
v.  Hussey:    110. 
v.  Insurance  Co. :  1068. 
v.  Jerome:  306,  312. 
v.Kent:   158. 
v.  King:   226. 
V.Mitchell:    98,   100,    2412,   2435, 


2478. 

v.  Pollock : 
v.  Simpson: 
v.  Sweeney : 
v.  Wilcox: 


227,  803. 
2003. 
1601. 
2247. 


v.Williams:     1169,     1172,     1174, 

1412,  2419. 
Lyons  v.  Coe:  121,  2478,  2481. 

v.  Jerome:    124. 

v.  Miller:    2364. 

v.  Pyatt:   186. 
Lysaght  v.  Falk:   1723. 


2326 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   gg  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  II.] 


Lyth  v.  Buffalo:  313. 
Lythgoe  v.  Smith:  933. 
Lytle  v.  Bach:    2280. 

v.  Bank  of  Dothan:    2C3,  970. 

v.  Crescent   News   &   Hotel   Co.: 
1979. 

v.Crawford:   2162. 
Lyttle  v.  Chicago,  etc.,  R.  Co.:  1630. 

v.Goldberg:   2482. 


M 


Maas  v.  Bloch:  2308. 

Maanss  v.  Henderson:  1705. 

Mabb  v.  Stewart:   775. 

Mabray     v.     Kelly-Goodfellow     Shoe 

Co.:  716,  861. 
Macauley  v.  Elrod:  1334. 

v.  Policy:   2163. 
Macbeath  v.  Ellis:  552. 

v.  Haldimand:    1428. 
Maodonald  v.  Bond:  1169,  1171,  1404, 
1411. 

v.  GfPsler:    112. 

v.  O'Neil:    784,    841. 

v.  Tittman:    2245. 

v.  Wyllie  &  Son:   1641. 
MacParlane    v.    Allan-Pfeiffer    Chem. 
Co.:   1584. 

v.  Giannacopulo:    1744,    1750. 
Macfarren   v.   Gallinger:    563,   610. 
Macgregor   v.    Union   Life    Ins.    Co.: 

600,  1569. 

Machette  v.  Wanless:  2309. 
Machinists'  National  Bank  v.  Field: 

2423. 
Mack  v.  Bragg:   1577,  1579. 

v.  Sharp:    2308. 

v.  Tobacco.  Co.:    48,  2499. 
Mack  Mfg.  Co.  v.  Smoot:   1803. 
Maokall  v.  Willoughby:  2286. 
Mackay  v.  Bloodgood:   208,  216. 

v.  Commercial  Bank:  1995. 
Mackay -Nisbet  Co.  v.  Kuhlman:   907, 

1803,  1811. 

Macke  v.  Camps:   789. 
Mackel  v.  Bartlett:   2308,  2309. 
Mackenzie  v.  Hodgkin:  2540. 

v.  Minis:  593. 

v.Scott:   1322. 

v.  The  Trustees,  etc.,  Co.:  1909. 
Mackersy  v.  Ratnsays:  331,  1314. 


Mackey  v.  Adair:   2163. 

v.  Winkler:    2003. 
MacKie  v.  Howland:  2244. 
Macklot  v.  Davenport:  1498. 
Maclure,  Ex  parte:  598. 
Macnamara  v.   Martin:    1593. 
Macon  v.  Holcomb:   1676. 
Madden     v.     Equitable    Life    Assur. 
Soc.:  1537. 

v.  Kempster:    1687. 

v.  Watts:    2208. 

v.Wilcox:  1670. 
Maddox,  In  re:  2147. 
Maddox  v.  Brown:  156,  1898,  1912. 

v.  Cranch:   2216. 

v.  Harding:   2455. 

v.  Maddox:    1803. 
Maddux  v.  Bevan:  445,  473,  2163. 
Madeley  v.   Kellan:    285. 
Madigan    v.    Oceanic    Steam    Naviga- 
tion Co.:   1640,  1654. 
Madison  v.  Cabalek:   958. 
Madisonville,    etc.,   R.    Co.   v.  Owen: 

1870. 

Maffet  v.  Hampton:    1131. 
Maffey  v.  Hobart:   807. 
Magaf  v.  Hamond:    1916,  1960,  1968, 

1979. 

Magarhan  v.  Wright:  603. 
Magarrell  v.  Magarrell:   1515. 
Magerstadt  v.  Schaefer:   170. 
Maggio,  In  re:  2147. 
Magill  v.  Hinsdale:   1102,  1106,  1166. 

v.  Stoddard:  2431. 
Magnin  v.  Dinsmore:  1245. 
Magoffin    v.    Mutual    Reserve    P.    L. 

Ass'n:  640. 

Magone  v.   Portland   Mfg.  Co.:    1670. 
Magruder  v.  Belt:    1169. 

v.  Swann:  1493. 
Maguire  v.  Smock:   97. 
Mahaiwe  Bank  v.  Douglass:  716. 
Maher  v.  First  Nat.  Bank:   1145. 
Mahon  v.  Rankin:   296. 

v.  Royal  Union  L.  Ins.  Co.:  2368. 
:  rr,v.  Smith:    156. 

Mahoney    v.    Butte    Hardware    Co.: 
909. 

v.  Dore:    1674. 
v.  McLean:    1734. 
Mahood  v.  Teazla:  121. 
Mahrt  v.  Hyman:    848. 


2327 


TABLE   OF    CASES    CITED 


[Reference*  are  to  lectlona*  88  1-1705,  Vol.  I;   «»   1706-2588,   Vol.  II.] 


Maier  v.  Randolph:  1924. 

Mall  &  Express  Co.  v.  Wood:   296. 

Main  v.  Casserly:   2151. 

Maine  Red  Granite  Co.  v.  York:  1419, 

1424. 

Maine  Stage  Co.  v.  Longley:    219. 
Mainhart  v.   Poerschke:    2469. 
Maisenbacker   v.   Concordia   Society: 

2015. 

Maitland  v.  Gilbert  Paper  Co.:   1630, 
1644. 

v.Martin:   1601,  1602,  1603,  2480, 

2558. 

Majoribanks  v.  Hovenden:   1803. 
Majors  v.  Goodrich:   292. 

v.  Hlckman:    2249. 
Makemson  v.  Kaufman:  97. 
Makepeace  v.  Rogers:   1334,  1343. 
Malcolm  v.  Waterhouse:    1984,   1990. 
Malcomson  v.  Wappoo  Mills:   1569. 
Maiden    &    MelroBe    Gas    L.    Co.    v. 

Chandler:   1226. 

Malecek  v.  Tower  Grove  R.  Co.:  1791. 
Males  v.  Murray:  187. 
Mali  v.  Lord:   1959,  1973. 
Mallach  v.  Ridley:  1941,  1973. 
Mallard  v.  Moody:  992. 
Malleable  Co.  v.  Cronan:  2187. 
Malleable  Iron  Co.  v.  York  Iron  Co.: 

2055. 

Mallery  v.  Frye:  2370. 
Mallon  v.  Story:  208. 
Mallonee  v.  Duff:  1547. 

v.  Young:   2430. 
Mallory  v.  Elwood:  882. 

v.Ferguson:   1480. 

v.  Mallory  Wheeler  Co.:   463. 

v.  Mariner:   2163. 
Mallough  v.  Barber:   1298. 
Malone  v.  Gerth:  2212. 

v.  Hathaway:  1640,  1654. 

v.  Hawley:   1625,  1642. 

v.  McCullough:    229,  233. 

v.Morton:    1454,  1483,   14*6. 

v.Robinson:  994. 
Maloney    v.    Florence,   etc.,   R.    Co.: 

1621. 
Maloney    Mercantile    Co.    v.    Dublin 

Quarry  Co.:  946. 
Maltbie  v.  Belden:   1637,  1668. 

v.Christie:   2337. 
Maltby  v.  Kirkland:  1798. 


Man  v.  Shiffner:  1705. 
Manby  v.  Scott:   161,  163. 
Manchester   Bank   v.   Fellows:    2151, 

2155. 
Manchester     Bldg.     &    L.     Ass'n     v. 

Allee:  742. 
Maudel  v.  Peet:  532. 
Mandel  Bros.  v.  Fogg:  172. 
Manders  v.   Craft:    1591,   2413,   2475. 
Mandevllle  v.  Guernsey:  2308. 

v.Reynolds:   8162,  2183. 
Maneer  v.  Sanford:   1363,  1400. 
Manett  v.  Simpson:   2025. 
Manette  v.  Simpson:   2032. 
Mangan  v.  Foley:  1869. 
Mange-Wiener    Co.    v.    Patton    Drug. 

Co.:   902. 

Mangold  v.  Thorpe:    1494,  1496. 
Mangum  v.  Ball:   946. 
Manhattan     Bank     of    Memphis     v. 

Walker:   2576. 

Manhattan  Fire  Ins.  Co.  v.  Harlem, 
etc.,  Co.:    463. 

v.  Weill:    1066. 
Manhattan  Life  Ina.  Co.  v.  Warrick: 

695. 
Manhatan    Liquor    Co.    v.    Magnus. 

1006. 

Manitoba,  etc.,  Co.  v.  Davidson:  1588. 
Manker  v.  Tough:  55,  2447,  2479. 
Mankin  v.   Mankin:    1985. 
Manley  v.  Ackler:  882. 

v.  Headley:    2162. 

v.  Zeigler:   2176. 

Manly  v.   Sperry:    285,  1419,   1424. 
Mann  v.  Chandler:   1133. 

V.Dublin  Cotton-Oil  Co.:   1044. 

v.Forrester:  1705. 

v.  McVey:  1458. 

v.  Oriental    Print    Works:    1644. 


v.  O'Sullivan:   1654. 


v.  People:  360. 

v.Robinson:   814,  817. 
Manne  v.  Siegel-Cooper  Co.:    433. 
Mannheim  Ins.  Co.  v.  Chipman:  1051, 

2369. 
Manning  v.  Clark:   2257. 

v.  Gasharle:    60,  395. 

v.  Hallenbeck:    1687. 

v.  Keenan:  2108. 

v.  Lelghton:   2284. 

v.Leland:   395. 


2328 


TABLE    OF    CASES    CITED 


[References   are  to  sections:   §§   1-1705,  Vol.  1;   §g  1700-2588,  Vol.   II.l 


Manning  v.  Manchester  Mills:    1644. 

v.Morris:   2000. 

v.  Sprague:  2237. 

v.  Young:   2003. 

Mannix  v.  Hildreth:  798,  2430. 
Manny  v.   Dunlap:    1298. 
Mansell  v.  Clements:    2435. 

v.Conrad:  1615,  1666. 
Mansfield  v.  Borland:  2276,  2278. 

v.  Scott:  605. 

v.  Wilkerson:    2210. 
Manson  v.  Simplot:  1804. 
Manthey  v.  Rauenbuehler:   1888. 
Manufacturers'     Bank     v.     Barnes: 
1842. 

v.  Continental  Bank:   1321. 

v.  Reed:  1139. 

Manufacturers',    etc.,    Bank   v.    Cow- 
den:    553. 

Manufacturers,  etc.,  Ins.  Co.  v.  Mul- 
len: 966. 

Manufacturers'    &    Merchants'    Mut. 
Ins.  Co.  v.  Armstrong:    1054,  1064. 
Maple  v.  Railroad  Co.:   1759,  2017. 
Mapp  v.  Phillips:    285,  395. 
Maraist  v.   Sheriff:    2172,   2174. 
Marbourg  v.  Smith:    2163. 
Marbury  v.  Ehlen:    2126. 

v.  Madison:   1493. 
Marcom  v.  Wyatt:   2191. 
Marcus  v.  Boston:    2359. 
Mardis  v.  Shackleford:    2212. 

v.  Shoekleford:    2194. 
Marengo  Abstract  Co.  v.  Hopper:  111, 

112,  1602. 
Marfield  v.   Douglass:    2527. 

v.  Goodhue:    2527,    2537. 
Margulies  v.  Oppenheimer:  593. 
Marine  Bank  v.  Butler  Colliery  Co.: 

953,  976. 
Marine  Bank  v.  Fulton  Bank:  1302. 

v.Wright:   2562. 
Marine  Co.  v.  Carver:  481. 
Marine  Ins.  Co.  v.  Walsh-Upstill  Coal 

Co.:    2031. 

Mariner  v.  Wiens:  208. 
Marino  v.  Lenmaier:   1676. 
Marion  v.  Chicago,  etc.,  R.  Co.:  1977. 
Marion    Mfg.    Co.    v.    Harding:    903, 

1803,  1804. 

Market  Co.  v.  Jackson:   2390. 
Market  Nat.  Bank  v.  Sargent:  978. 


Market   Street  Ry.  Co.  v.   Hellman: 

125. 

Markey  v.  School  District:   359,  367. 
Markham     v.     Jaudoh:     2386,     2400, 
2529. 

v.  Markham:  1554. 
Markle  v.  Blain:  2445. 
Markley  v.  Amos:  2162. 

v.  Quay:   1162. 

v.  Snow:   1974,  1975,  1976. 

v.  Western  Union  Tel.   Co.:    260, 

267. 

Marks     v.     Dartmouth     Ferry     Co.: 
1584,   1585. 

v.  Rochester   R.    Co. :    1042. 
Marlatt  v.  Elliott:    2435. 
Marlett  v.  Jackman:    652. 
Marlln  v.  Sip-pull:    2447. 
Marling  v.  Nommehsen:   932,  941. 

v.  Robrecht:    2163. 
Marlowe  v.  Bland:  1909. 
Marmorstein  v.  Railroad  Co.:  993. 
Marple  v.  Ives:  1533. 
Marquette,  etc.,  R.  Co.  v.  Taft:   994. 
Marr  v.  Given:  220,  766,  802,  804,  811. 

v.  Plummer:  530. 
Marrow  v.  Brinkley:  2151,  2155. 
Marseilles,  In  re:  IS 51. 
Marseilles  Extension  Co.,  In  re:  1815, 

1820. 

Marsellus  v.  Simpson:  2511. 
Marsh  v.  Astrey:   1464. 

V.  Buchan:    177,   178,   1206,   1995, 
2138,  2474. 

v.  Chickering:   1626,  1631. 

v.Ellsworth:   2224.  TWO] 

V.French:   977. 

v.Fulton  County:  385. 

V.Gilbert:    628. 

v.  Hand:   53. 

v.  Jelf:   2330. 

V.Joseph:  386,  395. 

v.  Small:  2111. 

v.  South  Carolina  R.  Co.:  1898. 

v.-Whitemore:      1TO,     473,     793, 

1198,   1222,   1226,   2195. 
Marshall    v.    Baltimore    &    Ohio    R. 
Co.:    84,   92,   93,   1523. 

v.  Cooper:  2276. 

v.  Dalton  Paper  Mills:   1674. 

V.Ferguson:     1223,     1251,     1258, 
1295. 


2329 


TABLE   OF    CASES    CITED 


[Reference*  are  to  MectfoiUM  §§  1-1705,  Vol.  I;  gg  17Ofl-2588,  Vol.  II.] 


Marshall  v.  Haney:  1783. 

v.  Hann:   1594. 

v.  Levy:   2480. 

v.  Meech:  2276.  2279,  2281. 

v.  Norcross:  1671. 

v.  Parsons:   1522. 

v.  Reading  Fire  Ins.  Co. :    628. 

v.  Reed:    1526. 

v.  Rugg:    215,  229. 

v.  Rntton:    148. 

v.  Schrioker:  1654. 

v.  Trerise:   2434. 

v.  Williams:  473. 
Marston   v.   Baerenklau:    2234. 

v.Gould:  2386. 

V.Reynolds:    296. 
Martien  v.  Baltimore:  2471. 
Martin  v.  Adams:  2002. 

v.Allen:  1445. 

v.  Almond:    1109. 

v.  Bliss:  1588. 

v.Campbell:    2230. 

v.  Capital  Ins.  Co. :  2163. 

V.Chicago,    etc.,    R.    Co.:     1661, 
1664. 

v.  Chicago,    R.    I.    &   P.   R.    Co. : 
1671. 

v.Clarke:   2237. 

v.  Cole:  1156. 

v.  Des  Moines  Elec.  L.  Co.:  1621. 

v.   Ede:  2447. 

v.Webb:  2549. 

v. Great  Falls  Mfg.  Co.:    1026. 

V.Harrington:   2276. 

v.  Hawks:  2283. 

v.  Flowers:  1093. 

v.  Hibernia  Bank:   1314. 

v.  Hickman:   395,  436. 

v.  Highland  Park  Mfg.  Co. :  1626. 

v.  Holly:  1550,  1552,  2455. 

v.  Humphrey:  410. 

v.Hunt:  1567. 

v.  Ingham:  1493. 

v.  Insurance  Co. :  603. 

v.Jackson:  1808,  1814,  2176. 

v.  Johnson:   285. 

V.Kansas  Nat.  Bank:   2099. 

v. Louisville  &  Nashville  R.  Co.: 
1461. 

v.  Mask:  2023,  2028. 

v.  Mathewa:  946. 

v.  Maynard:  1269. 


Martin  v.  Moulton:   2386. 

v.  Oakes:  167. 

v.Peters:   925. 

v.  Platt:  2302,  2307. 

v.  Pope:    2554,  2559. 

v.Richards:  833,  1813. 

V.Roberts:   1517,  1526. 

v.  Schoenberger:   1577. 

v.  Silliman:  2437. 

v.  Smith:    1152,  1162,   1687. 

v.  South   Covington   &  C.   St.   R. 
Co.:  1798. 

v.  South   Salem   Land  Co. :    1837, 
1853. 

v.  State:   2006. 

v.  Suber:  285. 

v.  Temperley:   1859. 

v.  United   States:    946. 

v.  Wade:   106. 

v.Webb:    244,   405,   717,   755. 
Martindale  v.  Falkner:  2262. 
Martine  v.  International  L.  Ins.  Soc.: 

673. 
Martineau    v.    National,    etc.,    Co.: 

1627. 

Martini  v.  Coles:   2033. 
Martin's  Petition:   2252. 
Marvel  v'.  Mansubrier:   2156. 

v.Phillips:    668. 
Marvin  v.  Brooks:   1343. 

v.  Ellwood:  1331,  2545. 

v.  Muller:  1644. 
Marye  v.  Strouse:   2386. 
Maryland    Casualty   Co.    v.    Peoples: 

2368. 
Maryland  Fire  Ins.  Co.  v.  Dalrymple: 

2386,  2387,  2412. 
Maryland     Trust     Co.     v.     National 

Mech.   Bank:    1803,   1843. 
Marx  v.  Co-operative  Ass'n:  1170. 

V.King:  246,  276. 

v.  Luling      Co-operative      Ass'n: 
1176. 

v.  Miller:   617. 

v.Otto:  2462. 
Marzion  v.  Pioche:   585. 
Mast  v.  Kern:  1654. 
Masters   v.   Wayne    Auto    Co.:    1532, 

1533. 

Masterson  v.  Le  Claire:  2163. 
Mastin  v.  Gray:  2157. 


2330 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:  §g  1-170.",,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Mason  v.  Bauman:   1198,  2136. 
v.  Caldwell:   512. 
v.Connell:  566. 
v.  Decker:  601. 
v.  Finch:  188. 


v.  New  York  Produce  Exchange 
597. 

v.  Post:   1678. 

v.  Richmond,  etc.,  R.  Co.:  1678. 

v.  Ring:  2296. 

v.  Secor:   1567. 

v.  Simplot:    1803. 

v.Taylor:  1011. 

V.Thompson  Co.:    956,   2181. 

v.  United  Press:   1837. 

v.  Waite:   2094,  2102. 

v.  Whitthorne:   1335. 

v.  Wolkowick:    1329. 
Massachusetts,  etc.,  Co.  v.  Township: 

2269. 
Massachusetts,    etc.,    Const.    Co.    v. 

Gills'  Creek  Tp.:   2276. 
Massachusetts   Life   Ins.   Co.   v.  Car- 
penter:  1335. 

v.  Eshelman:     741,    1054,    1073. 
Massachusetts    Mut.    L.    Ins.    Co.    v. 

Boggs:    2002. 
Massey  v.  Taylor:  1548. 
Massie  v.  Chatom:    2431,  2440. 
Massillon  Engine,   etc.,  Co.  v.  Aker- 
man:    285. 

v.  Shirmer:   903. 
Massy    v.    Milwaukee   Elec.    R.    Co.: 

1640,  1652. 

Mast  v.  Easton:   1340,  1346. 
Mastad   v.    Swedish   Brethren:    1940. 
Masterson  v.  Masterson:  1528. 
Mastertown  v.  Knights:   2467. 
Matheney  v.  El  Dorado:    465. 

v.  Farley:  2253,  2254. 
Mather  v.  Barnes:   809. 

v.  Phelps:  1782. 

v.  Rillston:   1624,  1625. 
Mathers  v.  Union   Mut.   Ace.   Ass'n: 

1055. 
Matheeon  v.  New  York  Cent.  R.  Co.: 

1522. 
Mathews  v.  Hamilton:    395,  946. 

v.  Industrial   Lumber   Co.:    1593. 

v.  O'Shea:    1432. 

Mathews  Apparatus  Co.  v.  Renz:  861. 
Mathias  v.   Sellers:    1690,  1694. 


Mathis  v.  Bank:  376. 

v.  Pridham :   1844. 
Mathot  v.  Triebel:  2264,  2270. 
Mattes  v.  Engell:   1536,  2435,  2448. 
Matteson  v.  Blackmer:  275. 

v.  Rice:   833,  1987. 

v.  United  States  Land  Co.:  426. 


,18* 


Matthews  v.  Alexandria:  313. 

v.  Dubuque    Mattress   Co.:    1126, 
1157.  ' 

v.  Fuller:    473,    2414. 

V.Giles:    2166. 

v.  Hoagland:    2304. 

V.Jenkins:   1171,  1576. 

v.  Light:    1192,   1198,  1216. 

v.  Menedger:    2559,  2566. 

v.  Pease:  435. 

v.  Robinson:  2293. 

v.  Sowle:  806. 

v.Wilson:   1334. 
Matthiesson,   etc.,    Co.   v.   McMahon: 

676,  678,  679,  680. 
Mattingly  v.  Pennie:  2430,  2431,  2432, 

2440,  2441. 

Maulsby  v.  Reif snider:   2224. 
Mauney  v.  Ingram:   1684. 
Maupin  v.  Scottish  Union  &  Nat.  Ins. 

Co.:    1057,  1063. 
Mauran  v.    Smith:    1493. 
Maurice,  The:    1798. 
Maury  v.  Ranger:   1417,  2584. 
Mawr  v.  Pearson:  333. 
Mawron  v.  Lamb:  2023. 
Maxcy    Mfg.    Co.    v.    Burnham:    169, 

171,  628,  986,  1731. 

Maxey  v.  Heckethorn:   245,  285,  722. 
Maxfield  v.  Carpenter:  867,  869. 
Maxham  v.  Place:  2304. 
Maxwell,  In  re:  2162. 
Maxwell  v.  Audinwood:  2558. 

v.  Bay  City  Bridge  Co.:  313. 

v.  Frazier:  2458. 

v.  Gibbs:  724. 

v.Owen:  2182. 

v.  Pate:  2163. 

v.  Pike:  1501. 

v.  Rasitsky:  2437. 
May  v.  Bliss:   1924. 

v.  Buckeye  Mut.  Ins.  Co. :  1066. 

v.Hewitt:   1153,  1162. 

v.  Jones:  1313. 

v.  Le  Claire:  1350. 


233 1 


TABLE   OF    CASES    CITED 


[Ref erence*  ,are  to   salons:   g§  1-1705,  Vol.   I;   88   170fl  25SS,   Vol.   II.J 


May  v.  Mitchell:  893. 

v.  Shreveport  Traction  Co.:  1934, 
198L 

fa  Smith:  1619. 

v.  Sturdivant:    1783, 

v.  Trust  Co.:  933. 

v.  Western  Union  Tel.  Co.:   1981, 

1982.  f    v  _.  .,. 

Mayberry  v.  Cook:   135^f(j,r   i;U  ., 

v.  Leech:  1595. 

v.  Northern    Pac.    R.    Co.:     1461, 

2011. 

Maydew  v.  Forrester:  2370. 
Mayer  v.  Bank:  1447. 

v.  Bernstein:  1009. 

v.  Dean:    411,  1702,  1996. 

v.  Heidelbach:   2093. 

v.Kilpatrick:   2132. 

v.McLure:  2087. 

v.  Rhoads:  2426. 

v.  Sparks:  2163. 

v.  Thompson  -  Hutchinson      Bldg. 

Co.:  1461,1474,1477. 
Mayers  v.  Kaiser:  169. 
Mayfield  Woolen  Mills  Co.  v.  Long: 

435. 
Mayhew  v.  Brislin :   2443. 

v.Graham:  1731. 

v.  Prince:.  1129. 

v.Sullivan  Min.  Co.:   1871. 
Maynard  v.  Briggs:  2251. 

v.  Royal  Worcester   Corset   Co.: 

603,  1561. 

Mayo  v.  Wahlgreen:  809,  1995. 
Mayor  v.  Monzo:  2389. 

v.  Whittington:   1814,  2175. 
Mayor,  etc.  v.  Dubois:  1018,  1023. 

v.  Tenth  Nat.  Bank:   1853. 
Mayor  of  Baltimore  v.  Eschbach:  762, 
763. 

v.  Gahan:  313. 

V.Reynolds:   762,  763. 
Mayor  of  Macon  v.  Huff:  1202. 
Mayor  of  Salford  v.  Lever:  2137. 
Mayton  v.  Texas,  etc.,  R.  Co.:    1658. 
Maze  v.  Gordon:  1521,  1533,  2437. 
McAfferty  v.  Hale:   1578. 
McAlary  v.  Stafford:  1924. 
McAlexander  v.  Wright:   2151,  2154. 
McAlpin    v.    Cassidy:    273,    708,    784, 

789,  790,  882. 
McAndrews  v.  Burns:  1644. 


McAnow  v.  Moore:   1245. 
McArthur  v.  Fry:  2257. 

v.  Home  Life  Ass'n:    1051. 

v.  Slauson:   2430,  2437. 

v.  Times  Printing  Co. : 
McBain  v.  Seligman:  169.,, 
McBeath  v.  Rawle:  1621. 
McBratney  v.  Chandler:   92,  1EJ23. 

v.  Hey  decker:   1424. 

v.  Railroad  Co.:   2243. 

v.  Rome,  etc.,  R.  Co. :  2160. 
McBrayer  v.  Cohen,:   2320. 
McBride  v.  Adams:  167. 

v. Farmers'  Bank:  1321. 

v.  Union  Pac.  R.  Co.:  1644. 
McBroon  v.  Cheboygan  Co.:   246,  276. 
McCabe  v.  Aetna  Ins.  Co.:  1055. 

v.  Goodfellow:    187. 

v.Jones:  2430,  2441. 

v.  O'Connor:  147. 

v.Wilson:  1644. 
McCafferty  v.  Spuyten  Duyvil,  etc.,  R. 

Co.:  1917,  1918. 
McCain  v.  Peart:  1348. 

v.  Portis:   2276. 
McCall  v.  Braham :  643. 

v.  Cohen:  1494. 

v.  Herrin:  2003. 

v.  Whaley:  104. 
McCalla.v.  American,  etc.,  Mortgage 

Co:    420. 
McCallum  v.  Corn  Products  Co.:   101. 

v.  Grier:  563,  2449. 
McCalmont   v.    Lanning:    1803.    1831, 

1844.    rfl^ 

McCammon  v.  Peck:  2249. 
McCandless    v.    Allegheny    Bessemer 
Steel  Co.:  119. 

v.  Belle  Plaine  Canning  Co.:  1126, 

1157. 
McCann  v.  Atlantic  Mills:  1620,  1624. 

v.  McLennan:  2161. 
McCants  v.  Bee:  395. 

v.,Wells:     316,     332,    1288,    2523, 

2550. 

McCargo  v.  Jergens:  1553. 
McCarley  v.  White:  2207. 
McCarrier  v.  Hollister:  1918. 
McCartee  v.  Chambers:  1389. 
McCarthy  v.  Cavers:   2438. 

v.  Crawford:  2119. 

v.  Crump:  2166. 


2332 


TABLE   OF    CASES    CITED 


[References   are  to  section*:   §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 


McCarthy  v.  Guild:  2135. 

v.  Hampton:  1517. 

v.  Mayor:  1522. 

v.  McCabe:    1860,  1925. 

V.Portland:    1870. 

v.  Timmins:    1900,  1903,  1906. 

v.  Young:  1401. 

McCartney  v.  Insurance  Co. :  2368. 
McCarty  v.  Bauer:   1503. 

v.  Second  Parish:  1917. 

v.  Stanfill:  933. 

McCarver  v.  Nealey:   946,  2182,  2183. 
McCaskey  Register  Co.  v.  Curfman: 

859. 

McCathern  v.  Bell:  1008. 
McCaul  v.  Strauss:  2379. 
McCauley  v.  Trust  Co.:  1406. 
McCaull  v.  Braham:   643. 
McClain  v.  Davis:  138. 
McClanahan  v.  Breeding:  80,  252,  555, 

766,  768,  769. 

McClane  v.  Paine:  2430,  2456. 
McClare  v.  Lockhard:   2287. 
McClaskey  v.  Albany:   235G,  2358. 

v.  Barr:   664. 
McClave  v.  Paine:   2445. 
McClay  v.  Hedge:  1578. 
McClean  v.  Stansberry:    234& 
McCleerey  v.  Wakefleld:  214. 
McClellan  v.  Harris:   1582. 

v.Parker:    1410. 

V.Reynolds:    1153,  1159,  1162, 

v.  Robe:   1141. 
McClelland  v.  Saul:  1810. 

v.  Whiteley:   235. 
McClendon    v.    Bradford:    981,    1198, 

1327. 

McClenticks  v.  Bryant:  1113. 
McClintock  v.  Helberg;    2163. 

v.  South  Penn  Oil  Co.:    372,  521, 

523. 

McCloskey  v.  Thompson:   2435. 
McCloud  v.  Despain:   435. 
McClun  v.  McClun:   135. 
McClung   v.    Dearborne:    1892,    1977, 
1978. 

v.  McPherson:  836. 

v.  Spotswood:  285. 
McClure  v.  Briggs:  410. 

v.  Central  Trust  Co.:   1411. 

v.  Colclough:   2184. 

v.  Evartson:  450,  952. 


McClure  v.  Herring:   1093,  1107. 

v.  La  Platta  County:    1350. 

v.  Livermore:   1140. 

v.Luke:    2413,  2475. 

V.Mississippi     Valley     Ins.     Co.: 
317,  1054. 

v.  Murphey:   296. 

McClure's  Ex'r  v.  Corydon  Bank:  971. 
McCluskey  v.  Minck:  292. 
McColgan  v.  Katz:    1093,  1112. 
McCollum  v.  Boughton:   148,  169. 
McComb  v.  Railroad  Co.:   1783. 

v.  Wright:  229,  2320. 
McCombie  v.  Davies:  1457,  1705,  2509 
McConnell  v.  East  Point  Land   Co.: 
2065,  2075. 

v.  Holderman:  1170,  1413,  1423. 

v.Mackln:  317,  933, 

v.  Prince:   1457. 

v.  Tucker:    307. 

McConnico  v.  Curzen:  2504,  2541. 
McCoon  v.  Galbraith:   1347. 
McCord  v.  Manson:  1351. 

v.  Western  Union  Tel.  Co.:   1941 

1984,  1990. 
McCord   Furniture   Co.   v.   Wollpert: 

850. 
McCormack  v.  Henderson:  1580,  2435 

2442. 

McCormick,  In  re:  2133. 
McCormick  v.  Bay  City:  214. 

v.  Bush:  306. 

v.  Demary:    610,  1782. 

v.Joseph:  1808,  1814,  2176. 

v.Keith:   894,  946,  1017. 

V.Kelly:  885. 

v.  Littler:  134. 

v.  Malin:    1221. 

v.Peters:  395. 

V.Roberts:   285. 

v.  Shaughnessy:    2314. 

v.  Wheeler:  1808,  2176. 

v.Williams:    285. 

v.  Wood,  etc.,  Co.:  946. 
McCormick  Harvester  Co.  v.  Breen: 
946. 

v.  Cordsiemon:    1556. 

V.Lambert:   280. 

v.  Burandt:   1624. 

v.  Carpenter:   1324. 

v.  Haug:   1325. 

v.  Brower:  903. 


2333 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:  §§  1-1705,  Vol.  I;  8§  1706-2588,  Vol.  II.] 


McCormick  Harvester  Co.  v.  Hiatt: 

903,  905. 
v.Taylor:    2084. 
McCornick  v.   Queen  of  Sheba,  etc.: 

285,  292,  295,  296. 

McCosker  v.  Long  Island  R.  Co.:  1644. 
McCotter  v.  Hooker:  1779,  1780. 
McCoun  v.   New  York,   etc.,   R.   Co.: 

267. 

McCowen  v.  Pew:  118. 
McCoy  v.  Gas  Engine  Co. :  2234. 
v.  McKowen:   741. 
v.Met.  L.  Ins.  Co.:   1073. 
v.  Munro:   2184. 
v.Weber:   252. 
McCoy   Bng.   Co.   v.   Crocker-Wheeler 

Co.:  1532. 
McCracken  v.  City  of  San  Francisco: 

486. 

v.  Hamburger:    711. 
v.San   Francisco:    347,   354,   365, 

385,  420. 

McCrary  v.  Ruddick:  1519,  1520,  1526. 
McCray  v.  Pfost:   564,  2431. 
McCrea  v.  Ogden:   233. 
McCready  v.  Guardians  of  the'  Poor: 

199. 
McCreary  v.  Gaines:  2114,  2509. 

v.  McCorkle:   1096. 
McCreery  v.  Garvin:   257. 

v.  Green:  2430. 
McCrorey  v.  Thomas:  1920. 
McCroskey  v.  Hamilton:  37,  315,  316, 

317,  537. 
McCrowell  v.  Bristol:  313. 

v.  Burson:  1579. 
McCuish  v.  Cook:   2431. 
McCulloch  v.  McKee:  946. 
McCulloch,  etc.,  Co.  v.  Whitefort:  471. 
McCulloch  Land  &  C.  Co.  v.  White- 

fort:  174,  198. 
McCullough  v.  Flournoy:   2280. 

v.Hartford  Ins.  Co.:    1053,  1056. 
v.Hitchcock:   797,  798,  2430. 
v.  Moss:  972,  998. 
v.  Shoneman:   1861. 
v.Thompson:  1748,  2581,  2582. 
McCullough    Iron   Co.   v.   Carpenter: 

602,  605. 
McCullough  Mining  Co.  v.  Carpenter: 

603. 
McCully  v.  Railroad  Co.:  235. 


McCune  v.  Badger:  285,  2441. 

v.  Erfort:   2553. 
McCurdy  v.  Dillon:  2236,  2241. 

v.  Rogers:  1371,  1395. 
McCurry    v.    Hawkins:     2434,     2439, 

2463. 
McCutcheon  v.  Diltman:   2177. 

v.  People:  2007,  2008. 
McDaniel  v.  Parks:  1566. 

v.  Tebbetts:   1498. 
McDaniels  v.  Flower  Brook  Mfg.  Co.: 

1109. 

McDavitt  v.  Boyer:   2224. 
McDermaid  v.  Cotton:  463. 
McDermit,  In  re:  2188. 
McDermott  v.  American  Brewing  Co. : 
1978. 

v.  City  of  Boston:  1644. 

v.  Clary:   2157. 

v.  Consolidated  Ice  Co.:  1909. 

v.  De  Meridor  Co.:  1557. 

v.Hannibal,    etc.,   R.    Co.:    1783, 
1792,  1798. 

v.   Hayes:  1827,  1844,  1850. 

v.Jackson:     245,    435,    43«,    925, 
1030. 

v.  Mahoney:   2441. 

McDonald   v.   American   Nat.   Bank: 
1447. 

V.Bennett:  1684. 

v.  Bewick:  601. 

v.  Black:   652,  663. 

v.  Boeing:  252. 

v.  Buckstaff:    92. 

v.  Cabiness:  2461. 

V.Charleston,  etc.,  R.  Co.:    2264, 
2274. 

v.  Chicago,  etc.,  R.  Co.:  1619. 

v.Cole:  1988. 

v.  Cool:  1027. 

v.  De  Vito:  2253. 

v.  Fire    Ass'n    of    Philadelphia : 
1810. 

V.Gilbert:    268. 

v.  Hanks:   772. 

v.Kingsbury:  814,  904,  956. 

v.  Maltz:  1590. 

v.  McCoy:    385,  486. 

v.  McDonald:   2308. 

v.  Michigan  Cent.  R.  R.  Co.:  1624. 

v.Napier:   1435,  1437,  2270,  2278, 
2283. 


2334 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;   §8   1706-2588,  Vol.   II.] 


McDonald  v.  Ortman:    2425,  2482. 
v.  Pearre  Bros.:  789,  858. 
v.  Simpson:  1280. 
v.  Smith:  2281,  2431,  2432. 
McDonnell  v.  Rifle  Boom  Co.:  1918. 

v.  Rigney:  120. 
McDonogh,  In  re:  2281. 
McDonough  v.  Heyman:    864. 

v.  O'Neil:  1192. 
McDougal    v.    Van    Allen    Co.:    1584, 

1585. 
McDougald  v.  Dawson:   285. 

v.  Dougherty:   2222. 
McDougall  v.  Hazleton  Tripod  Boiler 

Co.:  2286. 

v.  Van  Allen  Co.:    1552. 
McDowell  v.  McKenzie:  444,  917. 
v.  Laev:  2064. 
v.Napier:    2225. 
v. Ramsdell  Transp.  Co.:   1860. 
v.  Simpson:   420,  427. 
McDnffee  v.  Boston  &  M.  R.  Co.:  1661, 

1667. 

McEachern  v.  Brackett:   2158. 
McElhinney    v.     Kline:     2244,     2253, 

2256. 
McElligott  v.  Randolph:    1618,  1636, 

1654. 

McElreath  v.  Middleton:   2162. 
McElroy  v.  British  American  Assur. 

Co.:   1067. 
v.  Ludlum:   1579. 
v.  Met.  Life  Ins.  Co.:  1065. 
McElvain  v.   St.  Louis,  etc.,  R.   Co.: 

1046. 
McElwalne-Richards     Co.     v.     Wall: 

1621. 
McEntire,    etc.,    Co.    v.    Buggy    Co.: 

901. 

McEwan  v.  Loucheim:  1517. 
McEwen  v.  Kerfoot:  1594,  1596. 

V.  Mazyck:   2167. 

McFadden  v.  Follrath:   952,  2058. 
V.Henderson:   2063. 
v.  Pyne:  775. 
v.  Swinerton:  1333. 
McFarlan    Carriage    Co.    v.    Potter: 

1631. 
McFarland  v.  Carr:   2002. 

v.  Crary:    2204. 

.      v.  Heim:  148,  372. 

v.  Howell:  2456. 


McFarland  v.  Lillard:  2430,  2437. 

v.  McClees:   1280,  1295. 

v.  Wheeler:   1686,  1688. 
McComb  v.  Wright:  1410. 
McGar  v.  Adams:  2477. 
McGavock  v.  Woodlief :   2430,  2437. 
McGaw  v.  Hanway:   2499. 
McGeary  v.  Satchwell:   2434. 
McGee  v.  Bast:  1258. 

v.  Larramore:   1172. 
McGeehan  v.  Gaar-Scott  &  Co.:  1232. 
McGeorge  v.  Ross:  610. 
McGill  v.  Cleveland,  etc.,  Co.:  1630. 

v.McGill:    2182. 

McGill's  Admr.  v.  Burnett:  108. 
McGill's  Creditors  v.  McGill's  Adm'r: 

2314. 

McGinn  v.  Garber:  2440. 
McGinnis    v.    Chicago,    etc.,    R.    Co.: 
2011,  2012. 

v.  Curry:   210?. 

v.  Printing  Co.:    1671. 
McGinty  v.  Waterman:  1671. 
McGlassen  v.  Tyrrell:  395. 
McGlynn  v.  Brodie:  1624. 
McGoldrick  v.   Willits:    210,  2108. 
McGonigle  v.  Insurance  Co.:   317. 

v.  Susquehanna    Fire     Ins.     Co. : 

1054,  1068. 

McGovern  v.  Bennett:    2437. 
McGowan  v.  McGowan:  1202. 

v.  St.  Louis,  etc.,  R.  Co.:   1486. 

v.  Treacy:  474. 

McGraft  v.  Rugee:  2559,  2560. 
McGrath  v.  Bell:  1581. 

v.  Marchant:  1557. 

v.  Michaels:   1885. 

v.  Vanaman:   946. 
McGraw  v.  O'Neil:  1048. 

v.  Traders'   National   Bank:    105. 
McGreery  v.  Garvin:  294. 
McGregor  v.  Comstock:  2281. 

V.Gardner:  565. 

McGrew  v.  Produce  Exchange:  112. 
McGriff  v.  Porter:  652,  653,  656,  662. 
McGrory  v.  Ultima  Thule,  etc.,  R. 

Co.:   1648. 

McGuffin  v.  Coyle:  118. 
McGuire,  Matter  of:  2264,  2274. 
McGuire  v.  Bell  Telephone  Co.:  1623. 

v.  Carlson:  2457. 

v.Hartford  Fire  Ins.  Co.:  1074. 


2335 


TABLE    OF    CASES    CITED 


[Reference*  are  to  Reetioimt  §§  1-1705,  Vol.  I;  S8    1700  25SS,  Vol.  II.] 


McGulrk  v.  Shattuck:  1657. 

McGurk  v.  Metropolitan  Life  Ins.  Co.: 

1068,  1070. 

McHany  v.  Schenk:  954. 
McHarge  v.  Newcomer:  1870,  1918. 
McHenry  v.  Duffield:  1154,  1397. 

v.  Painter:   1010. 

McHose  &  Co.  v.  Wheeler  &  Co.:  235. 
McHugh    v.    Northern    Pac.    R.    Co.: 
2011. 

v.  Schuykill  County:   361. 
Mclllhenny  v.  Binz:  2155. 
Mcllvaine  v.  Lumber  Co.:  2064. 

v.  Steinson:  2246. 
Mcllvoy  v.  Russell:  2234. 
Mclnnes  v.  Rittenhouse:  291. 
Mclntire  v.  Hartfelder  Co.:  1912. 
Mclntosh  v.  Bach:  2280. 

v.  Battel:  403. 

v.  Bullard:   1494. 

V.Hastings:   992. 

v.Hodges:    215,  229. 

v.  Ransom:  958. 

v.  Rice:    60. 

V.Tyler:  1314. 
Mclntosh-Huntington  Co.  v.  Rice:  896, 

927,  1181,  1423. 
Mclntyre,  Re:  2493. 
Mclntyre  v.  Belcher:  598. 

v.  Carver:  1683,  1686,  1694. 

v.  Orner:  1950. 

v.  Park:  421,  422,  483. 

v.Preston:    1147. 

v.  Pryor:   1993. 

v.  Southern  R.  Co.:    2011. 

v.Whitney:  2415. 
Mclver  v.  Clarke:  2230. 
McKain    v.    Baltimore,   etc.,   R.    Co.: 
1973. 

v.  Baltimore  &  Ohio  R.  Co.:  1937. 
McKane  v.  Murr:  1669. 
McKay  v.  Lancaster:   2235. 

v.  McKinnon:  816. 

v.Morris:  2287. 

v.Williams:  1192. 
McKechnie  v.  McKechnie:  2162. 
McKee  v.  Cheney:  93. 

V.Chicago,  etc.,  R.  R.  Co.:   1618. 

v.  Coffin:   236. 

V.Kent:    160. 

v.  Lamon:   1448,  1449. 


. 


McKee  v.  Purnell:  134. 

v.  Tourtellotte:   1669,  1678. 

v.  Ward:   134. 

McKeen  v.  Gammon:  2162,  2178. 
McKeige  v.  Carrol:  861. 
McKelvey  v.  Ches.  &  0.  R.  Co.:   1630. 
McKelvy's  Apeals:    2286. 
McKenna,  In  re:  2189. 
McKenna  v.  Gould  Wire  Co.:  1783. 

v.  McArdle:  676,  680,  2314. 

v.  Stayman  Mfg.  Co.:  40,  1764. 
McKenney  v.  Bowre:  1132. 
McKennon  v.  Gates:  2425. 
McKenzie  v.  British  Linen  Co.:   360, 
361,  364. 

v.  Champion:   2431. 

v.  Lego:  2463. 

v.  Nevius:  1619,  1694,  1705,  2484. 
2559,  2584. 

v.  Poorman  Silver  Mines:  368. 

v.  State:  906. 
McKibben  v.  Nafis:  2264. 
McKiernan  v.  Lehmaier:  1905. 

v.Valleau:  2329. 
McKiernon  v.  Patrick:   2154. 
McKindly  v.  Dunham:    753,  869,  872. 
McKinley    v.    Chicago,    etc.,    R.    Co.: 
1871,  1936. 

V.Chicago  &  N.  W.  R.  Co.:  1934. 

v.Goodman:  1559,  1561. 

v.Irvine:   1198. 

v.  McGregor:   167. 

v.Williams:    1218,   1221. 
McKinney  v.  Grant:  48,  2499. 

v.  Stephens:  909. 
McKinnon  v.  Vollmar:   306,  315,  809, 

1872,  1984. 

McKinster  v.  Bank  of  Utica:  1303. 
McKinstry      v.      Citizens'      National 
Bank:  410. 

v.  Pearsall :  2504. 
McKinzie  v.  Baltimore  &  Ohio  R.  Co.: 

2141 

McKown  v.  Gettys:  1396. 
McLachlin  v.  Brett:   2072,  2076,  2077, 

2079. 

McLain  v.  Parker:    1207,   1208,   1234. 
McLaine  v.  Head  &  Dowst  Co.:   1619, 

1654. 
McLane  v.  Maurer:   2451. 

v.  Paschal:  659. 


2336 


TABLE   OF    CASES    CITED 


[References   are  to  sections   §§  1-1705,  Vol.  K* 


170e-25S8,  Vo'.  II.l 


McLaren  v.  Hall:  148,  169,  171. 
McLaughlin  v.  Campbell:  2447. 

v.  City  Bank:  1600. 

v.  City  Bank  of  Sydner:  135. 

v.  Cowley:'  2224. 

v.  Daily      Telegraph      Co.:      135, 
1600. 

v.  Fist  Nat.  Bank:   2028. 

v.  Gilmore:   2310. 

v.  Wheeler:    174,    198,    233,    240, 

808,  812,  1536,  2447. 
McLean  v.  Camak:  414,  2002,  2003. 

v.Dunn:  429. 

v.  Ficke:    301. 

v.  Fleming:   760. 

v.  Mining   Co.:    1654. 

v.  Sexton:    1424,  1750,  1758,  1759. 
McLeish  v.  Ball:  933. 
McLellan  v.  Longfellow:  2302. 
McLennan  v.  Elevator  Co.:  1457. 

V.Minneapolis  Ele.  Co.:  2583. 
McLeod    v.    Despain:    410,    691,    942, 
2126. 

V.Evans:  1350. 

v.  Ginther:  1799. 

V.Morrison:    351,  422,  480. 
McLeran  v.  McNamara:  2162. 
McMahan  v.  McMahan:   483. 
McMahon  v.  Burns:  563,  586. 

v.Chicago  City  R.  Co.:    1796. 

V.German  American  Bank:    936. 

v.Ida  Mining  Co.:   1618. 

v.  McGraw:  1192,  1195,  1216,  1217. 

v.  Sloan:  2107,  2110. 

v.  Smith:  102. 

McMaken  v.  Niles:  1803,  1804. 
McManas    v.    Fortescue:     854,    2322, 

2323. 
McMannomy  v.  Chicago,  etc.,  R.  Co.: 

2246. 

McManus  v.  Chicago  Great  Western 
R.  Co.:   285. 

v.  Crickett:   1958,  1959. 

v.  Fortescue:  856. 

McMaster    v.    Illinois    Cent.    R.    Co.: 
1644. 

v.  Scriven:  2307,  2312. 
McMasters   v.    Pennsylvania   R.   Co.: 

716,  1269. 
McMath  v.  Maus  Bros.  Boot  &  Shoe 

Co.:  2207. 
McMechen  v.  Baltimore:  2319. 

147 


McMichen  v.  Brown:  832,  2170. 
McMillan  v.  Arthur:  1227,  1233. 

v.  North  Star  Min.  Co.:   1618. 

v.  Page:  1515,  1517. 
McMinn  v.  Richtmyer:   963,  2168. 
McMorris    v.    Simpson:     1257,    2514, 

2537,  2538. 

McMullan  v.   Dickinson   Co.:    1555. 
McMullen  v.  Carnegie  Co.:  1623. 

v.  New  York:  1642. 

v.  Peoples'  Savings  &  Loan  Assn: 

300. 
McMurray  v.  Gage:  986. 

v.  Marsh :  2183. 

v.  Mobley:  1194. 
McMurtry  v.  Brown:   212. 

v.Frank:  212. 
McNabb  v.  Hunt:  296,  932. 
McNamara  v.  Gargett:   115. 

v.  MacDonough:   1621. 

v.  McNamara :   284. 

McNaughten  v.  Partridge:   212,  1409. 
McNaughton  v.  Moore:  669. 
McNeal  v.  Gossard:  2156. 

v.  McKain:    1859. 
McNeely  v.  Ford:  2005. 
McNeese  v.  Carver:  102,  122. 
McNeil  v.   Boston  Chamber  of  Com- 
merce: 200. 

v.  Chamber  of  Commerce:  199. 

v.  Shober:  1139. 

v.  Tenth   Nat.    Bank:    237,   1986, 
2110,   2115,    2116,   2119,   2125, 
2126,    2127,    2408,   2409,    2423. 
McNeile  v.  Cridland:   1987,  1989. 
McNeilly  v.  Continental  Life  Ins.  Co.: 
634,  637. 

v.  Insurance  Co.:  628. 
McNemar  v.  Cohen:  167. 

v.  Cohn:  2011. 

McNevins  v.  Lowe:   1282,  2202. 
McNicholas  v.  New  England  Tel.  Co.: 

1779. 

McNutt  v.  Dix:   1198,  1199. 
McPartland  v.  Read:  1457. 
McPhail  v.  Buell:  1533,  2431. 
McPhee  v.  Guaranty  Co.:  1491. 
McPhee's  Estate,  In  re:  652. 
McPherson  v.  Cox:  2162,  2237,  2267. 

v.  Neuffer:   2566. 

v.  Okanogan  Co.:   2359. 

v.  Pinch:  285. 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:  g§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  IT.l 


McPherson    Bros.    Co.    v.    Okanogan 

Co.:   2323. 

McPherson's  Estate,  In  re:  2230. 
McPheters  v.  Page:  1457. 
McRae  v.  Land  Co.:   291. 
McRaven  v.  Dameron:  2207. 
McRea  v.  Scofield:   2262. 

v.  Warehime:   2243. 
McReavy  v.  Eshelman:   797,  1367. 
McTaggart  v.  Eastman's  Co.:  1645. 
McTeer  v.  Huntsman:   2170. 
McVickar  v.  McKenzie:  122. 

v.Roche:    1515,  2426. 
McWhorter  v.  McMahon:  229. 
McWilliams  v.  Detroit  Mills  Co.:  173. 

v.  Jenkins:   2278,  2280. 
Meacham  v.  Dudley:   2156. 
Mead    v.    Altgeld:    1170,    1181,    1422, 
1424,  1444. 

V.Arnold:    2458. 

v.  Ballard:   604. 

v.  Engs:   1303. 

V.Jack:   1457. 

v.  Mead:,  2152. 

V.Owen:  1021. 

v.  Spalding:   171. 
Meade  v.  Doherty:  1556. 

v.  Rutledge:   1557. 

Meade  Plumbing  Co.  v.  Irwin:   1422. 
Meader  v.  Page:  167,  1002. 
Meador  v.  Lake  Shore,  etc.,  R.  Co.: 

1626,  1630. 

Meadows  v.  Meadows:  2320. 
Meagher  v.  Bowling:   296. 
Mealer  v.  Gilbert:  2189. 
Meaney  v.  Rosenberg:   309. 
Means  v.  Swormstedt:   1136,  1154. 
Meany  v.  Head:  1685,  2272. 

v.  Rosenberg:  2166. 
Mears  v.  Graham:  1154. 
Mechanics'  Bank  v.  Bank  of  Colum- 
bia:   1146,    1156,    1159,    1162, 
1176. 

v.  Merchants'    Bank:     793,    1266, 
1310. 

V.    New   York,    etc.,   R.   R.    Co.: 
738. 

v.  Schaumburg:     774,     784,     976, 

1843. 

Mechanics'  Bldg.  Ass'n  v.  Whitacre: 
1480. 


Mechanics',   etc.,   Bank   v.    Farmers', 

etc.,  Bank:  2050. 
Mechanics',  etc.,  Ins.   Co.  v.   Mutual 

R.  E.  Ass'n:  1060. 
Mechanics'  Ins.  Co.  v.  Rion:  1250. 
Mechanics'    &    Traders'    Ins.    Co.    v. 

Rion:  439,  493. 

Mecartney  v.  Carbine's  Estate:  652. 
Medley  v.  German  Alliance:   1062. 
Medra's  Adm'r  v.  Holbrook:  1640. 
Medway      Cotton      Manufactory      v. 

Adams:  2020. 
Meech  v.  Smith:    1395. 
Meehan  v.  Forrester:  407,  408. 
v.  Morewood:  1978. 
v.Valentine:   55. 
Meek  v.  Hurst:   49,  1198,  1199. 

v.  Wendt:  1398,  1400. 
Meeker  v.  Claghorn:  1180,  1181,  1422, 

1423,  1731. 
v.  Hurd:   1599. 
v.  Mannia:   628. 
Meers  v.  Stevens:   2002, 
Megary  v.  Funtis:  937. 
Megowan  v.  Peterson:  1127. 
Meguire  v.  Corwine:   105. 
Meier  v.  Way:   1637,  1674. 

v.  Way,  Johnson  Co.:   1619. 
Meiggs  v.  Meiggs:   2108. 
Meinhardt  v.  Newman:  664. 
Meisenback  v.  Cooperage  Co.:  994. 
Meister  v.  Cleveland  Dryer  Co.:   463. 
Melcher  v.  Kreiser:  2028. 
Melhado  v.  Railway  Co.:  380. 
Melledge    v.    Boston    Iron    Co.:    464, 

1162. 

Mellen  v.  Moore:  1139,  1140,  1161. 
Mellish  v.  Bell:   2033. 
Mellon  v.  Fulton:   2246. 
Mellor  v.  Carithers:  285. 
Melms   v.   Pabst  Brewing  Co.:    1814, 

1815,  2176. 

Meloy  v.  Meloy:  2264,  2269. 
Melse  v.  Alaska  Comm.  Co.:  2011. 
Melville   v.   Missouri   River,   etc.,   R. 

R.:  1644. 

Melvin  v.  Lamar  Ins.  Co.:  954. 
Memory  v.  Neipert:  2381. 
Memphis    Asphalt    Co.    v.    Fleming: 

1476. 
Memphis  &  Charleston  R,  v.  Reeves: 

2457. 


2338 


TABLE   OF    CASES    CITED 


[References  are  to  Election*:  §§  1-1705,  Vol.  1}  §§  1700-25S8,  Vol.  II.] 


Memphis    &    Charleston    R.    v.    Wo- 

mack:    1798. 

Memphis,  etc.,  R.  Co.:  v.  Cocke:  285. 
v.  Greer:  1289,  1291. 
v.  Maples:  1783. 
Menage  v.  Rosenthal:   1563. 
Mendelsohn  v.  Anaheim  L.  Co.:  2015. 
Menk  v.  Home  Ins.  Co.:  1073. 
Menkins  v.  Lightner:  134. 
Mennis  v.  Manning:  48,  2499. 
Mentzer  v.  Sergeant:    285. 
Menzies  v.  Rodrigues:  2253. 
Mercantile  Ins.  Co.  v.  Hope  Ins.  Co.: 

2138. 
Mercantile    Nat.    Bank    v.    Parsons: 

1854. 
Mercantile   Trust   Co.   v.   Niggeman: 

426. 
Mercer  v.  Atlantic  C.  L.  R.  Co.:  1626. 

v.  Leihy:  2342. 

Merchants'  Bank  v.  Central  Bank: 
710,  975,  1089,  1093,  1165, 
1166. 

v.  Farmers'  Bank:  2565. 
V.Hayes:  1162. 
v.Livingston:   2114,  2117. 
v.  Livingstone:  897. 
v.  Prudential  Ins.  Co.:  1984. 
v.  Stafford  Bank:   1303. 
v.  State  Bank:  762,  1801. 
v.  Trenholm:    2509,    2510,   2514. 
Merchants'   Despatch  Transp.   Co.   v. 

Joesting:  1046. 
Merchants',   etc.,   Nat.   Bank  v.   Ohio 

Valley  F.  Co.:  2129. 
Merchants',  etc.,  Packet  Co.  v.  Streu- 

by:    1386,  1397,  1401. 
Merchants',  etc.,  Trans.  Co.  v.  Leysor: 

1782. 

Merchants'  Ins.  Co.  v.  Prince:  716. 
Merchants'  Loan  &  Trust  Co.  v.  Lam- 
son:   2093. 
Merchants'  Mut.  F.  Ins.  Co.  v.  Harris : 

1073. 
Merchants'  Nat.  Bank  v.  Armstrong: 

2284,  2286. 
v.Clark:  1852. 
v.Clifton  Mfg.  Co.:  710. 
v.  Detroit:  976. 
v.  Eustis:  2244,  2257. 
V.Goodman:  331,  1314. 


Merchants'  Nat.  Bank  v.  Guilmartln: 

2001. 

v.  Lovett:  1845. 
V.Nichols:   1001,  1026,  1803. 
V.Nichols  &  Co.:  1815. 
v.Nichols  &  Shepherd:   1803. 
Merchants'   Nat.    Bank  of  Peoria  v. 

Nichols  &  Shepherd  Co.:  285. 
Merchants'    Nat.    Bank    of    Philadel- 
phia v.  Goodman:   1302. 
Merchants'    &     Manufacturers'     Nat. 
Bank  v.  Ohio  Valley  F.  Co.:   2111. 
Merchants'     &     Planters'     Bank     v. 

Meyer:   1457. 
Merchants'  &  Planters'  Packet  Co.  v. 

Streuby:  1422. 

Mercier  v.  Canonge:  1848,  1852. 
v.  Copelan:  410. 
v.  Hemme:   1350. 
Merck    v.    American    Mortgage    Co.: 

2002. 

Meredith  v.  Crawford:  1599. 
Meriden  Coal  Min.  Co.  v.  Van  de  Wal- 
ter: 2553. 

Meriden,  etc.,  Co.  v.  Anderson:   2162. 
Merkel  v.  Lazard:  296. 
Merle  v.  Andrews:  1346. 
Merlette    v.    North,    etc.,    Steamboat 

Co.:   1292. 

Merrell  v.  Witherby:  1423,  1715. 
Merriam  v.  Johnson:  1198,  1199,  1201, 

1203,  2411. 
v.  Wolcott:   2364. 
Merrick  v.  Wagner:  963,  2168. 
Merrick's  Estate:   671,  2063,  2575. 
Merrill   v.    Bank   of   Norfolk:    1350, 

2574. 

v.  Blanchard:    1557. 
v.  Farmers',  etc.,  Co.:  312. 
v.  Fish:   1581. 

v.  Kenyon:  1731,  1752,  1753,  1755. 
V.Latham:   2426. 
v.  Oregon  Short  Line:  1635,  1646. 
v.  Packer:  115,  2085. 
v.  Sax:  906,  1226,  1227. 
v.Thomas:  2037,  2574. 
v.  Trust  Co.:   124. 
v.  Wakefleld  Rattan  Co.:   615. 
v.Wilson:   1410. 
v.  Worthington :    991. 
v.  Young:   1148. 


2339 


TABLE   OF    CASES    CITED 


[Reference*  are  to  aection»:  §§  1-1705,  Vol.  I;  gg  1706-2688,  Vol.  II.l 


Merriman    v.    McCormick    Harvester 
Co.:  1536,  2463,  2553. 

v.Thomas:  26,  36. 

v.  Wickersham :   2431,  2447. 
Merrin  v.  Lewis:  672. 
Merritt  v.  Bissell:   466,  468. 

v.  Hepenstal:   1906. 

v.  Huber:     332,    988,    1803,    1813, 
1841. 

v.  Kewanee:  186,  386. 

v.  Lillyblade:  2463. 

v.  Merritt:  135. 

V.Williams:  634. 
Merry  v.  Lynch:  652,  655,  659. 
Merryman  v.  David:  1198,  1226. 

v.  Buler:   2290. 

Merry  weather  v.  Moore:   1211. 
Merschel  v.   Louisville,  etc.,   R.   Co.: 

1946,  1948,  1950. 
Merserau  v.   Phoenix  Life   Ins.   Co.: 

1065. 

Mertens  v.  Nottebohms:  2554. 
Meserve  v.  Hansford:  938. 
Mesinger  v.  Mesinger  Bicycle  Saddle 

Co.:  382. 

Messenger  v.  Murphy:  2189. 
Messer-Moore    Ins.    Co.    v.    Trotwood 

Park  Land  Co.:  1440. 
Messerrio  v.  Achison,  etc.,  R.  Co.:  645. 
Messmer  v.  Bell:   1870. 
Metcalf  v.  Denson:   1441,  2225. 

v.  Draper:  1815. 

V.Kent:  2445,  2454. 

v.  McLaughlin:    1457. 

v.Williams:    1156,  1162. 
Methuen  Co.  v.  Hayes:  69. 
Metropolitan  Accident  Ass'n  v.  Froi- 

land:  1075. 
Metropolitan,  etc.,  Co.  v.  Lau:  859. 

v.  Law:   854. 

v.  Long:  1345. 

v.  Sullivan:  1070. 

Metropolitan  Nat.   Bank  v.   Benedict 
Co.:  48,  2499. 

v.Campbell:    1350. 

v.  Commercial  State  Bank:  1794. 
Metropolitan  R.  Co.  v.  Collins:  1794. 
Metz  v.  Abney:  2208. 

v.  Harbor    Bldg.    &    Loan    Ass'n. 
933. 


Metz  v.  Harbor,  etc.,  Savings  Ass'n: 

814. 

v.  Savings  Association:   872. 
Metzger  v.  Huntington:  186,  743,  754, 

846. 
V.Manchester     P.     Assur.     Co.: 

1993. 

V.Manchester  P.   Ins.  Co.:    2084. 
v.  McKenzie:  1644. 
Meuley  v.  Zeigler:  1814. 
Meuser  v.  Risdon:  313. 
Mexal  v.  Dearborn:   2566. 
Mexican,   etc.,    Iron   Co.:    v.    Prank: 

784. 
Mexican    International   Banking    Co. 

v.  Lichtenstein:   90. 
Mexican  National  Coal  Co.  v.  Frank: 

768,  780. 
Mexican    Nat.    R.    Co.    v.    Musette: 

1632. 
Meyer  v.  Atkins:  620. 

v.  Baldwin:   395,  984,  989. 

v.  Barker:  1410. 

v.  Hanchett:      178,      1590,     1592, 

2412.  2474. 
v.  Hehner:  628. 
v.  Improved  Property  Holding 

Co.:  2435,  2472. 
v.King:   208,  246. 
v.  Lad  wig:  1626. 
v.  McCumber:   2262. 
V.Morgan:    441,    463,    473,    2510, 

2547. 
V.Redmond:     1169,     1170,     1411, 

1414,  2342,  2343. 
v.  Smith:  455,  461. 
v.  Stone:   869,  870. 
V.Virginia,  etc.,  R.  Co.:   1782. 
Meyerhoff  v.  Daniels:   924,  1993. 
Meyers  v.  Bratespiece:   1705. 
v.  Byars:   1345. 
v.  Estell:    1597. 
v.  Gerhart:  1808. 
v.  Seinsheimer:  2213. 
v.  Walker:    1588. 
Meylink  v.  Rhea:  169. 
M'George  v.  Egan:  162. 
Michael  v.  Bacon:  121. 

v.Crawford:    315.  ,, 

v.  Eley:    742,   2397. 
v.Foll:  2311. 


2340 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Michael  v.  Jones:  1367,  1422. 
v.  Mutual  Ins.  Co. :  640. 
v.  Roanoke  Machine  Works:  1619, 

1637,  1638. 

Michaua  v.  MacGregor:    992. 
Michel  v.  Kaiser:   2323. 
Michell  v.  Samford:  995. 
Michell's  Adm'r  v.  Sproul:   1601. 
Michigan    Carbon   Works   v.    Schad: 

1342. 
Michigan    Cent.    R.    Co.    v.    Carrow: 

1799. 

v.  Coleman:  1798. 
v.  Gougar:   966,  1023,  2406. 
v.  Smithson:   1624. 

Michigan  College  of  Med.  v.  Charles- 
worth:    1180,  1422. 
Michigan   Ins.   Co.   v.   Leavenworth: 

652,   664,   666. 

Michigan  Mut.  Ins.  Co.  v.  Hall:  1060. 
Michigan    Mutual    Life    Ins.    Co.    v. 

Parker:  285; 
v.  Thompson :   295. 
Michigan   Shingle  Co.   v.   State   Tnv. 

Ins.  Co.:  1069. 
Michigan    State    Bank    v.    Gardner: 

2509. 

v.  Peck:   2068. 
Michigan  Stove  Co.  v.  Harwood  Co.: 

2190. 

Michoud  v.  Girod:    1206,  1352. 
Mickelberry  v.  Harvey:    167. 
Mlckleberry  v.  O'Neal:   1181. 
Middle     Division     Elevator     Co.     v. 

Vandeventer:   929. 

Middleburry  College  v.  Loomis:  1021. 
Middleton  v.  Fowler:   1959. 
v.  Low:   1493. 
V.Thompson:    1535,    2431,    2447, 

2467. 
Middletown,   etc.,   Road   v.   Watson: 

1349. 

Midgette  v.  Branning  Mfg.  Co.:  1870. 
Midland  Sav.  &  Loan  Co.  v.  Button: 

246,  255,  296,  739,  939. 
Midway  Co.  v.  Eaton:  586. 
Midwood  v.  Alaska  Packers'  Ass'n: 

2060. 

Miedreich  v.  Rank:   2243,  2281,  2283. 
Mielke  v.  Chicago,  etc.,  R.  Co.:  1661. 
Miers  v.  Coats:  1125. 
Mihills  Mfg.  Co.  v.  Camp:  1831,  1843. 


Mika  v.  Passaic  Print  Works:    1671. 
Mikles  v.  Hawkins:   2091. 
Milbank  v.  Dennistown:    2537^ 

v.  Denistun:  1262. 
Milburn  v.  Belloni:  882. 
Milburn  Mfg.  Co.  v.  Peak:    48,  2499. 
Milburn  Wagon  Co.  v.  Evans:  1297. 
Milby  Coal  Co.  v.  Balla:    1668,  1674. 
Mildred  v.  Hermano:    2059. 

v.  Maspons:   2063,  2077,  2079. 
Miles  v.  Ervin:   2290. 

v.  Mcllwraith :    1768. 

v.  Mutual,  etc.,  Ass'n:   2237. 

v.  Ogden:    441. 

v.  O'Hara:    1162,  2236. 

v.  Thorne:  94. 
Miley,  In  re:  910,  1170. 
Milford  Borough  v.  Water  Co.:   358. 
Mill  v.  Hawker:  1455. 
Millan  v.  Porter:  2435. 
Millar  v.  Cuddy:  1525,  1526. 
Millard  v.  Jenkins:  1494. 

V.Jordan:    2236,   2244. 

v.  Republic  Bank:  952. 

v.  Smith:  1987. 
Miller  v.  Aris:  1440. 

v.  Baynard:  2322. 

v.  Beal:  2231. 

v.  Board  of  Education:  395. 

V.  Bullion-Beck,    etc.,    Min.    Co.: 
1630. 

v.  Burke:   2326. 

v.  Centralia  Pulp  Co.:   1621. 

v.  Continental  Assur.  Co.:  2152. 

V.Davidson:   1191. 

v.  Early:   1170,  1181,  1424. 

v.  Delamater:   167. 

v.  Drexel:  426,  427. 

v.  Edmonston:    946. 

v.Erie  R.  Co.:  1626. 

v.  Farmers',  etc.,  Bank:  332. 

v.  Farmers'  State  Bank:  1038. 

v.  Farr:   2434. 

v.  Finley:  137. 

v.  Ford:  1113,  1428. 

v.  Gidiere:  1584. 

v.  Goddard:   1576,  1577. 

V.  Haskell:  2362. 

v.  Himebaugh:  2091. 

v.  Home  Ins.  Co.-  585. 

v.  Hope:   1494. 

V.John:   1279,  1458. 


2341 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.  I?  fig  1700-25S8,  Vol.  II.l 


Miller  v.  Jones:   1803,  1809. 
v.Kent:   2417. 
v.  Lane:  2183. 
y.  Lathrop:  1778. 
v.  Laws:   2345. 
v.Lea:     868,     2079,     2568,     2574, 

2575. 

v.Llfe  Ins.  Co.:  1060. 
v.Louisville.  etc.,  R.  Co.:  2137. 
V.Lyons:  2386,  2415. 
v.  Magee:  974. 
v.  Marston:  1684,  1686. 
v.  McCormick  Co.:  1341. 
v.  Merritt:  1871. 
v.  Miller:  2109. 
V.Minneapolis  &  N.  W.  R.  Co.: 

1860. 

v.  Missouri  Pacific  R.   Co. :    1652. 
v.  Moran  Bros.  Co.:   1676. 
v.  Moran  Co.:   1621. 
v.' Morton:  1584. 
v.  Newell:   2243. 
v.  New  York,  etc.,  R,  Co. :  53. 
v.  Palmer:   2169. 
v.  Pfeiffer:  1803. 
v.  Phoenix  Ins.  Co.:   1053. 
v.  Phoenix   Mut.    Life    Ins.    Co.: 

1073. 

v.Preston:  2152. 
v.  Price:   2551. 
v.  Roach:    1136. 
v.  Rucker:   1498. 
v.  Schneider :  2509. 
v.Scott:   2182. 
v.  Seare:  1494. 
v.  Smith:   1528. 
v.Springfield    Wagon    Co.:     894, 

946. 

v.  Staples:  1460. 
v.  State  Bank:  2020. 
v.  Stone  Co.:  463. 
v.  Sullivan:  992. 
v.Vining:  2437. 
v.  Wannamaker:  1977. 
v.Watson:  1457. 
v.  Watt:  167. 
v.Way:  1153. 

v.Wehrman:   563,  707,  799. 
v.  Whelan:  2192. 
v.  White  Bronze  M.  Co.:  1630. 
v.Wilson:  2203. 
v.  Wisener:   1579. 


Miller-Brent  Lumber  Co.  v.  Stewart: 

285,  1789. 

Miller  &  Co.  v.  Moore:  2394. 
Millers'  Nat.   Ins.   Co.   v.   Kinneard: 

1015. 

Millet  v.  Barth:  1536. 
Millett  v.  Barth:  2447. 
Milligan  v.  Lyle:  1162. 

v.Owen:   566,  2449,  2451,  2452. 

v.  Wedge:   1917. 
Milliken  v.   Coombs:    425. 

v.  Hathaway:    1457,  2345. 

v.Pratt:  148. 
Mills  v.  Abbeville,  etc.,  R.  Co.:   283. 

v.  Beela:  439. 

v.  Berla:  285,  436. 

V.Brooklyn:   1496. 

v.  Collett:  1494. 

V.Dunham:  113. 

v.  Hunt:  1410,  1411,  2342. 

v.  Johnston:    2556. 

v.  Joiner:  1579. 

v.  Mills:  92,  93. 

v.  Railroad  Co.:    1860. 

v.Thomas  Elevator  Co.:  1861. 

v.  Smith:  652. 

v.  United  States  Bank:  716. 

v.Williams:   978. 

Mills  Novelty  Co.  v.  Dupouy:   2558. 
Millsaps  v.  Estes:  141,  143. 
Milmo  Nat.  Bank  v.  Convery:   2243, 

2286. 
Milne  v.  Kelb:  798. 

v.  Kleb:  2430. 
Miltenberger    v.    Beacom:    501,    524, 

1327. 
Milton  v.  Johnson:  1321. 

V.Missouri  Pac.  R.  Co.:   1974. 
Milwaukee   Harvester   Co.   v.   Finne- 

gan:  197,  1289. 
Milwaukee  Investment  Co.  v.  Johns 

ton:  716. 
Milwaukee    Mechanics'    Ins.    Co.    v. 

Brown:  1061. 
Mims  v.  Brooks:  1831. 
Minard  v.  Stillman:   2311,  2397. 
Minder,  etc.,  Land  Co.  v.  Brustuen: 

386,  2430. 

Miner  v.   Franklin  County  Tel  Co.: 
1619,  1623,  1658. 

v.  Phoenix  Ins.  Co. :  1064. 

T.  Tagert:  1298, 


2342 


[References  are  to  elections:   §g  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  II.] 


Minett  v.  Forrester:  687. 

Minis  v.  Nelson:  563. 

Minneapolis  Threshing  Mach.  Co.  V. 

Humphrey:   2G1,  462. 
Minneapolis    Trust    Co.    v.    Mather: 

1254,  2334. 

v.    School  District:  126. 
Minnesota  Central  R.  Co.  v.  Morgan: 

318,  716. 

Minnesota  Linseed   Oil   Co.   v.   Mon- 
tague: 1266,  2414. 
Minnesota  Stoneware  Co.  v.  McCros- 

sen:  223,  766,  774,  813. 
Minnich  v.  Darling:   347,  444. 
Minns  v.  Omemee:  1890. 
Minor  v.  Beveridge:   2386. 
v.  Mechanics'  Bank:  716. 
V.Stevens:  1864. 
Mlnter  v.  Bradstreet  Co.:  1980. 
v.  Cupp:  479. 
v.  Railroad  Co.:  993. 
Minto  v.  Moore:  195,  2426. 
Minturn  v.  Main:  2034,  2326. 
Minty  v.  Union  Pacific  R.  Co.:   1615. 
Mirabita  v.  Imperial,  etc.,  Co.:   1700. 
Miranda  v.  City  Bank:  1313,  1320. 
Mires  v.  Solebay:   1457. 
Mish  v.  Wood:   1528. 
Mississippi  Cent.  R.  Co.  v.  Holden: 

1918. 
Mississippi  Logging  Co.  v.  Schneider: 

1624. 
Mississippi    Valley    Co.    v.    Abeles: 

1731. 
Mississippi     Valley     Const.     Co.     v. 

Abeles:   711,  915,  923,  1767. 
Mississippi  Valley  L.  Ins.  Co.  v.  Ney- 

land:  1060. 
Mississippi    &   Tennessee    R.    Co.    v. 

Harris:  235. 

Missouri  v.  Walker:  564,  566,  586. 
Missouri  Bridge  Co.  v.  Ballard:   285. 
Missouri,  etc.,  R.  Co.  v.  Bailey:  1679. 
:        v.  Baker:  39. 

v.  Belcher:  1831. 
v.Edwards:  1905. 
v.Patrick:  1046. 
v.  Raney:  1842. 
v.Rogers:  1913. 
v.Russell:  1787. 
v.  Smith:   1679. 
V.Williams:   2308. 


Missouri,  etc.,  R.  Co.  v.  Wood:   2243. 

v.Wright:   309,  442,  2164. 
Missouri,  etc.,  Tel.  Co.  v.  Vandevont: 

2162,  2178. 
Missouri  Furnace  Co.  v.  Abend:  1630, 

1631. 

Missouri  Glass  Co.  v.  Roberts:   1694. 
Missouri  K.  &  O.  R.  Co.  v.  Ferguson: 

1917. 
Missouri  K.  &  T.  R.   Co.  v.  Vance: 

1799. 
Missouri  Pac.  R.  Co.  v.  Castle:  1679. 

v.  Fox:    2152. 

V.Haley:  1679. 

v.  International,    etc.,    Ins.   Co.: 
1046. 

v.  Ivy:  1794,  1798. 

v.  Johnson:  285. 

v.  Mackey:    1679. 

v.  McFadden:    1801. 

T.Peru,     etc.,     Implement     Co.: 
2050. 

v.  Sherwood:  1783. 

v.  Simons:  69,  739. 

v.  White:  1619. 
Mitchell,  In  re:  2255. 
Mitchell  v.  Bromberger:    2313. 

v.Colby:  2290. 

v.  Crasweller:  1899,  1900,  1902. 

v.  Duke:  2475. 

v.  Finnell:  395,  432,  948,  1019. 

v.  Gennis:   285. 

v.  Gray:  563. 

v.  Hazen :  1100* 

v.  Jodon:   169. 

v.  Knudston     Land     Co.:      2059, 
2063. 

v.  Maupin:  805. 

v.  McLaren:  802. 

V.  Minnesota  Fire  Ass'n:   386. 

V.Mitchell:  2281,  2302. 

v.  Piqua  Club  Ass'n:  2283. 

v.  Railton:  2068. 

v.  Reed:   1193. 

v.Robinson:  1640,  1654. 

v.  Sam  ford:   286. 

V.  Sparling:  1227,  1231. 

v.  Sproul:    212. 

v.  St.  Mary:  2023. 

v.  Toale:  1560. 

v.  Weddington:   2430,  2470,  2471. 

V.Zimmerman:  2322. 


2343 


TABLE   OF    CASES    CITED 


[Reference*   are  to  nections:  §g  1-1705,  Vol.  1}  gg  170B-2588,  Vol.  II.] 


Mitchell's  Case:   2300. 
Mitchum  v.  Dunlap:  261,  285. 

v.  State:  1796. 
Mithoff  v.  Byrne :  1410. 
Mitrovich   v.    Fresno   Fruit  Packing 

Co.:  750. 

Mixon  v.  Walker:  1602. 
Mize  v.  Barnes:  2064. 
M'Millan  v.  Beves:  2463. 
Mobile,  etc.,  R.  Co.  v.  Ashcraft:  1798. 

v.  Ashcroft:  1783. 

v.  Clanton:  1594. 

v.  Hicks:  1679. 

v.  Jay:  461,  463. 

V.Nicholas:  116,  308,  585. 

v.  Turnipseed:  1G79. 

v.  Yeates:   2302,  2307. 
Mobile  Fruit  Co.  v.  Potter:   2532. 
Mobile  &  Montgomery  R.  Co.  v.  Jay: 

457. 
Mobile   &   Ohio   R.    Co.    v.    Stinson: 

1799. 
Modern    Woodmen    of    America    v. 

Colman:  1803. 
Moffatt  v.  Fulton:   2546,  2576. 

v.  Hardin:   2307. 
Moffet  v.  Moffett:  848. 
Moffitt  v.  Cressler:    291. 
Moffltt  West  Drug  Co.  v.  Lyneman: 

444,  917. 

Mogler  v.   State:    2008. 
Mohawk  Bank  v.  Burrows:  2281. 
Mohlman  v.  American  Grocery  Co.: 

994. 
Mohr  v.  Larigan:  1457,  2345. 

v.  Miesen:  111,  112,  1602. 

v.  Sands:   2289,  2290. 

v.  Tulip:    138. 
Mohr  Distilling  Co.  v.  Ohio  Ins.  Co.: 

1076. 
Mohrfeld    v.    Building    Association: 

1030. 

Moinett  v.  Days:  1225,  1226. 
Moir  v.  Hopkins:   1924. 
Moley  v.  Brine:  145. 
Mollet  v.  Robinson:  2378. 
Mollett  v.  Robinson:   2494. 
Moline  v.  Neville:  1764. 
Moline  Malleable   Iron   Co.   v.   York 

Iron  Co.:   2037,  2070,  2079. 
Moline  Plow  Co.  v.  Booth:  605. 

v.  Rodgers:  48,  2499. 


Molloy  v.  Cement  Co.:   854. 

V.Whitehall  Cement  Co.:  2397. 
Molt  v.  Bauman:  262. 
Molton  v.  Camroux:  134. 
Momsen  v.  Atkins:  1295. 
Monaghan  Bay  Co.  v.  Dickson:   2307. 
Moneta  v.  Hoffman:  1218,  1233. 
Moneypenny  v.  Hartland:   1280. 
Monfort  v.  McDonough:   233. 
Monk  v.  Parker:  1536,  2447,  2463. 

v.  Wabash  R.  Co.:  2162. 
Monmouth    Mining    Co.    v.    Erling: 

1624. 
Monnet  v.  Merz:  2558. 

V.  Metz:    1601. 
Monongahela  Nat.  Bank  v.  First  Nat. 

Bank:  1331,  1332. 
Monroe  v.  Collins:  1498. 

v.  Snow:  233,  1536,  2431,  2434. 

v.  Warehouse  Co.:  2509. 
Monson  v.  Hawley:   2162. 

v.  Kill:   807,  2397,  2437. 
Montagu  v.  Forwood:  867,  2078. 
Montague  v.  Kspinasse:   162. 

v.  Massey:  119. 

v.  MoCarroll :   577. 
Montaignac    v.    Shitta:     1002,    1027, 

1801. 

Monteith  v.  Kokomo,  etc.,  Co.:   1671. 
Montgomery  v   Chelf:  126. 

v.  Crossthwait:  351,  361,  473. 

v.  Dorion:   212,  1101,  1106. 

V.Hundley:  1205. 

v.  Knickerbocker:    2430. 

v.  Pacific    Coast    Land    Bure^* 
384,  501,  827,  1309,  2321,  2336 

v.  United  States:  694. 
Montgomery    County    v.    Robinson: 

1227. 
Montgomery  County  Bank  v.  Albany 

City  Bank:   1314. 
Montgomery  Furniture  Co.  v.  Harda- 

way:  739,  742,  908,  980. 
Montgomery-Moore  Mfg.  Co.  v.  Leith: 

1782. 

Montieth  v.  Printing  Co.:  2345. 
Montreal  v.  Ingerson:  281. 
Montriou  v.  Jefferys:   2192,  2195. 
Montross  v.  Eddy:   1591,  2413,  2425, 

2475. 

Monument     Nat.      Pank     v.     Globe 
Works:  762. 


2344 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.l 


Moody  v.  Smith:  229. 

v.  Trustees:  1406. 
Moody  Co.  v.  Leek:   368. 
Moon  v.  Guardians:   318. 

v.  Matthews:   156,  1859,  1912. 
Mooney  v.  Beattie:  1624,  1641. 

v.  Elder:  1536,  2431,  2441. 

v.  Mooney:  2280. 

v.  Musser:  2527. 

v.Williams:   2059,  2070. 
Moore  v.  Appleton:    1603,  1605,  1606, 
1611. 

v.  Atchison,  etc.,  R.  Co.:  2015. 

v.  Barnett:  310. 

v.  Bettis:  1782. 

v.Blackburn:    296,   300. 

v.  Booker:  1426. 

v.  Bray:  2302. 

v.  Brenninger:   2435. 

v.  Breuninger:   2442. 

v.Campbell:   2379. 

v.  Cement  Co.:  1771. 

v.  Central  Foundry  Co. :  1557. 

v.Cohen:   2184,  2227. 

v.  Cooper:   1158. 

v.  Copeley:  166. 

v.  Cresap:  2442. 
,      v.  Dublin  Cotton  Mills:  1654. 

v.  Electric  R.  Co.:    1622. 

v.  Ensley:   395,  479. 

v.  Ewing:  198. 

v.Gould:   976,  1035. 

v.  Granby  Min.  Co.:  1735. 

v.  Hall:   661,  964,  2168. 

v.  Haviland:   2132. 

v.  Hershey:  138. 

v.  Hill:  2583. 

v.  Hillabrand :  2576. 

v.Hitchcock:  1684,  1690,  1694. 

v.  Hupp:  354,  367. 

v. Irvin:  2441,  2448. 

v.  Kopplin:  1487. 

V.Lawrence:  2553. 

v.Lockett:    425,  802. 

V.Louisiana  &  Arkansas  R.  Co.: 
1934,  1936. 

V.Manchester  Liners,  Ltd.:  1905. 

v.  Mandlebaum :   1198,  1221. 

v.Maxwell:  919,  930. 

v.  McClure:    1162,  1736. 

v.  Metropolitan  Nat.  Bank:  2115. 

v.  Moore:  120,  1198,  1225,  2331. 


Moore  v.  Murrel:  946. 

v.  Murrell:   2181. 

v.  Ore:  2166. 

v.  Penn.  R.  Co.:  162L 

v.  Petty:  1234. 

v.  Pollock:  946. 

v.  Porter:  2217. 

v.  Potter:  29. 

v.  Rankin:  285. 

v.Richardson:    2012,  2142. 

v.Robinson:  2050. 

v.  Security,  etc.,  Ins.  Co. :  1569. 

v.  Security   Trust  Ins.   Co.:    592, 
594. 

v.  Shields:  1441,  1458. 

v.Simpson:   167. 

v.  Skyles:  742,  799,  960. 

v.  Stainton:  1861. 

T.  State:   2008. 

v.  Stone:  552. 

v.  Sun    Printing   ft   Pub.    Ass'n: 
1731. 

T.Taylor:  236. 

V.Thompson:   1086,  1353,  2532. 

v.  Vulcanite,  etc.,  Company:  2059, 
2070. 

T.  Vulcanite      Portland     Cement 
Co.:   2067. 

T.  Weston:  652. 

v.  Zabriske:  1206. 
Moore,  et  al.,  v.  Bracken:  2290. 
Moore  Lime  Co.  v.  Richardson:  1635. 
Moores  v.  Citizens'  Nat.  Bank:   754, 

760,  1801. 

Moorman  v.  Wood:  2196. 
Moors  v.  Kidder:  1197,  1700. 
Moorshead  v.   United  Railways  Co.: 

53. 

Moots  v.  Cope:  426. 
M.  ft  O.  R.  Co.  v.  Seales:  1977. 
Mora  v.  Murphy:  817. 
Moral  School  Township  v.  Harrison: 

1149. 
Moran  v.  Carlson:   1861. 

v.  Corliss     Steam     Engine     Co. : 
1641. 

v.  Dunphy:   2049,  2133. 

v.  L'Etourneau :   2249. 

v.  Power  Co. :  1780. 
Morano  v.  Shaw:  1480. 
Mordecai  v.  Charleston  County:  2182. 

v.  Pearl:  143. 


2345 


TABLE   OF    CASES    CITED 


[Reference*  are  to  «ectlonat  88  1-1705,  Vol.  I;  88  1706-2688,  Vol.  II.] 


Morden   Frog  &  Crossing  Works  V. 

Fries:  1630. 

Mordhurst  v.  Boies:  977. 
More  v.  Calkins:  134,  659. 
Moreau  v.  Dumagene:  1522. 
Morehead  v.  Anderson:  2251.  T  .r 
Morehouse   v.    Brooklyn   H.   R.   Co.: 
2234,  2236. 

v.  Northrop :   357. 

v.  Remson:   1514. 

v.  Winter:  2418. 
Morel  v.  Hoge:  116,  308. 
Moreland    v.    Devenney:    2237,    2241, 
2242. 

v.  Houghton:  236. 

Morell  v.  Codding:  1130;  1131,  1170. 
Morey  v.  Laird:  177,  178,  1206. 
Morford  v.  Ambrose:  1577. 
Morgan  v.  Bowman:  1871. 

v.  Brown:  2262. 

v.  Chetwynd:  163. 

v.  Congdon:  1684,  1694. 

v.  Darragh:  2322.  r  <T 

v.Dudley:   1494. 

v.Gibson:    659,    668,    2259,    2260, 
2314. 

v.  Hudson  River,  etc.,  Co.:   1635. 

v.  Joyce:   2184,  2227. 

v.  Keller:   2439. 

v.  Mason:  2425. 

v.  Neal:  296,  933,  938. 

v.  Richardson :   1310. 

v.  Smith:  1656,  1871. 

v.  Tener:  1318,  1347. 
Morgart  v.  Smouse:  1194. 
Morier  v.  St.  Paul,  etc.,  R.  Co.:  1875, 

1894,  1896,  1898,  1909. 
Morin  v.  Martz:  601. 
Morisette  v.  Howard:   220. 
Morison  v.  Moat:   1211. 

v.Thompson:  1590,  2474. 
Morley  v.  Makin:   1413. 
Morrill  v.  Bosley:   1803,  1826. 

v.  Cone:  817. 

v.  Davis:  2437. 

v.Graham:  2194,  2195. 

v.  McNeill:  481. 
Morris  v.  Barnes:  1515.  , 

v.  Bowen:   882. 
.     V.Bradley:   1324,  2410. 

v.  Brown:   1913. 

v.  Butler:  446. 


Morris  v.  Chesapeake,  etc.,  S.  S.  Co.: 
2059,  2063. 

T.Cleasby:  1322,  2033,  2034,  2037, 
2534. 

v.  Clifton    Forge    Grocery    Co.: 
1411. 

v.  Eufaula  Nat.  Bank:  1305. 

v.  Ewing:  435,  813. 

v.Francis:   2437. 

V.Georgia  Loan  Co.:  1804. 

v.  Georgia  Loan  Sav.  &  Banking 
Co.:    1818. 

v.  German  F.  Ins.  Co:  2368 

v.  Grier:   2162. 

v.  Hall:  2345. 

v.  Hofferberth:  953,  969. 

v.  Linton:   148,  778. 

v.Morris:  2311. 

V.Norton:  121. 

v.  Posner:  924,  1987. 

v.  Press  Pub.  Co.:   2162. 

v.  Ruddy:  797. 

v.  Sallberg:  386,  2184,  2227. 

v.  State:  2303. 

v.  Trudo:  1861. 

v.  Warlick:  1288. 

v.Watson:  813. 

v.  Western  Union  Tel.  Co. :  111, 
2094,  2388. 

v.Wilson:   2055. 
Morris  &  Co.  v.  Malone:  1618. 
Morris  McGraw  Woodenware  Co.  v. 

German  Fire  Ins.  Co.:   300. 
Morris  Run  Coal  Co.  v.  Barclay  Coal 

Co.:  113. 
Morrison  v.  Bausemer:  1809. 

v.  Bowman:   1093,  1099,  1104. 

v.  Burgess  Fibre  Co.:  1628. 

v.  Burnett:  2193,  2194. 

v.Clark:  186. 

v.  Currie:  1411,  1432,  2364. 

v.  Flournoy:   2231. 

V.  Holt:  161. 

v.  Hunter:  1192. 

V.Lincoln  Bank:  1350. 

v.  McDonald :    1494. 

v.  Rogers:  117. 

v.  Smith:   2290. 

V.  Tuska:   2467. 

v.  Whiteside:    69,   299. 
Morrow  v.  Higgins:  215,  229,  1086. 

T.Jones:  236. 


2346 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 

Morrow  Shoe  Mfg.  Co.  v.  New  Eng-      Mott  v.  Minor:  2430,  2431. 


land  Shoe  Co.:   2345. 
Morse   v.   Connecticut,   etc.,   R.    Co.: 
555. 

v.  Connecticut  River  R.  Co. :  1779. 

v.  Consolidated  R.  Co.:  1798. 

v.  Cooke:   2279. 

v.  Ryan:  411,  1993. 

v.  State:  2009. 

v.  Whitcomb:   411. 
Morsh  v.  Lessig:  897. 
Morson  v.  Burnside:   2443. 
Mortgage,  Rocks  v.  Cornell:  143. 
Morton  v.  Barney:  2426. 

v.Detroit,  etc.,  R.  Co.:  1641. 

v.  Garfleld:  2434. 

v.Morris:   807,  816,  1268. 

v.  Petit:    2467. 

v.  Preston:  2111. 

T.  Scull:  710,  741,  1987. 

V.  Stone:    2020,   2024,  2026. 

v.  Urquhart:   2281. 
Moseley's   Adm'r  v.   Black  Diamond 

Coal  Co.:    1798. 
Mosely  v.  Jamison:  2243. 

v.Norman:   2278,  2279,  2281. 
Moses  v.  Bagley:  2234,  2237. 

v.  Bierling:  1536,  2447. 

v.  Ingram:  2020. 

v.Scott:  116. 

Moskowitz  v.  Hornberger:    2470. 
Mosley  v.  Buck:   1198,  1226. 
Mosness,  Matter  of:    2314. 
Moss  v.  Cummings:   1491. 

v.  Johnson:  1139. 

v.  Livingston :   1144. 

v.  Pacific  R.  Co.:  1632. 

v.Richie:  2236,  2249. 

v.  Rossie  Co.:   435. 

v.  Rossie  Lead  Mining  Co.:   515. 

v.  Tribe:   134. 
Moss  Merc.  Co.  v.  First  Nat.  Bank: 

1331. 

Mostyn  v.  Pabrigas:  1494. 
Motley  v.  Head:  680. 
Mott  v.  Baxter:  1584. 

v.  Consumers'  Ice  Co. :  1898,  1960, 
1968. 

V.Ferguson:   619,  625,  2445,  2456, 
2467. 

v.  Foster:  2160. 

v.  Hicks:  1133,  1137,  1162,  1397. 


v.  Smith:  126,  817. 

v.  Southern  R.  Co. :  1671. 
Mott  Iron  Works  v.  Clark:  1419. 
Moulton  v.  Aldrich:   1888. 

v.  Bowker:   2161,  2162,  2178. 

v.  Gage:  1615. 

v.  Trask:  1582. 
Mound  City  v.  Snoddy:  367. 
Mound  City  Mut.  L.  Ins.  Co.  v.  Huth: 

374. 
Mound  City  Paint  Co.  v.  Commercial 

Nat.  Bank:    1307,  1308. 
Mount  v.  Derick:  1457. 

v.  First  Nat.  Bank:  1306. 
Mount  Holly  Turnpike  Co.  v.  Ferree: 

2119. 
Mount  Olivet  Cemetery   v.   Shubert: 

716. 

Mountford  v.  Scott:  1805,  1808,  1810. 
Mousseau  v.  Tone:  1576. 
Mowat  v.  Brown:  2231. 
Mowatt  v.  McLean:  1435. 
Mowbray  v.  Gould:  610. 
Mowell  v.  Van  Buren:  2308. 
Moxon  v.  Bright:   1343. 
Moye  v.  Cogdell:   2163,  2183. 
Moyer  v.  Cantieny:  108,  2244,  225G. 

v.  East  Shore  Terminal  Co. :   130, 

368. 
Moyers  v.  Fogarty:   292,  396. 

v.  Graham :  2257. 

Moyle  v.  Congregational  Society:  395. 
Moynahan  v.  Interstate  Mining  Co.: 

607. 
Moyse   v.   Northern    Pacific   R.    Co.: 

1461. 
Mt.  Hope  Cemetery  Ass'n  v.  Weiden- 

mann:  1556. 

Mt.  Morris  Bank  v.  Gorham:  707. 
Mt.   Wilson  Min.   Co.   v.   Burbridge: 

994. 

Mudge  v.  Oliver:  2041 
Mudry  v.  Newman:   2206. 
Mueller  v.  Batcheler:  2305,  2309. 

v.  Spring  Co.:  1552. 
Muffatt  v.  Gott:  2321,  2329. 
Mugnier  v.  Dendlinger:   1517. 
Muhlenberg   v.    Loan    &   Trust    Co.: 

1350. 
Muir  v.  Corset  Co.:  1522. 

V.Newark  Savings  Inst:  2003. 


2347 


TABLE   OF    CASES    CITED 


[Reference*  are  to  Nection*:  gg  1-1705,  Vol.  Ij  §§  1706-2588,  Vol.  II.1 


Mulr  v.  Orear:  2162. 

v.  Westcott:  1009. 
Mulcairns  v.  Janesville:  1654. 
Mulchey  v.  Methodist  Society:   2011. 
Muldon  v.  Whitlock:  1760. 
Muldoon    v.    City    Fireprooflng    Co.: 

I860,  1864. 
Muldowney  v.  Illinois  Cent.  R.  Co.: 

1676. 
Mulford  v.  Muller:  2306. 

V.Rowland:    285,    403,    420,   1107. 

v.  Torrey  Exploitation  Co. :  410. 
Mulholland  v.  Wood:  39. 
Mull  v.  Ingalls:  2079. 
Mullally  v.  Greenwood:   2431,  2472. 
Mullan  v.   Philadelphia,   etc.,   Steam- 
steamship  Co.:   1640,  1654. 
Mullanphy  Savings  Bank  v.   Schott: 

285,  1804. 
Mullen  v.  Bower:  2411,  2436,  2437. 

v.  Keetsleb:   2413,  2475. 

v.  Quinlan  &  Co.:  285. 

v.  Thaxton:  296. 
Mullenholff  v.  Gensler:   2437. 
Mullens  v.  Miller:   809,  833. 
Muller  v.  Kelly:  2236. 

v.Maxwell:   2326. 

v.  Pondir:  1694,  1698,  2566. 
Mulligan  v.  Lexington:  419. 

v.  New  York,  etc.,  R.  Co. :  1974. 

v.  Smith:  96. 

Mulliken  v.  Graham:   1833. 
Mullin  v.  Sire:  291,  983.:ioQ 

V.Vermont  Mut.    Fire   Ins.    Co.: 
1073. 

V.Vermont  Mut.    Insurance  Co.: 

1993. 

Mullens  v.  Siegel  Cooper  Co.:   1918. 
Mullin's  Estate,  In  re:  2307. 
Mulvane  v.  O'Brien:  1226. 
Mulvehill  v.  Bates:   1874,  1894,  1896. 
Munch    v.    Great   Northern    R.    Co.: 

1626. 
Mundhenk  v.   Central   Iowa  R.   Co.: 

1783. 

Mundine  v.  Pitts:  1808. 
Mundis  v.  Emig:  1041. 
Mundorff  v.  Wickersham:  410,  411, 

435,  1985,  1993,  2084. 
Mundy  v.  Schantz:  2207. 
Munger  v.  Baldridge:  148,  169,  804. 

2348 


Munn  v.  Commission  Co.:    628,  710, 
741. 

v.  Wolff:  1676. 

Munnikuyson  v.  Dorsett:  2156. 
Munoz  v.  Struckman:   1211. 
Munroe    v.    Philadelphia    Warehouse 
Co.:  2120. 

v.  Taylor:  2431. 
Munson  v.  Mabon:  646. 

v.  Porter:   2566. 

v.  Washband:  143. 
Murdock  v.  Clarke:  2140. 

v.  Insurance  Co. :  2031. 

V.Phillips  Academy:  1547. 
Murdock's  Case:   2323. 
Murphy  Company's  Estate:  2554. 
Murphy  v.  Barnard:  940. 

v.  Becker:   1029. 

v.  Cane:   717,  722. 

v.  Clarkson:  1733. 

V.Columbus  Building  Co.:  242. 

V.English:  107. 

V.  Grand  Rapids  Veneer  Works: 
1671. 

v.  Gnmaer:  285,  1852. 

v.  Helmrick:  1410. 

v.  Huber-Hodgman    Print.    Press 
Co.:  1641. 

v.  Hutchinson:    1424,  1759. 

v.  Kastner:  954. 

v.  Knights:  789. 

v.  K,  of  C.  Building  Co.:  715, 1041. 

V.Lewis:  186. 

v.  Ley:  1783. 

v.  Mechanics'  Ins.  Co.:   285. 

v.  O'Neil:    1674. 

v.  Ottenheimer:   628. 

V.Ramsey:  1498. 

v.  Royal  Ins.  Co.:  1059. 

v.  Southern  Life  Ins.  Co.:  710. 

v.  St.  Louis  Coffin  Co.:   933. 

v.  Waterhouse:  2302. 
Murrah  v.  Brichta:  1296. 
Murray,  In  re:  2274. 
Murray  v.  Armstrong:  1100. 

v.  Beard:  2412. 

v.  Brooks:   882,  885,  887,  888. 

v.  Carothers:  1371. 

v.  Cowherd:  1474. 

v.  Currie:  1860. 

v.  Doud:  2381,  2479. 


TABLE   OF    CASES    CITED 


[Reference*   are  to  Rectiona:   §§  1-1705,  Vol.  I;  §§  1700-2688,  Vol.  II.] 


Murray  v.  Dwight:   1656,  1658. 

v.  East    End    Improvement    Co.: 
2430,  2467. 

v.  East  India  Co.:  977,  2520. 

T.  House:  2163. 

v.  Lardner:  2111. 

v.  Lidburn:   1350. 

v.  Lovejoy:  506,  507. 

v.  Mayo:  481.  ML, 

v.  Postal  Tel.  Co.:   308,  18G2. 

v.  Rickard:   2431,  2443,  2449. 

v.  Smith:   885. 

v.  South  Carolina  R.  Co.:  1643. 

T.  Trumbull:  2234. 

v.  Usher:  1477. 

v.  Vanderbilt:   1332. 

v.Walker:  187. 

v.  Waring,  etc.,  Mfg.  Co. :   2234. 
Murrey  v.  Kelso:   1974,  1975. 
Murry  v.  Beard:  1588. 

v.  Mobley:  1192. 

v.Ocheltree:  111,  112. 
Muscatine,    etc.,    R.    Co.   v.    Horton: 

1498. 

Muscott  v.  Stubbs:   1519,  1520,  2230. 
Musgrave  v.  Morri?on:  235. 
Muskett  v.  Drummond:   507. 
Mussenden  v.  Raife:   1758. 
Musser  v.  Johnson:   1153. 
Mussey  v.  Beecher:  285,  749,  756,  758, 
761,  920,  1027,   1801. 

V.Scott:  1108. 

v.  Vanstone:   2230. 

Mustard   v.    Big  Creek   Development 
Co.:  229. 

v.  Wohlford's  Heirs:   141,  143. 
Muth  v.  Goddard:  659,  777,  783 
Mutual  Assur.  Soc.  v.  Insurance  Co.: 

2368. 
Mutual     Auto     Accessories     Co.     v. 

Beard:   489. 
Mutual  Benefit,  etc.,  Ins.  Co.  v.  yiles: 

281. 

Mutual  Ben.  Life  Ins.  Co.  v.  Brown: 
216. 

v.  Cannon:  1782. 

v.  Daviess:  1073. 

v.  Miles:  940. 

v.  Robison:  1073. 
Mutual   Bldg.  &  Loan   Ass'n,  In  re: 

2175. 
Mutual,  etc.,  Ins.  Co.  v.  Seidel:  2084. 


Mutual  Life  Ins.  Co.  v.  Abbey:   1060, 
1064. 

v.  Brown:   208. 

v.  Hunt:  135. 

V.Logan:   1060. 

v.  Selby:   2299. 
Mutual  L.  his  Co.  of  N.  Y.  v.  Herron: 

1054. 

Myer  v.  Hobbs:  1917. 
Myers  v.  Board  of  Education:  1350L 

v.  Brick:    2302. 

v.  Coleman:  2426. 

V.Crockett:      2235,     2236,     2253, 
2256. 

v.  Dean:    2472. 

v.  Entriken:   2504,  2542. 

v.  Estell:  1594. 

V.Gilbert:   1253. 

v.  Iron  Co.:  1667. 

v.  Korb:   1579. 

v.  McHugh:    ?276. 

v.Moore:   2433. 

v.  San  Pedro,  etc.,  R.  Co.:   1780. 

v.  Sieradski:   606,  1584,  1585. 

v.  South  West  Nat.  Bank:  1842. 

v.Sullivan:   608,  609. 

v.Walker:  976. 
Myerscough  v.  Merrill:  1234. 
Mygatt  v.  Tarbell:  2163. 

v.  Wilcox:   2261,  2262. 
Myhan  v.  Louisiana,  etc.,  Co.:  1619. 
Myles  v.  Myles:  1279. 
Mynick  v.  Bickings:  934. 

N 

Nadau  v.  White  River  Lbr.  Co.:  1619. 
Nading  v.  Howe:  1342. 
Nadler  v.  Menschel:  2437. 
Nagl  v.  Small:   2447,  2448. 
Nagle  v.  McFeeters:  1694,  2559. 

v.Richards:    1601. 

Nairn  v.  National  Biscuit  Co.:   1671. 
Nail    v.    Farmers'    Warehouse    Co.: 

1410. 

Naltner  v.  Dolan:  1335,  2207. 
Napa  Valley  Wine  Co.  v.  Casanova; 

711,  915,  1767. 
Nappin  v.  Abbott:  2136. 
Narragansett  Bank  v.  Atlantic  Co.: 

435. 
Narraguagus     Land     Proprietors     v. 

Wentworth:   963,  2174. 


2349 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  gg  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  IT.] 


Narramore  v.  Cleveland,  etc.,  R  Co.: 

1671,  1676. 
Nash  v.  Classon:  908. 

v.  Drew:  901. 

v.Mitchell:  148. 

v.  Mosher:  1688. 

v.  Mbshier:  2510. 

v.  Noble:  1048. 

Nash-Wright  Co.  v.  Wright:  111,  112. 
Nashville,   etc.,  R.  Co.  v.  Chumley: 
1595. 

v.  Elliott:  1803. 

v.  Jones:  1645. 

v.  Messino:   1790. 

v.  Starnes:    1945,.  1950,  2015. 

v.  Wheless:   1644. 
Natal  Bank  v.  Natorp:  577. 
Natal  Land  Co.  v.  Pauline  Colliery 

Co.:    380. 

Natalizzio  v.  Valentino:  1577. 
Natcher  v.  Natcher:   1723. 
Nathan  v.  Blake:  2137. 

v.  Brand:    2245,  2246. 

v.  Halsell:  2234. 
Nation  v.  Harness:   2457. 
National  Bank  v.  Baltimore,  etc.,  R. 
Co.:  2120. 

v.  Farmers'  Bank:  1783. 

v.  Fenney:   1817. 

v.  Goodyear:  48,  2499. 

v.  Insurance  Co.:  1350,2095,2576. 

V.  Merchants'  Bank:  793,  1266. 

v.Morris:  285. 

v.  Munger:  752. 

v.  Nolting:  2025. 

v.Norton:   1852. 

v.  Oldtown  Bank:    309,   333,   715, 
789,  1315. 

v.  Porter:   2563. 

v.Ross:  2509. 

v.  Snow:    2111. 

National   Bank   of   Bristol   v.    Balti- 
more, etc.,  R.  Co.:  2. 
National  Bank  of  Commerce  v.  Chi- 
cago, etc.,  R.  Co.:  760,  1801, 
2111. 

v.  Feeney:  1845. 
National  Bank  of  Peoria  v.  Diefen- 

dorf:  2068. 

National    Bank    of   the    Republic    v. 
Delano:  202. 


National  Bank  of  Virginia  v.  Nolttng: 

2032,  2059,  2063. 

National  Bldg.  Ass'n  v.  Quinn:   1783. 
National  Cash  Reg'ster  Co.  v.  Hagan: 

333,  899,  1701. 
v.  Ison:   306,  892,  899. 
v.  Leland:  1460. 

National  City  Bank  v.  Westcott:  974. 
National    Coffee    Palace   Co.,    In   re: 

1398,  1400. 
National   Cordage   Co.   v.    Sims:    48, 

2493. 
National,  etc.,  Co.  v.  Gray:    2119. 

v.Thomas:  905. 
National,  etc.,  Home  Ass'n  v.  Home 

Savings  Bank:  368. 
National  Exchange  Co.  v.  Drew.  1996. 
National    Exhibition    Co.    v.    Crane: 

2243. 
National  Fence  Mach.  Co.  v.  Highley- 

man:  952. 
National   Fire    Ins.    Co.   v.    Duncan: 

1073. 

v.  Eastern  Bldg.  Loan:  952,  2181. 
v.  Wagley:  167. 
National  Hollow  Brake  Beam  Co.  v. 

Bakewell:  2189,  2194. 
National    Home    Building    Ass'n    v. 

Fifer:    2245. 
National  Improvement  Co.  v.  Marken : 

435,  436. 
National    Ins.    Co.    v.    Allen:     1176, 

1731,  1733. 
National  Iron  Armor  Co.  v.  Bruner: 

707,  809,  812. 
National  Life  Ins.  Co.  v.  Allen:  2065, 

2072. 

v.Minch:  357.  504,  1826,  2084. 
v.  Tweddell:  1060. 
National  Loan  Co.  v.  Bleasdale:   946, 

832,  834. 

National  Lumber  Co.  v.  Gray's  Har- 
bor Commercial  Co.:  51. 
National  Mechanics'  Bank  v.  National 

Bank:    293,  299. 
National  Mercantile  Bank  v.  Rymill: 

1457. 
National    Metal    Edge    Box.    Co.    v. 

Vanderveer:  134. 
National  Mortgage  Co.  v.  Lash:   933, 

943. 


2350 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  1}  §8  1706-2588,  Vol.  II.] 


National    Mut.    Church    Ins.    Co.    v. 
Trustees  of  M.  E.  Church:  1051. 

National    Park    Bank    v.     Seaboard 
Bank:  1435. 

National  Pemberton  Bank  v.  Porter: 
2023. 

National  Safe  Deposit  Co.  v.  Hibbs: 
1457,  2119,  2408,  2409. 

National    Savings    Bank    v.    Ward: 
1480,  2213,  2214,  2215. 

National  Security  Bank  v.  Cushman: 
1853. 

National  Shoe  &  Leather  Bank,  Ap- 
peal of:  970,  1731. 

National  Shoe  &  Leather  Bank's  Ap- 
peal: 1162. 

National    State    Bank    v.    Sand  ford: 
220. 

National  Steamship  Co.  v.  Sheahan: 
332. 

National  Union  F.  Ins.   Co.  v.   Spry 
Lumber  Co.:  752. 

National  Wire  Bound  Box  Co.  v.  Hea- 
ly,  1214. 

Naiiman  v.  Zoerhlaut:  1526. 

Nave  v.  Baird:  2313. 

V.Lebanon  Bank:  1146. 
v.Wilson:  112.. 

Navigation  Co.  v.  Dandridge:  412. 

Nawlshaw  v.  Brownrigg:  1343. 

Nayler   v.   Fall   River   Iron   Works : 
1580. 

Naylor  v.  Chicago,  etc.,  R.  Co.:  1644. 
v.  Mangles:  1684. 

Neagle  v.  Syracuse,  etc.,  R.  Co.:  1621. 

Neal  v.  Parker:  22G. 
v.  Patten:    257. 

v.  Pender-Hyman  Co.:  1804.r,rf'> 
v.  Smith:  907,  1804. 

Nealand  v.  Lynn,  etc.,  R.  Co.:  1631. 

Neale  v.  Lennox:  2162. 

Neaves  v.  North   State  Milling  Co.: 
1178. 

Nebraska  Bridge  Supply  Co.  v.  Con- 
way:   861. 

Nebraska  Farm  Loan  Co.  v.  Bell:  366. 

Nebraska    Wesleyan     University     v. 
Parker:  395. 

Neece  v.  Joseph:  110. 

Needham  v.  Halverson:  1782. 
v.  Thayer:  2158. 


Needles  v.  Burk:  156. 

v.  Fuson:   1439. 

v.Howard:  1281. 
Neely  v.  Jones:  489. 

v.  State:  1411. 

v.  Stevens:  420,  424,  514,  2064. 
Neff  v.  Smyth:    2151. 
Neftelberger  v.  Garner:  2467. 
Negley  v.  Lindsay:  35». 
Neibles  v.  Minneapolis,  etc.,  R.  Co.: 
266,  2&0. 

v.  Ry.  Co. :  289. 

Neighbor  v.  Pacific  Realty  Co.:  2477. 
Neiler  v.  Kelley:   2529. 
Neill  v.  Arnold:  25Y. 

v.  Billingsley:  2504. 

v.  Kleiber:  815,  1095. 

v.  McClung:  2162. 
Neilson  v.  Bowman:  1207. 

v.  Lee:   2430,  2447. 

v.Weber:   1814,  2176. 
Neimeyer  Lumber  Co.  v.  Moore:  404," 

408. 

Nekerda  v.  Presberger:  2474,  2477. 
Nelichka  v.  Esterly:  1548. 
Nelson  v.  Aldridge:  2329. 

V.Andrews:    1169,  1413,  1414. 

v.Becker:  2297,  2308. 

V.Chicago:    2527. 

V.Chicago  R.  Co.:  2563. 

v.  Cook:  1606,  1611. 

v.  Cowing:    882,  886. 

v.Evans:   2237. 

v.  Georgia,  etc.,  R.  Co.:   1794. 

V.Hudson  R.  Co.:  1044,  1046. 

v.  .Tenks:   2152. 

v.  Masterson:  1515. 

v.  McDonald:    2123. 

v.  Nelson:  2163. 

v.  Nelson  Line:  2047. 

v.  Tamlin:  285. 

v.  Title  &  Trust  Co.:    1872,  1993. 

v.  Western  U.  Tel.  Co.:  2430. 
Nelson  Bethel  Co.  v.  Pitts:  1619. 
Nelson    Business    College    v.    Lloyd: 

1935,  1960,  1966. 
Nelson's  Estate,  In  re:  2312. 
Nephew  v.  Michigan  Central  R.  Co.: 

2170. 
Neppach  v.  Oregon,  etc.,  R.  Co.:  293. 

v.  Oregon  &  Cal.  R.  R.  Co.:  827. 


2351 


TABLE   OF    CASES    CITED 


[Reference*  are  to  MectionHt  §§  1-1705,  Vol.  I;  fig  1700-2588,  Vol.  II.l 


Neptune  Y.  Patton:  1162. 

v.  Paxton:  1154. 
Jtfesbit  v.  Lockman:  2293. 
v.  Railway  Co.:  1936. 
Tfesbitt  v.  Healer:  2437,  2443,  2447. 
v.  Messier:  500. 
v.Turner:   372. 
Nesmith  v.  Dyeing  Co.:  2559. 
Ness  v.  Singer  Co.:  167. 
Nester  v.  Craig:   854,  2401,  2402. 

v.  Sullivan:  1194. 
Nethaway,  In  re:  2287. 
Neufeld  v.  Beidler:   1099,  1172,  1395, 

1397. 
Nevada  Nickel  Syndicate  v.  National 

Nickel  Co.:   2140. 
Nevan    v.    Roup:    1684,    1686,    1688, 

1694. 

v.  Roupe:   2272. 

Neville  v.  Southern  R.  Co.:  1936. 
Neveu  v.  Sears:  1624. 
New  v.  Germania  Fire  Ins.  Co.:  307. 

v.  Southern  R.  Co.:  1681. 
Newall  v.  Tomlinson:  1439. 
Newark  Fire  Ins.  Co.  v.  Sammons: 

1865,  2369. 
Newark  Machine  Co.  v.  Kenton  Ins. 

Co.:  1055. 
Newberry  v.  Chicago  Lumbering  Co.: 

991,  1021. 
v.Lee:  2221. 
Y.  Newberry:  2064. 
v.  Slafter:  1410. 
v.  Wall:  2374,  2375,  2381. 
Newbert  v.  Cunningham:   2276,  2279, 

2280,  2281,  2283. 
Newbold  v.  Wright:  2509. 
Newbury  v.  Connecticut,  etc.,  R.  Co.: 

1292. 
v.  Getchel,  etc.,  Mfg.  Co.:  1619. 

1637,  1654. 
New  Castle  Mfg.  Co.  v.  Red  River  R. 

Co.:    2584. 
Newcomb  v.  Brooks:  2131. 

v.  Imperial  Life  Ins.  Co.:  594. 
v.  Peck:  2156. 
Newell  v.  Borden:  187. 
v.  Clapp:  283. 
v.  Pt.   Huron   Engine  Co:.   1532, 

1533. 
v.  Smith:  315. 


New  Ellerslle  Fishing  Club  v.  Stew- 
art: 1454,  2011. 

New  England  Dredging  Co.  v.  Rock- 
port  Granite  Co.:  386,  507. 
v.  Rockport  G.  Co.:  401. 
New   England   Insurance   Co.    v.   De 

Wolf:   1165,  1166. 
New  England  Marine  Ins.  Co.  v.  De 

Wolf:   236. 
New   England   Mfg.   Security  CO:  '•!>* 

Baxley:  2002. 

New  England  Monument  Co.  v.  John- 
son: 524. 

New  England  Mtg.  Co.  v.  Gay:   1865. 
New  England  Mtg.  Sec.  Co.  v.  Addi- 

son:  301. 
v.  Baxley:  285. 
v.  Gay:  2002. 
New    England    Mut.   L».    Ins.    Co.    r. 

Springgate:  1064. 
v.  Swain:  1984. 
New  England  R.  Co.  v.  Conroy:  1644, 

1652,  1654. 

New  Era  Gas  Co.  v.  Shannon:  1212. 
Newhall  v.  Dunlap:    1138. 

v.  Journal  Printing  Co.:  594. 
v.Vargas:   1698. 
v.  Wyatt:  2093. 

New  Hampshire  Iron  Co.  v.  Richard- 
son: 605. 
New    Home    Sewing    Mach.    Co.  'f'Ti 

Seago:  286,  291. 
New    Hope    Bridge    Co.    v.    Phenix 

Bank:  1831. 
New  Jersey  Steamboat  Co.  v.  Broc- 

kett:  1934,  1935. 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank:   2059,  2063. 
Newkirk  v.  Stevens:   552,  2296. 
Newland,  Ex  parte:  2267. 
Newland  v.  Woodruff:  2565. 
Newlove  v.  Pond:  2109. 
Newman  v.  Freitas:  2236. 
v.  Gates:  2204. 
v.  Greeff :   1155. 
v.  Kiser:  2182. 
v.Reagan:  610. 
v.  Schueck:  2194. 
v.  Sylvester:   1369,  1371,  ln.97. 
New  Market  Savings  Bank  v.  Gillett: 
1134. 


2352 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.   I;   §§   1706-2588,  Vol.  II.] 


New  Omaha,  etc.,  Light  Co.  v.  Bald- 
win:  1652. 

New  Orleans  v.  Steinhardt:  2152. 
New  Orleans  Coffee  Co.  v.  Cady:  293. 
New  Orleans,  etc.,  R.  Co.  v.  Burke: 

2015,  2016. 

v.Harrlson:   1658,  1959. 
v.Hughes:  1632. 
v.  Hurst:    2016. 
v.  Jopes:  1933,  1935,  2012. 
V.Norwood:  1860. 
New  Orleans  Ins.  Ass'n  v.  Matthews: 

1074. 
New   Orleans   Ins.   Co.   v.   Spruance: 

2063. 
New  Pittsburgh  Coal  Co.  v.  Peterson: 

1644,  1654.  '/eslclc 

New  Pittsburgh  Coal  &  Coke  Co.  v. 

Shaley:  341,  994. 
Newport  v.  Smith:  1369. 
Newport  News,   etc.,   R.   Co.   v.   Car- 
rol:   989. 
v.  Eifert:  1681. 
Newport  Rolling  Mills  Co.  v.   Hall: 

2243,  2281. 

Newsom  v.  Thornton:  2115,  2509. 
Newson  v.  Douglass:  2371. 
New  South  Wales  Country  Press  Co. 

v.  Stewart:  1981. 
Newstcad  v.  Rowe:   1207. 
Newton    v.    Bronson:    124,    227,    229, 

312,  375,  515. 
v.  Commissioners:   604. 
v.  Conness:   563. 
v.  Forster:  1596. 
v.  Hamden:   2151. 
v.Newton:    1350. 
v.  Porter:  1350. 
v.  White:   1783. 
"New  World"  v.  King:    1282. 
Ne~w    York    &    Boston    Despatch    Ex- 
press Co.  v.  Tiaders  &  Mechanics' 
Ins.  Co.:   2457. 
New  York  Banknote  Co.  v.  Hamilton, 

etc.,  Co.:  2067. 
New  York  Brokerage  Co.  v.  Wharton: 

2042,  2070. 
New  York  Cent.  Ins.  Co.  v.  National 

P.  Ins.  Co.:   1202,  2138. 
New  York   Cent.   R.   Co.:    v.  United 
States:  2008. 


New    York,    etc.,    Co.    T.    Harbison: 

1371,  1428. 
New  York,  etc.,  R.  Co.  v.  Bates:  1022. 

v.  Hamlin:   1676. 

v.  Ketchum:   193. 

v.Martin:  2163. 

v.  Russell:   1803. 

v.  Schuyler:   759,  760,  1800,  1801. 

v.  Waldron:   1934. 

New  York,  etc.,  Steamship  Co.  v.  Har- 
bison: 1390. 
New  York  Ins.  Co.  v.  Adams:  1493. 

v.  National  Ins.  Co.:  178,  2398. 
New    York    Iron    Mine    v.    Citizens' 
Bank:  977. 

v.  Negaunee  Bank:  972,  989,  998. 
New  York  Life  Ins.  Co.  v.  Davis:  175. 

v.Fletcher:  1062,  1073,  2139. 

v.  Goodrich:    1522. 

v.  Martindale :    1162. 

v.  McGowan:  741,  1060. 

v.  Slatham,  695. 

V.Thomas:    615,  645. 

v. :  1073. 

New  York  Min.  Syndicate  v.  Roger: 

'1799. 
New  York  State  Banking  Co.  v.  Van 

Antwerp:  1139. 
New  York  Telephone  Co.  v.  Barnes: 

982. 
New  York  Trap  Rock  Co.  v.  Brown: 

113. 
New     York     University     v.     Loomis 

Laboratory:    1783. 
New    Zealand,    etc.,    Co.    v.    Watson: 

1330,  2059. 

New   Zealand   Land   Co.   v.   Rustom: 
2079. 

v.Watson:   42,  333,  1350. 
Ney  Co.,  Matter  of:    2264. 
Niagara  Fire  Ins.  Co.  v.  Hart:   2287. 
Niblack  v.  Cosier:  1844 
Nichells  v.  Nichells:  2162. 
Nichol  v.  Martyn:   609. 

v.Thomas:  138,  2447. 
Nicholas  v.  Jones:  1536. 

v.  Kelley:  2007. 

V.Oliver:   1147. 

v.  Oram :  285. 
Nicholls  v.  Diamond:  1144. 

v.Wilson:  2253. 


148 


2353 


TABLE   OP    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-25S8,  Vol.  II.] 


Nichols  v.  Bealmear:  2063. 

v.  Berning:   499. 

v.  Bruns:  411. 

v.  Coolahan:  1576. 

v.  Dennis:   218€. 

v.  Frothingham:  1145,  1147. 

v.  Haines:  215. 

v.  Knowles:  903. 

v.Martin:  2077,  2079. 

v.  Mudgett:  106. 

v.  Osborn:  2003. 

v.  Pool:  2272. 

v.  Railroad  Co.:  992. 

v.  Riley:   2190. 

v.  Scott:  2231. 

v.  Southern  Pac.  R.  Co.:   1782. 

v.  Wadsworth:  1249 

v.  Weil,  1169,  1411. 
Nichols   &   Shepard   Co.  v.  Bachant: 
1581. 

v.  Hackney:   1019. 

v.  Shaffer:  445. 
Nicholson  v.  Chapman:  1263. 

v.Dover:    20G3. 

v.  Doney:  441. 

v.  Moog:  741. 

v.  Mounsey:    1463,  1503. 

v.  Patchin:  605. 

v.  Pease:    817,  878,  1748. 
Nickalls  v.  Merry:   2394. 
Nickel  v.  Columbia  Paper  Co.:   1625. 
Nickell  v.  Phoenix  Ins.  Co.:  1074. 
Nickelson  v.  Dial:  946. 
Nickerson  v.  Buck:  217. 
Nicoll  v.  Nicoll:  2281. 
Niederlander  v.  Starr:   1536,  2447. 
Nielsen  v.  Northeastern  Co.:  1041. 
Niemann  v.  Collyer:  2245. 
Nightingale  v.  Oregon  Cent.  R.  Co.: 

2161,  2162. 
Niles  v.  Muzzy:  2230. 

v.  New  York,  etc.,  R.  Co.:  1479. 
Nims  v.  Mount  Hermon  School:   368. 
Nisbet  v.  Lawson:   1341,  2212. 

v.  Siegel-Campion:    2563. 
Nitedals  Taendstikfabrik  v.   Buster: 

1229,  1589. 

Nitro  Powder  Co.  v.  Marx:   2068. 
Nixon  v.  Bogin:   1258. 

v.  Brown:    2113,  2115,   2122. 
v.Downey:  1410,  2582. 

V.Hamilton:  1803. 


Nixon  v.  Palmer:   977. 

v.  Phelps:    2251. 

v.  Zuricaldy:  2326. 
Nixon's  Appeal:  1194. 
Noble  v  Bessemer  S.  S.  Co.:  1646. 

v.  Blount:  485. 

v.  Burney:  836. 

v.Cunningham:  741. 

v.  Davison:  118. 

v.  Gunn:  1576. 

V.Mitchell:   1071. 

v.  Nugent:  958. 

v.  Roper  Lumber  Co.:  1678. 

v.  Steamboat    Northern    Illinois: 

1984. 

Nobleboro  v.  Clark:  219,  220,  1132. 
Nobtesville,    etc.,    R,    Co.    v.    Gause: 

1874,  1890. 

Nodine  v.  Hannum:  2265. 
Noe  v.  Christie:   186. 
Noecker  v.  People:  2007,  2008. 
Noel  v.  Drake:  105. 
Noel  Const.  Co.  v.  Atlas  Portland  Ce- 
ment: 2064. 

Noftsger  v.  Barkdoll:   809. 
Nolan  v.  Jackson:   954. 

V.Thompson:   610. 
Nolte  v.  Hulbert:  178. 
Nonotuck  Silk  Co.  v.  Flanders:  1350. 
Noonan  v.  Luther:   1338. 
Norberg  v.  Heineman:    2152,  2154. 

v.  Plummer:   285. 
Norcross  v.  Pease:  2072. 
Norden  v.  Drake:  291,  461,  2480. 
Nordstrom  v.  Spokane,  etc.,  R.  Co.: 

1615,  1619. 

Norfolk  v.  Worthy:   2059,  2063,  2089. 
Norfolk    Beet-Sugar    Co.    v.    Hight: 

1619. 

Norfolk,  etc.,  Co.  v.  Miller:  2015. 
Norfolk,   etc.,  R.   Co.  v.   Cheatwood: 
1671. 

v.  Galliher:  1937,  1973. 

v.  Gesswine:   1794. 

v.  Graham:  1635. 

v.  Harman:  55. 

v.  Hoover:   1644. 

v.  Houchins:   1654. 

v.  Nuckols:  1644. 

v.  Stevens:    1641,  1870. 

v.  Suffolk  Lumber  Co.:  1792,  1798. 

V.Thomas:   1646. 


2354 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:  §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  TI.l 


Norfolk  National  Bk.  v.  Nenow:  169. 
Norfolk  &  Western  R.  Co.  v.  Hoover: 

1632. 

Norman  v.  Chicago,  etc.,  R.  Co.:  1795. 
v.  Cole:  108. 
v.  Peper:    2551. 
v.  Reuther:   2441,  2470. 
v.  Roseman:    1590,  2412,  2477. 
V.Virginia  Pocahontas  Coal  Co.: 

1670,  1676. 

Norris'  Appeal:   1348. 
Norris  v.  Cook:  459,  463. 
v.  Hero:   1335. 
v.  Kipp:   1458. 
v.  Kohler:  267,  1888. 
v.  Spofford:   772. 
v.Taylor:    2131. 
North  v.  Henneberry:  1100. 
v.  Metz:  285. 
v.Phillips.  2388,  2529. 
North  American  v.  Wisconsin  Cent. 

R.  Co.:  308. 
North    American    Ace.    Ins.    Co.    v. 

Prazer:  1783. 
North  American  Com'l  Co.  v.  North 

American  Transp.  Co.:  891. 
North  American  Trust  Co.  v.  Chap- 
pell:    306,   307. 
North  British  &  Mercantile  Ins.  Co. 

v.   Crutchfield:    1071. 
North  Carolina   State  L.   Ins.  Co.  v. 

Williams:    1543. 
North  Chicago,  etc.,  Mill  Co.  v.  Hy- 

land:   628. 
North  Chicago,  etc.,  R.  Co.  v.  Ackley: 

2243. 
North    Chicago    St.    R.    Co.    v.    Auf- 

mann:  1630. 
North  Hudson,  etc.,  R.  Co.  v.  May: 

1784. 
North  Missouri  R.  Co.  v.  Stephens: 

2162. 
North  Point,  etc.,  Co.  v.   Utah,  etc., 

Co.:  368. 

North  River  Bank  v.  Aymar:  759, 
783,  976,  1027,  1723,  1783,  1800, 
1801,  2130. 

North  Whitehall  v.  Keller:  2163. 
Northampton  Bank  v.  Repoon:   1147. 
Northeastern    Coal    Co.    v.    Tyrrell: 
1126. 


Northern  Assurance  Co.  v.   Borgelt: 

1245. 
v.  Grand  View  Bldg.  Ass'n  1063, 

1067. 

Northern  Cent.  R.  Co.  v.  Rider:  2163. 
Northern  Electrical  Mfg.  Co.  v.  Wag- 
ner:   2499. 
Northern  Nat.  Bank  v.  Lewis:   1098, 

2064. 
Northern  Pac.  Coal  Co.  v.  Richmond: 

163S. 
Northern    Pac.    R.    Co.    v.    Hambly: 

1654. 

v.  Kindred:   1226. 
v.Peterson:   1644,  1654. 
Northern  R.  Co.  v.  State:   718. 
Northern   Texas    Trac.    Co.    v.    Cald- 

well:    1796. 

Northey  v.  Trevillion:   598,  600. 
Northrop  v.  Diggs:   2463. 
Northrup  v.  Buffington:  121,  2481. 
v.  Germania  Fire  Ins.  Co.:   178. 
v.  Hayward:    2281. 
v.Robinson:  1903,  1906. 
Northumberland   Ave.   Hotel   Co.,   In 

re:  380. 
Northwest  Thresher  Co.  v.  Dahlgren: 

1015. 
Northwest  Transp.  Co.  v.  McKenzie: 

1047. 
Northwestern  Distilling  Co.  v.  Brant: 

1105. 
Northwestern,  etc.,  R.  Co.  v.  Jenkins: 

1493. 
Northwestern  Life  Ass'n  v.  Findley: 

437,  1068. 
Northwestern    Mut.    F.    Ins.    Co.    v. 

Blankenship:    134,  138. 
Northwestern    Mut.    L.    Ins.    Co.    v. 

American:   1070. 
Northwestern  State  Bank  v.   Silber- 

man:   2141. 

Norton  v.  Alabama  Nat.  Bank:    486. 
v.  Blinn:  1332. 
v.  Brink:    1194. 
v.  Cowell:  602. 
v.  Fisher:  2499. 
v.  Genessee  Nat.  Ass'n:  2413. 

2475. 

v.  Loan   Ass'n:    1591. 
v.  Melick:  48,  1278,  2499. 


2355 


TABLE   OF    CASES    CITED 


[References  are  to  sectional  gg  1-1705,   Vol.  I)  gg  1706-2588,  Vol.  II. J 


Norton  v.  Nevillo:   893,  2530. 

v.  Nye:  1505. 

V.Richmond:   263. 

v.  Sjolseth;  565,  566,  678,  586. 

v.  Voizke:  1619. 

v.  Whitehead:  565,  584,  660. 
Nortonville  Coal  Co.  v.  Sisk:   604. 
Norwalk    Gaslight   Co.    v.    Norwalk: 

1871,  1918. 

Norwalk  W.  R,  Co.  v.  Stevens:  1918. 
Norwegian    Plow   Co.    v.    Clark:    47, 
48,  2499. 

v.  Hunger:    268. 

Norwich  University  v.  Denny:   315. 
Norwood  v.  Cobb:  2157. 

v.  Harness:   1335. 
Nosotti  v.  Auerbach:   1536,  2447. 
Nostrum  v.  HaHiday:    285,   291. 
Notkins  v.  Pashalinsky:   2430. 
Nott  v.  Papet:  2364. 
Nottage  v.  Sawmill  Phoenix:    1671. 
Nourse  v.  Jennings:   262. 
Novakovich  v.  Union  Trust  Co.:   566, 

567. 
Novelty   Theater   Co   .v.    Whitcomb: 

1644. 
Nowack  v.   Metropolitan  St.   R.  Co.: 

1977,  1984. 
Nowell  v.  Chipman:   285,  287. 

v.Pratt:    2509. 
Noyes  v.  Belding:  2152. 

v.  Caperton:  2438,  2439. 

v.  Landon:   1215. 

v.  Loring:   1395,  1398. 

v.  Marsh:   105. 

v.  Smith:   1644.  . 
Nuckolls  v.  St.  Clair:  156. 
Nugent  v.  Hickey:  973. 
Nunnely  v.  Goodwin:  919,  921. 
Nunnelly  v.  Iron  Co.:  1460. 

v.  Southern  Iron  Co.:   1477. 
Nutt  v.  Knutt:  92. 

v.  Southern  Pacific  Railroad  Co.: 

1624. 

Nutter  v.  Wheeler:   48,  1350,  2499. 
Nutting  v.  Elevated  Railway  Co.:  241. 

v.Kings  Co.:    464. 

V.Kings  Co.  Elev.  R.:  435. 

v.Kings    County,    etc.,    R.    Co.: 

2170. 
Nutzenholster  v.  State:   1339. 


Nye  v.  Lowry:   208,  217. 

v.  Swan:  414,  506,  2004. 
Nyhart  v.  Pennington:   285,  291. 


O 


Oakes  v.  Cattaraugus  Water  Co.  :  193, 

382. 

:.o'J  T.Moore:    1683,   1G86,  1688,  2272. 
Oak  Leaf  Mill  Co.  v.  Cooper:  69,  739. 
Oakland  v.  Carpentier:  313. 
Oakland,   etc.,    Society   v.    Bingham: 

1940,  1977. 

Oakley  v.  Crenshaw:  2557. 
Oatman  v.  Fowler:   212. 

v.  Watrous:   652. 
Obenauer  v.  Solomon:    2463. 
Ober  v.  Cochran:   1350. 

v.  Indianapolis,  etc.,  R.  Co.  :  2050. 

v.  Stephens:  2479. 
Oberfelds  v.  Mattingly:   1552. 
Oberne  v.  Burke:  471,  927. 
Obert  v.  Hammel:  1202. 
Obertoni  v.  Boston  &  Maine  R.  Co.: 

1947. 

O'Brien    v.     American    Bridge    Co.: 
2214. 

v.  City  of  Niagara  Falls:   367. 

v.  Gilliland:    2430,  2437,  2441. 

v.  Luques:  111,  121,  2481. 

V.Missouri,  K.  &  T.  R.  Co.:  1626. 

v.  New  Zealand  Ins.  Co.:   1055. 

v.  North  Western  Impl.  Co.  :  1782. 

v.  Smith:   2023. 

v.  Spalding:      2307,     2308,     2311, 
2312. 

v.  Western  Steel  Co.  :  1620. 

v.  Western  Union  Tel.  Co.:   2049. 
O'Bryan  v.  Fitzpatrick:   1332. 
Ocean  Insurance  Co.  v.  Rider:   2276. 
O"Connell  v.  Baltimore,  etc.,  R.  Co.: 
1644. 

v.Casey:  406,  2447,  2465. 

v.  Marvin:  283. 

v.Samuel:   1977,  1978. 
O'Connor  v.  Adams:  1637. 

v.Arnold:  354,  946. 

v.  Briggs:  605. 

v.  Chicago,  etc.,  R.  Co:  1796,  1799 

v.Clark:   749. 

v.  Clopton:  1432. 


2356 


TABLE   OF    CASES    CITED 


[References  are  to  elections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


O'Connor  v.  Golden  Gate  M.  Co. :  1670. 

v.  Padget:    2309. 

V.Roberts:   1654. 

v.  St.    Louis    Transit    Co.:    2276, 

2283. 

Odd  Fellows'  Bank  v.  Brander:  2152. 
Odell  v.  Dozier:   2441,  2448. 

v.  New  York,  etc.,  R.  Co.:   1661. 
Odeneal  v.  Henry:  1543,  1557. 
Odes  v.  Woodward:  585. 
Odessa  Bank  v.  Jennings:  2063. 
Odiorne  v.  Maxcy:   280,  710,  740,  976. 
Odom  v.  Bush:   603. 
O'Donnell  v.  Clinton:   722. 

v.  Commission:   2008. 

v.  Leeman:   2320. 
O'Donnell,  etc.,  Brewing  Co.  v.  Far- 

rar:   1987. 
Oelricks    v.    Ford:    1166,    1417,    2031, 

2059,  2584.  J-.y 

Oestrich  v.  Gilbert:   963,  2184,  2227. 
Offner  v.  Chicago  &  E.  R.  Co.:  2011. 
Offord  v.  Davies:  2452. 
Offutt  v.  Ayers:  1102. 
Oftenstein  v.  Bryan:  361. 
Ogden  v.  Devlin:   2255,  2256. 

v.  Marchand:  443. 

V.Raymond:     1172,     1369,     1397, 

1428. 

Ogden  R.  Co.  v.  Wright:   1139. 
Ogg  v.  Shuter:   1700. 
Ogilvie  v.  Lee:  954. 

v.  West  Australian  Mtg.  Co.:  364. 
Oglesby  v.  Smith:  474. 

v.  Yglesias:  1169,  1175. 
O'Halloran  v.   Marshall:    2206. 
O'Hara  v.  Brophy:    2206,  2211. 

v.  Carpenter:  .120. 
O'Hare   v.    Cocheco   Mfg.    Co.:    1676, 

1678. 

Ohio,  etc.,  R.  Co.  v.  Colearn:  1632, 
1644. 

v.  Savage:  855,  993. 

v.  Stein:   1794,  1795,  1799. 

v.  Tindall:   1644. 
Ohio    Farmers'    Ins.    Co.    v.    Vogel: 

1067,  1074. 

Ohio  Pottery  Co.  v.  Talbert:    867. 
Ohlquest  v.  Farwell:  2162. 
Oil  City  Fuel  Supply  Co.  v.  Boundy: 
1792. 


Oil  Well  Supply  Co.  v.  Exchange  Nat. 

Bank:  1299,  1303. 

Oishei  v.  Pennsylvania  R.  Co.:   2281. 
Olcott  v.  Railroad  Co.:  708. 

v.  Tioga  R.  Co.:   374,  1137, 
Old  Colony  R.  R.  Corp.  v.  Evans :  601. 
Old  Dominion   Steamship  Co.  v.  Me- 

Kenna:   2133. 

Oldfield's  Estate,  In  re:  1517. 
Oldham  v.  Sparks:   2197. 
Oldhams  v.  Jones:  1216. 
O'Leary    v.    German    American    Ins. 

Co.:  291,  292,  1074. 
Oleson  v.  Maple  Grove  Co.:  1621. 
Olive  v.   Smith:    2559. 
Oliver    v.    Bank    of    England:    1363, 
1398,  1400. 

v.  Dix:   1110,  1419. 

v.  Exposition  Co.:    2245. 

v.  Johnson:   463,  491. 

v.  Katz:    2437,   2447. 

v.  Lansing:   1205. 

v.  Moore:   2562,  2563. 

v.  Morawetz:  1374,  1398. 

v.  Mutual   Commercial    Ins.    Co. : 
524. 

v.  North     Pacific     Transp.     Co. : 
2015. 

V.Oliver:  1202. 

v.  Pate:  2308,  2311. 

V.Perkins:  1552. 

v.  Piatt:    1350. 

v.  Sattler:  807,  2437. 

v.  Sterling:    946,  948,  1017,  1019 

v.  Warren:  2305. 
Oliver    Refining   Co.    v.    Portsmouth, 

etc.,  Co.:  2059,  2064. 
Oliver  Typewriter  Co.  v.  United  Pub. 

Ass'n:   2057. 
Ollre  v.  State:  2007. 
Olmstead  v.  Bach:    1553,  1554. 

v.  Beale:  1577. 

v.  New   England   Mtg.,  etc.,  Co. : 
301,  2004. 

v.Webb:  2313. 
O'Loughlin  v.  Billy:  936. 
Olsen  v.  Andrews:  1657. 

v.Nixon:   1621. 
Olson  v.  Aultman:   885,  888,  903. 

v.  Great   Northern   R.    Co. :    989. 

v.  Lamb:  2290. 


2357 


TABLE  OF    CASES    CITED 


[References  are  to  s«-etlonn:  §§  1-1705,  Vol.  I;  88  17O«  2588,  Vol.  II.] 


Olson   v.   Minneapolis,   etc.,   R.   Co.: 

1620. 

v.  State:   2008. 

Olyphant  v.  McNair:  920,  1087. 
Omaha  v.  Croft:  367. 
v.Jensen:   1918. 
Omaha  Bottling  Co.  v.  Theiler:  1619, 

1670. 
Omaha  Bridge  R.  Co.  v.   Hagadine: 

1871. 
Omaha,  etc.,  R.  Co.   v.  Brady:    2237, 

2239. 

v.  Chollette:   1799. 
Omaha   Nat.    Bank   v.    Kiper:    1307, 

1308,  1320. 
Omaha    Packing    Co.    v.    Sanduski: 

1621. 

Omaha  Refining  Co.  v.  Tabor:  186. 
O'Maley  v.  Gas  L.  Co.:  1664. 

v.  South    Boston    Gaslight    Co.: 

1671. 
O'Mellia  v.  Kansas  City,  etc.,  R.  Co.: 

1661. 

Ommen  v.  Talcott:  2562. 

O'Neal  v.  Spaulding:   2255. 

O'Neil  v.  Behanna:  2133. 

v.  Printz:   2447. 

v.  Young:  1477. 

O'Neil  Lumber  Co.  v.  Greffet:  1410. 
O'Neile  v.  Ternes:   1202. 
O'Neill  v.  Howe:  1533. 
v.Murray:  2309. 
v.  Otero:   1217. 
v.  Sinclair:   2479. 
v.  Traynor:    1556,  1557. 
v.  Wilcox:   291. 
Onson  v.  Gown:   1192,  1194. 
Oom  v.  Bruce:   2044. 
Opinion  of  Justices:  86,  1043. 
Openheimer  v.  Barnett:   563. 
Oppenheimer  v.  Attenborough :   2128. 

v.  Frazer:  2128. 

Orange  Belt  R.  Co.  v.  Cox:  285. 
Orcutt   v.    Century   Bldg.   Co.:    1474, 

1477. 

v.  Nelson:    2041. 
Oregon  Bank  v.  American  Mtg.  Co.: 

557,  584,  586. 
Oregon  Short  Line  R,  Co.  v.  Blyth: 

1046. 

O'Reilly  v.  Keim:   229,  236,  430. 
v.  McCall:  1906,  1916. 


Orford  v.  Crow:  420. 

Orient  Ins.  Co.  v.  Kemp:  604. 

v.  McKnight:  1062,  1063,  1065. 
Oriental  Investment  Co.  v.  Barclay: 

52. 

Oro,  etc.,  Co.  v.  Kaiser:  989. 
O'Rorke  v.   Geary:    1170,   1174,  1383, 

1396,  1424. 
Orman  v.  Mannix:  1615. 

v.  State:  2303. 
Ormerod  v.  Dearman:   102. 

v.  Tate:  2269. 

Ormes  v.  Dauchy:    121,  2478. 
Ormsby  v.  Graham:  814,  1533,  2431. 

v.  Johnson:  214,  435. 
Orpherts  v.  Smith:  1143. 
Orpin  v.  Westmacott  Gas  Furnace 

Co.:    1584. 
Orr  v.  Brown:  2151. 

v.Lacy:  964. 

v.  Sanford:  119. 

v.  Tanner:   2237. 

v.  Ward:   598,  603,  609. 
Ortlip    v.    Philadelphia,    etc..    Trac. 

Co.:  1641. 
Ortmeier  v.  Ivory:  934,  940,  945,  2405, 

2413. 

Orton  v.  Scofield:  2475. 
Osborn  v.  Jordan:   446. 

v.  The  United  States  Bank:  2152. 
Osborn  Co.  v.  Jordan:  410,  411. 
Osburn    &   Co.    v.    Ringland    &   Co.: 

296. 
Oeborne  v.  Dunham:  2264,  2267. 

V.Durham:  491,  1272. 

v.  Governors:  1516 

v.  Horner:   215. 

v.  Knox,  etc.,  R.  Co.:   1644,  1658. 

V.Morgan:  1465,  1471,  1483,  1647. 

v.  Rider:  1249,  1268,  1324.  BI94 
Osborne  &  Co.  v.  Backer:  903,  906. 
Oscanyan  v.  Arms  Co.:  86,  92,  99, 

2178. 
Osgood  v.  Bradley:    1498. 

v.  Central  Vt.  R.  Co.:   122. 

v.  Franklin:  654,  657. 

v.Nlchols:    2336,  2352. 
O'Shea  v.  Rice:  395. 
Oskaloosa  v.  Tullis:   2319. 
Oskamp  v.  Gadsden:  268,  1778. 
Oster  v.  Mickley:  858,  885. 
Ostrom  v.  Greene:  187,  188. 

2358 


TABLE   OF    CASES    CITED 


[References   are  to  section*:   §§  1-1705,  Vol.  1$  88  1706-2588,  Vol.  II.] 


Otis  v.  Browing:  213. 

v.Jones:  1516. 
Ott  v.  Hood:  1347,  2209. 
Ottawa     University     v.     Parkinson: 
2247. 

V.Welsh:  2247. 

Otte  v.  Hatford  Life  Ins.  Co. :  1054. 
Otter  'Creek    Lbr.    Co.    v.    McElwee: 

1603,  1613. 
Ottey   v.    Perth   Licensing   Justices: 

577. 

Ottille  v.  Waechter:  2002. 
Oullahan    v.     Baldwin:     1536,     2430, 

2447. 

Ousterhout  v.  Day:    2217. 
Outerbridge  v.  Campbell:   603,  2585. 
Outon  v.  Rodes:    104. 
Over  v.  Schiffling:  1778. 
Overman  v.  Atkinson:  212,  215. 
Overstreet  v.  Moser:   1940. 
Overweg,  In  re:  1602. 
Owen  v.  Barrow:   935. 

v.  Brockschmidt:   919. 

v.  Cronk:   42,  1434,  1440. 

v.  Frink:   563,  566. 

v.  Gooch:  1180,  1710. 

V.Harriott:  2028,  2032. 

v.  Iglanor:    2559. 

v.  Mason:   2279. 

v.  Matthews:   2474. 

v.  National  Hatchet  Co.:  519. 

v.  Riddle:  2447. 

v.  Smith:    2315. 

Owens    v.    Baltimore,    etc.,    R.    Co.: 
1681. 

v.  Cotton  Mills:  1666. 

v.Hughes:  262. 

v.  Laurens  Cotton  Mills:  1670. 

v.  New  York,  etc.,  Land  Co.:  172, 
203. 

v.Nichols:  1474. 

v.  Swanton:   474,  830. 

V.Wilkinson:   92. 
Owens  Pottery  Co.  v.  Turnbull:   462, 

463. 
Owensboro  v.  Gabbert:   1669. 

v.  Western  Bank:    1295,  1296. 
Owensboro  Wagon  Co.  v.  Hall:  641. 

v.  Riggan:   2585. 

v.Wilson:   446. 
Owing's  Case:  134. 


Owings  v.  Grubb:  1153,  1162. 
v.  Grubb's  Adm'r:  1124. 
v.  Howington:   300. 
V.Hull:    395,  778,  2502. 
Owiter  v.  Metropolitan  Life  Ins.  Co.: 

1345. 
Owl  Canon  Gypsum  Co.  v.  Ferguson: 

1537. 

Owsley  v.  Phillips:  361. 
v.  Woolhopter:   472. 
Oxford  v.  Peter:  1925,  2001. 
Oxford    Lake    Line    v.     First    Nat. 

Bank:  403,  793,  1267. 
Oyster    v.    Burlington    Relief    Dept.: 

1681. 
Ozborn  v.  Woolworth:  1980. 


Pacific  Bank  v.  Hannah:   663. 
Pacific    Biscuit   Co.    v.    Bugger:    710, 

915,  982. 
Pacific   Coast  Co.  v.  Anderson:    581, 

585,  654,  657. 

Pacific  Exp.  Co.  v.  Redman:   2086. 
Pacific  Guano  Co.  v.  Holleman:  2065. 
Pacific  Lumber  Co.  v.  Hughes:  1803. 
v.  Moffat:   919,  989. 
v.Moffatt:   740. 

Pacific  Mfg.  Co.  v.  Brown:   1814. 
Pacific  Mutual  Life  Ins.  Co.  v.  Car- 
ter: 1056. 

Pacific  Pav.  Co.  v.  Vizelich:  2152. 
Pacific  R.  Co.  v.   Thomas:    368,  374, 

994. 
Pacific  Rolling  Mill  v.  Dayton,   etc., 

Co.:  395. 
Pacific     Vinegar,     etc.,     Works     v. 

Smith:  492,  493. 
Pack  v.  White:  1131. 
Packard  v.  Delfel:   236. 

v.Dorchester   Mut.    F.   Ins..   Co.: 

300>  1051,  2369. 
v.  Hayes:  359,  367. 
V:Nye:   2031. 
v.  Stephani:  2169. 
Packer      v.      Hinckley      Locomotive 

Works:  628. 

Packet  Co.  v.  dough:  1798. 
Padfield  v.  Green:  946,  962,  964. 
Page  v.  Cortez:  285. 

v.  Griffin:  1533,  2442. 


2359 


TABLE   OF    CASES    CITED 


rn«-forence*  are  to  aeetlona:  §§  1-1705,  Vol.  Ij  88  1700  2588,  Vol.  II.l 


Page  v.  Moore:  118. 

v.Parker:  2011. 

T.Webb:   981,  1217,  1279. 

V.Wight:  1124. 

v.  Yool:  2015. 
Paice  v.  Walker:  1417. 
Paige  v.  Akins:  1218. 

v.  Stone:  263,  969,  972,  998,  1760, 

2581. 

Pain  v.  Flynn:  230. 
Paine  v.  Loeb:  1770,  1771,  2043. 

v.  Tillinghast:   710,  915. 

v.  Tucker:  212,  420. 
Painter  v.  Mayor,  etc.,  of  Pittsburgh: 

1858. 

Palacois  v.  Brasher:  213,  214. 
Palkema  v.  Searle:   800. 
Palmer  v.  Ashley:  1339,  2194. 

v.  Cheney:  374,  710. 

v.  Hatch:  882,  889. 

v.  Haverhill:  1516. 

V.Holland:  1319. 

v.  Jarmaln:   1254. 

V.Lincoln:  1918. 

v.  Maine  Cent.  R.  Co.:  1973. 

v.  Marquette,  etc.,  Co.:  1573. 

v.  Marquette    Rolling    Mill    Co.: 
603. 

v.  Miller:  2169. 

v.  Pirson:  1208. 

v.  Railroad:  2016. 

v.  Roath:  902,  904. 

v.  Seligman:   421,  532. 

V.Stephens:    1395. 
Palmeri  v.  Manhattan  R.  Co.:  1973. 
Palmerton  v.  Huxford:   435. 
Palms  v.  Howard:  625,  697. 
Palo  Alto  Bank  v.  Pacific,  etc.,  Co.: 

1984. 

Paltey  v.  Egan:   1918. 
Pam  v.  Vilmar:  2585. 
Panama,  etc.,  Tel.  Co.  v.  India  Rub- 
ber, etc.,  Co.:   1206,  2137. 
Pancoast   v.    Dinsmore:    1414,    1446, 

2068. 
Pannell  v.  Allen:  1783. 

v.  Hurley:    2090. 
Pansing  v.  Warner:  1238. 
Pape  v.  Romy:  2443. 

v.  Westacott:      946,     949,      1240, 
1243,  1249,  1302. 


Pappa  v.  Rose:   1498. 

Parafflne  Oil  Co.  v.  Berry:   1799. 

v.  Perry:  1798. 

Parcell  v.  McComber:  1576,  1578. 
Pardridge  v.  Cutler:  122,  2394. 

v.  La  Pries:  1041. 
Paris  v.  Johnson:  227,  830,  831. 
Parish  v.  Hedges:  2176. 

v.  Reeve:  435,  463. 
Park  v.  Brandt:  1987. 

v.  Cross:   958. 

v.Frank:   566. 

v.  Hamond:      1250,     1208,     2370, 
2415,  2531. 

v.  Hogle:   2437,  2481. 

v.  New  York,  etc.,  R.  Co.:  1632. 
Park  Bros.  &  Co.  v.  Kelly  Axe  Mfg. 

Co.:  132,  446. 
Park  Hotel   Co.   v.   Fourth  National 

Bank:   368,  976. 
Parker  v.  Building  Ass'n:  1533. 

v.  Blighton:  2279. 

v.  Bond:   291,  292,  382. 

v.  Brancker:  1692,  1693,  2527. 

v.  Brown:  274,  285,  295. 

v.  Building    Loan     Ass'n:     2184, 
2227,  2437. 

v.  Carter:   2302,  2309,  2311. 

v.  Cochran:   2063. 

V.Collins:  986. 

v.  Crane:   1516. 

V.Donaldson:  2574,  2575. 

v.  Eastabrook:    2430,    2441,    2443, 
2448. 

v.  Farlinger:  607. 

v.  Garrison:   654. 

v.Hannibal,  etc.,  R.  Co.:  1644. 

v.  Harrison:   2548 

v.  Kett:  1085. 

v.  Leech:  946. 

v.  Macomber:   1582. 

v.Moore:  1601,  1602. 

v.  Parker:  1528,  2190,  2281. 

v.  Rochester  Ins.  Co. :  1051. 

v.  Rolls:  2194,  2203. 

v.  Smith:  687. 

v.  Spencer:  2158. 

v.  Stubbs:  2437. 

V.Vose:  179,  1198. 

V.Walker:  1536,  2428,  2431,  2447, 
2448. 


2360 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Parker  v.  Winlow:   2024,  2031. 

v.  Wood:  172. 

v.  Wood  Lumber  Co.:   1626. 
Parkhill  v.  Imlay:  253. 
Parkhurst  v.  Johnson:  1619. 

v.  Swift:   1860. 

Parkins  v.  Hawkshaw:   2178. 
Parkist    v.    Alexander:     1192, 

2525. 
Parks  v.  Bold  Packing  Co.:  90. 

v.  Fogleman:  2044. 

v.  Tolman:   610. 
Parlin  v.  Miller:   2011. 
Parmelee  v.  Simpson:   486. 
Parnther  v.  Gaitskell:  958. 
Parr  v.  London,  etc.,  R.  Co.:  1784. 

v.  Northern    Electric    Mfg.    Co.: 

295,  296,  982. 
Parrish  v.  Pensacola  R.  Co.:  1644. 

v.  Rosebud  Min.   Co. :    300. 
Parry  Mfg.  Co.  v.  Lowenberg:   2116. 
Parsons  v.  Armour:  914. 

v.  Hawley:  2281. 

v.  Jackson:  2111. 

v.Martin:  318,  716,  1268,  2414. 

v.Maxwell:   2221. 

v.  Phelan:  1194. 

v.Webb:   894,  2112. 

v.  Winchell:  2011. 
Parsons    Band    Cutter,    etc.,    Co.,    V. 

Haub:   885,  888. 
Parsons    Band-Cutter    &    Self-Feeder 

Co.  v.  Mallinger:  902. 
Partington  v.  Wamsutta  Mills:  1580. 
Parton  v.  Crofts:   2379,  2380. 
Partridge  v.  Elevator  Co. :  954. 

v.  Insurance  Co.:  1532. 

v.  State:    2007. 

v.  White:    447. 
Paschal,  In  re:  2207,  2269,  2270,  2286, 

2288. 

Paschall  v.  Gillis:   2437,  2447. 
Pasco  v.  Minneapolis  Steel  Co.: 
Pascoag  Bank  v.  Hunt:   1350. 
Passano  v.  Acosta:  1258. 
Passenger    R.    Co.    v.    Young: 

1934,  1935. 

Passingham  v.  King:  2441. 
Passmore  v.  Passmore:   2311. 
Patapsco,  etc.,  Co.  v.  Morrison:  813. 
Pate  v.  Marsh:  2435. 


Paterson  v.   Gandasequi:    1182,  1422, 

1717,  1750. 

Patnote  v.  Sanders:  1565,  1577. 
Patrick    v.    Grand    Falls    Mercantile 
Co.:   711,  915,  1731,  1767. 

v.  Hazen:   2267. 

v.  Leach:    2276. 
1195,  v.  Littell:   121. 

v.Putnam:   1584,  2249. 
Patry  v.  Chicago,  etc.,  R.  Co.:  475. 

v.  Northern  Pacific  R.  Co.i   1474. 
Patten  v.  Hicks:  1579. 

v.Moore:   2297. 

v.  Patten:  169. 

V.  Rea:  1895. 

v.Wilson:  2286. 

v.Wood:  1583. 

Patterson   v.    Consolidated    Traction 
Co.:  341,  994. 

v.  D'Auterive:  1498. 

v.  Donner:   110. 

v.  Fleenor:  2245. 

V.Frazer:  2200,  2212. 

v.  Gage:    1573. 

v.Kates:  1903. 

v.  Leavitt:   198. 

v.  Lippencott:     157,    1392,    1394, 
1398. 

v.  Marine  Nat.  Bank:  21,  2099. 

v.  McGahey:  2559. 

v.  McGovern:   2187. 

v.Missouri  Glass  Co.:  1227. 

v.Moore:  1021. 

V.Pittsburgh,   etc.,  R.  Co.:    1631, 
1678. 

V.Pittsburgh,  etc.,  R.  Co.:   1630. 

v.  State:   2006. 

v.  The  Northern  Trust  Co.:  2152. 

v.  Tash:   2509. 

v.  Waldman:  2015. 

v.  Lippincott:  145,  146. 
Pattison  v.  Babcock:   169,  372. 
Patton  v.  Brittain:  911,  914,  917. 

v.  McDonald:   1858. 
Paul  v.  Berry:  481. 

v.  Cullum:  1009. 

v.  Edwards:  307. 

v.  Grimm:  817,  946,  1249,  1320. 

v.  Hummel:  156. 

V.Minneapolis      Thresher      Co.: 
1578,  1588. 

v.Wilbur:  2230. 


1654. 


1874, 


2361 


TABLE   OF    CASES    CITED 


[Reference*  are  to  nectloiuii  §§  1-1705,  Vol.  I;  SS  1706-2588,  Vol.  II.] 


Paulding  v.  Lee:   1343. 

Paulsen  v.  Hall:  169. 

Paulton  v.  Keith:  1977. 

Pavy's  Co.,  In  re:  1694. 

Paxton  v.  Cobb:  2162. 

Paxton  Cattle  Co.  v.   First  National 

Bank:  193,  382. 
Payne  &  Co.,  In  re:  1803. 
Payne  v.  Davis  Co.:  2235. 

v.  Dexter:  2102. 

v.  Hackney:   435,  442. 

V.Henderson:   2002. 

v.  Newcomb:  300,  2002. 

v.  Ponder:  2430,  2437,  2448. 

v.  Potter:    893. 

v.Reese:  1624. 

v.  Smith:   447. 

v.  Waterston:  2545. 

v.  Waterstown :    2417. 
Payseno  v.  Swenson:  2430,  2437. 
Peabody  v.  Dewey:  2396. 

v.  Hoard:    212,  707,  751,  798. 

V.Norfolk:    1211. 
Peabody    Bldg.     &    Loan    Ass'n    v. 

Houseman:  1480. 
Peacock  v.  Cummings:  1573. 

v.  Linton:  156. 
Peak  v.  Ellicott:  1350. 
Peale  v.  Marian  Coal  Co.:  2499. 
Pearce  v.  Dill:    2090,  2091,  2094. 

v.  Foote:  111. 

V.Foster:  610. 

v.  Gamble:  2290. 

v.Rogers:  914. 
Pearks  Stores  v.  Watt:  946. 
Pearl  v.  McDowell:  135. 

v.  West  End  St.  R.  Co.:   1870. 
Pearsall  v.  Hirsh:   1195. 

v.  Western  Union  Tel.  Co.:  1854. 
Pearse  v.  Green:  1341. 

v.  Welborn:  1154. 
Pearsoll  v.  Chapin:  351,  359. 
Pearson  v.  Alaska  Pac.  S.  Co.:   1G32. 

v.  Darrington:   2251. 

v.  Graham:  1457. 

v.  Mason:  2430. 

v.  Moreland:   1202. 

v.Scott:     946,    2079,    2400,    2405, 

2492. 

Pearsons  v.  McKlbben:  483. 
Pease  v.  Desk  Co.:  2499. 

v.  Fink:  817. 


Pease  v.  Francis:  1180. 

v.  Pease:    1162. 

v.Walsh:  98. 

v.  Warren:   252,  281. 
Peavey  v.  Robbins:   1498. 
Peavy  v.  Georgia  R.  Co.:  1935. 
Peay  v.  Seigler:  854. 
Pechner  v.  Phoenix  Ins.  Co.:  1064. 
Peck  v.   Chouteau:    2219,   2220,  2223, 
2254. 

V.  Cooper:   1460,  1477. 

V.Harriott:   814,  955. 

v.  Heurich:  86. 

v.  Ritchey:    285. 
Peckham  v.  Ashhurst:   2458. 

v.  Lane:  118. 

v.  Lyon:  923. 

Peckinbaugh  v.  Quillin:   2222. 
Peck-Williamson,  etc.,  Co.  v.  Board  of 

Ed.:   173. 

Pecos,  etc.,  R.  Co.  v.  Scurlock:   2055. 
Feddicord  v.  Berk:  838. 
Peddie  v.  Gaily:   1977,  1978. 
Pederson  v.  Kiensel:   285. 

v.  North  Yakima:  2447. 
Pedlar  v.  Stroud:  1832,  2177,  2314. 
Peebles  v.  Guano:  1995. 

v.  O'Gara  Coal  Co.:  1671. 

v.  Reading:    1192,  1194. 
Peek  v.  Boone:   2308. 

v.  Heim:  2499. 

v.  Slifer:  2435. 
Peel  v.  Shepherd:  867,  2074,  2075, 

2076. 

Peele  v.  Northcote:  1322. 
Peeples  v.  Warren:  1814,  2175. 
Peer  v.  Kean:  654. 
Peerless  Mfg.  Co.  v.  Gates:  848. 
Peet  v.  Sherwood:  1535,  2447,  2467. 
Pegram    v.    Charlotte,    etc.,    R.    Co.: 
1202. 

v.  Railroad  Co.:    2411. 

v.  Western  Union  Tel.  Co. :   41. 
Peine  v.  Weber:  421. 
Peirce  v.  American  Exp.  Co.:  1046. 

v.  Palmer:  2188,  2189. 
Peisch  v.  Dickson:    1692,  2554,  2559. 
Pelican  Assur.  Co.  of  N.  Y.  v.  Schild- 

knecht:  1054,  1055. 
Pelkington  v.  National  Ins.  Co.:  1066, 
Pellet  v.  Mfgrs.  Ins.  Co.:  598,  1569. 
Pells  v/Snell:  446. 


2362 


TABLE   OF    CASES    CITED 


[Reference*   are  to  section*:   §§  1-1705,  Vol.  If  §§  1706-2588,  Vol.  II.] 


•"I 


1783. 


Pelly  v.  Rawlins:  1516. 

v.  Wathen:   2267. 
Peltier  v.  Collins:  2381. 
Pemberton,  Ex  parte:  2267. 
Pemberton  v.  Price:  2512. 
Pemigewasset  Bank  v.  Rogers: 
Pence  v.  Arbuckle:   2123,  2127. 

v.  Waugh:   2307. 
Pendall  v.  Rench:   307. 
Pendexter  v.  Vernon:  2163. 
Penfield  Inv.  Co.  v.  Bruce:   1848. 
Penfold  v.  Warner:  784. 
Peninsular  Bank  v.  Hanmer:  410. 
Peninsular  R.  Co.  v.  Gary:  341,  994. 
Peniston  v.  Huber  Co.:   610,  1593. 
Penkivil  v.   Connell:    1129. 
Penn  v.  Evans:  198,  374,  476. 

v.Laredo:  419. 

v.  McGhee:    2283. 

v.  Whiteheads:    167. 
Penn  Co.  v.  Dandridge:  437,  443. 
Penn    Iron   Works    v.    Voght    Mach. 

Co.:  506. 

Penn  Mut.  Life  Ins.  Co.  v.  Conoughy: 
1139. 

v.  Ornauer:   1054. 
Pennebaker  v.  Williams:  101. 
Pennell  v.  Deffell:  1350,  2090. 

v.  Delta  Transp.  Ca:  716,  2394. 
Pennington  v.  Underwood:   2244. 

v.  Yell:   2194,  2196,  2197,  2212. 
Pennoyer  v.  Willis:  1831,  1850. 
Pennsylvania  Casualty  Co.  v.  Bacon: 
1060. 

v.  Washington    Portland   Cement 

Co.:   1731. 
Pennsylvania  Co.  v.  Dolan:   604. 

v.Gallagher:    321. 

v.  Lombardo:  2237. 

v.  Lynch:  1630. 

V.  Nations:    555,   1782. 

V.Thatcher:    2276. 

v.  Weddle:   1973. 
Pennsylvania,  etc.,  R.  Co.  v.  Leuffer: 

39. 
Pennsylvania   Iron  Works   v.   Voght 

Mach.  Co.:  1980. 
Pennsylvania  R.  Co.  v.  Books:  1798. 

v.  Dolan:  1556,  1557. 

v.  Flanigan:   1590. 

v.Kelly:  1973. 

v.  Naive:  716,  2394. 

2363 


Pennsylvania  R.   Co.  v.   Orem  Fruit 
Co.:  1779. 

v.  Vandiver:   219. 

v.  Wachter:  1615,  1644. 

v.  Weddle:  1973. 
Pennsylvania   R.    Co.'s   Appeal:    237, 

2119. 
Pennsylvania     Steam,     etc.,     Co.     v. 

Dandridge:  395,  398. 
Penny  v.  Atlantic,  etc.,  R.  Co.:  1934. 
Penny  wit  v.  Foote:  2157. 
Penobscot  Boom  Co.  v.  Lamson:  2152, 

2155. 

Pentland  v.  Stewart:  1498. 
Pentold  v.  Warner:   799,  805. 
Pentz  v.  Stanton:  1139,  1166,  1736. 
People  v.  Andre:   2302. 

v.  Auditor-General:  1493. 

v.  Bank:  763. 

v.  Barker:   2310. 

v.  Bellando:  652. 

v.  Bissell:   1493. 

v.  Blakeley:  2303. 

v.  Bond  Street  Sav.  Bank:   2246. 

v.  Boring:  220,  811. 

V.Buchanan:    2305. 

v.  Coghill:  199. 

V.  Cole:   2206. 

v.  Common  Council,  etc.,  of  Buf- 
falo: 2246. 

v.  Cullom:  1493. 

v.  Farmer:  2303. 

v.  Feenaughty :  2207. 

v.  Frisch:    2188. 

v.Gallagher:  2311. 

v.  Gasherie:  1341. 

v.  Globe  Mut.  Life  Ins.  Co.:  1569. 

v.  Governor:   1493. 

v.  Heart:   2308. 

v.  Heiselbetz:  2245. 

v.  Insurance  Co. :  620. 

v.  Insurance  Exchange:   1071. 

v.Kriesel:   2008. 

v.  Lamb:  2154. 

v.  Lamborn:   2162. 

v.  Longwell:   2008. 

v.  Lundell:  2008. 

v.  Mahon:   2303. 

v.  Mann :  360. 

v.  Mariposa  Co.:   2154. 

v.  Mayor,  etc.,  of  N.  Y.:  2162. 

v.  McWethy:    313. 


TABLE  OF    CASES    CITED 


fReferencen  are  to  aectlona:  §§  1-1705,  Vol.  I;  §§  1706-25SS,  Vol.  II.l 


People  v.  Murray:  2152. 

v.Nichols:  199. 

v.  Organ:  63. 

v.  Pack:    2276,  2277. 

v.  Parker:  2152. 

v.  Parks :  2006,  2008. 

v.  Patrick:  2305. 

v.  Petersen:  2303,2305. 

v.  Pierson:  1466. 

v.Pratt:  2308. 

v.  Public     Service     Commission: 
307. 

v.  Reddy:  1498. 

v.  Roby:  2007,  2008. 

v.  Schuyler:  1493. 

v.  Sindinger:  2188. 

v.  Smith:  208,  216. 

v.  Supervisors :  1498. 

v.  Terwilliger :    1783,  1792. 

v.  Town  Auditor:  1603. 

v.  Township    Board:    1189,    1198, 
1202,  1205. 

v.  Treadwell:  26. 

v.  Utter:   2008. 

v.Van  Alstine:  2303. 

v.  Vernon:   1796. 

v.  Waldron:    2188. 

v.  White:   2308. 

V.Whitney:   110. 

v.  Yates:  1493. 

Peoples'    Bank   v.    Exchange   Bank: 
1844. 

V.  Frick    Co.:     1686,    1687,    1691, 
2129,  2497,  2498,  2514,  2559. 

v.  Exchange     Bank     of     Macon: 
1848. 

v.  Rauer:  2152. 

v.  Scalzo :   970. 

Peoples'  Co-op.  Ass'n  v.  Lloyd:  1560. 
Peoples'   Fire   Ins.   Ass'n  v.   Goyne: 

1063,  1073. 

Peoples'  Ins.  Co.  v.  Spencer:  1066. 
Peoples'  Sav.  Bank  v.  Smith:  1803. 
Peoria  Ins.  Co.  v.  Hall:  1803. 
Peoria  Mfg.  Co.  v.  Lyons:  48,  2449. 
Peoria  M.  &  F.  Ins.  Co.  v.  Hall:  1059. 
Pepper  v.  Cairns:  285,  300,  1029. 

V.George:   1808,  1814,  1828,  2176. 

v.  Western  Union  Tel.  Co. :  41. 
Perez  v.  Miranda:  1262. 
Peri  v.  New  York  Cent.  R.  Co. :  2281. 
Peries  v.  Aycinena:  306,  670,  675. 


998, 


Perin  v.  Parker:  1601,  2386,  2480. 
Perkins  v.  Applegate:   2331. 

v.Bennett:    1782. 

V.  Boothby:     435,    445,    972, 
1030. 

v.  Cady:  1424,  1717,  1760. 

V.Evans:  2132. 

v.  Hadsell:  601. 

v.  Hershey:  1327. 

v.  Lumber  Co.:   2151. 

V.Missouri,  etc.,  R.  Co.:   2015. 

v.  Pendleton:  2049. 

v.Perkins:   2280. 

v.  Quarry  Co. :  178. 

v.  Smith:  1457. 

v.  State:  74. 

v.  Stead:  1860. 

V.Thompson:   1202. 

V.Washington     Ins.     Co.:     1250, 
1298,   2415,   2531. 

v.  West  Coast  Lumber  Co.:   2189. 
Perley  v.  Georgetown:  507. 
Perls  v.  Saalfield:   113. 
Perminter  v.  Kelly:  186,  546,  1457. 
Perret  v.  New  Orleans  Times:  1980. 
Perrier     v.     Dunn     Worsted     Mills: 

1669. 

Perrin  v.  Kimberlin:   2447. 
Perrine  v.  Jermyn:  638,  639. 
Perrotin  v.  Cucullu:  926. 
Perry  v.  Barnett:  716,  1268,  2394. 

v.  Bates:    2467. 

v.  Dicken:   110,  2236. 

v.  Dickerson:   1553. 

v.  Holl:   780. 

v.Hyde:    1371. 

v.  McHenry:    1194. 

v.  Mechanics'  Mut.  Ins.  Co.:  1074 

v.  Simpson  Waterproof  Mfg.  Co. 
1561. 

v.  Smith:    1346,  1347. 

v.  Wheeler:   604. 
Ferryman  v.  Wolff e:  112. 
Person  v.  Leathers:  2184. 
Persons  v.  McKibben:  530,  1570. 

v.  Smith:    1243. 
Perth    Amboy    Mfg.    Co.    v.    Condit: 

1764. 
Pervangher  v.   Union   Casualty  Co.: 

640. 

Peschel  v.  Chicago,  etc.,  R.  Co.:  1621. 
Fetch  v.  Lyon:  2178. 


2364 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,   Vol.  II.] 


Peter  v.  Piano  Mfg.  Co:  904,  905. 
Peters  v.  Anderson:   2462. 

v.  Ballister:   446. 

v.Elliott:   25G3. 

v.  Farnsworth :    812. 

v.  Grim:  111,  2481. 

v.  St.  Louis,  etc.,  R.  Co. :  40. 

v.  Westborough:  226. 
Peters  Box  Co.  v.  Lesh:   2110. 
Petersen  v.  Enholm:   1843. 

v.  Western  Union  Tel.  Co.:   2015. 
Peterson  v.  Christiensen:  306. 

v.Drew:   606. 

v.  Elhohn:   1803. 

v.  Foli:   2227. 

v.  Fullerton:    958. 

v.  Hall:   2450,  2484. 

v.  Hicks:   410. 

v.  Homan:  1152. 

v.  Knoble:  2000. 

v.Mayer:    1548. 

v.  Mayor:    219,  368. 

v.  Merchants'  Elev.  Co.:  1667. 

v.  New  York,  etc.,  R.  Co.:    1644. 

v.  Poignard:   1344. 

v.  Reaping  Mach.  Co.:  903,  905. 

V.Seattle  Traction  Co.:  1657. 

v.  St.  Francis  Hotel  Co.:  2461. 

v.Stockton,  etc.,  R.  Co.:  285. 

v.  Walter  A.  Wood,  etc.,  Co. :  902. 

v.  Western  Union  Tel.  Co.:  1980. 

v.  Whitebreast:  1654. 
Petition  of  Splane:   2147. 
Peto  v.  Hague:  284. 
Petrie  v.  Williams:    143,  144. 
Pettee  v.  Tennessee  Mfg.  Co.:  1597. 
Petteway  v.  Mclntyre:  52,  246,  765. 
Pettey    v.     Dunlap    Hardware    Co.: 

2098. 

Pettibone  v.  Thomson:   2281. 
Pettillo,  Ex  parte:  2356. 
Petty  v.  Taylor:   42. 

v.  Young:  1515. 

Pew  v.  Gloucester  Bank:  1522. 
Peycke  v.  Shinn:  261. 
Pfanz  v.  Humburg:  2428,  2431. 
Pfau  v.  Fullenwider:   2207. 
Pfister  v.  Wade:  2162. 
Phelan  v.  Downs:  2091. 

v.Gardner:   2430. 

v.  Mayor:   1533. 
Phelon  v.  Stiles:  1891. 


Phelps  v.  Barkley:   2583. 

V.Borland:   1150,  1162. 

v.  Brewer:    2157. 

v.  Hunt:   2246. 

v.  Jackson :    1349. 

v.James:   1783. 

v.  Paris:   1594. 

v.  Prothero :   2067. 

v.  Prusch:    1536,   2447. 

v.  Sill:  1494. 

v.Sullivan:  214. 

v.  Wait:  1460. 

v.  Worcester:   143. 
Phenix  Ins.  Co.  v.  Bowdre:  1074. 

v.  Grove:   1070. 

v.  Hart:  1064,  1075. 

v.  Munger:  1074. 

v.  Searles:  1074. 

v.  Stocks:  1073. 

Philadelphia  Ball  Club  v.  Hallman: 
644. 

v.  Lajoie:    643,  644. 
Philadelphia,  etc.,  Coal  Co.  v.  Barrie: 

1860. 

Philadelphia,  etc.,  R.  Co.  v.  Cowell: 
453,  463,  467. 

V.Derby:  1944. 

v.  Keenan:    1624. 

v.  Mitchell:  1918. 

v.  Quigley:  1980. 

v.Schubert:    1680. 

Philadelphia  Extracting  Co.  v.  Key- 
stone Extracting  Co.:   1211. 
Philadelphia  Mortage  &  Trust  Co.  v. 

Hardesty:  807. 

Philadelphia  R.  Co.  v.  Larkin:   2016. 
Philadelphia  Traction  Co.  v.  Orbaun: 

2016. 
Philadelphia    &    Reading   R.    Co.    v. 

Derby:  1892. 

Philbrook  v.  Moxey:   2256. 
Philip  v.  Bauer:   2442,  2471. 
Philips,  etc.,  Mfg.  Co.  v.  Wild:    411, 

435. 

Phillbrook,  v.  Superior  Court:   2148. 
Phillipps   v.   Birmingham   Industrial 

Co.:  1343. 
Phillips  v.  Broadley:  2262. 

v.  Chace:   2311. 

v.  Dobbins:  2163,  2183. 

v.  Edsall:  2204. 

v.  Foxall:  609. 


2365 


TABLE   OF    CASES    CITED 


[Referenced  are  to  sectional  g§  1-1705,  Vol.  I;  §g  17O6-2588,  Vol.  II.] 


Phillips  v.  Geiser  Mfg.  Co.:   241,  988. 
v.  Germon:  2276. 
v.  Henshaw:    2020. 
v.  Hogue:   2281. 
v.  Howell:  587. 
v.  Huth:   2125,  2127,  2509. 
v.  International   Text  Book  Co.: 

1731. 

v.  Jamieson :  2012. 
v.Jones:    227,  233,  1519. 
v.Kraft:  2430. 
v.  Langlow:  2467,  2474. 
v.  McKay:   2281. 
v.  McGrath:   939. 
v.  Mercantile  Nat.  Bank:  1990. 
v.  Moir:     716,    1279,    1324,    2502, 

2523,  2535. 
v.  Noir:   2141. 
V.Phillips:  403,  404,  408. 
V.Phillips'  Adm'r:   2290. 
v.  Poulter:    291. 
v.  Pullen:    2163. 
v.  Sanchez:  162. 
v.  Scott:  2527,  2538. 
v.  Sherburne:   2255. 
v.  Stagg:   2278. 
Phillips  Manufacturing  Co.  v.  Wild: 

446. 

Phillipson  v.  Hayter:  162. 
Philman  v.  Marshall:   2308. 
Philo  v.  Butterfield:   2004. 
Philpot  v.  Bingham:  141,  143,  144. 
Phinizy  v.  Bush:  1182,  1422. 
Phinney  v.  Hall:  1547,  1588,  1590. 
Phipps  v.  Mallory  Comm.  Co.:    1984. 
v.  Millbury  Bank:  1303. 
V.Willis:  2293. 
Phister  v.  Gove:   2467. 
Phoebus  v.  Webster:   2306. 
Phoenix  Ins.  Co.  v.  Copeland:    1066, 

1067,  1073. 

v.  Flemming:  1061,  1804,  1840. 
v.  Frissell:  1250. 
v.  Holloway:   1532. 
v.  Speirs:  1054,  1070. 
v.  Stark:  1073. 
V.Walter:  938. 
v.  Ward:    332,  1841. 
v.  Warttemberg:  1075. 
Phoenix  Mut.  L.  Ins.  Co.  v.  Halloway: 

609. 
Phoenix  Pottery  Co.  v.  Perkins:   859. 


Phosphate  of  Lime  Co.  v.  Green:  393, 

395,  438. 

Phy  v.  Clark:  2538. 
Physioc  v.  Shea:  610. 
Piatt  v.  McCullough:  212. 
Pickard  v.  Per  ley:  537. 

v.  Pickard:  2247,  2253,  2254. 
Pickens  v.  Diercker:   1874,  1894. 
Pickering  v.    Busk:    867,   1986,    2112, 
2115,  2118,  2321,  2509. 

v.  Demerritt:   2386,  2394. 

v.  Pickering:  167. 
Pickert  v.  Hair:  2178. 

v.  Marston:    243,   716,    882,   2403. 

2506. 
Pickett  v.  Bates:   955,  2181. 

v.  Merchants'  Nat.  Bank:  2163. 

V.Pearsons:   491,  1266. 

v.  Sutter:  137. 

V.Wallace:  1494. 
Pickle  v.  Muse:  446,  448. 
Pickler  v.  Pickler:   167. 

v.  State:    141. 
Pickles  v.  Western  Assur.   Co.:   489. 

524. 

Picquet  v.  McKay:  1691. 
Pidgeon  v.  William's  Adm'rs:  946. 
Pieart  v.  Chicago,  etc.,  R.  Co.:   1630, 

1631. 

Piedmont  Mfg.  Co.  v.   Morris:    1325. 
Pier  v.  Duff:  1783. 
Pierce  v.  Beers:  1201,  1233,  1234. 

v.  Boughman:   1202. 

v.Conners:  1888. 

v.Dekle:   208. 

v.  Farrar:  2311. 

v.Johnson:  1410. 

V.Lawrence:   2276,  2280,  2281. 

v.  O'Keefe:  441. 

v.Perkins:  2161. 

v.  Robie:   2030. 

v.Strickland:  2161,  2162. 

v.  Tennessee  Coal  Co. :   604. 

v.  Tenn.  Coal,  etc.,  Co.:  1556. 

V.Thomas:   1516,  2426. 

v.Thornton:  1339. 

v.  Truitt:   2468. 

v.  United  States:  763. 

v.  Van  Dusen:  1679,  1799. 

v.  Whitcomb:  1620,  1642. 
Piercy  v.  Averill:   150L 

v.  Hedfield:   215. 


2366 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §§-1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Pieris,  In  re:  2236. 

Pierse  v.  Thornton:   2208. 

Pierson,  Matter  of:   2389. 

Pierson  v.  Atlantic  Nat.  Bank:  1780. 

v.  Puhrmann:   2094. 

v.  Graham:  1457. 
Pierson's  Estate,  In  re:  1334. 
Piggott  v.  Addicks:   2152. 

V.Thompson:    2030. 
Pike  v.  Balch:   2320. 

v.  Carter:  1494. 

V.Douglass:   436,  444. 

v.Emerson:    2162. 

v.  Ongley:  1412,  1414,  2419. 

v.  Orgley:   1174. 

Pike's  Peak  00.  v.  Pfuntner:   1193. 
Pile  v.  Bright:  774. 

v.  Carpenter:  2479. 
Pilkington  v.  Brooklyn,  etc.,  R.  Co.: 
2283. 

v.  Gulf  C.  &  S.  P.  Co.:  1799. 
Piller  v.  Piser:  882. 
Pilling  v.  Benson:  2189,  2191. 
Pillsbury  v.  Dugan:  2152. 
Pilson  v.  Bushong:  946. 
Pinch  v.  Morford:   2475. 
Pinckney  v.  Dunn:  1335,' 2543. 
Pine  v.  Mangus:   938. 
Pine  Mountain   Iron  Co.  v.  Bailey: 

754,  1824. 

Pingree  v.  Leyland:  1624. 
Pinkerton  v.  Woodward:   2001. 
Pinkham  v.  Benton:  2035. 

V.Crocker:    2504,  2533. 
Pinnock  v.  dough:  1192,  1194. 
Pinson  v.  Campbell:   2311. 
Pinto  v.  Santos:   333. 
Pioneer  Min.  &  Mfg.  Co.  v.  Talley: 

1620. 
Piper  v.  Boston  &  M.  R.  R.:  122. 

V.Pearson:   1494. 
Pirie  v.  Harkness:  2281. 
Pitkin  v.  Benfer:  1764.. 

v.Harris:   946,  2181. 
Pitman  v.  Kintner:  1136,  1154. 
Pitt  v.  Yalden :  2194. 
Pittman  v.  Sofley:  1833. 
Pitts  v.  Mower:  2063. 

v.  Shubert:  463. 

v.  Sower:  2072. 

v.  Steele  Merc.  Co.:  193,  395. 


Pittsburg  v.  Leitheiser:    1679. 
Pittsburg  Bank  v.  Whitehead:    1854. 
Pittsburg  Coal  &  Coke  Co.  v.  Peter- 
son:  1654. 
Pittsburg,  etc.,  Min.  Co.  v.  Quintrell: 

382. 
Pittsburg,    etc.,    R.    Co.    v.    Adams: 

1619,  1638. 

v.  Devinney:  1644,  1654. 
v.  Gazzam:  386,  395. 
V.Haley:  157. 
V.Lewis:   1652,  1654. 
v.  Mahoney:  1681. 
v.  Montgomery:   1679. 
v.  Powers:   1635. 
v.  Racer:   993. 
v.  Ruby:   1632. 

v.  Shields:   1944,  1946,  1948,  1950. 
v.  Volkert:  2237. 
Pittsburg  Plate  Glass  Co.  v.  Kerlin: 

1782. 

v.  Roquemore:  1758. 
Pittsburg    Sheet    Mfg.    Co.    v.    West 

Penn.   Sheet  Steel  Co.:    861. 
; Pittsburgh . v.  Woolley:   473. 
Pittsburgh,  etc.,  Mining  Co.  v.  Scully: 

395. 
Pittsburgh,   etc.,   R.   Co.   v.   Ranney: 

1652. 

v.  Sentmeyer:  1620. 
v.  Shaeffer:   1840. 
v.  Woolley:   463. 
Pittsburgh  Mfg.  Co.  v.  Fidelity  Title 

&  Trust  Co.:   836,  837. 
Pitsinowsky  v.  Beardsley:   885,  903. 
Pixler  v.  Nichols:  1578. 
Pixley  v.  Boynton:  112. 

v.  W.  P.  R.  Co.:   2151. 
Place  v.  Ccnklin:   117. 
v.  Hay  ward:   2293. 
Placer  County  v.  Astin:  1332. 
Plaff  v.  Pacific  Exp.  Co.:   1046. 
Planche  v.  Colburn:   2137. 
Plankinton  Bank,  In  re:  1815,  1816, 

1817. 
Piano    Manufacturing    Co.    v.    Root: 

285. 

v.  Buxton:   1249,  1272,  1325. 
v.  Doyle:   946. 
v.  Millage:  446,  447. 
v.  Nordstrom:  436. 


2367 


TABLE   OP    CASES    CITED 


[Reference*  tire  to  «ectlon*:  §g  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  IT.] 


Plant  v.  Thompson:   2435,  2447. 
Planters'  Bank  v.  Cameron:  628. 
v.  First  Nat.  Bank:  2514.     fattii* 
v.  Hornberger :  2234,  2294. 
v.  Neely:  1202. 
v.  Sharp:  368,  483. 
Planters',   etc.,    Bamk   v. '  First   Nat. 

Bank:   307. 

Planters'  Fertilizer  Co.  v.  Elder:  1801. 
Planters'    Fire   Ass'n   v.   De   Loach: 

2152. 
Planters'    Ins.    Co.    v.    Myers:    1071, 

1865,  2368. 
v.  Sorrells:  741. 

2499. 

Planters'  Mut.  Ins.  Co.  v.  Engle:  2499. 
Plaster  v.  Rigney.   135. 
Platt  v.  Birmingham  Axle  Co.:  1844. 
v.  Butcher:   233. 
v.  Finck:  781. 
V.Francis:   374,  783. 
v.  Johr:  2431. 

Plattner   Implement   Co.   v.   Interna- 
tional Harv.  Co.:   2559. 
Plattsmouth  v.  Murphy:    359. 
Playford  v.  Hutchinson:  2247. 
Pleasants  v.  Kortrecht:   2280. 

v.Raleigh,  etc.,  R.  Co.:   1654. 
Pledger  v.  Chicago,  etc.,  R.  Co.:  1797. 
Pleins  v.  Wachenheimer:    1732. 
Plitt,  Ex  varte:  2286. 
Ploof  v.  Putnam:   1951,  1960. 
Plotner  v.  Chilteon:  2412,  2474. 
Plumb  v.  Campbell:  2452. 
Plumber    M«rc.    Co.    v.    Henderson: 

2568. 
Plummer    v.    Bankers'    Surety    Co.: 

2336. 
v.  Great  Northern  R,   Co.:    2255, 

2276. 

v.  Green:  306,  307. 
v.  Knight:  498,  965. 
Plymouth   County  Bank  v.   Oilman: 

1314,  1783,  1794. 
Pneumatic  Weigher  Co.  v.  Burnquist: 

1235,  1242,  1249. 
Pochin  v.  Knoebel:   300,  933. 
Podvin  v.   Pepperell  Mfg.  Co.:    1619, 

1674. 

Poe  v.  Davis:  2237. 
Poess  v.  Twelfth  Ward  Bank:  2111. 
Pohl  v.  Davenport  Malt  Co.:  481. 


Poirer  Mfg.  Co.  v.  Kitts:  48,  249», 

Pokanoket,  The:  603. 

Polaski  v.  Pittsburg  Coal  Co.:   162S, 

1635. 

Pole  v.  Leask:  210. 
Polhemus  v.  Trust  Co.:  300. 
Polhill  v.  Walter:  542. 
Poli  v.  Numa  Coal  Co.:   1630,  1671. 
PolJtes  v.  Barlin:   1231. 
Polk  Co;  Savings  Bank  v.  Harding: 

2002. 

Pollack  v.  Sliubert:  1510,  1511. 
Pollard  v.  Gibbs:  420,  424. 

v.  Reardon:   2120. 

V.Rowland:  1315. 

v.Vinton:   760,  1801. 
Pollatscheck  v.  Goodwin:   178. 
Pollock  v.  Cohen:  294,  365,  486,  1017. 

v.  Gantt:  2014,  2015,  2222. 

V.German  F.  Ins.  Co.:  1071. 

v.  Stables:    716. 

v.  Standard  Steel  Car  Co. :   395. 
Polsley  v.  Anderson:  1552,  2236,  2244, 

2256. 

Pomerene  v.  White:    1890. 
Pomerenke  v.  Bate:  1198,  1234,  2137. 
Pomeroy  v.  Prescott:  2162,  2163. 

v.  Slade:  1131. 

v.  Smith:    2050. 
Ponder  v.  Cotton  Co.:   112. 
Pool  v.  Adfeisson:   1432. 

v.  Chicago,  etc.,  R.  Co.:  1645. 

V.Foster:  1095. 

v.  Southern     Pacific     Co.:     1644, 

1650,  1651. 
Poole  v.  Belcha:    2281. 

v.  Gist:   2204. 

V.Houston,  etc.,  R.  Co.:  1458. 

v.  Rice:   1410. 

Poorman  v.  Woodward:   950. 
Pope  v.  Armsby  Co.:   404,  408,  432. 

v.  Armstrong:    2276,  2278. 

v.  Bank  of  Albion:  1801. 

v.  Beals:    2435,  2479. 

v.  Glen  Falls  Ins.  Co.:  1067. 

v.  Hanke:   111,  121. 

v.  Harter:   1169. 

v.  Machias,  etc.,  Co.:   772. 

v.  Nickerson:  778. 

v.  Romy:  1533. 

Pope  Metals  Co.  v.  Sadek:  2381. 
Pordage  v.  Cole:   600. 


2368 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  gg   17O6-258S,  Vol.  II.] 


Poree  v.  Bonneval:  2327. 

Forges    v.    United    States    Mortgage 

Co.:    779,  784,  829,  2108. 
Port  Jervis  v.  First  Nat.  Bank:  1831, 

1844. 

Portance  v.  Lehigh  Valley  Co.:  1618. 
Porter  v.  Baldwin:  1093. 

v.  Beattie:   809. 

v.  Blood:  1693. 

v.  Haight:    1494. 

v.Hannibal,  etc.,  R.  Co.:   1624. 

v.Hanson:   2276. 

v.  Hills:   716. 

v.  Lane:   2281.- 

v.Merrill:  1410,  1413. 

v.  Murphy:  611. 

v.  6-urada:   945. 

v.  Parks:    2113,  2423. 

V.Patterson:    1244. 

v.  Paving  Co. :  208. 

v.Powell:   156. 

v.  Raleigh,  etc.,  R.  Co. :  432. 

V.Raymond:    2033,  2034. 

v.  Roseman:    2093,  2103. 

v.  Ruckman:   2251. 

v.  Schendel:   2035,  2572. 

v.  Silvers:   1547,  1588. 

v.Thomas:    1457. 

v.  United    States    Life    Ins.    Co.: 
1063. 

v.Vance:   2204. 

v.  Woodruff:    1190,  1199,  1221. 

v.  Wormser:   2386. 
Portland  v.  O'Neill:   2362. 
Portugese  Consolidated  Copper  Mines, 

In  re:  518. 

Posey  v.  Garth:  1577. 
Posner  v.  Bayless:  1028. 
Post  v.   Aetna  Ins.   Co.:    1053,   1055, 
1056. 

v.  Charlesworth:   2156. 

v.  Evarts:  2207. 

V.Houston     Rice     Milling     Co.: 
2132. 

v.  Kimberly:  51. 

v.  Leland:  112. 

v.Pearson:  1173. 
Postal  Tel.   Cable   Co.   v.  Louisville, 

etc.,  R.  Co.:   2152. 
Postal  Tel.  Co.  v.  Brantley:  1893. 

v.  Likes:   1667. 

v.  Schaefer:  41. 

149  2369 


Posten  v.  Rassette:   563. 
Poston  v.  Hall:  2430. 

v.Williams:   141,  142. 
Poteet  v.  Blosson  Oil  Co.:  1913. 

v.  Western  Union  Tel.  Co. :   2086. 
Potter  v.  Ajax  Mining  Co. :  2239,  2243, 
2283. 

v.  Bassett:    1093,  1100. 

v.  Dennison:  2513,  2576. 

v.Faulkner:   1658. 

v.Gilbert:   1477. 

v.  Mayo:    2276,  2279. 

v.  Merchants'  Bank:    1342. 

v.  Parsons:    2162. 

v.  Phenix  Ins.  Co.:  743,  756,  1076. 

v.  Springfield:    Milling   Co.:    739, 
855,  861,  862. 

V.Thompson:   1693. 

v.  White:    2286. 

v.Yale  College:  2024. 
Potter's  Appeal:   2137. 
Pottle  v.  Lowe:  2002. 
Pottorf   v.    Fidelity   Coal   Min.    Co.: 

1870. 
Potts  v.  Aechternacht:   1526,  2425. 

v.  Rider:    2031. 

v.  Shreveport  Belt  R.  Co.:  1676. 
Pottsville  I.  &  S.  Co.  v.  Good:   1586. 
Pottsville  Mut.  F.  Ins.  Co.  v.  Minne- 
qua  Springs  Imp.  Co.:   2369. 

v.  Fromm:   1073. 
Potvin  v.  Curran:  2447. 
Poucher  v.  Blanchard:   2227. 
Pouppirt  v.  Greenwood:   1208,  1233. 
Poussard  v.  Spiers:    606,  1585. 
Pow  v.  Davis:  1401. 
Powell  v.  Conant:  1198. 

v.  Construction  Co.:  1860,  1917. 

v.  Edmunds:   2322. 

v.  Galveston,  etc.,  R.  Co.:  2281. 

v.  Gossom:    441. 

v.Henry:    530,  956. 

V.Jones:   332,  333,  1227,  1330. 

v.  Little:    2180. 

v.  Newburgh,  1603. 

v.  Northern  Pac.  R.  Co. :   1784. 

v.  Pacific  Railroad:   1350. 

v.  State:   158. 

v.  Trustees  of  Newburgh:   2558. 

v.  Tuttle:  199. 

v.Virginia  Const.  Co.:  1870,  1871. 

v.  Wade:  2063. 


TABLE   OF    CASES    CITED 


[Referenced  are  to  section*:   gg   1-1705,  Vol.   I;  gg  1706-2588,   Vol.  II.] 


Powell's  Admr.  v.  Henry:    457,  901, 

946. 

Power    v.    Arnold    Engineering    Co: 
1912. 

v.  First  National  Bank:  331,  1314. 
Powers  v.  Black:  2477. 

V.Boston,  etc.,  R.  Co.:   1913. 

v.  Briggs:  1131,  1134,  1141,  1161. 

V.Cray:  1343. 

v.  Manning:   2253,  2255. 

v.  McLean:   1411. 

v.Russell:   166. 

v.  Skinner:   92,  93,  96,  122. 
Pownall  v.  Bair:   333,  1288. 
Prall  v.  Tilt:   2119. 
Prather   v.   Richmond,  etc.,   R.   Co.: 
1615. 

v.Ross:   1154. 
Pratt  v.  Beaupre:  1152,  1159,  1176. 

v.  Boody:  112. 

v.Bryant:   436. 

v.  Burdon:   2479. 

v.Collins:   867. 

v.  Conway:    2178. 

v.  Davis :  169. 

v.  Dwelling-House  Ins.  Co.:  1204. 

V.Gardner:   1494,  1495,  1496. 

v.  Hotchkiss:    2441. 

v.  Montegriffo:   643. 

v.  Oshkosh  Match  Co. :  193. 

v.Patterson:    1588. 

v.  Patterson's  Ex'r:   2411,  2430. 

v.  Topeka  Bank:    2065. 

v.  Weyman:    1352. 
Pray  v.  Appledore  Land  &  Bldg.  Co.: 

52. 

Prebble  v.  Reeves:  1193. 
Preferred  Accident  Ins.  Co.  v.  Stone: 

1075. 

Prentice  Co.  v.  Page:  2511. 
Prentiss  v.  Ledyard:  603,  1581. 

v.  Nelson:    798. 

Prentiss  Tool  Co.  v.  Godchaux:   368. 
Prentz  v.  Stan  ton:  2580. 
Presby  v.  Parker:  411,  1993. 
Prescott  v.  Hixon:    1139. 
President,  etc.,  v.  Cornen:  1723. 
President    Mining    Co.    v.    Coquard: 

219. 
Presley  v.  Fort  Worth,  etc.,  R.  Co.: 

1973. 
Presnall  v.  McLeary:  975,  998. 


Prets  v.  Duncan:  111. 

Pressed    Steel    Car    Co.    v.    Hansen: 

1214. 
Preston  v.  American  Linen  Co. :  1577. 

v.Davis:  2162. 

v.  Hill:   2163. 

V.Hull:  213. 

v.  Neale:    1684. 

v.  Preston:   2216,  2217. 

v.  Tubbin:   1803,  1808. 
Price  v.  Carney:  1814,  2175. 

v.  Gover:   238G. 

v.  Haeberle:  668,  2259,  2260,  2314. 

v.  Hay:  2166. 

v.  Keyes:   1225. 

v.  Metropolitan,    etc.,    Co.:    1588, 
1589. 

v.Moore:   395. 

v.  Ralston:   2576,  2577. 

v.  Reeves:    1350. 

v.  Seydel:   169. 

v.  Simon:   1889. 

v.  Western  Loan,  etc.,  Co.:   2256. 
Prichard  v.  Budd:    2059. 

v.  Deering  Harv.  Co.:  1297. 

v.  Martin:    1556. 

v.  Sigafus :  400. 
Prickett  v.  Badger:   2461. 
Priddy  v.  MacKenzie:    1803,  2204. 
Pride  v.  Smalley:   2281. 
Pridmore  v.  Harrison:   35. 
Priestly  v.  Fernie:    1424. 

v.Ferris:    1759. 

v.  Fowler:   1615,  1643,  1644. 
Primeau  v.  Granfield:   1205. 
Primm  v.  Stewart:  652,  663. 
Prince  v.  Clark:  459. 

v.  Dupuy:    1201,  1207,  1226,  1234. 

v.  Eighth  Street  Baptist  Church : 
2479. 

v.  McRae:  1517,  1518. 
Prine  v.  Syverson:  432. 
Pringle  v.  Modern  Woodmen  of  Amer- 
ica: 1803. 

v.Dunn:  170. 

v.  Spaulding:  798. 
Prior  v.  Kiso:   2314. 
Pritchett  v.  Sessions:   1808. 
Prochownick  v.  Boyd:   949. 
Proctor  v.  Bennis:  751. 

v.Greene:   2098. 

v.  Mahin:   1212. 


2370 


TABLE   OF    CASES    CITED 


[Reference**   are  to  section*:   gg  1-1705,  Vol.  I;  §§   1706-2588,  Vol.    II.] 


Proctor  v.  Tows:  .914. 

v.Williams:    310. 

v.  Woodruff:    165. 
Proctor  Coal  Co.  v.  Tye:  2283. 
Produce  Exchange  Trust  Co.  v.  Bieb- 

erbach:   1135. 
Prokop  v.  Courlay:   2539. 
Propeller   Tow-Boat   Co.   v.   Western 

U.  Tel.  Co.:  2063. 
Proprietors  v.  Bishop:  2152. 
Prospect  Ave.,  In  re:  2255. 
Prosser  v.  Coots:  1505. 
Protection  Ins.  Co.  v.  Wilson:   2371. 
Protection    Life    Ins.    Co.    v.    Foote: 

130. 
Proudfoot  v.  Monteflore:  1840. 

v.  Wightman:    556,  806. 
Proulx  v.  Stetson,  etc.,  Co.:  2245. 
Prout  v.  Chisholm:  2417. 
Prouty  v.  Bullard:  2290. 

v.Nichols:    285. 

v.  Perry:  1542. 

Provenchere  v.  Relfess:  1424. 
Providence  v.  Miller:   1178. 
Providence   Jewelry   Co.   v.   Fessler: 

2084. 
Providence  Machine  Co.  v.  Browning: 

838. 
Provident    Savings    L.    Ins.    Soc.    v. 

Oliver:   1060. 
Provincial   Ins.   Co.   v.   Leduc:    2031, 

2371,  2488. 
Prudential    Fire    Ins.    Co.    v.    Alley: 

1054. 

Prussing  v.  Lancaster:   659. 
Public  Schools  v.  Crumb:   2152. 
Puckett  v.  Alexander:  91. 
Puett  v.  Beard:   2281. 
Puffer  v.  Welch:  49. 
Puget  Sound   Lumber   Co.   v.   Krug: 

169,  170,  386. 
Pugh  and  Sharman's  Case:   43. 

v.  Baker:  1566. 

v.  Chesseldine:   2063,  2320,  2356. 

v.Moore:   1169,  1411,  2419. 

v.  Porter:    2528,  2534,  2539,  2540. 

v.  Pugh:    1350. 
Pugmire   v.    Oregon    Short   Line    R. 

Co.:    1642,  1681. 
Pugsley  v.  Murray:   178. 
Pullan  v.  State:    26,  160. 


Pullman  Car  Co.  v.  Garvin:    2050. 

v.  Nelson:    267. 
Pullman  Co.  v.  Geller:  1678. 

v.  Nelson:    993. 

v.  Willet:   993. 
Pullman,  etc.,  Co.  v.  Gavin:   2001. 

v.  Martin,  2001. 

Pullman   Palace   Car   Co.   v.   Laack: 
1641. 

v.  Nelson:   261,  263. 
Pulver  v.  Harris:   2243,  2279. 

v.  State:    2008. 
Pulsifer  v.  Shepard:  2414. 
Pundmann  v.  Schoenich:  1350. 
Purcell  v.  Potter:  215. 
Purdy,  In  re:  2245. 
Purdy  v.  Huntingdon :   937. 

v.  Rome,  etc.,  R.  Co. :  1681. 

v.  Westinghouse,  etc.,  Co.:  1624. 
Puriton  v.   Insurance  Co.:    1132. 
Puritas  Laundry  Co.  v.  Green:    608. 
Purkey  v.  Harding:  233. 

v.  Hardy:   2430. 
Pursley  v.  Morrison:   246,  742. 

v.  Stahley:  1803,  1815,  1816,  1838. 
Purviance  v.  Sutherland:   2064. 
Putnam  v.  French:  753,  854,  871,  872, 
2401. 

v.  How:   2435,  2445. 

v.  Sullivan:   978. 

v.  Sweet:    2147. 

v.  Tennyson:  2276. 
Putnam    Investment    Co.    v.    King: 

2437. 

Purcell  v.  Southern  R.  Co.:   1652. 
Pyle  v.  Booz:   1357. 

v.  Cravens:  141. 
Pythian  Life  Ass'n  v.  Preston:   1060. 


Q 


Quakertown,  etc.,  R.  Co.  v.  Guaran- 
tors', etc.,  Co.:  2280,  2286. 

Quale  v.  Hazel:   481. 

Quanah,  etc.,  R.  Co.  v.  Galloway: 
1783. 

Quarg  v.  Scher:  170,  1987. 

Quarles  v.  Porter:   2163. 

Quarman  v.  Burnett:  1485,  1861,  1897. 

Quay  v.  Presidio,  etc.,  R.  Co.:  1007. 

Quebec  Bank  v.  Jacobs:  169. 


2371 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  gg  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 


Queen  v.   Bishop:    2007. 

v.  Bullivant:   2304. 

v.  Cox:   2303. 

v.Dayton  Coal  &  Iron  Co.:  1076, 

v.  Glyn:    2047. 

v.  Holbrook:   2008. 

v.  Prince.  2007. 

V.Stephens:   2008. 
Queen  City  F.  Ins.  Co.  v.  First  Nat. 

Bank:    1250. 
Queen  City  Ins.  Co.  v.  First  National 

Bank:    294. 

Queen  Ins.  Co.  v.  Young:  1053. 
Quigley  v.  De  Haas:  1102,  1419. 

v.Mexican  Southern  Bank:    960. 
Quimby  v.  Hazen:   1683,  1684. 
Quincey  v.  Francis:  2243. 

v.  White:   1351. 

Quincy  Mining  Co.  v.  Kitts:   1615. 
Quincy  Horse  R.  &  Carrying  Co.   v. 

Gnuse:   1799. 
Quinlan  v.  Holbrook:  2414,  2415. 

v.  Providence,  etc.,  Ins.  Co.:   752. 
Quinn    v.    Burton:    1590,    2412,    2413, 
2475,  2477;0*J    : 

v.Davis:  2107,  2112. 

v.  Dresbach:    263,    264,    274,    470, 
933,  938,  2109. 

v.  Electric  Const.  Co. :  1861. 

v.Johnson  Forge  Co.:   1637. 

v.  Le  Due:   1215,  1548,  1588. 

v.  Power:  1874,  1890. 

v.  Railroad  Co.:   718. 

v.  Van  Pelt:   2212. 

Quint  v.  Ophir,  etc.,  Co.:    2236,  2244. 
Quirk  v.  Muller:    110. 

v.    Quirk:   1344,  1588. 
Quist  v.  Goodfellow:   2435. 
Quitman  v.  Packard:    2559. 
Quitzow  v.  Perrin:  2469. 

Rabb  v.  Johnson:   2444. 

Rabone  v.  Williams:   867,  2075,  2077. 

Raby,  In  re:  2207. 

Rachels  v.  Doniphan  Lumber  Co.: 
2246. 

Rackemann  v.  Riverbank  Improve- 
ment Co.:  411,  436. 

Raddle  v.  Lindeman:  49. 

Radel  v.  Borches:   1798,  1861. 

Raeder  v.  Butler:  2479. 


Raff  v.  Isham:  1387,  1396. 
Ragan    v.    Chenault:    216,    225,    426, 
1038. 

v.  Railroad  Co.:  169. 
Ragsdale    v.    Memphis,    etc.,    R.    R.: 
1644. 

v.  Meridian  Land  Co.:  52. 
civ,  v.  Robinson :   214. 
Rahles  v.  Thompson:   1619. 
Rahm  v.  Deig:   1782. 
Rahmel  v.  Lehnddorff:   1940.  rjoqao 
Rahr  v.  Manchester  Fire  Assur.  Co.: 

1051. 

Raht  v.  Union  Mining  Co.:   1352. 
Raible  v.  Ice  Co.:   1913. 
Baike  v.  Rubber  Mfg.  Co.:  988. 
Rail  v.  City  Nat.  Bank:   751JV/  . 

v.  Potts:   1498. 
Railey  v.  Bagley:   2183. 

v.  Porter:   2532. 
Railroad  Co.  v.  Cogsbill:    964. 

v.  Fort:   1637. 

v.Morris:  118. 

v.Ryan:   105. 
•Ml¥i*Spence:  1646. 

v.  Ward:    1658. 
Railroad  Nat.  Bank  v.  City  of  Lowell: 

437. 
Railway  Co.  v.  Aiken:  1676. 

v.Hull:    1676. 

v.  Ranney:    1644. 

v.  Spangle:   1681. 
Rainbow  v.  Howkins:  856,  2322. 
Rainey  v.  Kemp:   291. 

v.  Potter:   1723. 

Rains  v.  Simpson:   1494,  1495,  1496. 
Raisin  v.  Clark:    177,  178,  716,  1220, 

1590,  2411,  2474,  .2477. 
Rait  v.  Carpenter:    2426. 

v.New  England,  etc.,  Co.:    1870. 
Raitt  v.  Mitchell:    1690. 
Raleigh  Real  Estate  Co.  v.  Adams 

2449. 

Raleigh  Trust  Co.  v.  Adams:  563. 
Raley  v.  Smith:  2249. 
Ralphs  v.  Hensler:  468.  :iai 
Ralston  v.  Barclay:   1297. 
Ramey  v.  Holcombe:  1554. 
Ramsay  v.  Gardner:  1603,  2558. 

v.  Miller:   386,  391,  395. 
Ramsdell  Transp.   Co.  v.  Compagnie 
Generale:  1859. 


2372 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  g§  1706-2588,   Vol.  II.] 


Ramsden  v.  Boston  &  Albany  R.  Co.: 

1953,  1973. 
Ramsey  v.  Field:    313. 

v.  Riley:  1494. 
Ramspeck  v.  Pattillo:   1055. 
Ranck  v.  Albright:  605. 
Rand  v.  Butte  Electric  R.  Co.:   1937, 
1973. 

v.  Cronkrite:   596,  2437. 

v.  Hale:  1139. 

v.Johns:   1296. 

v.  Moulton:  1098,  1734,  2054,  2064. 
Randall  v.  Baltimore  &  Ohio  R.  Co.: 
1644. 

v.  Brigham:   1494. 

v.  Duff:    818,  2108. 

v.  Eichhorn:   938.     • 

v.  Fay  Co.:   904,  991. 

v.  Kehlor:    716,   882,   2506,   2558. 

v.  Lautenberger :  2331. 

v.  North  Western  Tel.  Co.:   1783, 
1798. 

V.Packard:   2246. 

v.  Peerless   Motor   Car  Co. :    608, 
1552,  1562. 

v.  Smith:   716,  1269. 

v.  Van  Vechten:   425,  1101,  1155, 
1735. 

v.  Van  Wagenen:  2243,  2281,  2283. 
Randel  v.  Brown:   1687. 

V.Chesapeake   &   D.    Canal    Co.: 
1783. 

v.  Yates:    2309. 
Randell  v.  Trimen:  1400. 
Randle  v.  Bloomfleld:   2451. 
Randolph  v.  Quidnick  Co.:   2308. 

V.Randolph:    2258,  2271. 

v.  Ware :  2531. 

v.  Wheeler:  2059,  2063. 
Ranger  v.  Thalman:   1736,  1755. 
Rank  v.  Garvey:  1207. 
Rankel    v.    Buckstaff-Ed  wards    Co.: 

1674. 
Rankin  v.  Elaine  County  Bank:  2059. 

v.  Grist:   2443. 

v.Matthews:    2322. 

v.  Porter:  1223. 

v.  Schaeffer:    2202. 

v.  West:  169. 

Ranlett  v.  Blodgett:   1603. 
Ranney  v.  Donovan:   2413,  2475. 

V.Henry:  1207,  1588. 


Ransom  v.  Cutting:   2236,  2284,  2286. 

v.  Duckett:    286. 

v.  Ransom:    2234,  2236,  2256. 
Ranson  v.  Weston:   1536,  2447. 
Rape  v.  Heaton:  2157. 
Rapp  v.  Easton  Transit  Co.:   1798. 

v.Livingstone:   1521. 
Rapp's  Estate,  In  re:  2234. 
Rapson  v.  Cubitt:  1485,  1897. 
Rase    v.    Minneapolis,    etc.,    R.    Co.: 

1665,  1667,  1673,  1674. 
Raskin  v.  Knickerbocker  Stage  Co.: 

2279. 

Ratcliff  v.  Baird:   309. 
Rathbone  v.  Tucker:   1760. 
Rathbun  v.  Citizens'  Steamboat  Co.: 
440. 

v.  McLay:   239,  2390. 
Rathke  v.  Tyler:  169,  1235. 
Ratts  v.  Shepherd:    2435,  2447,  2461 
Raub  v.  Otterback:   2158. 
Rauber  v.  Sundback:   50. 
Rauck  v.  Albright:  1530. 
Rauer's  Law  Co.  v.  Bradbury:   2474. 
Rawlings  v.  Neal:    358,  372,  386. 

v.  Robson:   1124. 
Rawson  v.  Curtis:    245,   259. 

v.  Curtiss:  280,  285,  722,  742,  799. 
Ray  v.  Haines:  1599. 

v.  Hixon:    2283. 

v.Jones  &  Adams:   1890. 

v.  Powers:  187,  190. 

v.Wilson:    2111. 
Ray   County   Sav.   Bank   v.   Button: 

1458. 
Raymond  v.  Bolles:   1494. 

v.  Crown :   2580. 

v.  Crown,  etc.,  Mills:   1413,  1424, 
1753,   1755,  1758,  2419. 

v.  Crown  Mills:    2582. 

v.  Eagle  Mills:   1423. 

v.  Leavitt:   113. 

v.  Newland:   2132. 

v.  Palmer:   463. 

v.  Parker:  111,  1602. 

v.  Squire:   577,  585,  2585. 

v.  Yarrington:  2133. 
Rayner  v.  Grote:   2041,  2042. 
Raynes  v.  Bennett:   161. 
Raynsford  v.  Phelps:   1501. 
Rea  v.  Barker:   2055. 

v.  Durkee:  161. 


2373 


TABLE   OF    CASES    CITED 


LHeferenceu   are  to  sections:   §§  1-1705,  Vol.  I;   gg   1706-2588,  Vol.  II.] 


Reab  v.  Moor:   1576. 

Read  v.  Anderson:  564,  579,  585,  1612. 

v.  Buffum :   530. 

V.Cumberland  Tel.  Co.:   897. 

v.  Dunsmore:   609. 

v.  Dupper:  2275,  2281. 

v.  Friendly  Society  of  Operative 
Stonemasons:   2133. 

v.  Patterson:  2212. 

v.  Riddle:   1445. 
Reade  v.  Haak:  2455. 
Ready  v.  Pinkham:   410. 
Reagan  v.  Casey:   1861. 

v.  St.  Louis,  etc.,  R.  Co.:  1635. 
Real  Estate  Co.  v.  Union  Co.:  2162. 
Real  Estate  Trust  Co.  v.  Union  Trust 
Co.:   2163. 

V.Washington,  etc.,  R.  Co.:  1815, 

1820. 

Realty  Transp.  Co.  v.  Kimball:  958. 
Ream  v.  McElhone:  285. 
Reams  v.  Taylor:   135,  136. 

v.Wilson:   625. 
Reano  v.  Mager:  2504. 
Reaper  City  Ins.  Co.  v.  Jones:   1067. 
Reason  v.  Wirdman:  1516. 
Reasoner  v.  Yates:   2447. 
Reaume  v.  Newcomb:   1899. 
Reavey  v.  Clark:   2262. 
Rebenstein  v.  Frost:  988. 
Reberk  v.  Home,  etc.,  Co.:    1661. 
Rebyea  v.  Kansas  City,  etc.,  R.  Co.: 

1650. 

Rechtsherd  v.  Bank:  1245. 
Red   Cypress  Lumber  Co.  v.   Perry: 

2474. 
Redd  v.  Commonwealth:   1039. 

v.  Missouri  Pacific  Railroad  Co. : 

1935. 

Reddick  v.  Young:   1139,  1790. 
Redding  v.   South   Carolina  R.   Co.: 

1959. 

Redditt  v.  Singer  Mfg.  Co.:  1981. 
Rederi  Aktiebolaget  Nordstjernan  v. 

Salvesen:   1363 
Redfield  v.  Tegg:   2468. 
Redgate  v.  Haynes:    2007. 
Redlich  v.  Doll:   737. 
Redmon  v.  Metropolitan  St.  R.  Co.: 

1783,  1794,  179G. 
Redmond,  In  re:  2207. 

2374 


Redmond  v.  Coffin:  1110. 

v.  Henke:   2474. 

v.  State:   2007. 
Red   River  National   Bank  v.   Bray: 

169. 
Red   River  Valley  L.   &   Inv.   Cor.  T. 

Smith:   1809. 

Redwine  v.  Realty  Co.:   1532. 
Reece  v.  Kyle:   2237. 

v.  Righy:   2201. 
Reed  v.  Ashburnham  R.  R. :    741. 

v.Aubrey:   1203. 

v.  Baggott:   852. 

v.Burlington,  etc.,  R.  Co.:   268. 

v.  Cedar  Rapids:   217. 

v.  Dougan:  1332. 

V.Fleming:    1136,  1139. 

v.  Johnson:  118. 

v.  Kinsey:    898. 

v.Klaus:   2059,  2063. 

v.  Moore:   1627. 

v.Morton:    .169,  372. 

v.  Munn:   1803,  1815. 

v.  Newcomb:   169. 

v.  Norris:  1215,  1219. 

v.  Northrup:   1299. 

v.  Pacific  Ins.  Co.:   2371. 

v.Peterson:  1458. 

v.  Reed:   2163. 

v.  Stockmeyer :    1668. 

v.  Union  Cent.  Life  Ins.  Co. :  1536. 

v.  Van-Ostrand :   212. 

v.Warner:  1194. 

v.  Young:   2479. 

v.  Ziemans:    2412,  2474. 
Reedie  v.  London,  etc.,  R.  Co.:   1871. 
Reeds'  Ex'r  v.  Reed:   2447,  2477. 
Rees  v.  Fellow:   592,  624,  1550,  2455. 

v.  Spruance:   2426,2437. 
Reese  v.  Bates:   716,  882,  887. 

v.  Biddle:   1654. 

v.  Fidelity  Mut.  L.  Ins.  Co.:  1063. 

v.  Medlock:     257,    294,    395,    463, 
479,  707,  779,  784,  817. 

v.  Resburgh:    309,  2314. 
Reeside's  Ex'r  v.  Reeside:  1234. 
Reeve  v.  First  Nat.  Bank:  1125. 
Reeves  v.  Brayton:   373. 

v.  Capper:   1688. 

v.  Corrigan:   707,  753,  905. 

v.  Cress:  885. 


TABLE   OF    CASES    CITED 


[Reference!*   are  to  (lections:   §§  1-1705,  Vol.  I;   §§   1706-2588,  Vol.  IT.] 


Reeves  v.  Kelly:   276. 

V.Lewis:  407. 

v.  McCracken:   49,  802,  809,  1988. 

v.  McNeill:   167,  169. 

v.  Miller:  435. 

v.  Pierce:   1350. 

v.  State  Bank:  1314. 

v.  Vette:  1536. 

v.  Watkins:  152. 

v.  Younglove:   903. 
Reeves  &  Co.  v.  Bruening:  291. 
Reeves'  Estate  v.  Moore:  1515. 
Regan  v.  Reed:    1945,  1950. 
Regents  v.  Rose:   1289. 
Regg  v.  Buckley-Newhall  Co. :  1977. 
Regina  v.  Abraham:   1796. 

v.  Downes:    1466. 

v.  Instan:  1466. 

v.  Kent:  80,  125. 

v.Lowe;  1466. 

v.  Nicholls:   1466. 

v.  Smith:   1466. 

v.Walker:  39. 

v.Watson:  26. 

v.  White:   360. 

Reich  v.  Cochran:   310,  2167. 
Reichenbach  v.  Eastman  Kodak  Co.: 

1211. 
Reichwald  v.  Commercial  Hotel  Co.: 

374,  382. 

.  Reid  v.  Alaska  Packing  Co.:  462,  850, 
889. 

v.  Bank  of  Mobile:  1848. 

v.  Hibbard:   435. 

v.  Hood:   1494. 

V.Horn:    285. 

v.  Humber:   1479. 

v.  Kellogg:  296,  938. 

v.  McDonald:  1229. 

v.  Miller:   406,  1752. 

v.  Tackle:  162. 

V.Thompson:    2447,2467. 

v.Warner:   416,  478. 
Reid  Auto  Co.  v.  Gorsczya:  1893. 
Reiger  v.  Bigger:    2443. 
Reilly  v.  Cavanaugh:   2194. 

v.Hannibal,  etc.,  R.  Co.:  1896. 
Reinach  v.  Jung:    2321. 
Reinhart  v.  Miller:  63,  208. 
Reinhart  Grocery  Co.  v.  Powell:  2187. 
Reis  v.  Volck:  1229,  1233. 


Reisan  v.  Mott:   1828. 

Reishus-Rcmer  Land  Co.  v.  Benner: 
2434. 

Reisman  v.   Public   Service  Corpora- 
tion:  1870. 

Reismier  v.  State:  2008. 

Reisterer  v.  Carpenter:   2245. 

Reiter     v.   Standard  Scale  Co.:    615, 
1584. 

Reitman  v.  Fiorillo:  1995,  2084. 

Reitz  v.  Bryant:    2437. 
v.Martin:    743. 
v.  Reitz:   1192. 

Relief  Fire  Ins.  Co.  v.  Shaw:  1055. 

Rembert  v.  Brown:  1352. 

Remick  v.  Butterfield:  2331. 
v.  Sandford:    2375. 

Remington  v.  Sellers:   2447. 

Remmel  v.  Townsend:  1755. 

Rendell    v.     Harriman:     1141,    1158, 
1161. 

Ppnpaux  v.  Teakle:   162. 

Renfro  v.  City  of  Waco:  676. 
v.  State:  2299. 

Renick  v.  Ludington:    2281. 

Renier  v.  Dwelling  House  Ins.:  1067. 

Renkert  v.  Trust  Co.:   2202. 

Renshaw  v.  Creditors:  689. 

Renwick  v.  Bancroft:  315,  316,  332. 

Renwick  v.  Wheeler:  946. 

Repp  v.  Wiles:   2163. 


T 


Republic  Iron  Co.  v.  Ohler:   1670. 

v.  Thomasino  Co.:  1674. 
Reser  v.  Yates:    2437. 
Resso  v.  Lehan:  1515. 
Restin  v.  McCadden:  2463. 
Rester  v.  Powell:   2302. 
Reumping  v.  Wharton:    2194. 
Reuter  v.  Stuckart:  212. 
Revere  Water  Co.  v.  Winthrop:   401. 
Reversion  Fund  &  Ins.  Co.  v.  Maisou 

Cosway:  1030. 
Revill  v.  Pettit:  1494. 
Rex  v.  Arscott:  360. 

v.  Birdbrooke:  1576. 

V.Canadian  Pacific  R.  Co.:  1984. 

v.  Dixon:   2008. 

v.  Friend:   1466. 

v.  Gutch:    2008. 

v.  Medley:  2008. 

v.  Smith:  1466. 


2375 


TABLE   OF    CASES    CITED 


[References  are  to  «ectlou»:  gg  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 


Rex  v.  Taylor:  72. 

V.Walter:   2008. 

v.  Withers:  2312. 
Rexford  v.  Comstock:  2261. 
Rexroth  v.  Holloway:   715,  875,  1874. 
Reyman  v.  Mosher:  1536. ,  .|,,;f, 
Reynolds  v.  Boston  &  Maine  R. :  1619. 

v.  Buck:  190G,  1912. 

v.  Chicago,  etc.,  R.  Co. :   1020. 

v.Collins:  266,  267,  280,  289. 

v.  Continental  Ins.  Co.:   285,  864. 

v.  Davison:  441. 

v.  Dechaums:  137.    :s}}.-,: 

v.  Ferree:  395,  412,  946. 

V.Fleming:    2154,  2156,  2158. 

v.  Green:  2447. 

v.  Hart:  611.  -    ^ncrtbiij 

v.  Howell:  2156. 

v.  Ingersoll:  1803,  2163,  2185. 

v.Kaplan:   2255. 

v.  Mayor:  882,  887. 

v.  McMillan:  2230. 

v.  Merchants'   Woolen  Co.:    1641. 

v.  Railway  Co.:   241. 

V.Reynolds:  2283. 

v.Rowley:  780,  1783. 

v.  Sorosis  Fruit  Co.:   2234. 

v.  Tompkins:  2458. 

v.Witte:  1984. 
Reynolds-McGinness    Co.    v.    Green: 

2482. 

Rhea  v.  Puryear:   1192. 
Rheam  v.  Martin:   169. 
Rhine  v.  Blake:  817,  946. 
Rhinehart  v.   New   Madrid   Banking 

Co.:  2182. 
Rhines   v.    Evans:    1314,    1346,    1347, 

2197. 
Rhoades  v.  Blackiston:  2029,  2574. 

v.Chesapeake,  etc.,  R.  Co.:   1556. 

v.  McNulty:   2141. 

v.  Varney:   1615. 

Rhoades,  Lessee  of,  v.  Selin:  2307. 
Rhoda  v.  Annis:   741,  1987,  1995. 
Rhode  v.  Louthain:  217. 
Rhode  Island  v.  Louthain:   212. 
Rhode  Island  Underwriters'  Ass'n  v. 

Monarch:  1067. 
Rhodes  v.  Belchee:  716,  934,  952. 

v.  Forwood:   598,  600. 

V.Georgia,  etc.,  R.  Co.:  1658. 
•• 


v.  Neal:  102. 


Rhodes    v.    Railway    Passenger    Ins. 
Co.:   1055. 

v.  Summerhill:  90.)B1o.: 

v.  Wetherill:  2463. 
Rhodes    Furniture    Co.    v.    Weeden: 

732. 

Rhutasel  v.  Rule:   2162. 
Ribich    v.    Lake    Superior    Smelting 

Co.:   1619. 
Rice  v.  Andrews:  2341. 

V.Austin:   1493,  1686,  2562. 

V.Bennett:  2157,  2163. 

v.  Brook:  2525. 

v.  Bush:   1423. 

v.  Con  will:  312. 

v.  Cutler:  2509. 

v.Davis:    1590,  2412,  2474. 

v.  Day:  2281. 

v.  Eureka  Paper  Co. :  1630. 

v.  Fidelity  &  Casualty  Co.:   1731. 

v.  Galbraith:  2435.     .ij-ji'/I 

v.  Garnhart:  2281.  -.rfjj 

v.  Gove:   291,  1124,  1165. 

V.  Groffman:    246,  865,  867,  2508. 

v.  Isham:   628. 

v.Jackson:   988.      ;  )O^  .\ 

v.James:  262,  263,  910. 

v.Longfellow:  1278. 

v.  Lyndborough  Glass  Co.:  894. 

v.  Mayo:  2430. 
.Ocii  ,v,McLarren:    425.  3  . 

v.  Melendy:   2222. 

v.  Neuman:   2472. 

v.  O'Keefe:   2314.  !rustMiH  .v 

v.  Omberg:    2435. 

v.  Peninsular  Club:  187,  743. 

v.  Rice:   2302. 

v.  Post:   323. 

v.  Ruhlman :  233. 

v.  Savery:  2055. 

v.  Tavernler:   807. 

v.  Troup:   2183. 

v.  Winslow:    2388,  2543. 

v.  Wood:     177,    178,    1590,    2412, 
2474. 

v.  Woods:  84. 

v.  Yocum:  1457. 
Rice,  etc.,  Co.  v.  International  Bank: 

260,  2063,  2068,  2072,  2076. 
Rich  v.  Black:  1198,  1199. 

v.  Eldredge:  1351. 

v.  State  Nat.  Bank:  435. 


2376 


TABLE  OF    CASES    CITED 


[References   are  to  sections:   §8  1-1705,  Vol.  I;  gg  1706-25SS,  Vol.  II.] 


Richard  v.   Springfield  F.  &  M.   Ins. 

Co.:   1053,  1064. 
Richards  v.  Bippus:    414,  2004,  2005. 

v.  Gaskill:  1692,  1694,  2484. 

v.  Jackson:  1536. 

v.  Lumber  Co.:    169. 

v.  Newstifter:  289. 

v.  Purdy:   2003. 

v.  Riverside  Iron  Works:  1621. 

v.  Rough:    1624. 

v.  Spry  Lumber  Co.:  171. 

v.  Waller:  945. 
Richardson  v.  Brix:  2479. 

v.  Daly:  2162. 

v.  Eagle    Machine    Works:    1553, 
1554,  1557. 

v.  Graham:  382. 

v.  Hartmann:   1562. 

v.  Kimbail:  546. 

v.  Maine  Ins.  Co.:   2139. 

v.Mann:  2386. 

v.  McClay:  2451. 

v.  McCleary:   566. 

v.  Olanthe     Milling     Co.:      2430, 
2443,  2463. 

v.  Palmer:  1988. 

V.Richardson:   2204,  2251. 

v.  Scott's  Bluff  Co. :  92,  93. 

v.Shaw:   2386,  2389,  2493. 

v.  St.  Louis  Nat.  Bank:  2576. 

v.  Strong:  134. 

v.  Swartzel:  1554. 

v.  Talbot:  2163. 

v.  Van  Ness:  1861. 

v.Watson:  1815. 

V.Williamson:   1386. 

v.Wilmington  &  W.  R.  Co.:  1557. 

v.  Woehler:   1586. 
Richardson  &  Boynton  Co.  v.  School 

District:  285. 
Richardson    Drug    Co.    v.    Dunagan: 

2163. 
Ilichberger    v.    American    Exp.    Co.: 

1939. 

Richelieu  Wine  Co.  v.  Ragland:   167. 
Richie  v.  Bass:   1395. 
Richlands  Iron  Co.   v.  Elkins:    1635. 
Richmond  v.  Judy:  187. 

v.  Siterding:  1870,  1917,  1918. 

v.  Voorhees:   169,  812,  1028. 
Richmond,  etc.,  D.  R.  Co.  v.  Bedell: 
2031. 


Richmond,   etc.,   R.   Co.   v.   Burnett: 

1626. 

v.  Finley:   1637. 
v.Jones:  1624,  1681. 
v.  Norment:  1661,  1666,  1675. 
v.Williams:   1624. 
Richmond  Locomotive  Works  v.  Mor- 

ague:   1141. 
Richmond     Manufacturing     Co.      v. 

Davis:  213. 
v.  Starke:  2547. 
v.  Starks:  459. 

Richmond  R.  Co.  v.  Snead:  1153. 
Richmond   Turnpike   Co.   v.  Vander- 

bilt:   1898. 
Rick   v.   Saginaw   Bay   Towing  Co.: 

1640. 

Rickel  v.  Chicago,  etc.,  R.  Co.:   2236. 
Rlcker,  In  re:  2146. 
Ricker  National  Bank  v.  Stone:   296, 

740,  789,  1043. 
Ricketts  v.  Birmingham  St.  R.  Co.: 

1783. 

v.Chesapeake,  etc.,  R.  Co.:   2015. 
v.Harvey:   102. 
Rickey    v.    German    Guarantee    Ins. 

Co.:  1062. 
Ricks  v.  Wilson:  169. 

v.Yates:  1557,  1578. 
Ridder  v.  Whltlock:  1334,  1342. 
Riddle  v.  Hall:   102. 

v.  Poorman:   1315. 
Riddles  v.  Aiken:  2311. 
Rider  v.  Chick:  1505. 
v.  Kirk:  925,  1001. 
v.  Ocean  Ins.  Co.:   2033. 
Ridge  v.  Alter:   2156. 

v.  Transfer  Co.:   1889. 
Ridgeley    National    Bank    v.    Barse 

Commission  Co.:   957. 
Ridgeway  v.  Downing:  1871. 
liidgley  v.  Dobson:  187. 
Ridgway  v.  Davenport:   2002. 

v.  Hungerford  Market  Co.:   1543, 

1581. 

v.  Market  Co.:  609,  1548. 
Riebold  v.  Hartzell:  2164. 
Riegler  v.  Tribune  Ass'n:  1889. 
Riehl  v.  Evansville  Foundry  Ass'n: 

1350,  2091,  2101. 
Riemer  v.  Rice:   1590,  2477. 
Rieser,  In  re:  2272. 


2377 


TABLE   OF    CASES    CITED 


[References  are  to  section*:   §g  1-1705,   Vol.   I:  gg  170O-2588,  Vol.  II.] 


Riffe  v.  Proctor:   189. 
Rigby  v.  Lowe:  960,  1024. 
Rigdon  v.  Moore:   2435,  2447. 
Riggan  v.  Crain:  425. 

v.  Green:  134. 

Riggs    v.    American    Tract    Society: 
134. 

v.  Eicholz:  2280. 

v.  Horde:   1578. 

v.  Northern  Pac.  R.  Co. :  1793. 

v.  Pursell:   2356. 

v.Ryan:  97. 

v.  Turnbull:  2441. 


Right  v,  Cuttrel:  537. 
Rightmire  v.  Hirner:  1552. 
Rigs  v.  Cage:  664. 

v.  Page:  666. 
Riley  v.  Bank:  1334. 

v.  Bell:   1458. 

v.  Grant:  800. 

v.  Minor:   229. 

v.  Roach:   1783,  1906,  1912.   .  ^  ,(H 

v.Robinson:    55,  1834. 

v.  State:    2008. 

v.Wheeler:  2404. 

Rimmer  v.  Webster:  2115,  2119,  2125. 
Rimmey  v.  G-etterman:  246. 
Rindles  v.  Bordewyk:   2325,  2338. 
Ring  v.  Potts:   2334. 

v.  Vogel  Paint  &  Glass  Co.:  2163. 
Ringo    v.    Binns:     1192,    1209,    1219, 
1225. 

v.  Potts:   1588. 
Rion  v.  Gilly:  2547. 
Riordan  v.  Britton:  1814,  2175. 

v.  Doty:  111,  121,  1602,  2481. 

v.  Gas  Consumers'  Ass'n:  1888. 
Ripley  v.  Bull:  2234. 

v.  Case:    435,  441. 

v.  Chipman:    1577. 

v.  Gelston;  1440. 
Rippe  v.  Stogdill:  1343. 
Ritch  v.  Smith:  156,  956. 
Ritchey,  Estate  of:  1348. 
Ritchey  v.  McMichael:  1207,  1233. 

v.  West:   2202. 

Ritchie  v.  Waller:  1900,  1901. 
Riteer's  Appeal:   137. 
Ritt  v.   Washington   Marine   &   Fire 

Ins.  Co.:  1078,  1204. 
Rivara  v.  Queen's  Ins.  Co.:  1066. 

2378 


'.'1  .V 

•--  enlb 


Rivers  v.  Bay  City  Trac.  Co.:  1671. 
Rivers   v.    Yazoo,   etc.,   R.    Co.:    506, 

1980,  1981. 

Rives  v.  Patty:  2230,  2286. 
Roach  v.  Coe:  395. 

v.  Karr:   1803. 

v.  Rector:  789. 

v.  Rutter:  1428. 

v.Turk:   1457,  2345,  2583. 
Roake  v.  Palmer:  2256. 
Roanoke    Furnace    Co.,    In    re:    386, 

2056. 
Roanoke    Nat.    Bank   v.    Hambrick: 

1303. 

Robards  T.  Bannon  Sewer  Pipe  Co.: 
1876,  1877,  1979. 

v.  Hamrick:  2099. 
Robb  v.  Bank:  1146. 

v.  Green:   1211. 
Robbins,  In  re:  652,  2314. 
Robbins  v.  Bangor:   382. 

v.  Blanding:  466,  468. 

v.  Fennell:  333. 

v.  Horgan:  198,  933. 

v.  Lewiston,  etc.,  R.  Co.:   1632. 

v.  Maher:   2394. 

v.  Mount:   141,  143,  147J  >iH  .•? 

T.  Robbins:   1334. 

v.  Sears:  2412,  2474. 
Roberge  v.  Monheimer:   210. 
Roberson  v.  Clevenger:  241. 
Robert  v.  Commercial  Bank:  2163. 
Robert  Marys'  Case:  2135. 
Roberts  v.  Adams:  978. 

v.  Andrews:  2585. 

v.  Armstrong:   1339,  1346,  2208. 

T.  Burk:  1783. 

T.Burks:  1792,  1798. 

v.  Burr:  2572. 

v.  Cobb:  2523,  2539. 

v.  Crowley:   1556. 

T.  Denver,    etc.,    R. 
2155. 

T.  Fireman's  Ins.  Co. 

v.  Francis:  436,  848. 

V.French:   2332. 

v.  Gates:  2190. 

v.  Graham:  2435. 

v.Hartford:  986. 

v.Hughes:  1845. 

T.Kimmons:  1536,  2447. 

JCOS 


Co.:     2151, 
2031. 


TABLE   OF    CASES    CITED 


[Referenced   are  to  nectiona: 

Roberts  v.  Markham:  2445. 

v.  Minneapolis  Tresh.  Mach.  Co. : 
1532. 

V.Mitchell:   2281. 

v.  Nelson:  2162. 

v.  Northwestern     National     Ins. 
Co.:  169. 

v.  Noyes:  1331. 

v.  Ogilby:  253,  1331. 

v.  Parrish:  2023. 

v.  Pepple:  296. 

v.  Port.   Blakely   Mill   Co.:    1624, 
1799. 

v.  Rumley:  412,  447,  743. 

v.  Smith:    2163. 

v.  St.  Marys:  465. 

v.  Tuttle:  1400. 

v.  Union  El.  R.  Co.:    2283. 

v.  Wabash  R.  Co.:  1783. 
Roberts,   etc.,    Shoe   Co.    v.    McKim: 

949. 
Robertson  v.  Allen:  2430,  2441. 

v.  Balmain  Ferry  Co.:    1973. 

v.  Carstens:  2436. 

v.  Chapman:      553,     1198,     1218, 
2252. 

v.  Cloud:   624. 

v.  Covenant,  etc.,  Ins.  Co.:  1984. 

v.  Jenner:  1576. 

v.  Karstens:  2435. 

v.  Levy:  783. 

v.Livingston:   2504,  2557. 

v.  Paul :  659. 

v.  Rawlins  Co.:   1694. 

v.  Rawlins  County:  1237. 

v.Robinson:   106. 

v.  Shutt:   2276. 

v.  Sichel:  1502,  1503. 

v.  Terre  Haute,  etc.,  R.  Co.:  1644. 

v.  Western    F>.    &    M.    Ins.    Co. : 

1198,  1202. 
Roertson   Lumber   Co.  v.   Anderson: 

1803. 

Robins  v.  Bridge:   1710,  2217. 
Robinson  v.  Anderson:  946,  2130. 

v.  Bailey:  441. 

v.  Baker:   1687,  2565. 

v.  Bank  of  Pikeville:   1984. 

v.  Bank  of  Winslow:   952. 

v.  Bird:  1457,  2345. 

v.  Blaker:   2003,  2004. 


1-1705,   Vol.   I;   §§   1708-258S,  Vol.  H.I 


Robinson  v.  Brewery  Co.:  1026. 
v.  Chamberlain:   1501. 
v.  Chemical  National  Bank:    741, 

952. 
v.  Corsicana      Cotton      Factory: 

2362,  2405,  2568. 
v.Craig:  212. 
v.  Davison:   1572. 
v.  Easton:  49,  1198,  1235. 
v.  Fitchburg,   etc.,   R.   Co.:    1783, 

1798. 

v.  Floyd:  634. 
v.  Garth:  2356. 
v.  Green:  280,  285,  1547,  2349, 

2352. 

v.  Hathaway:  229. 
v.  Jarvis:  178. 
v.  Kanawha   Valley   Bank:    1139, 

1144,  1158. 

v.  Larrabee:  1688,  2566. 
v.  Life  Assurance  Co. :    695. 
V.Lincoln  Savings  Bank:  389. 
v.Lowe:   812. 
v.  Mollet:  36,  318,  716,  1268,  2394, 

2411,  2474. 
v.  Murphy:  2183. 
V.Nevada  Bank:  263,  2108. 
v.  Nipp:  263,  902,  954. 
v.  Railway  Co. :  475. 
V.Reynolds:  2431. 
v.Robinson:    2152,  2154. 
v.  Rutter:  2035,  2037,  2351. 
v.  Sharp:   2236,  2293. 
v.  Stewart:  1342,  1695,  2484. 
v.  St.    Johnsbury,    etc.,    R.    Co.: 

1623.. 

v.  Superior,  etc.,  R.  Co.:  475. 
v.  Superior  Transit  Co.:  1782. 
v.  Talbot:   2574. 
v.  Thompson:  923. 
v.Walton:  1782,  1783. 
v.  Webb:  1522,  2050,  2354,  2572. 
v.  Weeks:  141,  143,  155,  1599. 
v.  Yarrow:  977. 
Robinson's  Case:   2146. 
Robinson   Machine  Works  v.   Vorse: 

440,  1249,  1268,  1324. 
Robinson  Reduction  Co.  v.  Johnson: 

219. 

Robinson  &  Co.  v.  Greene:  296. 
Robison  v.  Mollett:  1220. 


2379 


TABLE   OF    CASES    CITED 


[References   are  to  •ectlonss   §§  1-1705,  Vol.  I;   gg   170G-25SS,  Vol.  II.] 


Robson  v.  Kemp:  2307. 

v.Sanders:      1249,     1327,     1342, 

1343,  1344. 
v.  Watts:  946. 
Roby,  In  re:  2245. 
Roby  v.  Carter:  118. 
v.  Colchour:    2290.  ; 
v.  Cossitt:  386,  432,  441. 
v.  West:    90. 

Roca  v.  Byrne:  1350,  2091. 
Rocco  v.  Frapoli:  90. 
Roche  v.  Baldwin:  2246. :5^, 
v.  Pennington:  ,938,  1043. 
v.  Smith:    1536,  2430,   2447,  2448, 

2470. 

Rochester  v.  Levering:  1221.  if  T 
Rochester    City    Bank    v.    Suydam: 

2305,  2308,  2313. 
Rochester     Distilling    Co.     v.     Bost- 

rum:  1410. 

Rochester,  etc.,  Co.  v.  Paviour:  2099. 
Rochfort  v.  Metropolitan  St.  R.-  Co.: 

2283 
Rockford,  etc.,  R.  Co.  v.  Sage:    193, 

382. 

v.  Wilcox:  217,  280. 
Rockford  Ins.  Co.  v.  Bolrom:  1064. 
Rockford    Watch    Co.    v.    Manifold: 

1198,  2331. 
Rock  Springs  Nat.  Bank  v.  Luman: 

1815. 

Rockwell  v.  Elkhorn  Bank:  1146. 
v.  Hurst:  1538. 
v.  Newton:   2469. 
v.Taylor:  2162,  2178. 
Roderick  v.  McMeekin:  1809. 
Rodes  v.  St.  Anthony  Elevator  Co.: 

1783;  [   ;.oQ  jiariinT  loiiSKUJS 
Rodgers,  In  re:  2147. 
Rodgers  v.  Bass:  946. 
v.  Furse:    2283. 
v.  Peckham;    245,  722,  946. 
v.  Pike  County  Bank:  169. 
Rodick  v.  Coburn:   8S4,  946. 
Rodliff  v.  Dallinger:  1404,  1411,  2043, 

2110.        aif-ro^ 

Rodman  v.  Manning:   2362,  2477. 
Rodriguez  v.  Hefferman:  2509. 
Roe  v.  Birkenhead  L.  &  S.  Junct.  R,: 

507. 
v.  National  Life  Ins.  Ass'n:  1073. 


Roe  v.  Pierce:  537. 

v.  Rand:   2024. 

Roe  d.  Brune  v.  Prideaux:   831,  835. 
Roebke  v.  Andrews;  1789,f->)iM  .v 
Roehl  v*.  Haumesser:  236. 
Roemheld  v.  Chicago:   465. 
Roesner  v.  Herman:  1681. 
Rogahn    v.    Moore    Mfg.    Co.:    1953, 

1977. 
Rogers  v.  Blackwell:  134. 

v.  Bracken :  1095. 

v.  Braun:  2431.  .,>{BlH 

V.Buckingham:  2002,  2003. 

V.Cleveland,  etc.,  R.  Co.:  1618. 

v.  Cruger:  198. 

v.  Driscoll:    2177. 

v.  Button:    2110,  2119,  2127. 

v.  Empkie  Hardware  Co.:  411. 

V.Florence,  etc.,  R.  Co.:  1871. 

v.  French:  1198,  1201,  JL22L.  :=>dott 

v.  Gasnell:  2064. 

v.  Gaston:   2290,  2296. 

v.  Greenwood:   2162.     ;tl&Q 

v.  Hardware  Co.:  410. 

v.  Huie:  2345; 

v.  Iron  Co. :   659. 

v.  Kneeland:   2558. 

v.  Maddocks:  113. 

V.March:  1166,  1172,  2584. 

v.  Marriott:  112. 

v.  Marsh:   1417. 

v.  McKenzie:   2181,  2182. 

v.  Mulliner:  1494. 

v.  Overton:   1483,  1647. 

v.  Palmer:  1814,  2175. 

v.Parker:  1917,  1918. 

v.  Pettigrew:   2251. 

v.  Phenix  Ins.  Co.  of  Brooklyn : 
1071. 

v.  Roe:   1667. 

V.Rogers:   1192,  1202. 

v.  Suttle:   259. 

v.  Tiedeman:    946. 

v.  Tompkins:  774. 

v.Watson:  659. 

v.  Weir:    1691. 

v.Wiley:   2415. 

v.  Woodruff:  716. 

v.  Yarnell:   2556. 

Rogers    Locomotive    Works    v.    Ke! 
ley:  1449. 


2380 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§   1706-25S8,  Vol.  II.] 


Rogers  Mfg.  Co.  v.  Rogers:  642. 
Rogers   Park   Water   Co.   v.   Fergus: 

313. 

Rogcrson  v.  Leggett:  933. 
Rohrbach  v.  Germania  Fire  Ins.  Co.: 

1071,  2369. 
Rohrbough  v.  United  States  Express 

Co.:   33,  306,  307,  316,  318,  716. 
Roland  v.  Tift:  1657. 
Rolfe  v.  Delmar:  90. 

v.  Gregory:  1350.  3  .an 
Rolland  v.  Hart:  1803,  1838. 
Roller  v.  McGraw:  2289. 

v.  Spilmore:  42,  501. 

v.  Wooldridge:  2163. 
Rolling   Stock  Co.  v.   Railroad:    178, 

1592,  2398,  2412,  2474. 
Rollins  v.  Cycle  Co.:  433. 

v.Duffy:   2528,  2540.    :-.8t  ,' 

v.Mitchell:  390,  1237. 
Romaine  v.  Van  Allen:  2529. 
Romberg  v.  Hayes:  2308. 
Romeo  v.  Martucci:  2499. 
Rommel  v.  Schambacher:    1940. 
Ronald    v.    Mutual    Reserve    Fund: 

2255. 

Ronan  v.  Bluhn:  134. 
Rondquist  v.  Higham:  1427,  2420. 
Roney  v.  Winter:  1124. 
Roof  v.  Stafford:  141,  143. 
Rooker  v.  Bruce:  2194. 
Rooney  v.  Augusta:   2008. 

v.  Second  Ave.  R.  Co.:  2276,  2279. 
Roosevelt    v.    Doherty:     2060,    2063, 

2542. 
Root  v.  Barbour:  2435. 

v.  French:  2115. 

v.Kansas  City,  etc.,  R.  Co:  1646. 

v.  Mcllvaine:    2255. 

v.  New    York    &    N.    E.    R.  Co.: 
1046. 

v.Rose:  1494. 

v.Wright:    2305,  2311. 
Rootes  v.  Stone:  2212. 
Rope  v.  Hess:  292. 
Roper  v.  McFadden:  804. 

v.  State:  2305. 
Roper  Lumber  Co.   v.   Lumber   Co.: 

2162. 
Ropes  v.  Rosenfeld:  1533,  2438,  2439, 

2442. 
Rorebeck  v.  Van  Eaton:  179,  1207. 


606. 


214. 


Rosback  v.  Sackett  Co.: 
Rose  v.  Coffield:  634. 

v.Douglass  Township: 

v.  Hayden:    1192,  1194. 

v.  Imperial  Engine  Co.:   1980. 

v.  Laffan:   2030. 

v.  Truax:  92,  122,  1523. 

v.  Vertin:    55. 

v.  Whiteman:  2207. 
Roselle  v.  McAuliffe:  90. 
Rosenbaum  v.  Belson:  233,  798. 

v.  Credit  System  Co.:  1569. 

v.  Hayes:    1690,   2562,   2563,   2566. 

v.  Stiebel:    2415. 

v.  Syverson  Lumber  Co.:  2251. 

v.  U.  S.  Credit  System  Co:  113. 
Rosenberger  v.  Marsh:  710. 
Rosenblum  v.  Weir:   2001. 
Rosenburg  v.  Rosenburg:   2305. 
Rosenbury  v.  Angell:   276,  1778. 
Rosendorf  v.   Poling:    285,    743,    848, 

2108. 

Rosenfeld  v.  Peck:  165. 
Rosenstiel  v.  Pittsburgh  R.  Co.:  1632. 
Rosenstock  v.  Tormey:  2394,  2399. 
Rosenthal  v.  Drake:  178,  1590. 

v.  Gunn:  2467. 

v.  Hasberg:  369,  435. 

v.  Ruffin:  212. 

Rosepaugh  v.  Vredenburgh:  1579. 
Ross  v.  Baldwin:   169,  203. 

v.  Brown:    1148. 

v.Campbell:   1505. 

v.  Carr:  2412,  2475. 

v.  City  of  Madison:  219,  220. 

v.Clark:  919. 

v.  Craven:   233. 

v.Dunn:    167. 

v.  Griffin:  1494,  2221. 

v.  Hardin:  1515,  1522. 

V.Houston:   1803. 

v.  McAnaw:  1181,  1424. 

v.  Moskowitz:   2435. 

v.  New  York,  etc.,  R.  Co. : 

v.  Payson:   2290,  2293. 

v.Pearson  Cordage  Co.:  1624. 

V.Portland     Coffee     Co.:      1633, 
2463. 

v.Rubin:   2036. 

v.Walker:  1619,  1621. 
Rosseau  v.  Bleau:  2307. 
Rosselle  v.  Farmers'  Bank:  1333. 


.v  xooJl 


1657. 


2381 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.   II.] 


Rosser  v.  Darden:  2075. 
Rossevelt  v.  Doherty:  2574,  2575. 
Rossiter  v.  Cooper:  1573. 

v.  Rossiter:    710,    741,    780,    971, 

973,  998,  1397. 
V.Trafalgar   Life    Assur.    Ass'n: 

316. 
Rothchild  v.  Great  Northern  R.x  Co.: 

40. 
v.  Northern  Pacific  Railroad  Co.  : 


v.Schwartz:   1342. 
Rothe  v.  Bellingrath:  52. 
Rothenberger   v.   Northwestern    Con- 

solidated Mill.  Co.:  1631. 
Rotherham,  etc.,  Co.,  In  re:  435. 
Rothschild  v.  Allen:  2368. 
v.  Brookman:  2388. 
v.  Swope:   1019. 
Rottlesberger  v.  Hanley:  1560. 
Rottman  v.  Wasson:  229. 
Roth  well  v.  Dewees:  1192. 
Roukous,  In  re:  125. 
Roul  v.  Railway  Co.:  1678. 
Rounds  v.  Allee:  1536,  2435,  2436. 
v.Delaware,  etc.,  R.  Co.:   1953. 
v.  Mansfield:  1501. 
Roundtree  v.  Smith:   112. 
Roundy  v.  Erspamer:  471,  472. 
Rounseville  v.  Paulson:  1783. 
Rountree  v.  Denson:  780. 

v.  Smith:   121. 
Rourke  v.  White  Moss  Colliery  Co.: 

1860. 
Rouse    v.    Metropolitan    St.    R. 

2015. 

Routh  v.  Thompson:  377,  524. 
Roux  v.  Blodgett  &  Davis  Lbr. 

285,  1630. 

Rovelsky  v.  Scheuer:  223. 
Rowan  v.   Hull:    566,   567,  596, 

2454. 

Rowe  v.  Fogle:  2281. 
v.  Osborne:  2379. 
v.  Rand:   621,  669,  673,  684,  2037. 
V.Stevens:    178,  1590,  2412,  2474. 
KJ.O.V.  Ware:  212,  215,  424. 
Rowell   v.   Boston   &  Maine   R.   Co.: 

1953. 

V.Klein:   148,  169,  171,  285,  1783. 
v.Oleson:  1152,  1731,  1733. 
••   '-..'.  >ui 


Co. 


Co. 


2450, 


Rowland  v.  Dolby:  1688,  256G. 

v.  Martindale:  1341. 

v.  Slate:   2183. 

Rowland  Lumber  Co.  v.  Ross:   273. 
Rowley  v.  The  Empire  Ins.  Co.:  1053. 
Rownd  v.  Davidson:  224,  772,  804. 
Rowning  v.  Goodchild:  1501. 
Roy  v.  Harrison  Iron  Min.  Co.:   781. 
Royal    British    Bank    v.    Turquand: 

762. 
Royal  Ins,  Co.  v.  Beatty:  453. 

v.Wight:   2368. 
Royal   Remedy  Co.   v.    Gregory   Co: 

564. 

Royal  Society  v.  Campbell:   372,  575. 
Royce  v.  Allen:  1410. 

v.  Oakes :   1254. 
Royle    Mining    Co.    v.    Fidelity    Co.: 

1789,  1834. 

Roys  v.  Johnson:   121. 
Royster  v.  Mageveney:   2435. 
Ruane  v.  Murray:   246. 
Ruben  v.  Great  Fingall  Consolidated : 
1801. 

V.Lewis:'  2344. 
Rubens  v.  Mead:  1296. 
Rubidoex  v.  Parks:  1221. 
Rucker  v.  Hall:   1533,  2445. 

v.  Smoke:   2016. 
Ruckman  v.  Bergholz:  179,1198,1526, 

1528,  2131,  2477,  2479. 
Rudasill  v.  Falls:  410. 
Rudd  v.  Fox:   1894. 

v.Matthews:  364. 
Ruddiman  &  Co.  v.  Smith:   1910. 
Ruddock  v.  Johnson:  263. 
Ruddy  v.  United  Assoc.  Journeymen 

Plumbers:  2049. 
Rudegair   v.   Reading  Traction   Co.: 

1978. 

Rue  v.  Missouri  Pacific  R.  Co.:  359. 
Ruffin  v.  Mebane:  913,  918. 
Ruffner    v.    Hewett:    410,    463,    1601, 

2480. 

Ruggles    v.    American    Central    Ins. 
Co.:  251,  732,  739,  1053,  1077. 

v.  Collier:   313. 

v.  Insurance  Co.:  710. 

V.Washington  Co.:  435,. 
Ruiz  v.  Norton:  2059,  2063.' 
Rumans  v.  Kelly  &  Brady  Co.:   1917. 
2382 


TABLE   OF    CASES    CITED 


[References   are  to  Mecttonn:   §§  1-1705,  Vol.  I;  §g  1706-2588,  Vol.  II.l 


Rumble  v.  Cummings:   293,  992. 
Rumbough    v.    Southern    Impl.    Co.: 

1774. 

Rumery  v.  McCulloch:    1009. 
Rummel  v.  Dilworth,  Porter  &  Co.: 

1619. 

Rumsey  v.  Berry:   112. 
Rundell  v.  Kalbfus:   1233. 
Rundle  v.  Cutting:    198,  550,  807. 

v.Foster:  2307. 

v.  Moore:  2525. 

v.  Staats:  2467. 
Runyan  v.  Nichols:  1594. 
Runyon  v.  Snell:  170,  814,  825. 

v.Wilkinson:    2443. 
Ruos,  In  re:  2305. 
Rupp  v.  Sampson:   2413,  2475. 

v.  Samson:   2412. 
Ruppe  v.  Edwards:   989,  1003. 
Rusby  v.  Scarlett:  708,  914. 
Ruschenberg    v.    Southern    Elec.    R. 

Co.:   1794,  1796. 
Rush  v.  Broussard:  115. 

v.  Cavenaugh:  2250. 

v.  Rush:   1240,  1243,  1302. 
Rushforth  v.  Hadfield:   1683,  1696. 
Rusk  v.  Fenton:   134. 
Russ  v.  Hansen:   443. 

v.  Harper:  1661. 

Russell   v.   American   Bell  Tel.   Co.: 
2119. 

v.  Andrea:  49. 

v.  Annable:  421. 

v.Bradley:  179. 

v.  Cedar  Rapids  Ins.  Co.:  1831. 

v.  Conway:  2276,  2278. 

v.  Courier  Co.:    98,  99. 

v.  Cox:    895. 

v.  Drummond:   2163. 

V.Erie    R.    Co.:    395,    416,    1014, 
1046,  1077. 

v.Ferguson:   2216,  2217. 

v.  Folsom:    1147. 

v.  Kurd:  2441. 

v.  Inman:  610. 

v.Jackson:  2304,  2311,  2312. 

v.  Koonce:   1363. 

v.  Lehigh  Valley  R.  Co.:  1621. 

v.  Miner:    2319,  2336,  2349. 

v.  Palmer:  2334. 

v.  Peavey:  1803,  1804,  1835. 

v.  Pittsburgh,  etc.,  R.  Co.:  1681. 


Russell  v.  Poor:  2435. 

v.  Prudential  Ins.  Co.:  1060, 1062. 

v.  Sweezey:  1803. 

v.  Washington      Savings      Bank: 
285,  291. 

v.Waterloo  Machine  Co.:  441. 

v.  Waterloo    Threshing    Machine 
Co.:    404,  462. 

v.  Young:  2234. 
Russo  v.  Maresca:  386. 
Russo-Chinese  Bank  v.  Sam:  1725. 
Rust  v.  Conrad:    644. 

v.Eaton:  707. 

v.  Larue:  2237. 

Rust-Owen  Lumber  Co.  v.  Holt:  171. 
Rutenberg  v.  Main:  229,  2428,  2430. 
Ruth  v.  St.  Louis  Transit  Co.:  1973, 

1975,  1976. 

Rutherford  v.  Montgomery:   423. 
Ruthven  v.  American  Fire  Ins.  Co.: 
306,  307,  1053,  1054. 

v.  Clarke:    260,  946,  948. 

v.  Insurance  Co.:  317,  1074,  1075. 
Rutland  v.  Southern  R.  Co.:   1779. 
Rutland,   etc.,   R.   Co.   v.   Cole:    2020, 

2055,  2065. 

Rutland  Marble  Co.  v.  Ripley:  644. 
Ryan  v.  American  Steel  &  Wire  Co.: 
752,  861. 

v.  Bagaley:   1640,  1654. 

v.  Curran:  1917. 

v.Dayton:  1572,  1582,  1583. 

v.  Fowler:  1625. 

v.  Gilmer:   1783,  1798. 

v.  Mayor:    615 

v.  M.   K.  &  T.  R.  Co.:    1046. 

v.  Page:    2436,  2437. 

v.  Stowell:   897,  898. 

V.Tudor:   967,  2168. 

v.  World  L.  Ins.  Co.:  1072. 

v.  World     Mut.     Life     Ins.     Co.: 

2139. 

Ryberg  v.  Snell:   2562. 
Rye  v.  Petroleum  Co.:  1095. 
Ryer  v.  Turkel:   2431,  2440. 
Ryle  v.  Manchester,  etc.,  Ass'n:   285, 

295. 
Rylee    v.    Bank    of    Statham:     2301, 

2307. 

Ryman  v.  Gerlach:  2117,  2119. 
Ryon  v.  McGee:  798,  2430. 


Ryttenberg  v.  Schefer:  2562,  2574. 
2383 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:   SS  1-1705,  Vol.  I;  g§  1700  2588,  Vol.  II.] 


Sachsel  v.  Farrar:  2458. 
Sackett  v.  Breen:  2207. 
Sackville  v.  Storey:  910. 
Sader  v.  Evans:  1432. 
Sadler  v.  Evans:   2089. 

v.Henlock:  1870. 

V.Leigh:  2033,  2034,  2072. 

v.Robinson:  141. 

v.  Young:   1170,  1419. 
Safford    v.    Vermont    &    C.    R.    Co.: 

2230. 
Sage  v.  Burton:  949,  953. 

v.  Lauraln:  1498. 

v.  Shepard  &  Morse  Lumber  Co.: 

928. 
Saginaw,   etc.,   R.    Co.    v.    Chappell: 

742. 
Sahlien  v.  Bank:  1307,  1320. 

v.  Lonoke  Bank:  716. 
Sallly  v.  Cleveland:   2033. 
Sails  v.  Miller:  1008. 
Saladin  v.  Mitchell:   2081,  2381,  2400, 

2405,  2406. 

Salamons  v.  Fender:  1588. 
Salb  v.  Campbell:  1579. 
Sallee  v.  McMurray:  2439. 
Salem  Bank  v.  Gloucester  Bank:  368. 
Salem,  etc.,  Co.  v.  Anson:  1342. 
Salem  Light  &  Traction  Co.  v.  An- 

som:   1255. 

Salem  Nat.  Bank  v.  White:   813. 
Salem  Stone  &  Lime  Co.  v.  Griffin: 

1619. 

Salene  v.  Queen  City  Ins.  Co.:   1078. 
Salfield  v.  Sutter,  etc.,  Co.:  426. 
Salinas  v.  Stillman:  94,  95. 

v.  Turner:   1803,  1804. 
Salisbury  v.  Brisbane:  198,  684. 

v.  Erie  R.  Co.:    1866,  1944,   1950. 

v.  Iddings:    1458. 

v.  Ware:  1223,  1225. 
Sailer  v.  Freedman  Bros.  Shoe  Co.: 

1670. 

Sailing  v.  McKinney:   106. 
Salliotte  v.  King  Bridge  Co.:  1871. 
Salmon    v.    Austro-American    Stave 
Co.:  919. 

v.  Rural  Ind.  School  Dist:    2023. 
Salmon  Falls  Bank  v.  Leyser:  285. 


2384 


Salmon  Falls  Mfg.  Co.  v.  Goddard: 

2059,  2063. 

Salomon  v.  Hertz:  1201. 
Salomons  v.  Fender:  2411. 
Salsbury  v.  Ware:  1199,  1237,  1327. 
Salter  v.   Howard:    2133. 
Saltmarsh  v.  Smith:  652,  6G3. 
Salton  v.  Cycle  Co.:  2314. 

v. New   Beeston   Cycle   Co.:    620, 

1378. 
Saltus  v.   Everett:    2107,   2112,    2115, 

2583. 

Salvage  v.  Talbott:  2434. 
Sammis  v.  Chicago,  etc.,  R.  Co.:  1915. 

v.    L'Engle:    1333. 

Samo  v.  Fire  Ins.  Co.:   442. 

Samoset  v.  Mesnager:  1296. 

Sample  v.   Consolidated   Light  &  R. 

Co.:   1799. 

v.Frost:   2310. 
Sampson  v.  Shaw:  113. 

v.  Singer  Mfg.  Co.:  878. 
Samson  v.  Beale:  809. 
Samuel  v.  Bartee;  886. 
Samuelian  v.  American  Tool  &  Ma- 
chine Co.:   1860. 
Samuels  v.  Luckenbach:  1516,  2426. 

V.Oliver:     111,    113,    716,     1523, 
1602,  2389,  2394. 

v.  Olliver:   2481,  2502. 

v.Richmond,  etc.,  R.  Co.:  2016. 

v.Simpson:   2234. 
Samuelson  v.  Cleveland  Iron  Mining 

Co.:  1642. 

San  Antonio,   etc.,   R.   Co.  v.   Brook- 
ing: 2302. 

v.  Gray:  1799. 
Sanborn  v.  Chamberlin:  2320. 

v.  Fireman's  Ins.  Co. :   1055. 

v.  First  National  Bank.  399,  437, 
443. 

v.  Flagler:   1178. 

v.  Neal:  1149,  1371. 

v.  Rodgers:    585. 

Sandberg  v.  Victor  Mining  Co.:  2255. 
Sandefur  v.  Hines:  2447. 
Sanders  v.  Brown:  171. 

v.  Cooper:  1072. 

v.  Graves:    2246. 

v.Nicholson:  2002. 

v.  Peck:  489. 

TDr  :.oO  .51  ,.^15  ,daiud8).iirl  .v 


TABLE   OF    CASES    CITED 


[Referenced  are  to  sections:   §§  1-1705,  Vol.   I;  §§  1706-2588,  Vol.   II. J 


Sanders  v.  Price:    2152,  2158.  ,.ti,ni; 

v.  Riddick:  2169. 

v.  Seelye:   2245,  2264,  2267. 
Sanderson  v.  Baker:  507. 

v.Collins:  1944. 

v.  Panther  Lbr.  Co.:    1C61. 

*  Tinkham  Co.:  2463. 
Sandloss  v.  Jones:   1192. 
San  Diego  Water  Co.  v.   San  Diego 

Flume  Co.:  173,  219. 
Sandiford  v.  Frost:   2302. 
Sandles  v.  Levenson:  1979. 
Sandoval    v.    Randolph:     1225,    1226, 

1234. 
Sands  v.  Life  Insurance  Co.:   695. 

v.  Potter:   1568. 

Sandusky,  etc.,  Works  v.  Hooks:  285. 
Sandy  v.  Swift:    1888. 
Sanford  v.  Bronson:  2250. 

v.  Fountain:   479. 

v.  Handy:  809,  882,  1783,  1987. 

v.  Insurance  Co.:  710. 

v.Johnson:  172. 

v.  McArthur:   1371,  1386. 

v.  Norris:    1192,  1194. 

v.Nyman:  1803. 

v.  Orient  Ins.  Co.:    732. 

v.  Pawtucket,  etc.,  Railroad  Co. : 
1917. 

v.  Pollock:    169,  171. 

v.  Rawlings:    2425. 

v.  Standard  Oil  Co.:   1658. 
San  Francisco  Sav.  Union  v.  Long: 

2152. 
Sanger  v.  Dun:   1315,  1317. 

v.  Fincher:   1595,  1596. 

V.Upton:  235. 

v.  Warren':  1097,  1734. 
Sangpiel,  Succession  of:  169. 
Sangston  v.  Maitland:  2519. 
Sanguinetti  v.  Rossen:   2188. 
San    Jacinto    Rice    Co.    v.    Lockett: 

2020,  2035,  2487. 

San  Jose  Gas.  Co.  v.  January:    1498. 
Sankey  v.  Alexander:  1815,  1827. 
Santa  Cruz  Butchers'  Union  v.  I.  X. 

L.  Lime  Co.:   285. 
Sante    Fe    R.    Co.    v.    Benton:    1814, 

2176. 

Sapp   v.    Cline-    1109. 
Sarbecker  v.  State:   488. 
Sardy,  In  re:   2207. 


.v  Il9f(: 


Sargeant  v.   Blunt:    1249,  1254,  2415. 

v.Clark:   2162. 

v.  Pettibone:   2217. 

v.Webster:   200. 
Sargent  v.  McLeod:   2249. 

v.Morris:  2371,  2488. 

v.Webster:  1102. 
Sariol    v.    McDonald    Co.:     219,    263, 

1015. 

Sarro  v.  Bell:  2305. 
Sartwell  v.  Frost:  386,  915,  917. 
Sarver  v.  Mitchell:  1912. 
Sastle  v.  Noyes:  2141. 
Satchwell  v.  Williams:  1595,  1597, 
Satterfield  v.  Malone:   1808. 

v.  Smith:   2322. 

v.  Western  Union  Tel.  Co.:   2009. 
Satterle  v.  Bliss:  2307. 
Satterlee  v.  First  Nat.  Bank:  963. 

v.  Groat:    2001. 
Satterly  v.  Morgan:    1644. 
Satterthwaite  v.  Goodyear:  249,  2438, 
2439. 

v.  Loomis:   1223. 
Sauerhering  v.  Rueping:   118. 
Saugerties,  etc.,  Co.  v.  Miller:  914. 
Saul  v.  Lepidus:  931. 

v.  Southern  Seating  Co.:  1139. 
Saule  v.  Ryan:  2479. 
Saulsbery  v.  Wimberly:   1803. 
Saunders  v.  Anderson:   1560. 

v.  Bartlett:  2563. 

v.  Eastern  Brick  Co.:   1628. 

v.  Eastern    Hydraulic,   etc.,    Co.: 
1618. 

v.King:   169,  1005. 

v.  McCarthy:    2178. 

v.  Payne:  848. 

v.  Phelps:  2481. 
Saunderson  v.  Baker:  506. 

v.Jackson:  601. 
Savage  v.  Davis:  167. 

v.  Batons:   886. 

v.  Pelton:    752,  879. 

V.Rhode  Island  Co.:   1622. 

v.  Rix:  60,  1139,  1397. 

v.  Savage:   1221,  1226. 

v.  Springfield :   359,  367. 
Savannah  Elec.  Co.  v.  Wheeler:  1979. 
Savannah,    etc.,    R,    Co.:    v.    Bryan: 
1936. 

v.  Flannagan:  1657. 


150 


2385 


TABLE  OF    CASES    CITED 


[Reference*   are  to  sections:   §8  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 


Saveland  v.  Green:  316,  332,  457,  463, 

468,  1606,  1607. 
Savery  v.  Savery:  2105. 

v.  Sypher:  2185. 

Savings  Bank  v.  Central  Market  Co.: 
1126,  1139. 

v.  Davis:   220,  1101. 

v.  Ward:    2202. 
Savings  Fund  Soc.  v.  Savings  Bank: 

246,  294,  295,  296,  741,  742,  765. 
Savings  Inst.  v.  Chinn:   2163. 
Savory  v.  Chapman:  2185. 
Sawin  v.  Union  Building  Ass'n:  866, 

870. 

Sawtelle  v.  Drew:   2393. 
Sawyer  v.  Biggart:  172. 

v.  Bowman:  1533,  2442. 

v.  Corse:   1501,  1502,  1503,  1506. 

v.  Cutting:  160. 

v.  Gerrish:  1684. 

v.  Goddard:  2198. 

v.  Hebard:  1515. 

v.  Lorillard:      1686,     1688,     2553, 
2559,  2566. 

v.  Mayhew:   1250. 

V.Norfolk,  etc.,  R.  Co.:  1981. 

V.Norfolk    &    Southern    R.    Co.: 
1980. 

v.  Northan:    143. 

v.  Fawners'  Bank:   1852. 

v.  Tappan:  1346. 

V.Vermont  Loan  Co.:   948. 

v.  Vermont    Loan    &    Trust   Co. : 

2181. 
Sax  v.  Davis:    285. 

V.Detroit,  etc.,  R.  Co.:   593. 

v.Drake:  274,  933,  945. 
Saxe  v.  Shubert  Theatrical  Co.:   593. 
Saxonia,  etc.,  Co.  v.  Cook:   1553. 
Saxton  v.  Harrington:  2151,  2155. 
Sayre  v.  Gould:  1419. 

v.Nichols:  307,  315,  1138. 

v.Wilson:    624,  1528,   2430,  2431. 
Scaggs  v.  State:  1796. 
Scales  v.  Mount:  954,  1012. 
Scaling  v.  Knollin:   1406,  1410. 
Scammon  v.  Wells,  Fargo  &  Co.:  962. 
Scanlan  v.  Hoerth:  954. 

v.Keith:   1136,  1161. 
Scanlon  v.  Warren:  112. 
Scarborough  v.  Reynolds:  1023,  2162, 
2406. 


Scarett-Comstock  v.  Hudspeth:   1014. 
Scarf  v.  Jardine:  1754. 
Scarfe  v.  Morgan:   1683,  1684,  1691. 
Scaritt  v.  Hudspeth:  901. 
Scarritt  Furniture  Co.  v.  Hudspeth: 
870. 

v.  Moser:   2162. 

Schaaf  v.  St.  Louis  Basket  Co.:  1813. 
Schack  v.  Anthony:   2038,  2064. 
Schade  v.  Gehner:   1480. 
Sch'aefer  v.  Dickinson:  2389. 

v.  Henkel:  1098,  1734,  1735,  2037, 
2064. 

v.  Oesterbrink:  156,  1942. 

v.Sherwood:    1601. 
Schaeffer  v.  Blair:  1588. 

v.  Kirk:  1297. 

v.Mut.    Ben.    L.    Ins.    Co.:    742, 

799    814 

Schafer  v.  Reilly:   2082. 
Schafer's  Estate:  616. 
Schaffner  v.  Kober:   2234. 
Schanz  v.  Martin:   495,  1272,  1342. 
Scharlock  v.  Oland:  2276. 
Schauer  v.  Insurance  Co.:  23G8. 
Schedda  v.  Sawyer:  1334. 
Scheibeck  v.  Van  Derbeck:   296. 
Scheinesohn  v.  Lemonek:   2253,  2256. 
Schell,  In  re:  2207. 

Schell  v.  Stephens:   2342,  2355,  2575. 
Scheller  v.  Silbermintz:   1474. 
Schenck  v.  Dart:  1202. 

v.Griffith:  902. 

Schendel  v.  Stevenson:  386,  1731. 
Schener  v.  Cochem:  1194. 
Schenk  v.  Dexter:   940,  958. 
Schenkberg  v.  Treadwell:  1403,  1734. 
Schepflin  v.  Dessar:  1760. 
Scheurer  v.  Banner  Rubber  Co.:  1624. 
Schick  v.  Suttle:  1207,  1225,  2411. 

v.  Warren  Mfg.  Co. :  184. 
Schiefer  v.  Freygang:  2277. 
Schiek  v.  Warren  Mtg.  Co.:   2140. 
Schiffer  v.  Anderson:  435. 

v.  Feagin:  2560. 
Schiffman  v.  Peerless  Motor  Car  Co.: 

1532. 

Schiglizzo  v.  Dunn:   1630,  1640,  1678. 
Schilling  v.  Moore:   586,  663. 
Schintz  v.  McManamy:  213. 
Schipper  v.  Milton:  2028. 
Schirling  v.  Scites:    2156. 


2386 


TABLE   OF    CASES    CITED 


[References   are  to  Nectious:   §§  1-1705,   Vol.  I;   §§   1700-2588,  Vol.   II.] 


Schisler  v.  Null:  1341. 
Schlapbach  v.  Richmond  R.:  988. 
Schlater  v.  Winpenny:  620. 
Schlegal  v.  Allerton:    1536,  2435. 
Schleicher  v.  Armstrong:  946. 
Schleider  v.  Dielman:   1569. 
Schleifenbaum  v.  Rundbaken:  1588. 
Schlemmer  v.   Buffalo,   etc.,   R.   Co.: 
1671,  1G73. 

v.  Schlemmer:    2162. 
Schlessinger  v.  Forest  Products  Co.: 

368,  386. 
Schley  v.  Fryer:  828,  841,  846. 

v.  Lyon:   2050. 

Schlissinger  v.  Dunne:  2246. 
Schlitz  v.  Grimmon:  291. 

v.Meyer:   2152,  2154. 
Schlitz  Brewing  Co.  v.  Barlow:    285. 

v.  Grimmon:  257,  285,  850,  854. 
Schloss  v.  Solomon:  372. 
Schlosser  v.  Great  Northern  R.  Co.: 

1472. 
Schmaling  v.  Thomlinson:   329,  1705, 

2040,  2514. 
Schmalstieg    v.     Leavenworth     Coal 

Co.:  1618. 

Schmaltz  v.  Avery:   1403,  2043. 
Schmalz  v.   Avery:    1771,   2041,   2043. 
Schmerler  v.  Barasch:   1410,  1780. 
Schmertz  v.  Shreeve:   2064. 
Schmid  v.  Frankfort:  435. 
Schmidt  v.  Bauman:  2435. 

v.  Charter  Oak  L.  Ins.  Co.:  1070. 

v.  Curtiss:  2246. 

v.  Garfield  Bank:  403. 

v.  Garfield  Nat.   Bank:    952,   972, 
874. 

v.  Quinzel:  2320,  2324. 

v.  Rankin:    473. 

v.  Sandel:  982. 

v.  Shaver:   255,  285. 

v.  Simpson:  2511. 
Schmittler  v.  Simon:  1155. 
Schmodt  Bros.  v.  Langston:  296. 
Schmucker  v.  Higgins-Roberts  Grain 

Co.:  2055,  2059. 
Schneider  v.  Hill:  933. 

v.Lebanon  Creamery  Co.:   751. 
Schnerr  v.  Lemp:  1577. 
Schoenfeld  v.  Fleisher:   2525. 
Schoenhofen  Brew.  Co.  v.  Wengler: 
245,  859. 


Schoenmann  v.  Whitt:  2454. 

Schoept',  Ex  parte:  1784. 

Schofield  v.  Woolley:  1348,  2207,  2209. 

Scholk  v.  Kingsley:  2219. 

Schollay  v.  Moffit-West  Drug  Co.:  395. 

Schomer  v.  Insurance  Co.:   1071. 

Schomp  v.  Schenck:  2230. 

School  Directors  v.  Birch:  1562. 

v.  Orr:   1557. 

v.  Sippy:  977. 

School   District   v.   Aetna   Insurance 
Co.:   367,  465,  893. 

v.  McDonald:  1556. 

School   Town   of  Monticello   v.   Ken- 
dall: 1149. 

Schoole  v.  Noble:  2275. 
Schoregge  v.  Gordon:  963,  2171,  2172, 

2173. 

Schoultz  v.  Eckhardt  Mfg.  Co.:   1676. 
Schoyer  v.  Lynch:  1502,  1503. 
Schradin  v.  New  York  Cent,  etc.,  R. 

Co.:   1679. 
Schramm  v.  Liebenberg:  1001. 

v.  O'Connor:   137. 

v.  Wolff:   2439. 

Schreiner  v.  Kissock:  1548,  1593. 
Schreyer  v.  Turner  Flour  Co.:  382. 
Schriever    v.    Brooklyn    Heights    R. 

Co.:   2243,  2280. 
Schrimpf    v.     Tennessee     Mfg.     Co.: 

1586. 

Schriner  v.  Dickinson:  1119. 
Schroeder  v.  C.  &  A.  R.  Co.:  1615. 

v.Chicago,  etc.,  R.  Co.:   1678. 

v.  Fine:  1532. 

v.  Waters:  933. 
Schroeppel  v.  Corning:  2208. 

v.  Wolf:   2163. 
Schroeder    Lumber    Co.    v.    Stearns: 

300,  919. 

Schubert  v.  Herzberg:  2286. 
Schubkagel  v.  Dierstein:   2310. 
Schuchardt  v.  Aliens:    716,  882,  885, 

2506. 

Schuff  v.  Ransom:  138. 
Schultheis  v.  Caughey:  991. 

v.  Nash:  2234,  2236. 
Schultz  v.  Griffin:   807,  812,  2445. 

v.  McLean:  2084,  2123,  2136. 

v.  Wall:  2001. 

v.  Zelman:   2461. 
Schulwitz  v.  Delta  Lumber  Co.:  1913. 


2387 


TABLE   OF    CASES    CITED 


[Reference*   are  to  section*  t   §§  1-1705,   Vol.  Ij  §§  1706-2588,  Vol.  II.] 


Schumacher  v.  Dolan:  1127. 
Schumacker  v.  Heinemann:  1552. 

v.  Pabst  Brewing  Co. :  831. 
Schumpert  v.  Southern  R.  Co.:  1459, 

2011. 

Schurr  v.  Savigny:   1522. 
Schutz  v.  Jordan:   436,  438,  444,  911. 
Schwarz  v.  Sweitzer:  2005. 
Schwarzschild,    etc.,    Co.    v.    Weeks: 

1646. 

Schweitzer  v.  Church:  285. 
Schweyer  v.  Jones:  1731. 
Schwickerath  v.  Lohen:   1343. 
Schwind  v.  Boice:  1803,  1804. 

v.  Boyce:  1808. 
Scobey  v.  Ross:  2237. 
Scofield   v.   Parlin   &   Orendorff   Co.: 

219. 

Scollans  v.  Rollins:  2119,  2127. 
Scotch  Lumber  Co.  v.  Sage:  2176. 
Scott  v.  Aultman  Co.:   2302. 

v.  Bank:   361. 

v.  Brown:  115,  120. 

v.  Bush:  G01. 

v.  Central  Park,  etc.,  R.  Co.:  1935. 

v.Clark:  1536,  2435. 

v.  Darling:    2207,  2264. 

V.Detroit,  etc.,  Society:  198,  199. 

v.  Ebury:  380. 

v.  Elmendorf:   963,  2162,  2168. 

v.  Felso:  2412. 

v.  Freeland:  1202. 

v.  Gage:  2449. 

v.  Gilkey:   946. 

v.  Godfrey:  2494. 

v.Gorton:  1202. 

v.  Harmon:  2237. 

v.Harris:  2311,  2312. 

v.  Hopk'ins:   871,  872. 

v.  Irving:   894;  946,  2371. 

v.  Jester:  1689. 

v.  Kelso:  2474. 

v.Lloyd:  1590,  2457,  2477. 

v.  Maier:  1516. 

v.Mann:  178,  1198. 

v.Martin:    1516. 

v.  McAlpin:  1102. 

v.  McGrath:  882,  886. 

v.Methodist  Church:  368. 

v.  Middleton  R.  Co.:   405. 

v.  Middletown,  etc.,  R.  Co.:    368, 
473. 


Scott  v.  Morris:  2264,  2270,  2273. 
V.Patterson:   2435. 
v.  Peabody  Coal  Co.:  1913. 
v.  Porcher:  1447. 
V.Rogers:   1245,  1255,  1257,  1342, 

2414,  2525,  2526,  2585. 
v.  Seiler:  2185. 
v.  Shepherd:  1873. 
v.  Stansfleld:    1494. 
v.  St.   Louis,   etc.,   Railroad   Co.t 

1794. 

v.  Surman:   691,  2090,  2504,  2576. 
v.  Travelers'  Ins.  Co.:  1532. 
v.  Umbarger:  1350. 
Scott    Shoe   Mach.  v  Co./ Y.    Breaker: 

1G94. 
Scottish-American  Mtg.  Co.  v.  Davis: 

2430. 

Scottish  Mortgage  Co.  v.  Deas:  169. 
Scovell  v.  Upham:  1538. 
Scovill  v.  Upham:  2467..   .v  i 
Scribner   v.    Collar:    177,   178,'  1590, 

2412,  2413,  2474,  2475. 
Scribner  v.  Hazeltine:  1536, 
Scripture  v.   Francistown   Soapstone 

Co.:  1843. 
v.  Scottish     American     Mortgage 

Co.:  2137. 

Scroggin  v.  Hammet  Co.:  2161. 
Scruggs  v.  Driver:  652. 

v.  Scottish     Manufacturing    Co.: 

2002. 

Scudder  v.  Anderson:   989. 
Scudder-Gale  Grocer  Co.  v.  Russell. 

855. 
Scull  v.  Brinton:  797,  798. 

v.  Skillton:  296. 
Scully  v.  Book:  797. 
v.  Dodge:   946. 
v.  Scully:  1515. 
V.Williamson:    2425,    2430,    2441. 

2448. 
Seabury   v.   Fidelity   Ins.   Co.:    2430 

2447,  2448. 
Seago  v.  Marten:  441. 

v.  White:  597. 

Seals  v.  Edmondson:  1515,  1516. 
Seaman  v.  Whitney:  1447,  1449. 
Seamans  v.  Knapp-Stout  Co.:  300, 

2368. 

Seaman  v.  Whitney:   581,  587. 
Searcy  v.  Hunter:   143. 


2388 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  1$  §§  1706-258S,  Vol.  II.] 


Searing  v.  Berry:  2023. 

v.Butler:  463,  466,  1C01,  1603, 

2480,  2558. 

Searle  v.  Parke:  2001. 
Sears  v.  Collie:  2276. 

v.Wills:  1688. 

v.  Wingate:  760,  1801. 
Seaton  v.  Cordray:  2222. 

v.  Scovill:    1303. 
Seattle  Land  Co.  v.  Day:  1533. 
Seattle  Lighting  Co.  v.  Hawley:  1917. 
Seattle  'Nat.  Bank  v.  Emmons;  2065. 
Seattle  Shoe  Co.  v.  Packard:  969,  970. 
Seaver  v.  Boston,  etc.,  R.  Co.:  1654. 
.  v.  Coburn:  1139. 

v.  Morse:  1572. 

v.  Weston:  373. 
Seaverns    v.    Presbyterian    Hospital: 

1815,  1845. 

Sebald  v.  Citizens'  Bank:  1803,  1815. 
Sebastian  v.  Rose:  2163. 
Sebeck  v.  Plattdeutsche  Volkfest  Ver- 

ein:   1918. 

Sebold  v.  Citizens'  Bank:  2176. 
Second    Baptist   Church    v.    Furber: 

1154. 
Second   Employers'   Liability   Cases: 

1680. 
Second  Nat.  Bank  v.  Adams:  889. 

v.  Averell:  1801. 

v.  Bank  of  Alma:  2023. 

v.  Curren:    1808. 

v.  Midland  Steel  Co.:  1154. 

v.  Wentzel:  364. 
Secor  v.  Patterson:   2002. 
Secretary  of  State  v.  Kamachee:  546. 
Secretary  of  State  in  Council  of  In- 
dia v.  Kamachee  Boye  Sahaba:  507. 
Security  Co.  v.  Estudillo:  2307. 

v.  Graybeal:  937,  940,  958. 

v.Richardson:    938. 
Security  F.  Ins.  Co.  of  N.  Y.  v.  Ken- 
tucky F.  &  M.  Ins.  Co.:  1055. 
Security   Mut.   Life   Ins.   Co.   v.   Cal- 

vert:  1803. 
Security  Trust  Co.  v.  Ellsworth:  641. 

v.  Temple  Co.:  1690. 
Sedgwick  v.  Bliss:  309,  322. 

v.  Stanton:    94. 

Seeber  v.  American  Mining  Co.:  1524. 
Seeberger  v.  McCormick:   1383,  1386, 
1398. 


Seeds  v.  American  Bridge  Co.:   1667. 
Seeger  Refrig.  Co.  v.  American  Car 

Co.:  1854. 

Seehorn  v.  Hall:  295,  296. 
Seeley  v.  North:  2230. 
Seely  v.  Tennant:   1671. 
Seemuller  v.  Fuchs:   2342. 
Seevers  v.  Cleveland  Coal  Co.:   1516, 

2436. 

Seffield  Corporation  v.  Barclay:  1364. 
Segar  v.  Edwards:   1198. 

v.  Parrish:    2551. 
Segars  v.  Segars:   2163. 
Sehrt-Patterson  Mill.  Co.  v.  Hughes: 

395,  403. 

Seibel-Suessdorf,    etc.,    Co.    v.    Manu- 
facturers' R.  Co.:  313. 
Seibert  v.  Missouri,  etc.,  R.  Co.:  1676. 
Seichrist's  Appeal:  1192. 
Seimssen  v.  Homan:   2470. 
Seiple  v.  Irwin:   865,  8C9,  870. 
Seipp's  Estate,  In  re:  2302,  2311. 
Seiter  v.  Mowe:  1350. 
Seixas  v.  Citizens'  Bank:  1815. 
Selby  v.  Jarrett:   2463. 
Selden  v.  State:   2297. 
Seldomridge  v.  Railroad  Co.:  1661. 
Sell  v.  Lumber  Co.:  1645. 
Seller    v.    Steamship    Pacific:     1044, 

1046. 

Sellers  v.  Phillips:    2230. 
Selover  v.  Bryant:   2246. 

v.  Isle  Harbor  Land  Co.:   1199. 
Selvage  v.  John  Hancock  Mut.  L.  Ins. 

Co.:  1075. 
Selz  v.  Collins:  1307. 

v.  Guthman:  1603. 

Semenza  v.  Brinsley:  867,  2075,  2077. 
Semisch  v.  Guenther:  1759. 
Semple  v.  Morrison:    216. 
Sencerbox   v.   First  Nat.    Bank:    169, 

172,  203,  979. 

Seneca  Co.  v.  Crenshaw:  285. 
Seneca  County  Bank  v.  Neass:   1845. 
Senn  v.  Joseph:  2163. 
Sentell  v.  Kennedy:    365,  2549,  2557. 
Sentwell  v.  Kennedy:   995. 
Sequin  v.  Peterson:  156,  534. 
Sere  v.  Faures:  2364. 
Sergeant   v.    Emlen:    197,    322,   1289, 

1330. 
Sertant  v.  Crane  Co.:   1778. 


2389 


TABLE  OF  CASES  CITED 


[Reference!*  are  to  Bectlona:  88  1-1705,  Vol.  I;  88  170«  2588,  Vol.  II.] 


Servant  v.  McCampbell:  401,  479,  782. 
Service  v.  Shoneman:  1624. 
Sessions  v.  Block:  1759. 

v.Kent:   936. 

v.Payne:  177,  178. 

V.Warwick:  2256. 
Seton  v.  Slade:  2330. 
Setterstrom  v.  Brainard,  etc.,  R.  Co.: 

1868. 

Settle  v.  St.  Louis,  etc.,  R.  Co.:  1661. 
Setzar  v.  Wilson:   2308. 
Severy  v.  Nickerson:  1620. 
Sevier  v.  Holliday:  1339,  2194. 

v.  Railroad  Co.:    994. 
Sewall  v.  Jones:  2319. 
Sewanee  Mining  Co.  v.  McCall:   783, 

972,  977,  998. 
Sewell  v.  Burdick:  591. 
Sexton  v.  Weaver:   1288. 
Seybel  v.   National   Currency  Bank: 

2111. 

Seybold  v.  Elsie:  1909. 
Seymour  v.  Bridge:   579. 

v.  Hoadley:  2566. 

v.Newton:  1698. 

v.  Oelrichs:  1556,  1557. 

v.  Wychoff:  2576. 

v.Wyckoff:  395. 
Shackman  v.  Little:  789. 
Shadford  v.   Ann  Arbor  St.  R.   Co.: 

1624. 
Shaeffer  v.  Blair:  1547. 

v.  Kirk:   2521. 
Shafer  v.  Phoenix  Ins.  Co.:  1808. 

v.  Russell:  410. 

Shaffer  v.  Union  Brick  Co. :  2011. 
Shane  v.  Lyons:  150,  169. 

v.  Palmer:   938. 
Shank  v.  Glen  Falls  Ins.  Co.:  1055. 

v.  Shoemaker:  2279. 
Shanklin  v.  Hall:  2427,  2434. 
Shanks    v.    Lancaster:     1105,    1107, 
1108. 

v.Michael:  170. 
Shannon  v.  Comstock:   1559. 

v.  Gore,  etc.,  Ins.  Co. :   1067. 

v.  Marmaduke:  1198. 

v.  Potts:   2435. 
Shanny  v.  Androscoggin  Mills:  1640, 

1645. 
Shapard  v.  Hynes:   724,  1454. 


Shapiro  v.  Shapiro:  2458. 

Shapter,  In  re:  2311. 

Sharman  v.  Brandt:   181,  1403,  1771, 

2043,  2378,  2488. 
Sharon  v.  Sharon:  2308. 
Sharp  v.  Emmet:  1162,  1310. 

v.  Erie  R.  Co.:  1973. 

V.Goodwin:  1350. 

v.  Hoopes:  2426. 

v.Jones:   2024,  2054. 

v.  Knox:  69,  739. 

v.  Whipple:  2484,  2486. 
Shartzer    v.     Mountain    Lake    Park 

Ass'n:  1814,  2175. 

Shattuck   v.   American   Cement   Co.: 
2119,  2125. 

v.  Chandler:  1009. 

v.Eastman:  1124. 
Shauck    v.    Northern,    etc.,    R     Co  : 

1654. 
Shaver  v.  Home  Tel.  Co.:  1678. 

v.  Ingham:   611,  1580. 
Shaw  v.  Deal:    1584. 

v.  Ferguson:  2498. 

v.  Hudd:  236. 

v.  Railroad  Co.:  2111. 

v.  Reed:   102. 

V.Rowland:   2227. 

v.  Saranac  Horsenail  Co. :  897. 

v.  Spencer:  2111,  2126. 

v.  Stone:  740,  1027. 

v.  Tomlinson:  1925. 

v.Williams:  710,  814,  934. 

v.  Woodcock:   2534. 
Shawek    v.    Northern,    etc.,    R.    Co.: 

1644. 

Shawmut  Min.  Co.,  Matter  of:  2307. 
Shay  v.  American  Steel  Co.:  1979. 
Shea  v.  Seelig:  223. 

v.  Wellington :  1641. 
Shea    Realty    Corporation    v.    Page: 

219,  2435. 

Sheahan  v.  National  S.  S.  Co.:   592. 
Sheanon  v.  Pacific  Mutual  Life  Ins. 

Co.:   261,  267. 
Shear  v.  Singer  Sewing  Machine  Co.: 

1977. 

Shearer  v.  Evans:   1457,  2011. 
Sheehan  v.  Allen:  2305,  2308. 

v.  Erbe:  2151,  2295. 

v.  New  York,  etc.,  R.  Co.:   1646. 


2390 


;x 


TABLE   OF    CASES    CITED 


[References   are  to  section*:  §§  1-1705,  Vol.  I|  §g  1706-2588,  Vol.  II.] 


Sheehy  v.  Blake:  187,  191. 

v.  Shinn:  2481. 

v.  Wollman:  1410. 
Sheets  v.  Selden:  232. 
Sheffer  v.  Montgomery:  2576,  2577. 

v.  Perkins:   2163. 
Sheffield  v.  Ladue:   477,  542,  543. 

v.  Linn:  1249. 

v.  Page:  1559. 
Sheffield  Corp.  v.  Barclay:  1368,  1374, 

1398,  1400. 
Shelby  v.  Burrow:  2024. 

v.  Offutt:   695. 

Sheldon  v.  Connecticut  Mut.  L.   Ins. 
Co.:  1060. 

v.Cox:    1803. 

v.  Newton :  155. 

v.  Sheldon:  499. 
Sheldon    Hat   Blocking   Co.    v.    Eick- 

meyer  Hat  Blocking  Co.:  464. 
Shelhamer  v.  Thomas:   710. 
Shelton  v.  Darling:    1143.        7  j. 

v.Johnson:  1519,1526. 

v.  Livius:   2322. 

v.  Lundin:   2437,  2443,  2469. 

v.  Merchants'    Dispatch    Transp. 
Co.:  793,  1266. 

v.  Southern  R.  Co.:  1797. 
Shenatone  v.  Hilton:  2345. 
Shenkberg  v.  Porter:  296. 
Shepard  v.  Abbott:   42,  43. 

v.  Hill:    177,  178,  1590,  2474. 

v.  Jacobs:   1861. 

v.  McNail:  654,  657,  660,  663, 
2259,  2260,  2314. 

v.  Pabst:  49,  1987,  1988,  1997. 

v.  Sherin:  1432. 

Shepard  &  Morse  Lumber  Co.  v.  Eld- 
ridge:   403,  1842. 
Shepaug    Voting    Trust    Cases:    116, 

308. 

Sheperd  y.  Lanfear:  178. 
Shephard    &    Morse    Lumber    Co.    v 

Eldridge:    1815. 
Shepherd  v.  Evans:  2030. 

v.  Harrison:    1700. 

v.  Hedden:  2412,  2435,  2475. 

V.Milwaukee  Gas  L.  Co.:  317. 
Shepherd  Pub.  Co.  v.  Press  Pub.  Co.: 

1487. 

Shepherd-Teague    Co.    v.    Hermann: 
2431. 


Shepler  v.  Scott:  2479. 
Sheppard  v.  Power  Co.:    116. 

v.  Wood:  1803,  1804. 
Sheppard  Pub.  Co.  v.  Harkins:   1227. 

v.  Press    Pub.     Co.:     1458,    1987, 

1981. 
Sheridan  v.  Charlick:  1902. 

v.  Gorham  Mfg.  Co.:  1626. 

v.  Mayor:   2023. 

v.  Pease:  1102. 

v.  The  New  Quay  Co.:  1457. 
Sheridan  Coal  Co.  v.  C.  W.  Hull  Co.: 

1783. 

Sherley  v.  Billings:   1934. 
Sherman  v.  Burton:  110. 

v.  Fitch:    220,  368,  374,  1395. 

v.  Morrison:  1327. 

v.  Port  Huron  Engine  Co. :   1314, 
1533,  2463. 

v.  Port  Huron  Supply  Co.:    1532. 

V.Rochester,   etc.,   R.   Co.:    1644. 

v.  Scott:    2305. 

v.  Transportation  Co.:   1577. 
Sherman  Bank  v.  Weiss:   2104. 
Sherman  Center  Town  Co.  v.  Morris: 

368. 

Sherrard  v.  Nevius:   2156. 
Sherrill  v.  Weisiger  Co.:  395,  2181. 
Sherrin  v.   St.   Joseph,   etc.,  R.   Co.: 

1652. 
Sherrod  v.  Duffy:   435. 

v.Langdon:  724. 
Sherry  v.  Perkins:  2133. 
Sherwood  v.  Lovett:    2477. 

v.  Roundtree:   2002. 

v.  Stone:  1322,  2534. 
Shevalier  v.  Doyle:   2256. 
Shick  v.  Suttle:   1234. 
Shiel  v.  Stoneham:  2386,  2387. 
Shields  v.  Carson:  610,  1547. 

v.Clifton    Hill    Land    Co.:     382, 
1384. 

v.Coyne:   2068. 

v.Davis:  2033. 

v.  Thomas:  1350. 

v.  Yonge:  1C44. 

Shiells  v.  Blackurne:  1281,  1282. 
Shiff  v.  Lesseps:  563. 
Shiffer  v.  Feagin:   2559. 
Shilinglaw  v.  Sims:  2430. 
Shiloh  Street,  In  re:  367. 
Shine  v.  Kinneally:  2075. 


2391 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:  §g  1-1705,  Vol.  I;  88  1700-2588,  Vol.  II.] 


Shinew  v.  First  National  Bank:  361. 
Shingleur  v.  Western  Union  Tel.  Co.: 

41. 
Shinn  v.  Cunningham:   86. 

v.  Guyton  Co.:    446,  447. 
Ship  Bldg.  Works  v.  Nuttall:  1624. 
Shipley  v.  Reasoner:  115. 
Shipman  v.  Bank  of  New  York:  1842. 

v.  Byles:  999. 

v.  Winkleman:   2439. 
Shipway  v.  Broadwood:  1728,  2137. 
Shirland  v.  Monitor  Iron  Works  Co.: 

178,  2138,  2398. 
Shirley  v.  Abbeville  Furn.  Co.:  1670. 

v.Shirley:   601. 
Shirtliff  v.  Whitfield:   1297. 
Shisler  v.  Vandike:   361. 
Shober  v.  Blackford:    2437. 
Shoe  &  Leather  Nat.  Bank  v.  Dix: 

1386,  1396,  1397. 
Shoemaker  v.  Acker:  1580. 

v.  Stiles:   2236. 
Shoenfeld    v.    Fleischer:    1250,    1297, 

1298,  2337,  2415,  2521,  2531. 
Shoninger  v.  Peabody:   446,  448,  871, 

899. 
Shordan  v.  Kyler:    1419,  1424,  1427, 

2420. 

Shores  v.  Caswell:  2161,  2163. 
Short  v.  Delaware  &  Hudson  Co. :  718. 

v.  Millard:   553. 

v.  Northern    Pac.    Elevator    Co. : 
1783. 

v.  Skipwith:   1258. 

v.  Sprackman:   2024. 

v.  Stevens:  433. 

Short  Mt.  Coal  Co.  v.  Hardy:    285. 
Shortel  v.  St.  Joseph:  1678. 
Shotwell  v.  Hamblln:  1611. 
Shovelin  v.  Hanson:  1324. 
Showalter    v.    Fairbanks,    etc.,    Co.: 

1631. 

Shroeder  Lumber  Co.  v.  Stearns:  921. 
Shropshire  v.  Adams:  2474. 

v.  Frankel:   2447,  2467. 
Shroyer  v.  Smeltzer:  361. 
Shubart's  Estate,  In  re:  1515. 
Shuck  v.  Pfenninghausen :  2169. 
Shuenfeldt  v.  Junkerman:    488. 
Shuetze   v.   Bailey:    212,   1119,   1124, 
1153. 


Shuey  v.  Adair:  1150,  1733,  1736. 

v.  United  States:   635. 
Shuford  v.  Ramsour:  946. 
Shull  v.  New  Birdsall  Co.:  865. 
Shuman  v.  Steinel:  167,  386. 
Shumacher  v.  Wolf:  1803. 
Shuster  v.  Philadelphia,  etc.,  R.  Co.: 

1619. 

Shute  v.  McVitie:  1538,  1548. 
Shuttleworth  v.  McGee:  1347. 
Sibbald  v.  Bethlehem  Iron  Works: 

1550,    2390,    2426,   2427,    2435,   2442, 

2447,  2449,  2455,  2482. 
Sibley  v.  Gilmer:   162,  167. 

v.  Rice:  2229. 
Sibbitt  v.  Carson:  2435. 
Siddall  v.  Haight:  2212. 
Sidney  School  Furniture  Co.  v.  War- 

sau:  1782. 

Sidoway  v.  Jones:  2276. 
Sidway  v.  American  Mtg.  Co.:   1588. 
Siebert  v.  State:   2008. 
Siebold  v.  Davis:  707. 
Siegel  v.  Gould:  2413,  2475. 
v.  Hanchett:   2246. 
v.  Rosenzweig:  2413,  2452. 
Siegel-Cooper  &  Co.  v.  Trcka:    1646, 

1670. 

Siegelman  v.  Jones:  2002. 
Siemon  v.  Schurck:  1350. 
Siemssen  v.  Homan:   2441. 
Sier  v.  Bache:  946. 
Siers    v.    Wiseman:    287,    501,    1216, 

1236,  1237,  1238. 

Sievers  v.  Peters  Box  Co.:  1620. 
Sievewright  v.  Archibald:  2379,  2380. 
Siewers  v.  Commonwealth:   1480. 
Siff  v.  Forbes:  435,  464. 
Siffken  v.  Wray:  1698. 
Sigerson  v.  Pomeroy:   2525. 
Sigmon  v.  Goldstone:  615,  1510. 
Signer  v.  Webb:  39. 
Sigourney  v.  Lloyd:  2104. 
Sigourny  v.  Severy:  2072. 
Sikes  v.  Johnson:  147,  150. 
Silberberg  v.  Chipman:   2467. 
Siler  v.  Perkins:  1357,  1410,  2474. 
Silisbee  State  Bank  v.  French,  etc., 

Co.:   2098. 
Silkerkraus  v.  Winnie:  2475. 


2392 


' 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

Silliman  v.   Fredericksburg,  etc.,   R.      Simons  v.  Mining  Co.:   1225. 


Co.:  707,  742,  763. 

v.  Wing:   1432. 

Silsby   Manufacturing   Co.    v.    Allen- 
town:   367. 

Silveira  v.  Iverson:  1794. 
Silver  v.  Frazier:   2136. 

V.Jordan:  1424,  1717,  1733. 
Silver  Min.   Co.   v.   Omaha  Smelting 

Co.:  995. 

Silver  Mt.  Mine  Co.  v.  Anderson:  261. 
Silver    Peak    Min.    Co.    v.    Harris: 

2254. 

Silverman,  In  re:  1569. 
Silverman  v.   Bush:    395,  2510,   2566, 

2578 
[K)ivR;Y,Katz:   2003 

V.Pennsylvania  R.  Co.:  2255. 
Silvers  v.  Hess:  1037. 
Silvis  v.  Ely:  2184. 
Simanton  v.  Vliet:  1134. 
Simes  v.  Rockwell:  171. 
Simic  v.  San  Jose-Las  Gatos  R.  Co.: 

1798. 

Simmonds  v.  Long:  1443. 
Simmons,  Matter  of:    2302. 
Simmons  v.  Almy:  2276. 

v.Davenport:   2245. 

v.Kramer:   797,  798. 

v.  Looney:  1335. 

v.  More:  1395,  2421. 

v.  Oneth:  2430. 

v.Oregon  R.  Co.:   1657. 

v.  Wittmann:   2025,  2028.,VnJ-i(I 
Simmons  Creek  Coal  Co.  v.  Doran: 

1854. 

Simmons  Hardware  Co.  v.  Kaufman: 
2305. 

v.  Todd:  1731,  1748. 

v.  Waibel:  1211. 
Simms  v.  Forbes:  1798. 
Simon  v.  Allen:  1561. 

v.  Brown:    274,  933. 

v.  Burgess:  42. 

v.  Garlitz:   105. 

V.Johnson:   870,  2394. 

v.Sheridan  &  Shea  Co.:  2230. 

v.  Trummer:  2028,  2032. 
Simonds  v.  Clark:  1789. 

v.  Heard:  1113,  1170. 

T.  Wrightman:  294. 


v.  Monier:  1866. 

v.  Motivos:  2320. 

v.  Patchett:  1398,  1400. 
Simonson  v.  Simonson:  1517. 
Simonton  v.  Loring:   1888. 

v.  First  National  Bank:   581,  587. 
Simpson  v.  Alexander:   2529. 

v.  Brown:  2162. 

v.  Carson:  563,  586. 

v.  Commonwealth :   225,  1038. 

v.  Garland:   1132. 

V.Harris:  988,  989. 

v.  Lombas:  2162. 

v.  Patapsco  Guano  Co.:  1731. 

v.  Pinkerton:  1349. 

v.  Prudential  Ins.  Co.:  145. 
:g,.,,,  v.Waldby:   331,  1314. 
Sims  v.  American  Steel  Barge  Co.: 
1621. 

v.  Bond:  2025. 

V.Britten:  333. 

v.  Landray:  2320. 

v.  McEwen:  1579. 

v.  Midland  R.  Co.:  1263. 

v.  Miller:  2522,  2524. 

v.  Sealy:  49. 

v.  Smith:  142,  167. 

v.  St.  John:  2399. 

v.  United  States  Trust  Co. :   977. 
Simson   v.   New  York,   etc.,   R.   Co.: 

1098. 

Sina  v.  Carlson:  1896. 
Sinclair  v.  Bowles:  1577. 

v.  Goodell:   952. 

v.  National     Surety     Co.:     2362, 

2497. 
Slmesv.  Superintendents  of  the  Poor: 

605. 

Singer  v.  Guy  Investment  Co.:    285, 
291. 

v.  McCormick:   609. 
Singer,  etc.,  Co.  v.  Christian:  285. 

v.  Hutchinson:   285. 
Singer  Mfg.  Co.  v.  Belgart:  368. 

v.  Brewer:  1532. 

v.Chalmers:   2327. 

V.Christian:  296,  410. 

v.  Flynn:  471. 

V.Hancock:   1974,  1975. 

v.  Holdfodt:    266,  267,  280,   2015, 
2016. 


2393 


TABLE   OF    CASES    CITED 
[References   are  to  sectional  §§  1-1705,  Vol.   I;   §§   1700-2588,  Vol.  II.] 


Singer  Mfg.  Co.  v.  King:    1457. 
v.  McLean:  982. 
v.  Rahn:  37,  1894,  1973. 
v.  Taylor:   1981. 
Singer   Sewing   Mach.   Co.   Y.   Union 

Button  Hole  Co.:  644. 
Singers-Bigger  v.  Young:  118. 
Singleton  v.  Bank:  1818. 

v.  Bank  of  Monticello:  1835. 
v.Mann:  160,  167. 
v.  O'Blenis:   2445. 
Singmaster  v.  Beckett:  1324. 
Singo  v.  Brainard:  2290. 
Sining  v.  Bentham:  1494. 
Sioux  City,  etc.,  Co.  v.  Magnes:   742. 
Sioux  City,  etc.,   R.   Co.  v.  Walker: 

1287. 
Sioux  City  Nursery  Co.  v.  Magnes: 

869,  870. 
Sioux  City  R.  Co.  v.  First  Nat.  Bank: 

760,1801. 
Sioux  City  Stock  Yards  v.  Friburg: 

1350. 
Sioux  Remedy  Co.  v.  Lindgren:    48, 

2499. 

Sipe  v.  Pennsylvania  R.  Co.:  1920. 
Sipes  v.  Michigan  Starch  Co.:  1671. 
Sirkin   v.    Fourteenth    Street   Store: 

118. 

Skaggs  v.  Murchison:  779. 
Skelley  v.  Kahn:   1281. 
Skelton  v.  Transp.  Co. :  1046. 
Skiff   v.    Stoddard:    716,    2386,    2389, 

2394. 

Skillern  v.  Baker:  1803. 
Skilling  v.  Bollman:   2563. 
Skinner  v.  Dayton:  421,  491,  566. 
v.  Ft.  Wayne,  etc.,  R.  Co. :  577. 
v.  Gunn:  882,  886. 
v.Hughes:  2000. 

Skinner    Engine    Co.    v.    Old    Staten 

Island  Dyeing  Establishment:  2093. 

Skipp   v.    Eastern    Counties   R.   Co.: 

1633. 
Skipper   v.    Clifton    Mfg.    Co.:    1946, 

1950. 
Skirvin  v.  O'Brien:  420,  479,  652,  779, 

784,  824. 

Skoll,  In  re:  2251. 
Slack  v.  Kirk:  1600. 
Slade  v.  Squier:   1735. 
Slagle  v.  Russell:   2435,  2457,  2477. 


Slater    v.     Advance    Thresher    Co.: 
1875,  1888,  1894,  1945,  1950. 

v.  Capital  Ins.  Co.:  1051. 

v.  Cook's  Estate :  1526. 

v.  Oriental  Mills:  1350. 
Slattery  v.  Schwannecke:  1809. 
Slaughter  v.  Elliot:  169. 
Slawson  v.  Loring:   1135,  1138,  1144, 

1157,  1161,  1162. 
Slayback  v.  Wetzel:   2430,  2440. 
Sleath   v.   Wilson:    1888,   1899,   1945, 

1950. 
Sleeper  v.  Abbot:  2311. 

v.  Chapman:   2082. 

v.  Murphy:  472. 
Slemmer's  Appeal:  566. 
Sligh   &  Co.   v.   Kuehne  Commission 

Co.:  48,  2499. 
Sloan  v.  Brown:   854,  848,  2117. 

v.  Central  Iowa  R.  Co.:  320,  335, 
718,  1042. 

v.Johnson:   489. 

v.Merrill:  2062. 

v.  Sloan:  285. 

v.Williams:  309,  2164. 
Slocum  v.  Oilman:  410. 

v.  Ostrandef:  2470. 
Small  v.  Elliott:  1386. 

v.Housman:   1803. 

v.  Howard:  1278. 

v.  Lowrey:  102,  121. 

v.  Lumpkin:  175. 

v.Owings:   236. 
Smalley  v.  Greene:   2164. 

v.Morris:  1995. 
Smallwood  v.  Norton:  2196. 
Smart  v.  Sandars:  573,  585. 

v.  Sanders:  2503,  2527. 
Smathurst  v.  Mitchell:  1745. 
Smedes  v.  Bank  of  Utica:  1282,  1303. 
Smelker  v.  Chicago,  etc.,  R.  Co.:  2283. 
Smelthurst  v.  Mitchell:   1731. 
Smiley   v.    Building   &   Loan   Ass'n: 
2163. 

v.  Mayor:   219. 
Smilie  v.  Hobbs:  884. 
Smith,  Matter  of:  2264,  2269. 
Smith  v.  Adelberg:   2447. 

V.Alexander:   1172,  2210. 

v.  Allen:  227,  798,  2437. 

V.Anderson:   2455. 

V.Armstrong:  229. 


2394 


TABLE   OF    CASES    CITED 


[Reference*   are  to  Heetions:   §§  1-1705,  Vol.  I;  §§   1700-2588,  Vol.  II.J 


Smith  v.  Arnold:   2320. 
v.  Bailey:   724,  1454. 
v.  Baker:  1666,  1668,  1674. 
v.  Bank:  280,  281. 
v.  Bank  of  New  England :  219. 
v.  Barnard:  435. 
v.Barnes:  1350,  2162. 
v.  Bayer:  2023. 
v.  Belshaw:  1870. 
v.  Binder:  1435,  1436,  2225. 
v.  Blachley:  102. 
v.  Black:  2151. 
v.  Bond:   1406. 
v.  Bossard:  2162. 
v.  Bradhurst:   2162. 
v.Brady:   1533,  1577. 
v.  Brotherline:    1192,   1215,   1219, 

2290. 

v.  Browne:  285,  800,  814. 
v.  Caldwell:    2309. 
v.  Carmack:  1844. 
v.  Causey:  2009. 

v.  Cayuga  Lake  Gem.  Co.:  2281. 
V.Chicago,    etc.,    R.    Co.:     2246, 

2276,  2281,  2283. 
v.  Clews:  848,  2112. 
v.Colby:  1454. 
v.Collins:   462. 
v.  Cologan:   433,  489. 
v.Conlin:   226. 
v.  Couch:   2247. 
v.  Craft:  2290. 
v.  Craig:  2386,  2387. 
v.  Crego:  2302. 
v.  Crews:   2551. 
v.  Crockett  Co.:  118. 
v.Cunningham:  2162. 
v.  Dare:  580. 
v.  Davenport:   156. 
v.Davis:  2230,  2231. 
v.  Des  Moines  Nat.  Bank:  2100. 
v.  Dickinson:  212. 
v.  Dixon:  2163. 
v.  Drake:  1202. 
v.  Droubay:    710,  739,  854. 


v.  Essex  Bank:   1431. 

v.  Evans:   2281. 

v.  E.    W.    Backus    Lumber 

1630. 

v.  Fairchild:   806,  2438. 
v.  Farrell:  1818. 
v.  First  Nat.  Bank:  932. 


Co.: 


Smith 
v. 
v. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
"  V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


v.  Fletcher:    461,  463. 
Flint,  etc.,  R.  Co.:  1644. 
Foran:    1291,  1292. 
Fowler:    625,   2446,   2456. 
Gayle:  2222. 
Georgia:  263. 
Gibson:    972. 
Gilbert  Lock  Co.:  1557. 
Glover:   194,  198. 
Goode:    2284. 
Hall:   934. 
Hammond:  1333. 
Hartsell:   110. 
Hay  ward:    1553,   1554. 
Herring-Hall-Marvin  Safe  Co.: 

610. 

Hill:   1582. 
Holbrook:   444. 
Hooper:   285. 
Kurd:   1479. 
Hurley:   2347. 
Hutton:  283. 
James:  894,  946. 
Jefferson  Bank:   2503,  2514. 
Johnson:  960. 
Jones:  2181. 

Jordan:  156,  1859,  1912,  2190. 
Keal:  2184,  2227. 
Keeler:  808,  2396,  2437. 
Kelley:  1439. 
Kidd:    395,   400,   412,  443,  936, 

937,  945,  958,  2180. 
Kimball:  563,  2449,  2459. 
Kron:    147,  1774. 
Lamberts:   946. 
Landecki:  936. 
Lane:  618. 

Lascelles:  1298,  2532. 
Lawrence:   2430. 
Leveaux:   1343. 
Lindo:    2480. 
Long:   2309. 
Louisville,  etc.,  Railroad  Co.: 

1213. 

Lowther:  306,  307. 
Lozo:  507. 
Lyon:  2047. 
McGovern:  2435. 
McGregor:   1001. 
McGuire:   707,  737,  856. 
McNair:   2364. 
Miller:  1304. 


2395 


TABLE   OF    CASES    CITED 


[Reference*  are  to  tteettons:  g§  1-1705,  Vol.  I;  g§  1T06-258*,  Vol.  II.] 

Smith  v.  Milwaukee  Bld'rs,  etc.,  Ex-      Smith 


760. 


2126. 


change:  1870. 
V.Missouri,  etc.,  R.  Co.: 
v.Moore:    1480. 
v.  Morrill:   2072,  2079. 
v.  Mulliken:  2162. 
v.  Munch:  1973. 
v.Nashville,  etc.,  R.  Co.: 
v.  National  Bank:  331. 
v.  Nelson:  2320. 
v.  Newburgh:  359,  367. 
v.  Niagara  Ins.  Co. :  1074,  1075. 
V.Oxford  Iron  Co.:  1619. 
v.  Parker:   382. 
v.  Peach:  1911. 

v.  Peninsular  Car  Works:  1625. 
V.Penny:  1100. 
v.  Perry:  212,  901. 
v.  Peyrot:   2447,  2467. 
v.  Pierce:   1098,  1734,  1735,  2064. 
v.  Plummer:  1731. 
V.Powell:   824,  946. 
v.  Preiss:  2445. 

v.  Prosser:    707,  1986,  1992,  2111. 
v.  Provident  Loan  Ass'n  Co.:  716. 
v.  Provident  Savings  Soc.:  1060. 
V.Pullman  Co.:  267. 
v.  Railroad  Co.:  1866. 
V.Reynolds:   2000. 
v.  Rice:  2517. 
V.Richmond:    102. 
v.  Robinson  Bros. :  1046. 
v.  San   Francisco,  etc.,  Co.:    116. 
v.San    Francisco,    etc.,    R.    Co.: 

308,  585. 

v.  Savin:  527,  2119. 
v.  Savings  Bank:   504. 
v.  Schiele:  432,  471,  1536,  2447. 
v.  Sharp:   2455. 
v.  Sibley  Mfg.  Co. :  475. 
v.  Simmons:  1870. 
v.Sorby:   118,  2137. 
v.  South  Royalton  Bank:  1853. 
v.  Stephenson:  1005. 
v.  St.   Louis,   etc.,  R.   Co.:    1624, 

1632. 

v.  St.  Paul  R.  Co.:  604. 
v.  Sublett:   306,  318,  2514. 
v.  Swan:  315. 
V.Theobald:  602. 
v.  Townsend:     118,     1590,     2412, 

2474. 


v.   Tracy:    412,   504,   506,   716, 
882,  1086,  2403,  2506. 

v.  Tramel:  361,  364. 

v.  Tripis:   1590. 

V.  Truitt:   2457. 

v.Tyler:  1198,  1226,  2131. 

v.  Union  Bank  of  London:   2111. 

v.  Varawa:   386. 

v.  Vicksburg,  etc.,  R.  Co.:   227fi. 

v.  Ward:  2548. 

v.Webster:  1874. 

v.  White:    675,  2423. 

v.  Williams:  253,  885. 

v.Wilmington,  etc.,  R.  Co.:  1661. 

v.  Wolf:  2002. 

v.  Wright:  716,  2277. 
Smith  Meat  Co.  v.  Oregon  R.:  1046. 
Smith  Premier  Typewriter  Co.  v.  Na- 
tional Light  Co.:  910. 
Smith  Table  Co.  v.  Madsen:  854,  855. 
Smith's  Appeal:  601. 
Smith  &  Co.  v.  Collins:  849. 
Smith  &  Wallace  Ins.  Co.  v.  Prussian 

Ins.  Co.:  300. 
Smither,.  Ex  parte:  585. 
Smithson,  In  re:  2276. 
Smits  v.  Hogan:  2220. 
Smitz   v.    Leopold:    1198,    1207,    1223, 

1226. 

Smock  v.  Bade:  946,  2183. 
Smoot  v.  Shy:  2281. 
Sraout  v.  Ilbery:   1366,  1378,  1398. 
Smuller  v.  Union  Canal  Co.:  1349. 
Smyley,  In  re:  2207. 
Smyth  v.  Anderson:   1744,  1750. 

v.Craig:    577. 

v.  Harvie:  2182,  2204. 

v.  Lynch:  347,  422,  424,  485. 
Smythe  v.  O'Brien:  1524. 

v.  Parsons:  1268. 

S.  &  N.  Ala.  R.  Co.  v.  Heinlein:  299. 
Snead  v.  Watkins:  1687. 
Snell  v.  Bray:  1984. 

v.Georgia:  2543. 

v.  Goodlander:    1207,    1225,    122C. 

v.  Pells:  1332. 

v.Warner:  2556. 

v.  Weyerhauser :  781,  805. 
Snelling  v.  Arbuckle:  48,  2499. 
Snider  v.  Adams  Express  Co.:  2031. 

v.  State:   2008. 
Snodgrass  v.  Butler:  1331. 


2396 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Snody  v.  Shier:   903. 
Snook  v.  Davidson:  2484. 
Snow  v.  Carr:  524,  1327. 

v.Gould:  2302,  2312. 

v.Grace:   395,  435,  441. 

v.  Hix:  963. 

v.  Housatonic  R.  Co.:   1631,  1644. 

v.  Macfarlane:  1225. 

v.Warner:   707,  743. 

v.  Wathen:  1048. 
Snowball,  Ex  parte,  690. 
Snowdon  v.  Davis:  1440. 
Snyder,  Matter  of:  2242. 
Snyder  v.  Castor:  1517. 

v.  Commercial  Union  Assur.  Co.: 
2368. 

v.  Dwelling  House  Ins.  Co.:  1074. 

v.  Fearer:  1536. 

v.  Fidler:  2449,  2470. 

v.  Partridge:  1808,  1809. 

v.Reno:  2364. 

v.  Snyder:  2243. 

v.  Van  Doren:  978. 

v.  Wolford:  233,  1192,  1194. 
Soames  v.  Spencer:  429,  509,  523. 
Societe    des    Mines    v.    Mackintosh: 

1145,  1826,  2137. 
Sodiker  v.  Applegate:   51. 
Soeder  v.  St.  Louis,  etc.,  R.  Co.:  1661. 
Soens  v.  Racine:   198,  199. 
Soggins  v.  Heard:   1192. 
Sohns  v.  Beavis:  2348. 
Sokup  v.  Letellier:  435,  441. 
Solberg  v.  Schlosser:  1871. 
Solee  v.  Mengy:  2556. 
Solly  v.  Rathbone:  1705,  2514. 
Solomon  v.  Kirkwood:  566. 

v.  Wass:  1342. 
Solomons  v.  Dawes:  534. 

v.  United  States:  1214. 
Solt  v.   Williamsport   Radiator   Co.: 

1671,  1673,  1676. 
Soltau  v.  Gerdau:   2509,  2511. 
Somers  v.  Germania  National  Bank: 
291. 

V.Rogers:  143. 

v.  Wescoat:  233,  257,  2435. 
Somerset  v.  Hart:   2006. 
Somerville  v.  Wabash  R.  Co.:  474. 
Somes  v.  Equitable  Safety  Ins.  Co.: 

2030,  2371. 
Sommer  v.  Conhaim:  1556. 


Sonneborn  v.  Moore:   2181. 
Sonnenschein    v.    Max    Malter    Co.: 

285. 

Sooy  v.  State:  1806. 
Soronen  v.  Von  Pustau:  1787. 
Sorrell  v.  Brewster:  246. 
Sotsky  v.  Ginsburg:  2447. 
Souch  v.  Strawbridge:  601. 
Souhegan  Bank  v.  Wallace:  1332. 
Souhegan   Nat.    Bank   v.   Boardman: 

1145,  1151,  1152,  1162. 
Soule  v.  Deering:  2411,  2477. 
Soulsby  v.  Hodgson:   310. 
Southack  v.  Ireland:  1701. 

v.  Lane:  1591. 
South  Baltimore  Car  Works  v.  Schae- 

fer:  1615. 
South  Bend,  etc.,  Co.  v.  Dakota  Ins. 

Co.:  295,  296. 
South  Bend  Toy  Co.  v.  Dakota  F.  & 

M.  Ins.  Co.:   60. 

South  Berwick  v.  Huntress:   213. 
South  Chicago  City  R.  Co.:  v.  Work- 
man: 1595. 

Southcote  v.  Stanley:   1483,  1642. 
South    Covington    C.    St.    R.    Co.    v. 

Reigler's  Adm'r:   1799. 
Southerland  v.  Wilmington  &  W.  R. 

Co.:   1783. 

Southern  Badge  Co.  v.  Smith:  1176. 
Southern  Car  Co.  v.  Adams:  1790. 
Southern   Cotton   Oil   Co.   v.   Shreve- 

port  Cotton  Oil  Co.:  850. 
v.Walker:  1668. 
Southern   Exp.   Co.   v.   Brown:    1860, 

2016. 

v.  Craft:   2031. 
v.  Fox:   1783. 
v.  Palmer:   410. 
v.  Flatten:   267,  280,  289. 
v.  State:  2000. 
Southern  Kan.  R.  Co.  v.  Croker:  1630. 

v.  Pavey:   2162. 

Southern  Life  Ins.  Co.  v.  Booker:  979. 
Southern  0.  R.  Co.  v.  Morey:  1918. 
Southern   Pac.   Co.   v.   Hetzer:    1632, 

1644. 

v.  McGill:   1644. 
v.  Seley:  1615. 

v.  Von  Schmidt  Dredge  Co.:  1176. 
v.  Lafferty:  1866. 
Southern  Pine,  etc.,  Co.  v.  Fries:  296. 

2397 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-17O5,  Vol.  1;  gg   1706-2588,   Vol.  II.] 


Southern  R.  Co.  v.  Adams  Machine 

Co.:   276. 
v.  Brister:   994. 
v.  Grant:   285,  341. 
v.  Grizzle:   1461,  2011. 
v.  James:  1953,  1979. 
v.Jones:  2063. 
v.Lewis:    1918. 
v.Lyons:   1627. 
v.  Raney:  921. 
v.Reynolds:  1461,  2011. 
v.  Rowe:  1487. 
v.  Shields:   1678. 
v.  White:   2299. 
Southgate  v.  Atlantic  &  Pacific  R.  Co. : 

219. 
South    Melbourne    Bldg.    Society    v. 

Field:   933. 
South  &  North  Ala.  R.  Co.  v.  Hein- 

lein:   285,  296. 
South   Side  Elev.  R.   Co.  v.  Nesvig: 

1622. 
South wark  Water  Co.  v.  Quick:  2299, 

2310. 

Southwell  v.   Bowditch:    1174,   2419. 
South   West   Improv.   Co.   v.   Smith: 

1632,  1633. 
South    Western    Port    Huron   Co.    v. 

Wilber:   2463. 

Sowden  v.  Idaho  Mining  Co.:   1624. 
Sowler  v.  Day:  1803. 
Spader  v.  Mfg.  Co.:   620. 
Spaight  v.  Cowne:  1803. 
Spain  v.  Arnott:  1548,  1577,  1588. 
Spalding  v.  Ewing:  86,  92,  102. 

v.  New  Hampshire  Fire  Ins.  Co. : 

1062. 

v.Rosa:  1572. 
v.  Salteil:  1536. 
Spande   v.    Western    Life,   etc.,    Co.: 

285. 
Sparkman   v.   Supreme   Council   Am. 

L.  of  H.:  1803. 
Sparks  v.  Despatch  Transp.  Co.:  1150, 

1153,  1162,  173G. 
v.  McDonald:   2269. 
v.  Reliable  Dayton  Motor  Car  Co. : 

1532. 

v.  Sparks:   2302,  2311. 
Sparr  v.  Cass:  1403. 
Spaulding  v.  Adams:   1688. 

v.  New  York  Life  Ins.  Co.:  1532. 


Spaulding  v.  Saltiel.  2457. 

v.  State:  2297. 

v.  Swift:    2156. 

Spaulding  Lumber  Co.  v.  Stout:  929. 
Spear  &  Tietjen   Supply  Co.   v.  Van 

Riper:  918. 
Spears  v.  Lawrence:  171. 

v.  Ledergerber :  2163. 
S.  Pearson  &  Son  v.  Dublin  Corpora- 
tion: 1996. 

Spedding  v.  Nevell:   1398,  1400. 
Speer  v.  Craig:   807. 
Spees  v.  Boggs:  1654. 
Spellman  v.  Richmond,  etc.,  R.  Co.: 

2016. 

Spelman  v.  Mining  Co.:   341,  994. 
Spence  v.  Harvey:   93,  98. 

v.  McMillan:   1692. 

v.Wilmington  Cotton  Mills:    359. 

v.Wilson:   2023. 
Spencer  v.  Blackman:   1256,  1457. 

v.  Brooks:   1652. 

v.  Busch:   2231. 

v.  Field:   1100,  1116,  1119,  2064. 

v.  Huntington:   1734,  1735,  2064. 

V.Mali:  2110,  2129. 

v.  McCament:   933. 

v.  Perry:  1494. 

v.  Razor:    2309. 

v.Reynolds:  679,  2314. 

v.  Smith:   2207. 

v.  Towles:   1258. 

Spencer  Lumber  Co.  v.  Marsh:   1041. 
Spencer's  Appeal:  2286. 
Speyer  v.  Colgate:   2414. 
Spindel  v.  Cooper:   606. 
Spinks  v.  Clark:  1207. 

v.  Georgia  Granite  Co. :  624. 
Spittle  v.  Lavender:   542. 
Spiva  v.  Osage  Coal  &  Min.  Co.:  1671. 
Spoffard  v.  Hobbs:   420. 
Spofford  v.  Norton:   2023. 
Spokane  v.  Patterson:   2008. 
Spokane  County  v.  First  Nat.  Bank: 

1350. 
Spokane  Truck  &  Dray  Co.  v.  Hoefer: 

2014. 

Spongberg  v.  First  Nat.  Bank:   405. 
Spooner  v.  Browning:    274,  861. 

v.  Holmes:   1457,  2111. 

V.Thompson:  395,  435,  438,  1030. 
Spors  v.  Shultheis:  2283. 


2398 


TABLE   OF    CASES    CITED 


[References   are  to  sections: 


1-1705,  Vol.  I; 


170C-25SS,  Vol.   II.] 


Spotswood  v.  Barrow:  609. 

v.  Bentley:   101. 

Sprague  v.  Bailey:  200. 

v.  Currie:   2386. 

v.  Gillett:  918. 

v.  New  York,  etc.,  R.  Co.:  1635. 
v.  Reilly:    2479. 
v.  Warren:    111,    112,    121,    1602, 

2481. 

Spraights  v.  Hawley:  1442,  1456,  1457. 
Spratt  v.  Hugard:  169. 
Sprent  v.  Bowes:   1174. 
Spring  v.  Ansonia  Clock  Co.:   1573. 

v.  Insurance  Co.:  2484. 
Springer  v.  Bien:  1579. 
v.  Kleinsorge:   2320. 
v.  Orr:    2448. 
Springfield   Consolidated  R.   Co.:    v: 

Welsch:  1799. 
Springfield    Engine    Co.    v.    Green: 

1975. 
Springfield  Engine  &  Thresher  Co.  v. 

Kennedy:  628,  902,  903. 
Springfield    Fertilizer    Co.    v.    Tomp- 

kins:  2533. 
Springfield   F.   &  M.   Ins.   Co.   v.   De 

Jarnett:   306,  317,  333. 
v.  Price:  1067. 

Springfield  Mfg.  Co.  v.  Lincoln:  2553. 
Springfield   Savings  Bank  v.  Kjaer: 

938,  965. 
Springfield    Steam    Laundry    Co.    v. 

Traders'  Ins.  Co.:  1065. 
Spring  Valley  Coal   Co.   v.   Patting: 

1671. 

v.  Rowatt:  1671. 
Sproat  v.  Porter:   187. 
Sproul  v.  Sloan:  2389,  2415. 

v.  Standard  Glass  Co.:   1817. 
Spruill  v.  Davenport:   2525. 
Spry  Lumber  Co.  v.  McMillan:   915, 

916,  1422. 

Spurlock  v.  Dornan:  148. 
Spurr  v.  Cass:  2059,  2061. 
v.  Mining  Co.:   2156. 
v.Trimble:   212. 
Squire    v.    Hanover    Fire    Ins.    Co.: 

1055. 

v.  New  York,  etc.,  R.  Co.:  1046. 
v.Wright:    1557,  1560. 
Squires  v.  Barber:   2079. 
v.  King:  1535,  2467. 


Sroufe  v.  Moran  Bros.:    1624,  1654. 
Staats   v.   Pioneer   Insurance   Ass'n: 

300,  1066. 

Stables  v.  Eley:   724. 
Stacey  v.  Graham:  1346. 
Stackhouse  v.  O'Hara:  2183. 
Stackpole  v.  Arnold:   236. 
Stacpoole  v.  Betridge:    1477. 
Stacy    v.    Dane    County    Bank:    331, 
1313,  1314. 

v.  Graham:  1340. 
Stadleman  v.  Fitzgerald:    227. 
Staehlin  v.  Kramer:   2459. 
Stafford  v.  Adams:  1671. 

v.  Lick:   772. 

v.  Republic  Iron  Co.:  1676. 
Stagg    v.    Connecticut    Mut.    L.    Ins. 
Co.:   1532. 

v.Elliott:  1124. 
Stainback  v.  Read:  707,  754,  782,  783, 

946,  973,  974. 
Stainer  v.  Tysen:  976. 
Staley  v.  Hufford:  2447. 
Stallings  v.  Hullum:    2308,  2309. 
Stamets  v.  Deniston:   1543. 
Stanard  Milling  Co.  v.  Flower:    410. 
Standard   Elevator  Co.   v.   Brumley: 

1522. 
Standard   Leather   Co.   v.   Allemania 

F.  Ins.  Co.:  462. 

Standard  Oil  Co.  v.  Anderson:   1860, 
1861. 

v.  Commission:    2008. 

v.  Gilbert:  566,  605. 

v.  Linol  Oil  Co.:  285,  1783. 

v.  Triumph  Ins.  Co.:   2366,  2368. 

v.  Van  Etten:   2547. 
Standidge  v.  Chicago  Railways:  2276, 
2283. 

v.  Lynde:  610. 
Standifer  v.  Swann:  220. 
Standley  v.  Clay,  etc.,  Co.:   246,  271. 
St.    Andrews   Land   Co.   v.   Mitchell: 

130,  132. 

Stange  v.  Gosse:   1536,  2447. 
Stanley  v.  Bouck:   2281. 

v.  McCor.nell:   1216. 

v.  Schwalbey:   1803,  1804,  1833. 
Stansbury  v.  United  States:   1229. 
Stansell  v.  Celeveland:    2132. 
Stanton  v.  Barnes:   2447. 

v.  Bell:   1280,  1281. 


2399 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  g§  1-1705,  Vol.  I;  gg  1700  25SS,  Vol. 


Stanton  v.  Camp:  1166. 

v.  Embrey:  86,  98,  101,  1527, 
1528,  2231,  2234,  2236,  2245, 
2246. 

V.French:   933. 

v.  Granger:  386,  1098,  1734,  1735. 

v.  Hart:  2311. 

v.  McMullen:   1611. 

v.  New  York,  etc.,  R.   Co.:    193, 

382. 
Stan  wood  v.  Trefethen:  872. 

v.  Wishard:  2293. 
Staples  v.  Bradbury:  652. 

v.  Schmid:   1973,  2015. 

v.  Staples:  1846,  2212. 
Stapp  v.  Godfrey:   2475. 

v.  Spurlin:  915. 
Star  Line  v.  Van  Vliet:   789. 
Starbird  v.  Curtis:  920. 

v.Moore:   143. 
Starbuck  v.  Murray:  2159. 
Starin  v.  Mayor,  etc.,  of  New  York: 

2246. 
Stark  v.  Hart:  2258,  2314. 

v.  Highgate  Archway  Co.:   2322. 

v.Parker:  1576,  1577. 
Starke  v.  Kenen:   2162. 
Starkey  v.   Bank  of  England:    1365, 

1368,  1374,  1398,  1400. 
Starks  v.  Sikes:  483,  501. 
Starkweather     v.     Benjamin:     1456, 
1458. 

v.Goodman:  992. 

Staroske  v.  Pulitzer  Pub.  Co.:  578. 
Starr  v.  Galgate  Ship  Co.:   395. 

v.Hall:   2163. 

v.  Haskins:   2082. 

v.  Mutual  Life  Ins.  Co.:  1055. 

v.  Vanderheyden :  2290. 
Starr    Piano    Co.    v.    Morrison:    895, 

2108. 
State  v.  Anderson:   2008. 

v.  Armstrong:  2008. 

v.Atchison:    2008. 

v.  Atherton:    823. 

v.Bacon:  2009. 

v.  Baker:  2008,  2147. 

v.  Ballinger:   2182. 

V.Baltimore,  etc.,  R.  Co.:  2008. 

V.Baltimore,  etc.,  S.  Co.:  2008. 

v.  Bank:    762,  774. 

v.  Banks:   1010. 


State 
v. 
v. 

V. 

V. 
V 

V. 

v. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
/  .6fym 

V. 


v.  Bank  of  Commerce:    1350. 

Barker:   1493. 

Barter:   26. 

Beardsley:    2154. 

Bell:  313. 

Blasdel:   1493. 

Boies:   20G3. 

Boring:   212. 

Brandenburg:  82,  124. 

Bristol  Savings  Bank:   301. 

Brown:  45,  2308,  2310. 

Buchanan:  366. 

Burke:   2008. 

Cadwell:  2188. 

Cain:  2007. 

Carlisle:  208. 

Carothers:   2155. 

Chase:   1493. 

Chilton.  716,  893. 

Clausen:  1679. 

Clay:  148. 

Clifford:  2163. 

Commissioners:  1498. 

Commissioners  of  Cass   Coun. 

ty:    1172. 
Conkling:  2319. 
Constantine:   2007,  2008. 
Crawford:   2008. 
Cray:   2008. 
Creamer:   1679. 
Delafleld:   893,  2404. 
Denoon:   2008. 
Des  Chutes  Land  Co. 
Dickmann:   169. 
District  Court:  2314. 
Dow:  2008. 
Doyle:  1493. 
Drew:  1493. 
Dubuclet:  1493. 
Executors  of  Buttles:  366. 
Fagan:   2008. 
Falk:    2006. 
Falsetta:  2305. 
Faulkner:    2303. 
Fellows:   294. 
Field:  141. 
Fiske:   313. 
Fitzgerald:    2305. 
Flinn:    1494. 
Foster:  252,  1350. 
Frazier:  2161. 
Frisch:  360. 


,886 
gniiqB 

763. 


.£SH  ,816 

.7    jfOti 


.v 


2400 


TABLE   OF    CASES    CITED 


[References   are  to  elections:   §§  1-1705,  Vol.  Ij  §§  1706-2588,  Vol.  II.] 


State  v.  Garibaldi:   313. 
v.  Gilmore:  2008.. 
v.  Governor:   1493. 
v.  Greensdale:  1335. 
V.Harris:   285,  2154. 
v.  Hartfiel:   2007. 
V.Hastings:    763. 
v.  Hauser:   313. 
v.  Hays:  763,  2006. 
v.  Hedgepeth:   2308. 
v.  Henderson :   291. 
v.  Herbert:    2308. 
v.  Hobden:  2311. 
v.  Holmes:   208. 
v.  Horan:   1796. 
v.  Houseworth :  2308. 
v.Houston:    1493,  2154. 
v.  Hubbard:   26. 
v.  Johnson:   1494,  2188. 
v.  Jones;    1459. 
v.  Kittelle:    2007,  2008. 
v.  Liffring:    1. 

v.  Loponio:  2299,  2305,  2310. 
v.  Malster:  1676. 
v.  Mathis:    359. 
v.  McCance:  2008. 
v.  McChesney:   2303. 
v.  McConnell:   2008. 
v.  McDaniel:   1796. 
v.  McDonald:  1498. 
v.  McGinnis:  2008. 
v.  McGrath:    2008. 
v.  Mewherter:  2302,  2303. 
v.  Midland  Bank:   1350. 
v.  Miller:   754,  861,  1801. 
v.  Moore:   1505,  2280,  2284. 
v.Morris,  etc.,  R.  Co.:   1959. 
v.  Muench:    2152. 
v.  Neal:  2008. 
v.Newton:  2007. 
v.  Nichols:  2008. 
v.  Ocean  Grove  Ass'n:  313. 
v.  O'Neill:   2059,  2063. 
v.  Passaic  Agr.  Soc.:    2008. 
v.  Paterson:  313. 
v.  Perry:  435,  2305. 
v.Phillips:  26. 
v.Portland:  2008. 
v.  Potter:  214. 
v.  Poulterer:  2319. 
v.  Price:  1493. 
v.  Reiley:  2008. 


State  v.  Riley:   652,  2314. 

v.  Rucker:    72,  2319. 

v.Schumacher:   2308. 

v.  Secretary  of  State:  1493. 

v.  Security  Bank:  2008. 

v.  Shaw:   366. 

V.  Shortell:  2008. 

v.Sims:  1339. 

V.  Skinner:  2006. 

V.  Smith:    435,    1873,    2006,    2007, 
2308,  2310. 

V.  Snowden:    2308. 

V.  Society  for  Prevention  of  Cruel- 
ty:  2006. 

v.  Spartensburg,  etc.,  R.  Co. :  424. 

V.Stafford:   2305. 

v.  Stamper:   2008. 

v.  State  Journal  Co.:  40,  53. 

v.  Steamboat  Co.:  2007. 

v.  St.  Louis,  etc.,  R.  Co. :  2064. 

v.  Tally:  2308. 

V.Thompson:   2498. 

v.  Torinus:   131,  366. 

v.  True:   2280. 

v.Walker:   563. 

v.  Warmouth:   1493. 

v.  Weher:  2008. 

V.  Weiss:  2008. 

v.  Wentworth:    2008. 

v.  White  Oak  R.  Co. :  2008. 

v.  Wiggin:    2006. 

v.Wilson:   360. 

v.  Wrotnowski :   1493. 

v.  Yellowday:  291. 

v.  Young:  213. 
State  Bank  v.  Evans:  975. 

v.  Johnson:   1783. 

v.Kelly:   407,  408,  412. 
State  Bank  of  St.  Johns  v.  McCabe: 

2098. 
State   ex   rel.    Carpenter   v.   O'Neill: 

1177. 

State  ex  rel.  EJgan  v.  Wolener:   1496. 
State  ex  rel.   Kennan  v.   Fidelity  & 

Deposit  Co.:  2189. 
State   ex  rel.   Thurmond  v.   City   of 

Shreveport:  313. 
State  Mut.  Fire  Ins.  Co.  v.  Brinkley 

Stave  &  Heading  Co.:  488. 
State    Savings   Bank   v.   Thompson: 
2098. 


2401 


TABLE   OF    CASES    CITED 


[Reference*  are  to  flection*:   §§  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  IT.] 


State,   use  of  Abell  v.  Western  Md. 

R.  Co.:   1657. 

Staten  v.  Hammer:  807,  816. 
Statler  v.  Ray  Mfg.  Co.:  1783. 
Staton  v.  Mason:  1975. 
Stauffer    v.    Linenthal:     1537,    2130, 

2467. 

St.  Claire  v.  Rutledge:  219. 
St.  Clara  Female  Academy  v.  North- 
western Nat.  Ins.  Co.:   1068. 
Steamboat  Co.  v.  Atkins:   2035. 

v.Wilkins:   1577. 
Steamboat    "New    World"    v.    King: 

1282. 

Steam  Dredge  No.  1:  1522. 
Steam  Navigation  Co.  v.  Wasco  Coun- 
ty:  1498. 

Steamship    Co.    v.    Emigration    Com- 
missioners:  2178. 

v.  Merchants'    Despatch    T.    Co.: 

1422. 

Steam  Stonecutter  Co.  v.  Myers:  1844. 
Stearns  v.  Felker:   2241. 

v.  Hochbrunn:   2417. 

v.Jennings:   2437. 

v.  Klug:   529. 

v.  Lake  Shore  R.  Co.:  1556. 

v.  Page:   1352. 

v.  Wollenberg:    2243,  2281,  2287. 
Stebbins  v.  Walker:   2077,  2566. 
Stedwell  v.  Hartman:   2238. 
Steele  v.  Dunham:   1494,  1495,  1499. 

v.  Ellmaker:   854,  2335. 

v.German  Ins.  Co.:  1054,  1073. 

v.  Gold  Fissure  Co.:  169. 

v.  Lawyer:  2477. 

V.Lewis:  126. 

v.  Lippman:  2467. 

v.May:  1888. 

v.  McElroy:   1099,  1105,  1390. 

v.  Rumore:  2467. 

v.Watson:  284. 
Steele-Smith  Grocery  Co.  v.  Potthast: 

915,  1424,  1731,  1750,  1752,  1755. 
Steele's  Case:  518. 
Steenburgh  v.  Miller:  2255. 
Steenerson  v.  Waterbury:   2247. 
Steenkamp  v.  Du  Toit:  1321. 
Steeples  v.  Newton:  1578. 
Steere  v.  Steere:  1194. 
Steffe  v.  Old  Colony  R.  Co.:  2152. 


Steffen   v.   McNaughton:    1896,   1903, 

1950. 

Steffens  v.  Nelson:  347,  349,  461,  484. 
Stehle  v.  Jaeger  Machine  Co.:    1670, 

1676. 

Steidl  v.  McClymonds:   2426. 
Steiger   v.    Third    Nat.    Bank:    2509, 

2578. 
Stein  v.  Kendall:  395. 

v.  Kremer:   2203. 

v.  Swenson:   2003. 
Steinbach  v.  Montpelier  Carriage  Co.: 

2463. 

Steinberger  v.  Young:  2474. 
Steinert  &  Sons  v.  Tagen:   2133. 
Steinhanser  v.  Spraul:  1477. 
Steinkamp-v.  Gaebel:  2162. 
Sleinman    v.     Baltimore    Antiseptic 

Laundry  Co.:  395,  1978. 
Steinmetz  v.  Pancoast:   2425. 
Steinmeyer  v.  Steinmeyer:  1814,  2176. 
Steinmueller  v.   Williams:    2474. 
Stemler  v.  Bass:   399. 
Stengel  v.  Sergeant:  797,  812. 
Stennett  v.  Pennsylvania  F.  Ins.  Co.: 

1072. 

Stensgaard  v.  Smith:   2454. 
Stenton,  Matter  of:  2264. 
Stenton  v.  Jerome:   2386,  2387. 
Stephani  v.  Southern  Pacific  R.  Co.: 

1650. 
Stephens  v.  Badcock:   333,  1288. 

v.  Board  of  Education:  1350,  2093. 

v.  Dubois:  2290. 

v.  Elwall:    546,  1457. 

v.  Farrar:  2276. 

v.  First  Nat.  Bank:    2024. 

v.  Metropolitan  St.  R.  Co.:   2281. 

v.  Olson:  2002,  2005. 

v.  Roper  Lumber  Co.:  988. 

v.  Weston:   2278. 

v.  White:   2211. 
Stephenson  v.  Lichtenstein:  1691. 

V.Sheffield  Brick  Co.:  1671. 

v.  Southern  Pac.  R.  Co. :  1946. 
Sterling,  Ex  parte:  2271. 
Sterling   v.    Aultman   Thresher   Co.: 

2463. 

Sterling  Bridge  Co.  v.  Baker:  1803. 
Stern  v.  Daniel:   2313. 

v.  Rosenheim :  1552. 
301,  1073. 
2402 


[References  are  to  sections:   §§   1-1705,  Vol.  I;  §g  1706-2588,  Vol.  It.] 


Sternaman    v.    Metropolitan    L.    Ins. 

Co.:  301,  1073. 

Sternberger  v.  Young:  2412. 
Stetson  v.  Briggs:  946. 

v.  Gurriey:   2509. 

v.  Patten:   212,  1397. 
Stetson-Preston  Co.  v.  Dodson:  441. 
Steuerwald  v.  Jackson:   291,  837. 
Steunkle  v.  Chicago,  etc.,  R.  Co.:  395. 
Stevens  v.  Adams:  2231. 

v.  Armstrong:  1861. 

v.  Biller:  2559. 

v.  Board  of  Supervisors:  1352. 

v.  Crane:  1561,  1562. 

v.  Dexter:    2196. 

v.Ellsworth:   2246,  2247. 

v.  Hill:   1447. 

v.  Lee:  1579. 

v.  Mongcs:   2231. 

v.  Reeves:   1269,  1586. 

v.Robins:   1696,  2559. 

v.  Schroeder:   628,  G34. 

v.  Sessa:  659. 

v.  Sheriff:    2237. 

v.  Stiles:  1211. 

v.Walker:  1279,  2194,  2212. 

v.Wilson:  2128. 

v.  Woodward:   1910. 
Stevenson  v.  Bear:  1984. 

v.  Blakelock:     1689,    1690,    2267, 
2273. 

v.  Ewing:   91,  2479. 

v.  Fidelity  Bank:  1321. 

v.  Hoy:   262. 

v.Kyle:    2075,    2077,    2090,    2094, 
2107,   2108. 

v.Morris  Machine  Works:    1537, 
2463. 

V.Mortimer:  2044,  2089. 

v.Valentine:  1457. 
Stevenson  Co.  v.  Fox:  904,  949,  954. 
Steward  v.  Church:  169. 
Stewart  v.  Aberdein:  2076. 

V.Austin:    1343. 

v.  Baruch:   1911 

v.  Beggs:   2246. 

v.Brooklyn,  etc.,  R.  Co.:  1934. 

V.California    Improvement    Co.: 
1861. 

v.Campbell:    304. 

v.  Climax    Road    Machine:    Co.: 
285. 


Stewart  v,  Cooley:  1494. 

v.  Cowles:  894,  981. 

V.Drake:   2386,  2484. 

v.  Flowers:    2269,  2276,  2280. 

v.  Fowler:  1533,  2431,  2441,  2447, 
244'8'. 

v.  Fry:  1447. 

V.Gregory:    2025.  ; 

v.Harris:    1202. 

v.  Houston,  etc.,  R.  Co.:   2236. 

v.  Kehrer  :•'  26. 

v.Lowe:  2554. 

v.  Lumber  Co.:  1946,  1950. 

v.Mather:  178,  179,  1198/1533, 
2413,  2436,  2437,  2447,  2475, 
2477. 

v.  Muse:  2410. 

v.  Orvis:   2480.  M  • 

v.  Parnell:   2481: 

V.  Pickering:  800,  1516,  2426,  2430. 

v.  Rounds:  262,  263. 

v.  Schall:   111. 

v.  Shannessy:    1408. 

v.  Smith:  1534,  2430,  2440. 

v.  Sonneborn:   1831. 

v.  Soubral:  1517.' 

V.Welch:   2237. 

v.  Wood:  227,  798,  814. 

T.  Woodward:    740,  866,  894,-  946, 

2574.  2575,  2576, 
Stewart  &  Co.  v.  Exum:  593. 
Stewartson  v.  Watts:   1782,  1783. 
St.  Felix  v.  Green:   2435. 
Stichtenoth  v.  Rife:  169. 
Stickley  v.  Mobile  Ins.  Co. :   1055. 
Stiebel  v.  Haigney:  349,  461. 
Stier   v.    Imperial   L.   Ins.   Co.:    594, 

586. 

Stiewal  v.  Lally:  2435. 
Stiewel  v.  Borman:   1474,  1477. 

v.  Lally:   2439,  2479. 
Stiger  v.  Bent:  936,  937.   ' 
Stikeman  v.  Flack:  191. 
Stiles  v.  Cardiff  Steam  Nav.  Co.:  1804. 

v.  McClelland:  601. 

v.  Western  R.  Co.:  1782,  1783. 
Still  v.  Hull:  1594. 

v.  San    Francisco,    etc.,    R.    Co. : 

1632. 
Stillman  v.  Fitzgerald:  425,  800. 

v.  Xorthrup:   2003,  2004. 
Stillwell  v.  Hamm:  2028. 


2403 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§   1-1705,  Vol.  I;  88  1706-2588,  Vol.   II.] 


Stillwell    v.    Staples:    377,    384,    512, 

525. 

Stilt  v.  Huidekopers:  2443. 
Stilwell    v.    Mut.    L.    Ins.    Co.:    902, 

2406. 
Stimpson  v.  Achorn:   1984. 

v.  Sprague:  1279,  1280. 
Stinchfield  v.  Little:  1093,  1101,  1102, 

1103,  1113. 

Stinde  v.  Blesch:   2435. 
Stinerville  Stone  Co.  v.  White:   2162. 
Stinson  v.  Gould:   2079. 

v.Sachs:  20G5. 

Stirling  Coal  Co.  v.  Fork:  1626. 
Stirn  v.  Hoffman  House  Co.:  854,  855. 
Stiter  v.  Thompson:    2064. 
Stitt  v.  Ward:  989. 
St.  James'  Club,  In  re:  187,  189,  190. 
St.  John  v.  Corn  well:  946. 

v.  Diefendorf :  2267,  2269,  2278. 
St.   John  &  Marsh  Co.  v.  Cornwell: 

403. 

St.  Johns  Mfg.  Co.  v.  Munger:   193. 
St.  Johnsbury,  etc.,  R.  Co.  v.  Hunt: 

38,  2133,  2134. 
St.  Joseph  F.  &  M.  Ins.  Co.  v.  Leland: 

1501. 

St.  Louis  v.  Clemens:  313. 
St.  Louis  Bank  v.  Ross:   2575. 
St.  Louis  Brew.  Ass'n  v.  Austin:  1350. 
St.  Louis  Cordage  Co.  v.  Miller:  1661, 

1662,  1666,  1667,  1671,  1673,  1674. 
St.  Louis  Electric,  etc.,  Co.  v.  Edison: 

1206. 
St.  Louis,  etc.,  Co.  v.  Parker:  246. 

v.Adams:   1782. 

v.  Barger:   1794. 

v.  Bennett:  985. 

v.  Birch:    1667. 

v.  Blocker:  45,  273,  919. 

v.  Brisco:  1794. 

v.  Britz:  1654. 

v.  Bryant:  1911. 

v.Clark:    2234. 

v.  Cumbie:   2031. 

v.  Dalby:   2016. 

v.  Dowgiallo:  1936. 

v.  Dupree:   1676. 

V.Elgin  Milk  Co.:  60. 

v.  Ford:  1909. 

V.Gilbert:   1783. 


St.  Louis,  etc.,  Co.  v.  Grove:   1011. 

v.  Hackett:  1960,  1968,  1973,  1982. 

v.Harvey:   1944. 

v.Hoover:  994. 

v.  Hudson:   1973. 

v.  Irwin:   1661. 

V.Jones:   306,  335,  789,  989,  1042. 

v.  Kelley:  1795. 

v.  Kelton:  1630. 

v.  Kinman:   285. 

v.  Knight:  760. 

v.  Knott:  1871. 

v.  Lamed:  760. 

V.Mathers:   118. 

v.Morris:  1678. 

v.  Morrow:  1973. 

v.Olive:  994. 

v.  Pell:  1977. 

v.  Pope:  1798. 

v.  Reames:    1896. 

v.  Rice:  1676. 

v.  Smith :   1288. 

v.  Thacher:  2060,  20C3. 

v.  Triplett:  1635,  1644. 

v.  Valirius:  1619,  1625. 

v,  Van  Zant:  1916. 

v.  Weaver:   KJ50,  1787. 

V.Welch:  1657. 

v.  White:   1671. 
St.  Louis  Gunning  Adv.  Co.  v.  Wana- 

maker:  349,  455,  715. 
St.  Louis  Packet  Co.  v.  Parker:   755. 
St.  Louis  Refrigerator  Co.  v.  Vinton 

Wash.   Mach.   Co.:    396,  407,  1987. 
St.  Louis  S.  M.  &  S.  R.  Co.  v.  Kelley: 

1798. 

St.    Louis   S.   R.    Co.   v.   Elgin   Con- 
densed Milk  Co.:  291. 
St.  Louis  St.  R.  Co.  v.  Brisco:    1798. 
St.  Louis  S.  W.  R.  Co.  v.  Bramlette: 
820. 

v.  Hynson:  1667. 
St.  Louis  T.  M.  &  S.  R.  Co.  v.  Green- 

thai:  1779. 

St.   Louis   Wire-Mill   Co.   v.   Consoli- 
dated Barb  Wire  Co.:  1782. 
St.  Louis  &  S.  F.  R.  Co.  v.  Apperson: 

2162. 

St.  Mary's  v.  Calder:   493,  495. 
Stockanum  Co.  v.  Lincoln:   2553. 
Stockbarger  v.  Sain:  2025,  2032,  2063. 


2404 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§   170C-2588,  Vol.  II.] 


Stockbridge  v.  Crooker:   1526. 
Stock  Exchange  Bank  v.  Williamson: 

969,  972,  998. 

Stocking  v.  Sage:  1603,  2558. 
Stockley    v.    Hornidge:     2219,    2220, 

2223. 
Stockton  v.  Crow:  285. 

v.  Demuth:    1782. 
Stockton   Ice  Co.   v.  Argonaut  Land 

Co.:  628. 

Stockwell  v.  Loecher:   296. 
Stockyards  Co.  v.  Fribourg:  1350. 
Stoddard  v.  Ford:  2280. 

v.  Ham:  1763. 

v.  Mcllwain:  926. 

v.  Sagal:  2246,  2261. 

v.  Treadwell:  1594. 
Stoddard,  etc.,  Mfg.  Co.  v.  Hrntley: 

2273. 
Stoddard     Woolen     Manufactory     v. 

Huntley:  1690,  1692. 
Stoddard's  Case:  486. 
Stoddart  v.  Key:  646. 

v.  United  States:  829. 

v.  Warren:  2406. 
Stoddart's  Case:  385. 
Stodden  v.  Anderson  Mfg.  Co.:  1620, 

1628. 

Stokely  v.  Robinson:   2162,  2183. 
Stokoe  v.  St.  Paul,  etc.,  R.  Co.:  2300, 

2307. 
Stokes  v.  Dewees:  777. 

v.  Frazier:   2386. 

v.  Mackey:  481. 

v.  Trumper:  2253. 
Stoll  v.  Sheldon:    2163. 
Stollenwerck  v.  Thacher:  285. 
Stoller  v.  Coates:  1350. 
Stolzman  v.  Wyman:  934. 
Stone  v.  Argersinger:   1538. 

V.Bancroft:  1554. 

v.  Bank  of  Commerce:  2161,  2162. 

v.  Cartwright:   14C3,  .1485. 

v.  Cronin:  291. 

v.  Daggett:    1198. 

v.Ellis:  142. 

v.  Ferry:   2435,  2459. 

v.  Franklin  Insurance  Co.:  300. 

v.  Goss,  etc.,  Co.:   1211. 

v.  Graves:  1494,  1495,  1496. 

v.  Hawkeye  Ins.  Co.:  1073. 

v.  Hills:  1874,  1876,  1898,  1904. 


Stone  v.  Hooker:  1611. 

v.  Insurance  Co.:  2368. 

v.  Minter:  2302. 

v.  North     Western     Sleigh     Co. : 
1783. 

v.  Slattery's  Adm'r:   2189. 

v.  State:   2327. 

v.  Vimont:   1559. 

v.  Wood:  1093. 
Stoner  v.  Weiser:    1226. 
Stoney  v.  McNeil:   2305,  2308. 
Storer  v.  Eaton:    1298. 
Storey  v.    Ashton:    1888,   1898,    1899, 
1945,  1950. 

v.  Fulham     Steel     Works:      606, 
1585. 

V.Wallace:  1980. 
Storms  v.  Mundy:  1831,  1834. 
Storrs  v.  City  of  Utica:  1919. 
Story    v.    Concord    &    Montreal    R.: 
1641. 

T.  Culber:    2243. 

v.  Flournoy:  1690,  2566. 

V.Hull:  2286. 

v.  Salomen:   112. 
Stothard  v.  Aull:  919. 
Stott  v.  Harrison:   2203. 

v.Rutherford:   2032. 
Stotts  v.  Bates:  167. 
Stoughton  v.  Baker:  306,  312. 
Stourbridge  v.  Brooklyn  City  P.  Co.: 

1641. 
Stout  v.  Ennis:  106. 

v.  Perry:  148,  169. 

v.  Smith:   2295. 
Stoutenburgh  v.  Fleer:  2249. 
Stovall  v.  Commonwealth:  1039. 
Stover  v.  Eycleshimer:   660. 
Stowe  v.  Morris:   156,  1859,  1912. 
Stowell  v.  Eldred:  1086,  1098,  1735. 
St.   Paul,  etc.,   Ins.   Co.   v.   Parsons: 

756. 

St.  Paul  F.  &  M.  Ins.  Co.  v.  Parsons: 
1072,  1077. 

v.  Shaver:    1071. 
St.  Paul  &  M.  Trust  Co.  v.  Howell: 

1803. 
St.  Paul  National  Bank  v.  Cannon: 

281,  934. 

St.  Paul  Water  Co.  v.  Ware:   1918. 
St.  Peter  v.  Donison:  312. 
Strachan  v.  Muxlow:   629,  937. 


2405 


TABLE   OF    CASES    CITED 


[References   are  to  section**:   88   1-1705,  Vol.  I)  gg   17O6-2588,  Vol.  II.] 


Strador  v.  Hydraulic,  etc.,  Co.:  1979. 
Strafford  v.  Republic  Iron  Co.:  1G70. 
Strahorn  v.  Union  Stock  Yard  Co.: 

2562,  25(54. 
Straight-Creek    Coal    Co.   v.    Haney: 

1798. 
Stranahan   Co.    v.    Coit:    1935,    1960, 

1967. 

Strasser  v.  Conklin:  441. 
Stratford  v.  Montgomery:   2362. 
Strattner  v.  Electric  Co.:   2163. 

V.Wilmington    City    Elec.    Co.: 

2152. 
Stratton  v.  Hussey:   2276,  2281,  2283. 

V.Nichols  Lumber  Co.:   1676. 

v.  Todd:   255,  262,  263. 

v.  Vachon:  2435,  2436. 
Stratton-White    Co.    v.    Castleberry: 

273. 

Strauch  v.  May:  1831. 
Straus  v.  Sparrow:  907. 
Straus  Gunst  Co.  v.  Sparrow:  1804. 
Strauss  v.  Brewing  Co.:   2467. 

v.  Meertief :  1543,  1554,  1559. 

v.  Phenix  Ins.  Co.:  1067. 
Strawbridge  v.  Swan:   1590,  2474. 
Strawn  v.  O'Hara:  742. 
Stray  v.  Russell:  1607. 
Street  v.  Houston  Ice  Co.:   113,  1523. 
Street  Lumber  Co.  v.  Sulivan:   1803, 

1813,  2085. 

Street  Railway  Co.  v.  Bolton:   1658. 
Streeten  v.  Robinson:  2151. 
Streeter  v.  Janu:  1097,  1734. 

v.  Johnson:  442. 

v.  Poor:  285. 

v.  Streeter:   1597. 

v.  Western  Wheeled  Scraper  Co.: 

1671. 

Streissguth     v.     National     German- 
American  Bank:  331,  1314. 
Strickland    v.     Capital    City    Mills: 
2307. 

v.  Magoun:  2389. 

v.Vance:   1803,  1804. 
Stringfellow  v.  Powers:   2445. 

v.  Brazelton:  285,  1831. 
Stringham  v.  St.  Nicholas  Ins.  Co.: 

210,  285. 

Stripling  v.  Maguire:  1590:  2474. 
Struckmeyer  v.  Lamb:  2297. 
Strodder  v.  Granite  Co.:   134. 


Strode  v.  Miller:  148. 
Stroemer  v.  Van  Orsdel:  92,  94. 
Strohecker  v.  Hoffman:  2236. 
Strong  v.  Buffalo  Land  Co.:  586. 

v.  Colter:  1455. 

v.  High:   1298. 

v.  International    Bldg.,    etc.,    Un- 
ion: 2194,  2251. 

v.  Mundy:  2207,  2230. 

v.  Prentice     Brown     Stone    Co.  : 
1536,  1537,  2463. 


o 


318,    333,    784, 


41. 


v.  Repide:  1202. 

v.Ross:  807. 

v.Stewart:     316, 
2525,  2554. 

v.Taylor:  2286. 

v.West:   316,  332,  967. 

v.  Western  Union  Tel.  Co.  : 
Stroter  v.  Brackenridge  :    1G9. 
Strother  v.  Railroad  Co.:  1934. 
Stroud  v.  Columbia,  etc.,  R.:   1782. 
St.  Stephen's  Church  v.  Pierce:  1112. 
Stuart  v.  Adams:   908. 

v.  Asher:  292,  301. 

v.  Commonwealth:  1039. 

v.  Mattern:  472. 
Stubbing  v.  Heintz:  914. 
Stubbs  v.  Mulholland:  1976. 

v.  Slater:  1588,  1589,  2425. 
Stubinger  v.  Frey:  2290. 
Stiller  v.  Hart:  1670. 
Sturdevant  v.  Pike:  1198. 
Sturdivant  v.  Hall:  1161. 

v.Hull:  1139. 

Sturdivant  Bank  v.  Schade:  608. 
Sturges  v.  Keith:  2529. 
Sturgis  v.  Galindo:   644. 

v.  Society:  1920. 
Sturm  v.  Boker:  48,  2499. 
Sturtevant  Co.  v.  Dugan  &  Co.:    48, 

2499,  2521. 

Sublette  v.  Brewington:  1026. 
Succession  of  Borge:  1334. 
Succession  of  Dowler:  2350. 
Succession  of  Krekeler:  1517. 
Succession   of   Labouve:    2258,    2260, 

2314. 

Succession  of  Landry:  2236. 
Suit  v.  Woodhall:   1808. 
Sullivan  v.  City  of  New  York:   2264, 
2272. 

v.Detroit,  etc.  R.  Co.:  604. 


2406 


TABLE   OF    CASES    CITED 


CReferencea  are  to  gectiong:  §8  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  IT.] 


Sullivan  v.  Fant.   285. 

v.  Franzreb:   2309. 

v.  Horgan:  90. 

v.  India,  etc.,  Co.:   1619. 

v.  India  Mfg.  Co.:  1625. 

v.Jones:  1494. 

v.  Leer:    798. 

v.Louisville  Bridge  Co.:   1624. 

v.Louisville,   etc.,   R.   Co.:    1946, 
1947,  1950. 

v.  McCann:  2281. 

v.  O'Keefe:  2243. 

v.Oregon,  etc.,  Co.:  1783,  2015. 

v.  Phenix  Ins.  Co.:    1865,  2368. 

v.  Shailor:    2063,  2067. 

v.  Smith:    1009. 

v.  Susong:  2163. 

v.  Tufts:   1590,  2412,  2447,  2474. 

v.  Union    Pacific    Railroad    Co.: 
2135. 

v.Wood  &  Co.:   1640,  1669. 
Sullivan   Co.    R.    Co.   v.    Connecticut 

Riv.  L.  Co.:  1837. 

Sulphur  Mines  Co.  v.  Thompson:  659. 
Suman  v.  Inman:  2534. 
Summa  v.  Dereskiawicz:    2412,  2426. 
Summerhill  v.  Wilkes:  1389. 
Summerrow  v.  Baruch:  285. 

v.  Branch:   1774. 
Summers  v.  Alexander:  1075. 

v.  Boyce:  1211,  2137. 

v.  Carey:   118. 
Summerville    v.    Hannibal,    etc.,    R. 

Co.:  246,  280. 

Sumner  v.  Charlotte,  etc.,  R.  Co.:  178, 
2398. 

v.  Conant:   126. 

v.  Reicheniker:   1547,  1588. 

v.  Saunders:  865,  8C6. 

v.  Summers:  102. 

V.Williams:  1100. 

Sumrall  v.  Kitselman:  285,  870,  2058. 
Sumwalt  v.  Ridgely:  1159. 
Sumwalt    Ice    Co.    v.    Knickerbocker 

Ice  Co.:   902. 

Sunderland  v.  Mescota  Bank:   1350. 
Sunflower    Lumber    Co.    v.    Turner 

Supply  Co.:  2479. 
Sun  Mut.  Ins.  Co.  v.  Saginaw  Barrel 

Co.:  2369. 

Sun   Printing,  etc.,  Ass'n  v.  Moore: 
1173. 


Sunset  Orchard  Land  Co.  v.  Sherman 

Nursery  Co.:  1019. 
Superior  Drill  Co.  v.  Carpenter:  285, 

775. 

Superior  Mfg.  Co.  v.  Russell:  870. 
Supervisors  v.  Arrighi:  354,  359,  367. 

v.  Bates:   1332. 

v.  Brodhead:  2255. 

v.  Brush:   313. 
Supr.  Coal  &  Mining  Co.  v.  Kaiser: 

1618. 

Supple  v.  Agneu:  1633. 
Supplee  v.  Hall:   2297. 
Supreme  Council  v.  Green:  1072. 
Surface  v.  Bentz:  2308. 
Susquehanna    Ins.    Co.    v.    Perrine: 

1865. 

Sussdorff  v.  Schmidt:  2435. 
Sussman  v.  Porter:  97. 
Sutherin  v.  Chesney:  172. 
Sutherland  v.  Eureka  Fire  Ins.  Co.: 
1065. 

v.  Illinois  Cent.  R.  Co.:  435. 

v.  St.  Lawrence  County:  1139. 

v.  Wyer:  1556. 
Sutliff  v.  Clunie:  2290. 
Suttle  v.  Doggett:  2547. 
Sutton  v.  Baker:  1532. 

v.  Beckwith:  115. 

v.  Brekke:   172. 

v.  Cole:  198. 

v.  Grey:  2534. 

v.  Lyons:  285,  291. 

v.  Stephan:  1691. 

v.  Tatham:  716,  2394,  2502. 
Suydam  v.  Clark:  2381. 

v.Vance:   2212. 
Swabey  v.  Palmer:  1890. 
Swackhamer  v.  Johnson:  1862. 
Swain  v.  Humphreys:  2297. 

v.  Senate:  2279. 
Swainson    v.    Northeastern    R.    Co.: 

1656. 

Swan,  Ex  parte:  1986. 
Swan  v.  Insurance  Co.:  317. 

v.  Nesmith:  1322,  2534. 

v.  Stedman:  421. 

v.  Steele:   2115. 
Swannel  v.  Ellis:  2201. 
Swanson  v.  Sanborn:  1768. 
Swanstrom  v.  Improvement  Co.:  285. 
Swanston  v.  Mining  Co.:  2243. 


2407 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-17O5,  Vol.  1}  §§  1700-2588,  Vol.  H.J 


Swanzey  v.  Moore:  1579. 

v.  Parker:  2364. 
Swarts  v.  Cohen:  1125,  1154. 
Swartwout  v.  Evans:  156,  472,  481. 
Swartz  v.  Ballou:  213,  214. 

v.  Duncan:  463. 

V.Morgan:  963,  967,  2173. 
Swayne   v.   Union   Mutual   Life   Ins. 

Co.:  339,  436. 
Swayze  v.  Hull:  106,  1523. 
Swazey  v.  Union  Mfg.  Co.:  994. 
Sweat  v.   Boston   &   Albany  R.   Co.: 

1641. 
Sweeden    v.    Atkinson    Improvement 

Co.:  1913,  1950. 
Sweeney,  In  re:  2264. 
Sweeney   v.    Berlin,   etc.,   Co.:    1615, 
1630. 

V.Berlin,     etc.,     Envelope     Co.: 
1631. 

v.  Berlin  &  Jones  Envelope  Co. : 
1624. 

v.  Brow:  2320. 

v.  Central  Pac.  R.  Co.:  1615,  1624. 

v.  Douglas  Copper  Co.:  1755. 

v.Easter:   2104. 

v.  Indemnity  Co.:   992. 

v.  McLeod:  92,  93. 

v.  Pratt:  1814,  2175. 

v.  Sweeney:  1783. 

v.  Ten    Mile   Oil   Gas   Co.:    1536, 

2447,  2463. 
Sweet  v.  Jacocks:   1192,  1194. 

V.Ohio  Coal  Co.:   1661. 

v.Owens:  2297. 
Sweeting  v.  Pearce:   946,  2371. 

v.  Turner:  2349. 
Sweetland  v.  Illinois,  etc.,  Telegraph 

Co.:  1783. 

Swensen  v.  Aultman:  1783. 
Swenson  v.   Osgood  &  B.  Mfg.   Co.: 

1671. 

Swift,  Re:  2576. 
Swift  v.  Aspel:   98,  100. 

v.  Erwin:    799,  819. 

v.  Harriman:  1594. 

v.  Herkness:  2345. 

v.  Jewsbury:   125. 

v.  Redhead:  1783. 

v.  Winterbotham:  125. 
Swift  &  Co.  v.  Murphy:  1888. 
Swilley  v.  Lyon:  2556. 


Swim    v.    Wilson:    1457,    2345,    2423, 

2583. 

Swinarton  v.  Le  Boutillier:   1941. 
Swinburne  v.  Swinburne:  1350. 
Swindell   v.   Latham:    911,   913,   917, 

926,  1030. 
Swindell    Bros.    v.    J.    L.    Gilbert    & 

Bro.:   435. 

Swinnerton  v.  Argonaut:  287. 
Swire  v.  Francis:  1995. 
Swires  v.  Brotherline:  2331. 
Swisher  v.  Palmer:  405,  410. 
Switzer  v.  Connett:  2528. 

v.  Sk'iles:    1191,  1194,  1728,  2138, 
2412. 

v.  Switzer:  615. 

v.  Wilvers:   898,  2114. 
Swaboda  v.  Union  Pac.  R.  Co.:  1679. 

v.  Ward:  1618,  1624. 
Swofford  Bros.  Co.  v.  Berkowitz:  281, 

285. 
Sword    v.    Reformed    Congregation: 

395. 

Syeds  v.  Hay:  1256. 
Sykes  v.  Dixon:  601. 

A'.  Giles:   894,  946,  2325,  2328. 
Sylvester  v.  Johnson:  2447,  2458. 
Symington  v.  Sipes:  1906. 
Symon  v.  Brecker:   2077. 
Syndicate  Ins.  Co.  v.  Catchings:  99L 
Synnot  v.  Douglas:  1410. 
Syring  v.  Zelenski:  167. 
Szymanski  v.  Blumenthal:  1618,  1635. 

v.  Plassan:  498. 

v.  Szymanski:   2245,  2246. 


A 

Taber  v.  Cannon:  914,  926,  972. 

v.  Perrot:   1314. 
Tabet  v.  Powell:   1024. 
Tabler  v.  Sheffield,  etc.,  Co.:  368. 
Tackett  v.  Powley:  2447. 
Taft,  In  re:  2499,  2534. 
Taft  v.  Baker:   914. 

v.  Brewster:  1101,  1102,  1110. 

v.  Chapman:  2423. 
Tagart  v.  Marcus:  2046. 
Tagg  v.  Bowman:  1349. 

v.  McGeorge:  1619. 

v.  Tennessee  Nat.  Bank 
Taggart  v.  Stanbery:  882. 
2408 


TABLE   OF    CASES    CITED 


[References   are  to  sections:  8§   1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.  1 


Taintor   v.    Prendergast:    1417,    1731, 

2059,  2063,  2580. 
Tait  Mfg.  Co.  v.  Tinsman:  648. 
Talbot  v.  Brown:   155,  229. 

v.  Doran:  2417. 

v.  McGee:   2162. 
Talboys    v.    Boston:    874,    894,    2075, 

2077,  2079. 
Talcott  v.  Bronson:  2279. 

v.  Chew:  2551,  2552. 

v.  Cowdry:  1320. 

v.  Wabash    R.    Co.:     2059,    2060, 

2063. 

Taliafero    v.    First    National    Bank: 
386. 

v.  Baltimore    First    Nat.    Bank: 

897. 

Tallassee  Mfg.  Co.,  In  re:  2286. 
Tallman  v.  Kimball:  410. 

v.  Nelson:  1641. 
Tallon  v.  Grand  Portage  Copper  Min. 

Co.:  602,  605. 
Tally  v.  Reynolds:   2154. 
Talmadge    v.    Arrowhead    Reservoir 

Co.:  843. 

Talmage  v.  Bierhause:  882,  885. 
Talpey  v.  Wright:   1480. 
Tankersley  v.  Anderson:   2163,  2183. 

v.Graham:  2033. 
Tanenbaum  v.  Boehm:   2472. 
Tannatt    v.     Rocky     Mountain     Nat. 

Bank:   1124,  1152,  1161. 
Tannenbaum  v.   Federal  Match  Co.: 

2366,  2368. 

Tanner  v.  European  Bank:  1333. 
Tanner  Engine  Co.  v.  Hall:  285. 
Tapley  v.  Butterfleld:  215. 

v.  Coffin:   2234,  2237. 

v.  McGee:    141,  143. 
Tarbell  v.  Dickinson:    2217. 

v.Rutland,  etc.,  R.  Co.:   1681. 
Tarbox  v.  Cruzen:  294,  765. 
Tarpy  v.  Bernheimer:  892. 
Tascott  v.  Grace:  2230. 
Tasker  v.  Kenton  Ins.  Co.:  410. 

v.  Shepherd:  669,  1567. 
Tasse  v.  Kindt:  2474,  2475. 
Tate  v.  Aitken:  433,  1208,  1226. 

v.Evans:  977. 

v.  Hyslop:   1831. 

v.Marco:    1249,   1324,   1325. 

v.  Tate:  2311. 


Tatterson  v.  Suffolk  Mfg.  Co.:   602. 

603,  G05,  1573. 
Taul  v.  Edmonson:   1327. 
Taussig   v.    Hart:    1205,    2386,    2387, 
2388,  2389,  2411,  2414. 

v.  Reel:   831,  835. 
Tayler  v.  Bemis:  2236. 

v.  State  Ins.  Co.:  1064. 
Taylor,  Estate  of:  112. 
Taylor  v.  Albermarle  Steam  Nav.  Co. : 
433. 

v.  A.  &  M.  Association:  445. 

v.  Anchor    Mut.    Fire    Ins.    Co. : 
1073. 

v.  Angel:  169. 

v.  Angell:  970,  986. 

v.  Bailey:    432,  716. 

V.Baltimore,  etc.,  R.  Co.:  1869. 

v.  Bates:   1346,  2208. 

v.  Blacklow:  2290. 

v.  Burns:   563,  586,  780. 

v.  Bush,  etc.,  Co.:    1644. 

v.  Carew  Mfg.  Co. :  1676. 

v.  Carnell:  1944. 

v.  Centralia  Coal  Co.:  1641. 

v.  Commercial  Bank:   1775. 

v.  Connor:  418. 

V. Cox:    2447. 

v.Davenport:   1417. 

v.  Davis:  42. 

v.  De  Giocuria:    2576. 

v.  Enthoven:  2238. 

v.  Evans:   2176,  2304. 

v.  Evansville,  etc.,  R.   Co.:    1654, 
1678. 

v.  Evansville  R.  Co.:    1638. 

V.Georgia     Marble     Co.:      1640, 
1652. 

V.Gorman:  2203. 

v.  Harnett:  2323. 

v.  Hearst:  1980. 

v.  Herron:   369,  468. 

v.  Hunt:  285. 

v.  Hill:  2162. 

v.  Johnston :    2553. 

v.  Ketchum:  2528. 

v.  Kymer:    2115. 

v.  Labeaume:  995. 
THfaV.  Land-Mortgage  Co.:  2162. 

v.  Long  Island  R.  Co.:  2246. 

v.  McLean:  1158. 

v.Merrill:  229. 


2409 


TABLE   OF    CASES    CITED 


[References   are  to  flection*:  §§  1-1705,  Vol.    I:   98  1706-2588,  Vol.  II.] 


Taylor  v.  Minigus:   170. 

v.Morgan's  Sons  Co.:  1537. 

v.  New  York,  etc.,  R.  Co.:    1937, 
1973. 

v.  Nostrand:      1374,     1395,     1398, 
1400. 

v.  Plumer:  1350,  2090. 

v.  Pope:   2583. 

v.  Read:   2437. 

v.  Reger:  1126. 

v.Robinson:    420,  486,  946,   25G2. 

v.  Roulstone:  2302. 

v.  Salmon:  1194. 

v.  Shelton:  1395. 

v.  Spears:    1339,  1346,  1347. 

v.  Starkey:  895. 

v.  St.  Claire:  1601. 

v.  St.    Louis    Transit    Co.:    2236, 
2281. 

v.  Stray:  1607,  2480. 

v.  Stull:  2280. 

v.  Button:  2163. 

v.Taylor:  169. 

v.  Tompkins:  1343. 

v.  Wands:  169. 

v.  Welslager:  169. 

v.  Western  Pac.  R.  Co. :  1860. 

v.Wilson:  2325. 

v.  Wootan:  1619. 

V.Yorkshire  Ins.  Co.:  1808. 

v.  Young:   1803,  2276,  2290. 
Taylor  Co.  v.  Baines  Co.:   368. 
Taylor  County  v.  Gage:   214. 
Taylor  Iron  Co.  v.  Nichols:  1211. 
Taylor  Manufacturing  Co.  v.  Brown: 
854,  855. 

v.  Key:     1526,    1532,    1533,    1537, 

24G3. 
Taymouth  v.  Koehler:   219,  354,  367, 

368. 

Teaffe  v.   Simmons:    2348. 
Teagarden  v.  Lumber  Co.:   1808. 

v.  McLaughlin:  156. 

v.  Patten:   784. 
Teal  v.  McNight:  625,  2456. 
Teasley  v.  Bradley:  1348,  2209. 
Tebbetts  v.  Hapgood:    163. 
Teho  v.  Mitchell:   2447. 
Tecumseh    Nat.    Bank    v.    Chamber- 
lain: 395. 

Ted  ford    v.    Los   Angeles    Elec.    Co.: 
1619. 


Teed  v.  Parsons:   187. 

Teekins  v.  Nordyke  Co.:   2474. 

Teele  v.  Otis:   1398. 

Tegler  v.  Shipman:  488. 

Teller  v.  Bay  &  River  Dredging  Co.: 

1871. 

Tern  by  v.  Brunt  Pottery  Co.:  1533. 
Temple  v.  Pennell:  1410. 
v.  Pheps:    2305. 
v.  Pomroy:  263,  926. 
Tenbrook  v.  Ellars:  1131. 
Tenhet  v.  Atlantic  Coast  Line  R.  Co.: 

1780. 

Tennant  v.  Fawcett:  2235. 
Tennent  v.  Union  Life  Ins.  Co.:  1831. 
Tennessee  Coal  Co.  v.  Hayes:  1866. 
Tennessee,   etc.,   R.    Co.   v.   Bridges: 

1644. 

Tennessee  Mfg.  Co.  v.  James:  1586. 
Tennessee  R.  Co.  v.  Moore:  1493. 
Tennessee  River  Transp.  Co.  v.  Kava- 
naugh:  261,  263,  332,  718,  980,  1783, 
1798. 
Tenney  v.  Berger:   2201,  2244,  2247, 

2253,  2254,  2255,  2256. 
Tennis  v.  Consolidated  Rapid  Tran- 
sit Co.:  1796,  1798. 
Terhune  v.  Colton:  2163. 

v.  Parrott:   1142. 
Terminal  Bank  v.  Dubroff:  2002. 
Terney  v.  Wilson:   2286. 
Terrail  v.  Tinney:   1494. 
Terrapin  v.  Barker:  1778. 
Terre  Haute,  etc.,  R,  Co.  v.  Fowler: 

1620. 

v.  McMurray:   341,  718,  994. 
v.  Stockwell:  463,  473,  994. 
Terrell  v.  Bank:  1814,  2176. 

v.  Branch  Bank  of  Mobile:   1815, 

1853. 

v.  Butterfield:  1339. 
Y.  McCown:  312,  322. 
v.  The  B.  F.  Woolsey:  2274. 
Terril  v.  Flower:  498. 
Territory  v.  Maxwell:  26. 
Terwilliger    v.     Beals:     1342,     2542, 

2544,  2566. 
V.Ontario,  etc.,  R.  Co.:   575,  576, 

577,  585,  590,  591,  2259. 
Terry  v.  Birmingham  National  Bank: 

2529. 
v.  Bissell:  2364. 


2410 


TABLE   OF    CASES    CITED 


[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Terry  v.  Durand  Land  Co.:  940,  945. 

v.  Fargo:    972. 

v.  International  Cotton  Co. :    414. 

v.  Provident  Fund  Soc.:   442. 

V.Reynolds:    2433. 

V.Wilson's  Estate:   2445. 
Tete  v.  Lanaux:   39. 
Teter  v.  Irwin:  2162,  2314. 
Teucher  v.  Hiatt:  322. 
Tew  v.   Wolfsohn:    1426,   1750,   1758, 

1759. 

Tewksbury  v.  Spruance:  1198,  1205. 
Texada  v.  Beaman:   960. 
Texarkana,  etc.,  R.  Co.  v.  Preacher: 

1637. 
Texarkana  Lumber  Co.  v.  Lennard: 

40. 

Texas  Bldg.  Co.  v.  Albert:  994. 
Texas    Brokerage    Co.    v.    Barkley: 

2411. 

Texas  Building  Co.  v.  Albert:  341. 
Texas,   etc.,   R.   Co.  v.   City  of   Mar- 
shall: 604. 

v.  Echols:  1635. 

v.Lester:  1784,  1787. 

v.McAtee:   1625. 

v.  Parsons:    1860,  1973,  1979. 

v.  Scovill:   1945,  1950. 
Texas  Land  &  Cattle  Co.  v.  Carroll: 

1153,  1172,  1176. 
Texas  Loan  Agency  v.  Dingee:  659. 

v.  Hunter:    2002. 

v.  Swayne :  1295. 

v.Taylor:  1808. 
Texas  Mexican  R.  Co.  v.  Whitmore: 

1644. 

Texas  &  Pacific  R.  Co.  v.  Archibald: 
1615. 

v.Barrett:   1624. 

v.  Huffman:  1624. 

v.  Swearingen:   1667. 
Texas  Trunk  R.  Co.  v.  Johnson:  2015. 
Thacher  v.  Dinsmore:  1161. 

V.Hannahs:   1689,  2559. 

v.  Pray:   412,  436,  437,  443,  2577. 
Thacker  Coal  Co.  v.  Burke:  2133. 
Thain  v.  Old  Colony  R.  Co.:  1624. 

v.  Philbrick:    2431. 
Thallhimer  v.  Brinkerhoff:  1783. 
Thalman  v.  Canon:  1223. 
Thames  Iron  Works  v.   Patent  Der- 
rick Co.:   2274. 


Thames  Steamboat  Co.  v.  Housatonic 

R.  Co.:   1959. 
Thatcher  v.  Harlan:   2566. 

v.  Hayes:   1343. 

v.  Pray:  436. 
Thayer  v.  Daniels:   2276. 

v.Davis:  1778. 

v.  Harbican:  2245. 

V.Humphrey:  1768,2129. 

v.  Luce:  2063. 

v.  Meeker:   291. 

v.  Schley:   1988. 

v.  St.  Louis,  etc.,  R.  Co.:  1654. 

v.  Wadsworth:  1576,  1577. 

v.  White:   156. 
The  Amy  Warick:    2349. 
The  Distilled  Spirits:   2176. 
The  Floyd  Acceptances:  707,  763. 
The  Freeman  v.  Buckingham:    1801. 
Theile  v.  Chicago  Brick  Co.:  921. 
Theisen  v.  Dayton:   2308. 
The  King  v.  Dixon:  2007. 
The  Monte  Allegre:   2322,  2332,  2357. 
The  National  Butchers',  etc.,  Bank  v. 

Hubbell:    1321. 
Therrell  v.  Ellis:  285. 
The  Texas-  Loan  Agency  v.  Taylor: 

1848. 

The  Thos.  Gibson  Co.  v.  Carlisle:  752. 
Thew  v.  Miller:  2529. 
Thiel    Detective    Service    Co.    v.    Mc- 
Clure:  988. 

v.  Seavy:   395,  474. 
Thilmany   v.    Iowa    Paper    Bag    Co.: 

1367,  1369,  1386,  1396,  1397,  1422. 
Third  Nat.  Bank  v.  Harris:   1845. 

v.  Laborman's  Mfg.  Co.:  410. 

v.  Stillwater:    1350. 

v.  Vicksburg  Bank:  1313,  1314. 

v.  Guenther:   169. 

v.  Vicksburg  Bank:  331. 
Thiry   v.    Taylor   Brewing   Co.:    267, 

280. 
Thomas  v.  Artimage:   1874. 

v.Atkinson:   742,  1739,  1748. 

v.  Atlantic    Coast    Line    R.    Co. : 
2050. 

v.  Brandt:  1528. 

v.Canadian    Pac.    R.    Co.:    1048. 
1973. 

v.  Caulkett:  93,  120. 

v.  City  National  Bank:  368. 


2411 


TABLE   OF    CASES    CITED 


[Reference*  are  to  •ectioniii   gg  1-1705,  Vol.  1;  g§    L7OO--2588,  VoF.  II.] 


Thomas  v.  Harrington:   19 J 8. 

v.Hartford  Fire  Ins.  Co.:  1073. 
V.Houston,  etc.,  R.  Co.:   610. 
v.  Joslin:  215,  799,  808,  1086,  1088. 
V.  Kerr:    2071,    2320,    2341,    2342, 

2355. 

V.Leonard:   1789. 
v.  Merrifield:  1521. 
v.  Miller:  2002. 
v.Morrison:    2254,  2290. 
v.  Quartermaine:    1668,  1674. 
v.Raleigh,  etc.,  R.  Co.:  1671, 
v.  Schee:  2202. 
v.  Spencer:  208,  216. 
v.  Steele:  2146,  2152,  2154. 
v.  Superior:  642. 
v.  Swanke:   939,  940,  945. 
v.  Thomasville     Shooting     Club: 

1518. 

v.Turner:   2293. 
v.  Wells:   277. 
V.Winchester:   1642. 
Thompson  v.  Bank  of  South  Carolina: 

1303,  1313. 

v.  Barnum:   2108,  2129. 
v.  Barry:   1984,  1987. 
v.  Beacon  Valley  Rubber  Co.:  963. 
v.  Bell:   246. 
V.Boyle:   1528,  2246. 
v.  Brown:    167. 

v.  Building  &  Loan  Ass'n:    1410. 
v.  Cashman:  2302. 
v.Chicago,  etc.,  R.  Co.:   1644. 
v.Clydesdale    Bank:    2093,    2099, 

2100. 

V.Detroit  Copper  Co.:  1530. 
V.Dickinson:    2253. 
v.Elliott:    934,  958. 
v.  Fargo:  2031. 
v.  First  National  Bank:   722. 
v.  Fort  Worth,  etc.,  R.  Co.:  2162. 
v.  Gardiner:  2379,  2390. 
v.  Gloucester  City  Sav.  Inst.  1350. 
v.  Green  River   Power   Co. :    257, 

707. 

v.  Hallet:   1226. 
v.  Hasselman:   1125. 
v.  Havelock:   1229. 
V.Hermann:  1637,  1638. 
v.  Hynds:    2094. 
v.  Ingram:  2002. 
v.  Irwin:    1180,  1405. 


Thompson  v.  Ish:   2311,  2312. 

v.Kelly:    2035,  2325,  2326,  2351. 

v.  Kilborne:  2297. 

v.  Laboringman's  Mercantile  Co.: 
290,  400. 

v. Laboringman's   M.   &    M.    Co.: 
1030. 

v.  Libby:   496,  1239. 

v.Lowell,  etc.,  R,  Co.:  1918. 

v.  Lyon:  143. 

v.  Maloney:   126. 

v.  Manufacturing  Co.:  349,  395. 

v.  McCullough :    2364. 

V.  Mills:  317,  992. 

v.  Overstreet :   1803. 

V.Perkins:  1322,  1350,  2534,  2574, 
2576. 

v.  Pershing:   2162. 

v.  Rubber  Co.:  2169. 

v.  Schermerhorn:  313. 

v.  State:   2008. 

v.  Stewart:  742. 

v.  Taylor:  148. 

V.Thompson:   2280. 

v.  Toland:   2387. 

v.  Village  of  Mecosta:  1803. 

v.  West:   359,  368. 

v.  Wharton:  108,  109. 
:IIoV.  Williamson:  111. 
Thompson  Co.  v.  Goldman:  2445. 
Thompson-Houston     Co.     v.     Capital 

Elec.  Co.:  1815,  1819. 
Thomson  v.  Bank  of  British,  etc. :  952. 

v.  Batcheller:  53. 

v.  Boonville:  313. 

v.  Central  Pass.  R.  Co.:  407,  1835, 
1842. 

V.Davenport:     1731,    1741,    1742, 
1748,  1750,  1753. 

v.  Raworth:  610. 

v.  Shelton:  938. 
Thorn  v.  Beard:  2249. 

v.  Bell:  361. 

Thome    v.    Deas:     1250,    1258,    1282, 
1298,  2415,  2531. 

v.  Heard:  1984. 

v.  Jung:  798. 

Thornhill  v.  Picard:   2553. 
Thornton  v.  Charles:  2379. 

v.  Lawther:  958. 

v.  Moody:   2444. 

v.  Pinckard:   811. 


2412 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Tel.  I;  §§  1706-2588,  Vol.   11.] 


Thornton  v.  Thornton:    1343. 

v.  Tuttle:    2169. 
Thorp  v.  Bateman:   1515. 

v.  Burling:  54G,  1457. 

v.  Cole:  310. 

v.  Minor:    1912. 

v.  Robbins:    2423. 

v.  Thorp:   1341. 
Thos.    Gibson    Co.,    The   v.    Carlisle: 

752. 
Thrall  v.  Wilson:  920,  923. 

v.Wright:    143. 
Three  Rivers  National  Bank  v.  Gil- 

christ:  169. 

Threfall  v.  Borick:   1687. 
Thum  v.  Tioczyniski:    1211. 
Thummel  v.  Holden:   213. 
Thuner  v.  Kanter:  2435,  2482. 
Thurber  v.  Anderson:    246,  275. 

v.Cecil    Nat.    Bank:     897,    2114, 

2509. 
Thurston  v.  Blanchard:    2509. 

v.  Percival:   2236,  2237. 
Thweatt  v.  Jones:   2024. 
Tibbets  v.  West,  etc.,  street  R.  Co.: 

236. 

Tibbs  v.  Zirkle:  819. 
Tiborsky  v.  Chicago,  etc.,  R.  Co.: 

1794. 
Tice  v.  Gallup:  882,  886. 

v.  Russell:    904,  980,  991. 
Tichenor  v.  Bruckheimer:  1547. 
Tickel  v.  Short:   2531. 
Tickler    v.    Andrea    Mfg.    Co.:    1548, 

1581. 

Tidd  v.  Rines:  1116. 
Tidrick  v.  Rice:  395. 
Tiffany  v.  Lord:  2162. 

v.Morgan:   2230. 

v.  Stewart:  2281. 
Tiffin  Glass  Company  v.  Stoehr:  620, 

1569. 

Tifft  v.  Tifft:   156. 
Tiger  v.  Button  Land  Co.:  1115. 
Tieck  v.  McKenna:   2474. 
Tiedemann,  In  re:  386,  390,  518. 
Tier  v.  Lampson:  246,  628. 
Tiernan    v.    Commercial    Bank:    316, 
323,  332,  1313,  1314. 

v.Jackson:  581,  1447. 
Tijan  v.  Illinois  Steel  Co.:   1914. 


Tilden  v.  Barnard:   1141,  142J. 

v.  Blackwell:  1226. 

v.  Smith:   2447,  2449. 
Tilford  v.  Belknap:  313. 
Tillar  v.  Reynolds:   1952. 
Tilleny  v.  Wolverton:   170,  179,  1199, 

1803,  1804. 

Tiller  v.  Spradley:  1124. 
Tillman  v.  Dunman:  2359. 
Tilton  v.  Cofield:  218. 

v.  Gates  Land  Co. :   648. 

v.  United    States    Life    Ins.    Co. ; 
2162. 

v.Wright:   2217. 
Timberlake  v.  Thayer:   1578, 
Timberman  v.  Craddock:   2430,  2435. 
Timm  v.  Timm:   436. 
Timmons  v.  Timmons:   111. 
Timothy  v.  Wright:  109. 
Timpson  v.  Allen:    289,  2107. 
Tinges  v.  Moale:  195,  2456,  2460. 
Tingley  v.  Boom  Co.:   446. 
Tinker    v.    New   York,    etc.,    R.    Co.: 

1889. 

Tinney  v.  Pierrepont:   2250. 
Tinsley   v.    Dowell:    432,    2034,    2035, 
2039. 

v.  Durfrey:  1695. 

v.  Penniman:  178,  1590,  2474. 
Tippets  v.  Walker:  1102,  1419. 
Tipton  v.  Feitner:   1547. 
Titcomb  v.  Seaver:   2072,  2574. 
Title  Guarantee  Co.  v.  Sage:   1422. 
Tito  v.  Seabury:  2183. 
Titus  v.  Bank:  331. 

V.Bradford,  etc.,  Co.:    1624. 

V.Cairo,  etc.,  Co.:   307,  411. 

v.  Kyle:  1158. 

v.  Mechanics'  Nat.  Bank:  1314. 
Tobin  v.  Larkin:  1178,  1731,  1732. 

v.Portland,  etc.,  R.  Co.:  1642. 
Tobler  v.  Nevitt:  552,  2163,  2169. 
Todd  v.  Bishop:  2389. 

v.  Bourke:   2410. 

v.  Emly:   187,  188,  190. 

v.  Havlin:  1890. 

v.  Munson:  2309. 
Toffree  v.  Saint:   2435. 
Toland  v.  Murray:   2568. 

v.  Sprague:  2547. 

v.Williams:  2425. 

' 


TABLE   OF    CASES    CITED 


..ii .: :   gg  1-1705,  Vol.  Ij  gg   170K-2588,   Vol.  IT.] 


Tolans  v.  Williams:   2426. 
Tolchester  Beach  Imp.  Co.  v.  Sehar- 

nagl:  1937,  1973.   -imh  . 
v.  Steinmeier:   1973,  1976.    -taW. 
Toledo    Brewing    &    Malting    Co.    v. 

Bosch:   1641. 

Toledo,  etc.,  R.  Co.  v.  Goddard:  1799. 
v.Harmon:   1893,  1945,  1950. 
v.  Mylott:   341,  994. 
v.Owen:   60. 

V.Pennsylvania  Co.:   641,  642. 
....  v.  Prince:  .374. 

v.  Rodriques:    374. 
Toll  Brilge  Co.  v.  Bettsworth:    1782, 

1851.  ;'.gYSr 

Tollerton  v.  Gilruth:  855. 
Tombari  v.  Connors:   1883. 
Tombs  v.  Alexander:  1534,  1536,  2431. 
Tome   v.   Parkersburg,   etc.,   R.    Co.: 

1801. 
Tomlinson  v.  Collett:  60. 

v.  Gill:    2066. 
Tompkins  v.  Nashville,  etc.,  R.  Co.: 

2276. 

v.  Sands:   1494. : 
Tompkins   Mach.    Co.    v.    Peter:    743, 

954,  1013. 

Tompson  v.  Allen:    2390. 
Toms  ,v.  Cuming:  125. 
Tomsecek  v.  Travelers'  Ins.  Co.:  1060. 
Tondro  v.  Cushman:  809,  833. 
Tone  v.  Shankland:  2286. 
Tong  v.  Orr:   2235. 
Tooke  v.  Hollingworth:   2576. 
Tooker  v.  Sloan:   441. 
Tool  Co.   v.   Norris:    86,   92,   99,   104, 

105,  1523. 

Tommy  v.  Dumphy:   233. 
Tootle,  etc.,  Co.  v.  Otis:   446,  447. 
Topeka    Water    Co.    v.    Root:     2243, 

2244. 

Topham  v.  Braddick:    2544,  2549. 
Topham  v.  Roche:  710. 
Toppin  v.  Healy:   567. 
Topliff  v.  Shadwell:  1831. 
Toplitz  v.  Ullman:    1562. 
Torbit  v.  Heath:    954. 
Torrey  v.  Bank  of  Orleans:   1192. 
Touchberry  v.  North  Western  R.  Co.: 

1780,  1787. 

Toulmin  v.  Steere:    1803. 
Tourtelot  v.  Whithed:  879. 


T'ousey  v.  Etzel:    1533,  2443. 
Towle  v.  Dresser:  144. 
v.  Hatch:   2217. 
v.  Leavitt:     707,     710,     737,     742. 

853,  854,  922,  2321,  2330. 
V.Raymond:   1684. 
v.Stevenson:   491. 
Town  v.  Hendee:   910. 
Town  of  Arlington  v.  Hinds:   2065. 
Town  of  Derby  v.  Ailing:   463. 
Town  of  Grafton  v.  Follansbee:  447. 
Town    of    Solon    v.    Williamsburgh 

Bank:  1800. 
Towne  v.  Jaquith:   198. 
Townes  v.  Birchett:   2325,  2328. 
Townsend     v.     Corning:     515,     1093. 

1099. 

v.  Hubbard:  515,  1119,  1419. 
v.Kennedy:  433. 
v.  Rhea:    2249. 
v.  Studer:   938. 
v.  Van  Tassel:   2333. 
Tozer  v.  Saturlee:  134. 
Traber  v.  Hicks:   1826,  1832. 
Tracy,  In  re:  2269,  2389. 
Tracy  v.  Abney:  2433,  2454. 
v.  Cloyd:    1502. 
v.  Fobes:    2441. 
v.Roberts:   142. 
v.  Talmage:    121. 
v.Williams:   1494. 
Traders'  Bank  v.  Black:   1842. 
Traders',  etc.,  Bank  v.   Black:    1815, 
.1817,  1826. 

Traders'  Ins.  Co.  v.  Letcher:   1803. 
Traders'   National   Bank   v.   Rogers: 

365. 
Traders'     &     Trucksters'     Bank     v. 

Black:    1803. 
Tradesmen's   Nat.   Bank   v.   Looney: 

2126. 
Tradewater    Coal    Co.    v.    Johnson: 

1618. 
Trainer  v.  Morison:  69,  739,  753,  870, 

871,  872. 
Trainor  v.  Philadelphia,  etc.,  R.  Co.: 

1636. 
v.  Philadelphia  &  Reading  R.  Co.: 

1641. 
Transvaal      Cold      Storage      Co.      v. 

Palmer:   1229. 
Trapnell  v.  Coaklyn:   169. 


2414 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§   1-1705,  Vol.  I;   §§   1706-25SS,  Vol.  II.] 


Trask  v.  Old  Colony  Railroad:    1623. 
Traub  v.  Milliken:   2075,  2575. 
Travelers'  F.  Ins.  Co.  v.  Globe  Soap 

Co.:    2368. 
Travelers'  Ins.  Co.  v.  Caldwell:   1350. 

v.  Myers:   1074. 

v.Parker:   1530. 

v.  Jones:   301. 

v.  Patten:    2187. 
Travers  v.  Crane:  652,  663,  664. 

v.Kansas  Pac.  R.  Co.:   2016. 
Travis  v.  Graham:  2441. 

v.January:   2300. 

v.  Scriba:   386. 

v.  Standard    L.    &    A.    Ins.    Co.: 

1974,  197C. 

Trawick  v.  Peoria  St.  R.  Co.:    1560. 
Traylor  v.  Horrall:    2423. 
Traynhan  v.  Jackson:    1153,  1172. 
Traynor  v.  Morse:    2437. 
Treadway  v.   Railroad   Co.:    1795. 

v.Sioux  City,  etc.,  R.  Co.:    2162, 

2178. 

Treadwell  v.  Davis:   2050. 
Treasurers  v.  McDowell:    2163,  2185. 
Treat  v.  Stanton:   2033. 
Trego  v.  Hunt:  1212,  1213. 
Trench    v.    Hardy    County    Canning 

Co.:   1410. 

Trenor  v.  Railroad  Co.:   994. 
Trenton  v.  Clayton:   313. 

v.  Pothen:    1072. 

v.  Pother:    2177. 

Trenton  St.  R.  Co.  v.  Lawlor:   2302. 
Trentor  v.  Pothen:   1808,  1831. 
Treuttel  v.  Barandon:   2104. 
Trevelyan  v.  Charter:   2131. 
Trice  v.  Comstock:    1192,  1195,  1210, 

1235. 

Trickey  v.  Clark:   1787. 
Triebert  v.  Burgess:   654. 
Trigg  v.  Jones:  440,  460,  480,  492. 
Trimble  v.  Mercantile  Co.:   293. 

v.  Thorson:    169,  2005. 
Trimmier  v.  Thomson:   2216. 
Trinity  County  Lumber  Co.  v.  Pinck- 

ard:   1095. 

Trip,  etc.,  Shoe.  Co.  v.  Martin:    2075. 
Triple  Link,  etc.,  Ass'n  v.  Williams: 
1060. 


Triplett  v.  Jackson:    333. 

V.Morris:    2050. 

v.  Woodward:    663. 
Tripp  v.  Barton:   2336. 

v.  Bishop:   C01. 

v.  Swanzey  Paper  Co.:   1137. 
Tripp  Boat,  etc.,  Co.  v.  Martin:  2079. 
Tripp,  etc.,  Shoe  Co.  v.  Martin:   867. 
Tripple  v.  Littlefield:  1432,  1438. 
Trist  v.  Child:   92,  94,  98,  1523,  2286. 
Trollinger  v.  Fleer:   246,  278,  1041. 
Tron  v.  Lewis:   2236,  2237. 
Trope  v.  Kerns:   2163. 
Trotter  v.  Grant:   2556. 
Trousdale     v.     Arkadelphia     Milling: 

Co.:   2480. 
Trowbridge  v.  Ross:   281,  934,  940. 

v.  Scudder:    1395. 

v.Weir:   963. 

v.  Wetherbee:    233. 
Troxler  v.   So.  R.   Co.:    1624. 
Troy  v:  Hall:   2258,  2314. 
Troy  Fertilizer   Co.  v.   Logan:    1543, 
1557. 

v.  Zachry:   148. 

Troy  Grocery  Co.  v.  Potter:  889. 
Troy  &  Cohoes  Shirt  Co.,  In  re:  759. 
Trubey  v.  Pease:  652. 
Trudeau  v.  American  Mill  Co.:  1630. 
Trudo    v.    Anderson:    374,    817,    895, 

2513. 

True  v.  Commissioners:   367. 
Trueblood  v.  Trueblood:  141,  142,  143, 
•370.  J....JJ 

Trueman  v.  Lador:  2380. 

v.  Loder:   1731,  2514. 
Truesdell  v.  Bourke:   1442. 

v.  Combs:    1494. 

Trull  v.  Hammond:   262,  940,  945. 
Trumbull  v.  Nicholson:  2183. 
Truslow  v.  Parkersburg  Bridge,  etc., 

Co.:   2138. 

Trust  v.  Repoor:   2255. 
Trustees  v.   Bowman:    361,   395,  416, 
480,  481. 

v.  Greenough:  2284. 
Trustees,  etc.  v.  Dupuy:  1328. 
Trustees  of  Macon  Church  v.  Wiley: 

2320. 

Trustees  of  Union  College  v.  Wheel- 
er:  2082. 


2415 


TABLE   OF    CASES    CITED 


[Reference*   are  to  sections:   §§  1-1705,   Vol.  1}  §§   1706-2088,  Vol.   II.l 

of    Watertown    v.    Cowen:       Turner 


Trustees 

2217. 

Tryon  v.  White:   1852. 
Tuck  v.  Manning;  2287. 
Tucker  v.  Bass:  1102. 

v.  Cocke:    160. 

V.Erie  R.  Co.:   1973. 

V.Humphrey:    1G98. 

v.  Jarvis:  357. 

v.  Jerris:  507. 

V.Lawrence:    563. 

v.  Moreland:  141,  144. 

v.  Preston:   1526. 

v.  St.  Louis.,  etc.,  R.  Co.:  994. 

v.Taylor:   1686,  1688,  2272. 

v.  Tilton:   1814,  1834,  2176. 
Tucker  Mfg.  Co.  v.  Fairbanks:   1108, 

1123,  1124,  1157,  1395. 
Tuckett  v.  American  Steam  Laundry 

Co.:  1667,  1678. 
Tudor  v.  Whiting:  1760,  2581. 
Tuffree  v.  Binford:    624,  2425. 

v.  Saint:    2433. 
Tufts  v.  Brace:  229. 
Tuigg  v.  Sheehan:  55. 
Tull  v.  David:   2320. 
Tuller  v.  Talbot:  18G7. 

v.  Voght:    1959. 

Tuman  v.  Pillsbury:  781,  805. 
Tunison  v.  Copper  Co.:  988. 
Tunney    v.    Midland    Railroad    Co.: 

1654. 
Tunstall  v.  Steam  Coal  Co.:  2133. 


Turchin,   etc.,   Silver   Co.   v.   Baugh 

1406. 

Turcotte  v.  Ryan:  1487. 
Turley   v.    Boston   &  Maine   R.   Co. 

1979. 

Turnan  v.  Temke:  652. 
Turnbull,  Ex  parte:  2008. 
Turnbull  v.  Banks:    2236. 

v.  Freret:  2065. 

v.Richardson:    2246. 
Turner  v.  Baker:   2430,  2445. 

v.  Bondalier:   141,  144. 

v.  Caruthers:  2154. 

v.  Crumpton:  2362,  2497. 

v.  Fleming:   2163. 

v.  Goldsboro  Lbr.  Co.:    1619. 

v.  Goldsmith:   598,  600,  1511. 

v.  Jones:   2349. 

v.  Keller:  973. 


v.  Kingston  Lumber  &  Mfj. 
Co.:    219. 

v.  Kouwenhoven:  1344. 

v.  Mason:  1548. 

v.  McDonald:  805. 

v.  North  Beach,  etc.,  R.  Co.:  1893, 
2015. 

v.  Page:   1888. 

v.  Phoenix  Ins.  Co. :  359. 

v.Robinson:    1548. 

v.  Rusk:  138. 

v.  Sampson:   2112,  2128. 

v.  Sawdon:    567. 

v.  Snyder:    2439. 

v.  Sullivan:  1510. 

v.Thomas:  1153. 

v.  Trustees:   1700. 

v.  Wilcox:  395,  441. 
Turner's  Estate,  In  re:  2308,  2314. 
Turpen  v.  Booth:   1498,  1499. 
Turrill  v.  Crawley:   1687. 
Turwin  v.   Gibson:    2275. 
Tustin  Fruit  Ass'n  v.  Earl  Fruit  Co. : 

2032,  2534. 
Tuthill  v.  Wheeler:    2050. 

v.Wilson:  1424,  1734,  1759. 
Tutt  v.  Brown:  2063. 

v.  Hobbs:  1113. 
Tuttle  v.  Brown:  1782. 

v.  Campbell:    186. 

v.  Claflin:   2245,  2286. 

v.  Green:    663. 

V.Milwaukee  R.  Co.:  1615. 
Tweedale  v.  Tweedale:  1803. 
Tweker  v.  Buffalo  Cotton  Mills:  1670. 
Twelfth   Street   Market  Co.   v.   Jack- 
son: 2426. 
Twentieth   Century   Co.   v.   Quilling: 

105,  115,  446. 

Twiggs  v.  Chambers:    2276. 
Twohy    Mercantile    Co.    v.    Melbye: 

1350. 
Tyler  v.  Ames:  593,  1543. 

v.Bernard:   1537. 

v.  Freeman:   2326,  2354. 

v.  Hall:   2305. 

v.  Messenger  Co. :  163. 

v.  Parr:    2430,  2435,  2447. 

v.  O'Reilly:   893. 

v.  Sanborn:    1198,   1203,   1221. 

V.Superior  Court:  2243,  2278. 

v.Tyler:  2305. 
2416 


TABLE   OF    CASES    CITED 


[References   are  to  sections:  §§   1-1705,  Vol.  I;   §g   1706-2688,  Vol.  II.] 


Tynan  v.  Dulnig:  306,  307. 
Tynes  v.  Grimstead:  1198. 
Tyree  v.  Parkham:  2549. 
Tyrrel  v.  Hammerstein:  2216. 
Tyrrell    v.    O'Connor:    212,    224,    229, 

797,  798. 

Tyrus  v.  Rust:  1333. 
Tyson  v.  Bauland  Co.:   1973. 

v.  George's  Creek  Coal  Co. :    652, 
671. 

v.  North,  etc.,  R.  Co.:   1640,  1654. 

v.  Railroad   Co.:    1632. 

v.  State  Bank:  1313. 

U. 

Udell  v.  Atherton:  411,  1995. 
Uhlich  v.  Muhlke:   1221. 
Uliott  v.   Miller:    1553. 
Ullman  v.  Myrick:  897. 
Ullsperger  v.  Meyer:  230. 
Ulrich  v.  Commissioners:  2007. 

v.  McCormick:   628. 
Ulster   County   Sav.   Inst.   v.   Fourth 

Nat.  Bank:  850,  1607. 
Umback  v.  Lake  Shore,  etc..  R.  Co.: 

1624. 
Underbill  v.  Gibson:   2033. 

v.Jordan:   1343,  1694. 
Underwood  v.  Nicholls:   2519. 

v.  Pennsylvania    Fire    Ins.    Co. : 

1055. 

v.  Piper:  2254. 

Underwood   Typewriter   Co.    v.    Cen- 
tury Realty  Co.:   836. 
Union  Bank  v.  Campbell:  1843,  1853. 
v.Geary:   2162,  2184. 
v.German  Ins.  Co.:   1072. 
v.  Govan:  2163. 
v.  Long  Pole  Co. :  291. 
v.  Middlebrook:   364. 
v.  Mott:  974. 
Union    Bldg.,    etc.,    Ass'n    v.    Soder- 

quist:    2207. 

Union  Canal  v.  Loyd:  1854. 
Union  Casualty  Co.  v.  Gray:  333,  622, 

675. 
Union  Cent.  Life  Ins.  Co.  v.  Pappan: 

301. 

v.Robinson:   1815. 
v.  Smith:   1803. 

Union  Const.   Co.  v.  Western  Union 
Tel.  Co.:    285. 

152 


Union  Depot  Co.  v.  Smith:  1973. 
Union  Elevated  R.  Co.  v.  Nixon:  97. 
Union,  etc.,  Co.  v.  Mason:   946. 
Union,    etc.,    Ins.    Co.    v.    Robinson: 

1803. 
Union  Garment  Co.  v.  Newburgher: 

316,  577,  585. 

Union  Gold  Min.  Co.  v.  Rocky  Moun- 
tain Nat.  Bank:  395,  407,  461,  468. 
Union    Guaranty    Co.    v.    Robinson: 

285. 
Union  Hardware  Co.  v.   Plume  Mfg. 

Co.:  1249. 
Union  Hosiery  Co.  v.  Hodgson:   186, 

262,  291. 

Union  Ins.  Co.  v.  Chipp:  2369. 
Union  Life  Ins.  Co.  v.  Haman:   1782, 

1783. 
Union  Manufacturing  Co.  v.  Morris- 

sey:  1630,  1631. 
Union  Min.   Co.   v.  Rocky   Mountain 

Nat.  Bank:  2087. 
Union  Mut.  L.  Ins.  Co.  v.  Buckman: 

2163. 

v.  Kirchoff :   435. 
v.  Masten:  229,  374. 
v.Thomas:    2178. 
v.Wilkinson:   710,  1067. 
Union  Nat.  Bank  v.  Carr:  111. 
v.  German  Ins.  Co. :  1814. 
v.  Scott:   1125. 
v.  Chapman:  148. 
v.  Hartwell:  148. 
Union  Naval  Stores  Co.  v.   Stewart: 

285. 
Union  Pacific  R,  Co.  v.  Beatty:   341, 

994. 

v.  Chicago,  etc.,  R.  Co. :  368. 
v.  Day:   2308. 
v.  Erickson:   1650. 
v.  Fort:  1619. 
v.  Winterbotham:  994. 
Union    Pac.    Townsite   Co.    v.   Page: 

981,  1003. 
Union  Planters'  Bank  v.  Edgell:  178, 

1198. 
Union    Refining    Co.    v.    Pentecost: 

2349. 
Union  R.  &  Transit  Co.  v.  Kallaher: 

1860. 

Union  School  F.  Co.  T.  School   Dis- 
trict: 367. 


TABLE   OF    CASES    CITED 


[ReferenceM  are  to  section*:   §§  1-1705,  Vol.   I;  gg   1700-2588,  Vol.  II.] 


Union    Steamship    Co.    v.    Claridge: 

1860,  1861. 
Union  Stock  Yards  Bank  v.  Gillespie: 

2099,  2576. 
Union   Stock  Yards  Co.  v.  Mallory: 

60,  246,  716,  2394. 
Union    Surety,   etc.,   Co.   v.   Tenney: 

2246. 
Union  Trust  Co.  v.  McKeon:  290,  296, 

936. 

v.  Means:   850,  784,  2108. 
v.Phillips:  435. 
v.Preston  Nat.  Bank:  1801. 
Uniontown  Grocery  Co.  v.   Dawson: 

261,  468,  2426. 
United  Firemans'  Ins.  Co.  v.  Thomas: 

300,  1058,  1062,  1071,  2368,  2369. 
United  Nat.   Bank  v.  Tappan:    2389, 

2408. 

United  Oil  Co.  v.  Gray:  606,  611. 
United  R.  Co.  v.  Cloman:  1799. 
United  Security  Co.  v.  Central  Nat. 

Bank:  1815. 

United  States  v.  Bartlett:  124,  125. 
v.  Boice:  2065. 
v.  Burch:   2006. 

v.  Burrell  Construction  Co. :  2020. 
v.  Carter:  1227.  . 
v.  Commissioners:  1492. 
v.  Costen:   2188. 
v.  Cutts:   659. 
v.  Duval:  2425. 
v.  Pillebrown :  1522. 
v.  Grossmayer:  151,  175. 
v.  Jarvis:  641,  1542. 
v.  Macdanlel:  1522. 
v.  Nelson:  213. 
v.  Pinover:  1439. 
v.  Sanborn :  2473. 
v.  Schwalby:  1803. 
v.  Smith:  1803. 
v.  Torres:  856. 
v.  United    States    Fidelity    Co.: 

2162. 

v.Villalonge:  2561. 
United  States  Bank  v.  Burson:   940, 

958. 

v.  Goddard:   1303. 
United  States  Bedding  v.  Andre:  715, 

892. 

United  States  Cement  Co.  v.  Cooper: 
1671. 

2418 


United  States  Express  Co.  v.  Rawson: 

425,  483,  555,  1782. 
United  States  Fidelity  Co.  v.  Shirk: 

407,  435,  1842. 
United    States    Ins.    Co.    v.    Shriver: 

1852. 
United  States  L.  Ins.  Co.  v.  Advance 

Co.:  716,  1268,  2502. 
v.  Hessberg:  1701. 
v.  Lesser:  1060,  1062. 
United  States  Mtg.  Co.  v.  Henderson: 

500. 
United  States  Nat.  Bank  v.  Forstedt: 

1813. 
v.  National     Park     Bank:     1432, 

1435. 
United   States  Oil,  etc.,  Co.  v.  Bell: 

2293. 

United  States  Rolling  Stock  Co.  v.  At- 
lantic, etc.,  R.  Co.:  1222,  2138. 
United   States   School  Furniture  Co. 

v.  Board  of  Education:  854. 
United  States  Tel.  Co.  v.  Gildersleve: 

2024,  2025,  2031,  2035,  2048. 
United    States   Trust   Co.    v.    Wiley: 

1333. 
University  v.  Finch:  696. 

v.  Lassiter:  2156 

Universe  Ins.  Co.  v.   Merchants  Ma- 
rine Ins.  Co.:  2418. 
Upchurch  v.  Norsworthy:  1432. 
Upham  v.  Lefavour:  1692,  2554. 
Uphoff  v.  Ulrich:  2442. 
Uppington  v.  New  York:  1871. 
Upton  v.  Archer:  213. 

V.Suffolk     County     Mills:      243, 

716,  882,  889,  2403. 
V.Suffolk  Mills:  2506. 
Urquhart  v.  Mclver:  2510. 

v.  Scottish   American    Mtg.   Co. : 

607. 

Usborne  v.  Stephenson:   2539. 
Utah    Consolidated    Mining     Co.     v. 

Bateman:   1661,  1674. 
v.  Paxton:  1630. 
Utica,   etc.,  R.   Co.   v.   Brinckerhoff: 

601. 
Utica    Ins.    Co.    v.    Toledo    Ins.    Co.: 

1078,  2138. 
Utter  v.  Chapman:  1557,  1559. 


TABLE   OF    CASES    CITED 


[Reference*  are  to  sections:   §§  1-1705,  Vol.   I;   §§  1706-2588,  Vol.  II.] 


V. 


Vacaro  v.  Toof:   620. 

Vahlberg  v.  Keaton:  2002. 

Vail  v.  Conant:  2183. 

v.  Durant:   2543,  2559,  2574. 
v.Jersey  Falls  Co.:  605. 
v.  Meyer:    167. 
v.Owen:  1498. 

Valentine  v.  Piper:  212,  220,  224,  811. 
v.  Stewart:   110. 

Valerius  v.  Luhring:  2447. 

Valiquette  v.   Clark   Bros.   Min.   Co.: 
263,  970. 

Valle  v.  Cerre:  2562,  2563,  2564. 

Vallender  v.  Victorian  Railway  Com- 
missioners: 1868. 

Vallette  v.  Tedens:  1193,  1209,  1219. 

Valley   Bank  of  Phoenix  v.   Brown: 
395,  403. 

Valley   Glass   Co.    v.    American    Ins 
Co.:  471. 

Valliant  v.  Dodemead:  2311. 

Valpey  v.  Rea:  134. 

Vanada   v.    Hopkins:    766,    784,    798, 
812,  1086. 

Van   Alen   v.   American   Nat.   Bank: 

1350,   2090,   2091,  2096. 
v.  Vanderpool:    1279,    2504,    2523. 

Van  Amringe  v.  Peabody:   2509,  2578. 

Van  Antwerp  v.  Linton:  1477. 

Vanasse  v.  Reid:   2291. 

Van  Brunt  v.  Wallace:  172. 

Van  Buren  County  v.  American  Sure- 
ty Co.:  1803,  1826.    • 

Van  Cam  pen  v.  Bruns:  2314. 

Vance  v.  Hickman:.  1833. 

Van  Cott  v.  Hull:  1295,  1296. 

Vandelle  v.  Rohan:  1254,  1342. 

Van  Der  Beek  v.  Thomason:  2243. 

Vanderbilt  v.  Bennett:  116. 

v.Richmond  Turnpike  Co.:   2222. 
v.  Turnpike  Co.:   3«6. 

Vanderline  v.  Smith:   2163,  2183. 

Vanderpoel  v.  Kearns:   1590. 

Vanderpool  v.  Partridge:    1624,  1626. 

Vanderveer  v.  Statesir:    1352. 

Van  Deusen  v.  Sweet:  134. 

Vandeymark  v.  Corbett:  1925. 

Van  Dolsen  v.  Board  of  Education: 
1800. 

Van  Doren  v.  Bailey:  1783. 


Van    Dusen    v.    Bigelow:    179,    1198, 

1201,  1221. 
v.  Mining  Co.:  285. 
Van  Dusen  Harrington  Co.  v.  Junge- 

blut:   919,  1220,  2394,   2411. 
Van  Duzer  v.  Howe:  737. 

v.  McMillan:    2230. 
Vandyke  v.   Brown:    2553. 
Van  Dyke  v.  Van  Dyke:    1093,  1098, 

1734,  1737. 

Van  Epps  v.  Van  Epps:  179,  1192. 
Van  Etta  v.  Evenson:  213,  214. 
Van  Etten  v.  State:  2270. 
Van  Horn  v.  Van  Horn:   2133. 
Van  Home  v.  Fonda:   1192. 
Van  Keuren  v.  Corkins:  936,  937. 
Van  Kleeck  v.  McCabe:  1768,  2129. 
Van  Meter  v.  Darrah:  679. 
Vann  v.  Downing:   2370. 
Van  Name  v.  Queen's  Land  &  T.  Co.: 

433. 

Vanneman  v.  Powers:  150. 
Van  Norman  v.  Fitchette:    2449. 
Van  Orden  v.  Morris:    2467. 
Vansandau  v.  Browne:  2255. 
Van  Sandt  v.  Dows:  55. 
Van   Santvoord  v.   Smith:    710,   732, 

904,  905,   991. 
Van    Schoick    v.    Niagara    Fire    Ins. 

Co.:   1061. 

Van  Sickle  v.  Keith:  291. 
Van  Staphorst  v.  Pearce:   2024,  2030, 

2508,  2568. 

Van  Steenbergh  v.  Bigelow:  1498. 
Vantries  v.  Rickey:   2557. 
Vanuxem  v.  Bostwick:  600,  1569. 
Van   Valkenburgh   v.   Lenox   F.    Ins. 

Co.:   2368. 

Van  Valkinburgh  v.  State:   2008. 
Van  Vlieden  v.  Welles:  1384. 
Van  Vlissingen  v.  Blum:  178,  1590. 
Van  Wart  v.  Carpenter:  2068. 

v.  Woolley:  1314,  1320. 
Van  Weissingen  v.  Blum:    2474. 
Van     Winkle     v.     Satterfield:     1556, 

1557,  1559,  1562. 
Van  Wyck  v.  Watters:  2003. 
Van  Zandt  v.  Furlong:  818,  2108. 
Vera    v.    Quigley   Construction    Co.: 

1974. 

Varner  v.  Interstate  Exchange:  1208. 
Varney  v.  Hawes:   2023. 


2419 


TABLE   OF    CASES    CITED 


[References  are  to  «<•<•< Jons:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Varnum  v.  Bellamy:  21C3. 

v.Martin:   1279,  1280,  2200. 
Vassor  v.  Atlantic  Coast  Line:  306. 
Vater  v.  Lewis:  1147,  1164. 
Vaughan  v.  McCarthy:  2431,  2447. 

v.  Williams:   1986. 

Vaughan  v.  California  Cent.  R.  Co.: 
1621. 

v.  Fisher:    2184,  2227. 

v.  Sheridan:  804. 

v.  Slater:  426. 
Vawter  v.  Baker:  2584. 
Veale  v.  Green:  253. 
Veasey  v.  Carson:  1588,  2411,  2412. 
Veatch  v.  Gilmer:  803. 
Veazey  v.  Allen:  92,  100. 
Veazey's  Will,  In  re:  2312. 
Veazie  v.  Parker:   2430,  2435,  2447. 

v.Williams:   2331. 
Veeder  v.  Seaton:  1536,  1537. 
Veil  v.  Mitchel:  2576,  2577. 
Veile  v.  Blodgett:  1350. 
Veltum  v.  Koehler:   1602. 
Venables  v.  Smith:  1894. 
Vennum  v.  Gregory:   1588,  2551. 
Vent  v.  Osgood:  155,  1599. 
Verdelli  v.  Commercial  Co.:  2297. 
Vermont  Cent.  R.  Co.  v.  Clayes:  2030. 
Vermont   Marble   Co.   v.   Mead:    227, 

797,  807. 

Verner  v.  Sullivan:  2256. 
Vernier  v.  Knauth:  1285. 
Vernon  v.  Manhattan  Co.:  634. 
Verona  Central  Cheese  Co.  v.  Mur- 

taugh:    2008. 

Vertrees  v.  Head:  1387,  1388. 
Verttie  v.  Jewell:  1698. 
Very  v.  Levy:   793,  1266. 
Vescelius  v.  Martin:  1007. 
Vianna  v.  Barclay:  459,  491,  2414. 
Vickers   v.    Kanawha,   etc.,   R.    Co.: 

1641. 

Vickery  v.  Lanier:  252. 
Vicksburg,   etc.,   R.    Co.   v.   O'Brien: 
1798. 

v.Putnam:   1784. 

v.  Ras?sdale:   246,  280. 

v.Wilkins:   1676. 
Vicksburg  R.  Co.  v.  Lowry:  1493. 
Victor  Coal  Co.  v.  Muir:  1676. 
Victor,    etc.,    Min.    Co.    v.    National 
Bank:  2281. 


Victor  Gold,  etc.,  Min.  Co.  v.  Bank: 
1815. 

Victor  Sewing  Mach.  Co.  v.  Heller: 
895,  2512,  2513. 

Victoria,  etc.,  Co.  v.  Fraser:   899. 

Vidalia  v.  Mathews:    611. 

Videau  v.  Griffin:   208. 

Viele  v.  The  Germania  Ins.  Co.:  1064. 

Vigo  Agricultural  Soc.  v.  Brumfiel: 
2452. 

Vigus  v.  CXBannon:  2209. 

Vilas  Bundy:    2166,  2169. 

v.  Downer:    1528,  2245,  2246. 
'         v.  Plattsburgh,  etc.,  R.  Co.:  2156, 
2158. 

Viley  v.  Lockwood:  1691. 
v.  Pettit:  1517,  2426. 

Vilhauer  v.  Toledo:   2259. 

Village  of  Cahokia  v.  Rautenberg: 
1148. 

Village  of  Kent  v.  Dana:  2023. 

Villhauer  v.  Toledo:  2314. 

Vincent  v.  Crandell,  etc.,  Co.:  1950. 
v.  Rather:  496,  2535. 

Vinson  v.  Cantrell:  2245. 

Vinton  v.  Baldwin:  1535,  1536,  1695, 
2467,  2484. 

Violett  v.  Mangold:  121. 

Virginia-Carolina  Peanut  Co.  v.  At- 
lantic Coast  Line  R.  Co.:  2063, 
2086. 

Virginia  Chem.  Co.  v.  Knight:  1780, 
1784. 

Virginia,  etc.,  R.  Co.  v.  Sayers:  1798. 

Virginia  Pocahontas  Coal  Co.  v.  Lam- 
pert:  386,  390,  501,  1237. 

Vischer  v.  Yates:    2037. 

Vizard  v.  Moody:  i69. 

Vocke  v.  Peters:  226. 

Vogel  v.  Weissmann:  628,  962. 

Vogelsang  v.  Null:   146. 

Vohs  v.  Shorthill:  1637. 

Voight  v.  Brown:   148. 

Volant  v.  Soyer:  2300. 

Volger  v.  Ray:  187. 

Von  Heyne  v.  Tompkins:  610,  1548, 
1593. 

Von  Hurter  v.  Spengeman:  1192, 
1331. 

Von  Tobel  v.  Mill  Co.:  2461. 

Von  Wien  v.  Scottish  Ins.  Co.:   2368. 

Vooth  v.  McEachen:   2212. 


2420 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  170C-2588,  Vol.  II.] 


Vorce  v.  Page:    2152. 
Vorley  v.  Garrard:  2180. 
Vosburgh  v.  Huntington:    1333. 
Vose  v.  Dolan:  215. 

v.  Willard:   1498. 
Voss  v.  Bachop:   1346. 

v.  Delaware,  etc.,  R.  Co. :  1635. 

v.Robertson:   2114. 
Voss   &  Co.   v.  Robertson,   Brown   & 

Co.:  897. 

Votaw  v.  McKeever:   2457. 
Vrchotka  v.  Rothschild:  1973. 
Vreeland  v.  Vetterlein:  2457. 
Vrooman  v.  Pickering:   2283. 
Vulcan    Detinning   Co.    v.    American 

Can  Co.:  1211,  1803,  180G. 
Vusler  v.  Cox:  161,  163. 

W. 
Waaler   v.    Great   Northern   R.    Co.: 

1977,  1978. 

Wabash,  etc.,  R.  Co.  v.  Peyton:  1860. 
v.  Rector:   2016. 
v.  Thompson:  1676. 
Wabash  R.  Co.  v.  Curtis:   1046. 

v.  Farrell:   1784. 
Wabash   St.   L.   &  P.   R.   Co.   v.   Mc- 

Dougall:  2170. 

Wabash  W.  R  Co.  v.  Brow:   1790. 
Wachsmuth  v.  Shaw  Electric  Crane 

Co.:  1626. 
Wachter  v.  Assurance  Co.:   710,  732, 

739,  1989,  1995. 
Waddell  v.  Mordecai:  1412. 
v.Sebree:  1731,  1732. 
v.Swann:    1340. 
Waddington  v.  Oliver:  1577. 
Wade  v.  Barr  Dry  Goods  Co.:   608.  ,. 
v.  Hamilton:    2563. 
v.  Harvey:  485. 
v.Powell:   2162. 
v.  Thayer:  1940. 
Wadele  v.  New  York  Cent.,  etc.,  R. 

Co.:  1783. 

Wadhams  v.  Gay:  2162. 
v.  Gray:   2162,  2163. 
v.  Western  Assur.  Co. :   1074. 
Wadley  v.  Davis:  716. 
Wadsworth  v.  Adams:  1588,  2411. 

v.  Gay:   2524,  2545. 

Wadsworth  Rowland  Co.  v.  Poster: 
1871. 


• 


Wagner  v.  Engel-Millar  Co.:  111. 
v.  Haak:    1978. 
v.  Hildebrand:      111,     121,     1602, 

2481. 

v.  Jayne  Chemical  Co.:    1619. 
v.  Nagel:   163. 
v.  Norris:   2441. 
V.Phillips:   1295,  2290. 
v.  Westchester     Fire     Ins.     Co.: 

1067. 

Wagniere  v.  Dunnell:    226. 
Wagoner  v.  Silva:  169. 

v.  Watts:  215,  236,  1098. 
Wagstaff  v.  Wilson:   2178. 
Wahl  v.  Tracy:  2389,  2411. 
Wailes  v.  Brown:   2230. 
Wainwright  v.  Read:  2322. 

v.Wilkinson:   141. 
Wait  v.  Atchison,  etc.,  R.  Co.:   2281, 

2283. 

V.Baldwin:   169. 
v.  Borne:  889. 

v.  City  of  Santa  Cruz:  2137. 
Waite  v.  Frank:  111,  112. 

v.  Santa  Cruz:   1815. 
Wakefield  v.  Fargo:  39. 

v.  South  Boston  R.  Co.:   1783. 
Wakeman  v.  Wheeler  &  Wilson  Mfg. 

Co.:   1552. 

Wakins  v.  Thomas:  2437. 
Walbridge  v.  Barrett:    2247. 
Walcott  v.  Keith:  1688. 
Walden  v.  Bolton:   2163. 
Walder  v.   Cutts:    1438,  1445. 

v.  North  British  Mercantile  Ins. 

Co.:  317,  333,  1054,  1841. 
Waldock  v.  Winfield:  1861. 
Waldorf  v.  Simpson:  905. 
Waldron  v.  Berry:  1496. 
v.  Fargo:   1045,  1047. 
v.  Ward:  2311. 
Waldrop  v.  Greenwood,  etc.,  R.  Co.: 

1783. 

Wales  v.  Mower:   291,  933,  1034. 
Wales-Riggs  Plantations  v.  Dye:  910. 
Walkeen     Lewis     Millinery     Co.     v. 

Johnston:  1784. 
Walker  v.  Baldwin:   2479. 

v.  Bank:    1144,   1175,  1369. 
v.  Birch:    2560. 
v.  Black:   2370. 
V.Borland:  2529. 


2421 


TABLE   OF    CASES    CITED 


[Reference*  are  to  aectlon»:   §§  1-1705,  Vol.  I)  §§  1700-25SS,  Vol.  II.] 


Walker  v.  Brown.   654. 
v.  Butterlck:    48,  2499. 
v.  Carrington:   169,  553,  1203. 
v.  Clay:   2234. 

v.  Dubuque  Produce  Co.:  2566. 
v.  Cronin:   2133. 
v.  Cross:   1422,  2418. 
v.  Dailey:   2000. 
v.  Denison:  565,  586,  619,  2446. 
-   v.Derby:  552. 

V.Detroit    Transit    R.    Co.:    237, 

2115. 
v.  Dubuque  Fruit  Co.:  2504,  2566, 

2567. 

v.  Equitable  Mtg.  Co.:   2283. 
v.Floyd:   1494,  2284. 
v.Fraser:  2435. 
v.  Gillett:   1652. 
v.  Goodrich:  2262. 
v.  Grand  •  Rapids    Flouring    Mill 

Co.:  1809. 
v.  Grant:  1524. 
v.Grayson:   2162. 
v.Haggerty:   410. 
v.Hale:   2058. 
v.  Hallock:  1494,  1498. 
v.  Hancock    Mut.    L.    Ins.    Co.: 

1334. 
v.Hannibal,   etc.,   R.    Co.:    1831, 

1978. 

v.  Herring:   2320. 
v.  John    Hancock    Mut.    L.    Ins. 

Co.:  610,  1532. 
v.  Kaye:   2349. 
v.Marion:  186. 
v.  McCaull:   2523. 
v.  Osgood:    178,  1220,  1590,   2411, 

2412,  2413,  2474. 
v.  Rostron:   581,  1447,  1448. 
v.Rudd:  2058. 
v.Sargent:  2279. 
v.Scott:   2183. 
v.  Skipwith:   60,  710. 
v.  Smith:  1258.       ! 
v.  Spencer:  1343. 
v.Stevens:    1315,  2204. 
v.  Swartwout:  1113,  1428. 
v.  The  Bank  of  the  State  of  New 

York:  1306. 
v.Tirrell:   1533,  1536,  1543,  2426, 

2430,  2461. 
V.Walker:   440,  1247,  1265,  1291. 


Walkowski    v.    Consolidated    Mines: 
1644. 

v.Penokee  Mines:  1632. 
Wall  v.  Lubbock:   652. 

v.  Schneider:  111,  112. 

v.  Trumbull:  1494,  1496,  1498. 
Wallace  v.  Bozarth:  652. 

v.  Bradshaw:   318,  2538. 

v.  Branch  Bank:  783,  976. 

V.Chicago,  etc.,  R.  Co.:  2283. 

v.  De  Younge:  1230. 

v.  Dinniny:  836,  954,  957. 

v.  Figone:   619,  625. 

v.  Finberg:  1976,  2227. 

v.Floyd:  605,  1524,  1530. 

v.Johnson:  1113. 

v.  Lawyer:  441. 

v.  Long:  1579. 

y.  Manhattan  Co.:  680. 

v.  McCullough:  225. 

v.  Milwaukee,  etc.,  R.  Co.:  2236. 

V.Morgan:  2538. 

v.  Stone:  1350. 

v.Woodgate:  1684. 
Waller  v.  State:  2008. 

v.  Thomas:  187. 
Walling  v.  Poulsen:  411,  435. 
Wallis  v.  Johnson  School  Township: 
1149. 


v.  Shelly:  1321,  1432. 


v.  Warren:  1558. 
Wallis  Tobacco  Co.  v.  Jackson:  910, 

983. 

Walls  v.  Bailey:  716,  1268. 
Walmesley  v.  Booth:  2292. 
Walmsley  v.  Quigley:   285. 
Wain  v.  Beaver:   2197 
Walpole  v.  Bishop:  2210. 
Walradt  v.  Maynard:   2163. 
Walsh   v.   Aetna   L.   Ins.   Co.:    1064, 
1070,  1075. 

v.  Carter-Grume  Co. :  1798. 

v.Curley:  156. 

v.  Fisher:  1582,  1583. 

v.  Goulden:    1202. 

V.Hastings:   121,  2447. 

v.Hoskins:  2276,  2281. 

v.Hunt:  1027. 

v.Missouri  Pac.  R.  Co.:  2162. 

v.  New    York    &    Kentucky    Co.: 
1576. 

V.Peterson:  295,  296,  958. 


2422 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.  Ij  §g  1706-2588,  Vol.  II.] 


Walsh  v.  Pierce:   246,  259. 
v.  School  Board:  2230. 
v.  Shumway:    2201,   2256. 
v.  Trustees:  1504. 
v.  Walley:  1586. 
v.  Whitcomb:   573,  577,  585. 
Walter  v.  Bennett:  1254,  1342. 

v.  James:  384,  512. 
Walters    v.    Bray:     252,    501,    1237, 

1238. 

v.  Dancey:  2431. 
v.  McGirt:   2556. 
v.Senf:  716. 
v.  Spokane  International  R.  Co.: 

1796,  1797,  1799. 
v.  State:  2008. 
v.  Tielkmeyer:   2111. 
Walther  v.  Wetmore:  2510. 
Walton  v.  Burchel:  1632,  1670. 

v.Cherokee  Colliery  Co.:   1918. 
v.Clark:  2426. 

v.  Dore:  26,  284,  1223,  123&  v 
v.  Miller:    1641. 
v.  Torrey:  1202. 
Walton    Guano   Co.   v.    McCall:    866, 

870,  937. 
Walworth   Co.   Bank  v.   Farmers'  Lw 

&  T.  Co.:   374,  441,  473. 
Wambole  v.  Foote:   141,  692. 
Wamsley  v.  Darragh:  135. 
Warnwright  v.  Massenburg:  663. 
Wanamaker  v.  Megraw:  285. 
v.  Weaver:    161,  163,  165. 
Wandling  v.  Straw:  2158. 
Wando  Phosphate  Co  v.  Parker:  1457. 
Wanless  v.  McCandless:  1268. 
Wann  v.  Scullin:   491. 
Wanstall  v.  Pooley:   317. 
Waples  v.  Hastings:   141,  370. 
Wapples-Platter   Grocer   Co.    v.    Kln- 

kaid:   777,  1019. 
Warax    v.    Cincinnati,    etc.,    R.    Co.: 

2011. 
Ward  v.  Ames:  1559. 

v.  Bank  of  Kentucky:   977. 

v.  Cobb:  1536,  2430,  2447,  2448. 

v.Craig:    2230,  2267,   2271. 

v.Evans:   946. 

v.  Fellers:  1594,  1597. 

v.  Freeman:   1494. 

v.  Hackett:    978. 

v.Kohn:  2246,2247. 


Ward  v.  McQueen:   2430. 
v.Powell:    1783. 
v.Pullman  Co.:   1483. 
v.Rogers:   136. 
v.Roy:  2186. 
v.  Ryba:  2028. 
v.  Sherbondy:  2286. 
v.  Smith:  281,  695,  934,  946,  1202. 
v.  Steamboat:   142,  370. 
v.  Thrustin:  1005. 
v.  Tucker:  1601. 
v.  Warfield:  491. 
v.Watson:  2281. 
v.Williams:  442,  463,  466. 
v.Wilson:   1595,  2170. 
v.  Wood:    2033. 
v.  Yancey:  2293. 
v.  Zborowski:   2443. 
Warden  v.  Eichbaum:  441. 
v.  Hinds:  592. 

v.Louisville,  etc.,  R.  Co.:  1676. 
Warder  v.  Cuthbert:  446 
v.  Robertson:    885,   903. 
v.  Rublee:    848. 
v.  White:    2067,    2072. 
Warder,   etc.,   Co.   v.   Cuthbert:    477, 

489,  527. 
V.Harris:   1457. 
v.Myers:   410. 
v.  Fischer:  905. 

Wardlaw  v.  Troy  Oil  Mill:  1852. 
v.Troy  Oil  Mills  Co.:    1803. 
Wardrop  v.  Dunlop:  935. 
Ward's,  etc.,  Co.  v.  Elkins:  741. 
Ware  v.   Barataria,  etc.,  Canal  Co.: 

1978. 

v.  Galveston  City  Co.:    1762. 
v.  Hay  ward    Rubber    Co. :     2425, 

2553. 

v.  Heiss:  1803. 
v.  Long:   1731. 
V.Morgan:    1153,  1367. 
v.  Spinney:   1332. 
Ware's  Adm'r  v.  Russell:  2237. 
Warfield    v.     Campbell:     2223,    2278, 

2279,  2281. 

Warford  v.  Temple:   1134,  1149. 
Waring  v.  Mason:   2419. 
v.Richardson:   1339. 
Warlick  v.  Reynolds:    2163. 
Warlow  v.  Harrison:  2342,  2343,  2346. 
2349. 


2423 


TABLE  OF    CASES    CITED 


[Reference*   are  to  flection* t   g§  1-1705,  Vol.  I;   83  1706-2588,  Vol.   ".] 


Warnekroa  v.  Bowman:   2443. 
Warner  v.  Bridges:   1339. 

v.  Comstock:   2141. 

v.Erie  R.  Co.:   1654. 

v.  Griswold:  2204. 

v.  Hall:   1814,  2176. 

v.Martin:    894,   2509,   2510,   2512, 
2514. 

V.  Smith:  1573. 

v.  Sohn:  285. 

v.  Warren:   1984. 
Warren  v.  Adams:  1694. 

v.  Burt:  1206,  1207,  1226,  2411. 

v.  Dixie:   1831. 

v.  nixon:  1818. 

v.  First  Nat.  Bank:  2559,  2562. 

v.  Halley:   870. 

v.  Harrold:  1139. 

V.Hayes:   410,  1803. 

v.Hewitt:  1601. 

v.  Holbrook:  1343. 

v.  Ocean  Ins.  Co.:  219. 

T.Pim:  116,308. 

v.  Union  Bank:  1350. 

v.  Warren:  2305. 
Warren  Bank  v.  Suffolk  Bank:    332, 

1288,  1313. 

Warren  Co.  v.  Houston:  2307. 
Warren-Scharf    Co.     v.     Commercial 

Nat.  Bank:  976. 

Warrick  v.  Warrick:  1808,  1814,  2176. 
Warriner  v.  People:  2544. 
Warshawsky  v.  Bonewur:  441. 
Warwick  v.  North  American  Inv.  Co.: 

1532. 

Waschow  v.  Kelley  Coal  Co.:  1671. 
Wasem  v.  Raben:  170. 
Wasey  v.  Whitcomb:  1327. 
Washbon  v.  Cope:  2156,  2158. 

v.Bradley:    1536,  2472. 

v.  Nashville,  etc.,  R.  Co. :  130. 
Washington  v.  Johnson:  2185. 

v.Triplett:  1320. 

Washington    Bank    v.    Lewis:     708, 
1845,  1848,  1852. 

v.  Triplett:  716. 
Washington    etc.,    Co.    v.    McDade: 

1624. 
Washington,    etc.,    R.    Co.    T.    Real 

Estate  TVust  Co.:  1820. 
Washington  Gas  Light  Co.   v.  Lans- 
den:  979,  1980. 


Washington    Ins.    Co.    v.    Seminary: 

1153. 
Washington  Mut.   F.   Tns.   Co.  v.   St. 

Mary's  Seminary:  1162. 
Washington    Nat.    Bank    v.    Pierce: 

1849. 
Washington   Sav.   Bank  v.   Butchers' 

Bank:  368,  480. 
Washington    Times    Co.    v.    Wilder: 

219. 

Washington  Times  v.  Taylor:  432. 
Washoe  Copper  Co.  v.  Hickey:    2162. 
Wassell  v.  Reardon:  1728,  2138,  2412. 
Wasser    v.    Western  Land  Co.:   382, 

2474. 

Wasson  v.  Millsap:  2309. 
Wasson  v.  Mitchell:  1495. 
Wasweyler  v.  Martin:  806,  807. 
Waterbury  v.  Barry:  2137,  2477. 

v.Laredo:   2235. 
Waterhouse  v.  Citizens'  Bank:  946. 

v.  Dorr:  2319. 
Waterman  v.  Boltinghouse:  2445. 

v.Clark:  1595. 

v.Gilson:1519. 

v.  Stephens:  233. 
Waterman  Real  Estate  Exchange  v. 

Stephens:  2434. 
Waters  v.  Anthony:  1974. 

v.  Davies:   1533,  1601. 

v.Grace:   2270. 

v.  Monarch        Insurance        Co.: 
2521. 

v.  Pioneer  Fuel  Co.:   1870,  1916. 

v.  Rafalsky:   2435. 

v.Wandless:2036. 
Waterson  v.  Rogers:  435. 
Watervliet  Bank  v.  White:  2065. 
Watkins  v.  Cousall:  1590. 

v.  Durand :  524. 

v.Edgar:  261. 

v.  McDonald:    208. 

v.Morley:  900. 

v.  Plummer:   2023. 

v.Thomas:   2430. 

v.  Vance :    156. 

v.  Vlnce:  275. 

Watkins  Land  Mortgage  Co.  r.  Camp- 
bell: 798. 

v.  Thetford:    435,  2479. 
Watkinson  v.  Laughton:  2001. 
Watle  v.  Thayer:  1181,  1424, 


2424 


TABLE   OF    CASES    CITED 
[References   are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II. J 


Watson  v.  Bayliss:  1205,  1206. 
v.  Bright-well:   233. 
V.  Brooks:  2430,  2438,  2447. 
v.  Calvert  Bldg.  Ass'n:  2202. 
v.  Erb:   1194. 
v.  Gugino:  603. 
V.Hopkins:   1005. 
v.  King:  573,  575,  2178. 
v.  Lyon:   2273. 
v.  Muirhead:   2202,  2204. 
v.  Railroad  Co.:   1615,  1624. 
v.  Russell :   1557. 
V.Sherman:  212,  229. 
v.  Southern  Ins.  Co. :  446,  448. 
v.  Steel  Co.:  1223. 
v.  Steever:  1517. 
v.  Swann:  377. 

v.  Union  Steel  &  Iron  Co.:   1225. 
v.  Young:    2297. 
Watt  v.  Brookover:  2181,  2183. 
v.Davidson:   398. 
v.  Railway  Co. :  435. 
v.  Watt:  675. 
Watteau   v.   Fenwick:    711,   732,  915, 

982,  1767,  1768. 
Waiters  v.  Wells:    2281. 
Watterson  v.  Beaudry:  861. 
Watts  v.  Devor:  915. 
v.  Dover:  997. 
v.  Howard:   242,  716,  919. 
v.  Kavanagh :    629. 
v.  Metcalf:   992. 
v.  Moffet:  162. 
v.  Newberry :  2267. 
v.  Van  Ness:  90. 

Waupaca  Electric  Light  Co.  v.  Mil- 
waukee Electric  R.  Co.:  882. 
Waverly,   etc.,   Co.   v.   St.   Louis   Co- 
operage Co:  285. 
Wawrzyniakowski    v.    Hoffman   Mfg. 

Co.:  2315. 

Wax's  Estate,  In  re:  2307. 
Way  v.  Davidson:  1688. 
v.  Greer:  102. 
v.  Powers:   1912. 
v.  Townsend:  1494. 
Wayne  Bldg.  &  Loan  Ass'n  v.  Moats: 

1032. 
Waynesville    Nat.    Bank    v.    Irons: 

1813. 

Weakley  v.  Pearce:  1262. 
Weare  v.  Gove:  1395. 


Weatherbee  v.  Partridge:  1918. 
Weatherford,  etc.,  R.  Co.  v.  Crutcher: 

1876,  1877. 

v.  Granger:  189,  193,  382,  435. 
"Weaver  v.  Carnall:  315,  1124. 
v.  Devendorf:   1495,  1498. 
v.  Ogletree:   156,  246,  275. 
v.Richards:    652,    657,    663. 
Webb  v.  Browning:  236,  2230,  2231. 
v.  Burke:  1124,  1153. 
v.  Burroughs:  2447. 
v.  Depew:   1557. 
v.  Fisher:   1494. 
v.  Fordyce:  1344. 
v.  Graniteville  Mfg.  Co.:  1843. 
V.Marks:    179,   1198,   1201,   1203 

1221,  2131. 

T.McDermott:  1227,  1234,  1239. 
v.  Paxton:  1590. 
v.  Sharman:   2055. 
v.  Smith:  2351. 
v.  Trescony:  2253,  2256. 
Webber  v.  Davis:  2423. 

v.  Wannemaker:   2290,  2296. 
v.Williams  College:   972,  973. 
Weber  v.  Bridgman:  664,  666. 

v.  Brooklyn,    etc.,   Railroad   Co  • 

1935. 

V.Collins:   167,  1731,  1732. 
v.  Lockman:   1901. 
v.  Shay:  102,  2234. 
v.Weber:  1456,  1458. 
Weber  Wagon  Co.  v.  Kehl:  1630. 
Webster  v.  Bear:  2583. 
v.  Brown:   1093. 
v.  Diamond :    2191. 
V.Dundee    Mtg.    &    Trust    Co.: 

2162. 

v.Rhodes:  2256. 
v.Richardson:  2523,  2538. 
v.  Wade:  1557. 
v.  Whitworth:  946. 
v.Wray:    737,  1162,  1736. 
Webster  Mfg.  Co.  v.  Nisbett:  1630. 
Wecker  v.  National  Enameling  Co  • 

2011. 

Weckerly  v.  Geyer:  1498. 
Wedge    Mines    Co.    v.    Denver    Nat. 

Bank:  974. 
Weed    v.    Adams:    2525,    2526,    2527, 

2540,  2559,  2560. 
v.  Black:  92. 


2425 


TABLE   OF    CASES    CITED 


[Reference*  are  to  section*:  §§  1-1705,  Vol.  I?  §§  1706-2588,  Vol.  II.] 


Weed   v.   Boutelle:    2267,   2269,    2270, 
2271,   2275,   2276,   2278,   2279. 
v.  Burt:  1553. 
v.  Carpenter:  515. 
Weed  Sewing  Mach.  Co.  v.  Boutelle: 

2281. 
Weekes  v.  Dale:  563. 

v.  Hardware  Co.:  925,  971,  998. 
Weeks  v.  Goode:  1691. 

v.  Smith:  2437,  2457,  2466. 
V.Wayne    Circuit   Judges:    2243, 

2281,  2283. 
Weer  v.  Gand:  42. 
Wees  v.  Page:  946. 
Weger  v.  Pennsylvania  R.  Co.:   1644. 
Wehlein  v.  Burk:  2152. 
Weibler  v.  Cook:    2431,  2438. 
Weiboldt  v.   Standard   Fashion   Co.: 

113. 

Weicher  v.  Cargill:   2283,  2285. 
Weidenheimer  v.  McAdams:  142. 
Weidert  v.  State  Ins.  Co.:  1062. 
Weidman  v.  Symes:  978. 

v.  United  Cigar  Stores  Co. :  603. 
Weidner  v.  Hoggett:  2055. 

v.  Olivit:  2538. 
Weigand    v.    Alliance    Supply    Co.: 

2286. 
Weightman     v.     Washington     Critic 

Co.:  170,  1830. 

Weigmann  v.  Morimura:  2184,  2227. 
Weil  v.  Defenbaugh:  1410,  1413. 
v.  Finneran:   2256. 
v.Raymond:  1758,  1759. 
v.  Reiss:  2177. 
v.  Zodiag:  830. 
Weile  v.  United  States:   624. 
Weinacker  Ice  Co.  v.  Ott:  1866. 
Weingartner     v.     Missouri     Lumber 

Co.:   2079. 

Weinhouse  v.  Cronin:  2426. 
Weinkle  v.  Brunswick,  etc.,  R.  Co.: 

1795,  1798. 
Weinsberg  v.  St.  Louis  Cordage  Co.: 

341,  994. 

Weir  v.  Hervey:  2156. 
Weir  Plow  Co.  v.  Porter:  2499. 
Weisbrod  v.  Chicago,  etc.,  R.  Co. :  148, 

167,  169. 

Weise   v.   Milwaukee  County    Super- 
visors: 605. 
Weiseger  v.  Wheeler:  509. 

2426 


Weiseltheir  v.  Cohen:  610. 

Weisenger  v.  Taylor:   2001. 

Weiser  v.  Denison:   1803,  1808,  1842, 

1984. 

Weise's  Appeal:  707,  743,  756. 
Weiss  v.  Whittemore:   2049. 
Weisse  v.  New  Orleans:   2169. 
Weissels-Gerhart  R.  E.  Co.  v.  Wain- 

wright:  2449. 
Weisser  v.  Denison:  407. 
Weist  v.  Lee:  2180. 
Welb  v.  Paxton:  2474. 
Welch  v.  Allen:  2426. 

v.Bath  Iron  Works:  1625. 

v.  Brown:   349,  471. 

v.Clifton  Mfg.  Co.:  435. 

v.  Collenbaugh :   1516. 

v.  Fire  Association:  1062,1067. 

V.Goodwin:   1410. 

v.  Handcock:  1993. 

v.  Hoover:  236. 

V.Livingston:  1554. 

V.Maine  Cent.  R.  Co.:  1658. 

v.  Manufacturing  Co. :   244. 

v.  McKenzie:    780,  784. 

V.Welch:   145. 

v.  Young:  2437. 
Welke  v.  Wackershauser :  775. 
Welker  v.  Appleman:  433,  483,  1688. 
Wellborn  v.  Weaver:  652. 
Weller  v.  Jersey  City,  etc.,  R.  Co.: 

2243. 

Wellford  v.  Chancellor:  1192,  1194. 
Wellington  v.  Jackson:  361. 
Wellman  v.  Miner:   1866,  1867. 
Wells,  In  re:  1603. 
Wells  v.  Birtchnell:  1438,  1445. 

v.  Cochran:  1221,  1227. 

v.Collins:   1255,  1256,  1342. 

v.  Day:   2356. 

v.  Elsom:  2276,  2278. 

v.Evans:  212. 

v.  Foss:   652,  2314. 

v.  Hatch:  2269,  2276,  2279. 

v.  Heddenburg:   841. 

v.Hickox:  410. 

v.  International,  etc.,  R.  Co. :  994. 

V.Kentucky  Distilling  Co.:  1913. 

v.  McMahon:   1828,  2175. 

V.Michigan   Mut.   Life   Ins.   Co.: 
707. 

V.Morrison:   555. 


TABLE   OF    CASES    CITED 


[Reference*!   are  to  sections:   §§   1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 


Wells  v.  Parrott:    1524. 

v.  Rubber  Co.:   200. 

V.Washington  Market  Co.:   ir973. 

v.  Western  Union  Tel.  Co.:   2063. 
Wells  Fargo  Co.  v.  Moore:   2243. 
Wellston    Coal    Co.   v.    Smith:    1618, 

1630. 
Welsh  v.  Brown:  1295. 

v.  Cochran:  963,  2174,  2184,  2222, 
2227,  2228. 

v.  Fire  Ass'n:  2369. 

v.German-American  Bank:   1842. 

v.  Hole:  2275,  2281. 

V.Stewart:  1455. 

v.  Usher:  1102. 
Welstead  v.  Levy:  2047. 
Wenans  v.  Lindsey:  2183. 
Wenham  v.  Switzer:   1222. 
Wenks  v.  Hazard:    2430,  2437,  2438, 

2448,  2463. 

Wenninger  v.  Mitchell:  117. 
Wentworth  v.  Day:  1684. 
Wenz  v.  McBride:  1686. 
Werner  v.  Knowlton:  2234. 
Werth  v.  Ollis:   261. 
Wertheimer  v.  Howard:  1494. 

v.  Talcott:   2553. 
Weruth  v.  Lashmett:  1227. 
Westcott  v.  New  York,  etc.,  R.  Co.: 

1661. 

Wesley  v.  Wood:  2281. 
Wesson    v.    Seaboard,    etc.,    R.    Co.: 

1959. 
West  v.  Averill  Grocery  Co.:   2441. 

v.Bacon:   2273,  2280,  2287. 

v.  Ball:  2183. 

v.  Banigan:    435,  441. 

v.  Camden:  105. 

v.  Equitable  Mfg.  Co. :  2002. 

v.  Grocery  Co.:  285. 

V.Hudson:  2467. 

v.  Messick  Grocery  Co.:  2227. 

v.  Norwich   Union   Fire  Ins.   So- 
ciety: 1067. 

v.  St.  Paul  Nat.  Bank:  1303. 
West   Boylston   Mfg.   Co.   v.    Searle: 

2075,  2504,  2574. 

West  Coast  Manufacturing  Agency  v. 
Oregon  Condensed  Milk  Co.:   2553. 
West  End  Hotel  &  Land  Co.  v.  Craw- 
ford: 827. 
West,  etc.,  R.  Co.  v.  Russell:  1619. 


West    Florida    Land    Co.    v.    Stude- 
baker:  1987. 

West  Jersey,  etc.,  R.  Co.  v.  Welsh: 
1952,  1953. 

West    London    Commercial    Bank    v. 
Kitson:  1391,  1398. 

West  of  England   and   South  Wales 
Dist  Bank,  Ex  parte:  2090. 

West  Pub.  Co.  v.  Corbett:  946. 

Westbay  v.  Milligan:  2141. 

Westburn  v.  Page:  886. 

Westby   v.   Case   Tresh.   Mach.   Co.: 
905. 

Westcott  v.  New  York  &  New  Eng- 
land R.  Co.:  1668. 

Wester,   etc.,  Collier   Co.  v.  Jeffrey: 
2079. 

Wester    Moffat   Colliery    Co.   v.    Jef- 
frey: 2068. 

Westerfield  v.  Levis  Bros.:  1888. 

Western  Assur.  Co.  v.  Rector:  1073. 
v.Uhlhorn:   1601. 
v.  Williams:  1062. 

Western  Bank  of  Scotland  v.  Addie: 
411,  1995. 

Western  Brass  Mfg.  Co.  v.  Maverick: 
1301. 

Western  Bronze  Co.  v.  Portrey:  946. 

Western  Cement  Co.  v.  Jones:    1367. 

Western  Cottage,  etc.,  Co.  v.  Ander- 
son: 1984. 

Western,    etc.,    Mfg.    Co.   v.    Bloom: 
1671. 

Western,   etc.,   Pipe  Lines  v.   Home 
Ins.  Co.:  2031. 

Western,  etc.,  R.  Co.:  v.  Bishop:  1624, 

1681. 

v.  Strong:  1681. 
v.Turner:  1934. 
v.  Young:  315. 

Western,  etc.,  Tel.  Co.  v.  Eyser:  2015. 

Western    Grocer    Co.    v.    Lackman: 
1126,  1153. 

Western   Home   Ins.   Co.   v.   Hogue: 
1056. 

Western  Industrial  Co.  v.  Chandler: 
285. 

Western  Maryland  R.  Co.  v.  Franklin 
Bank:  1990,  1992. 

Western    Mfg.    Co.    v.    Cotton:    411, 

1985. 
v.  Cotton  &  Long:  435. 


2427 


TABLE   OF    CASES    CITED 


[References  are  to  section*:  §§  1-1705,  Vol 

Ganzer:    1826. 


I;  §§   1700-2588,  Vol.  II.] 


Western  Mfg.  Co.  v. 
v.  Maverick:  946. 
Western    Pub.    House    v.    Murdlck: 

1176. 

v.  Rock  Township:   386. 
Western  R.  Co.  v.  De  Graff:  1493. 

v.Nolan:  1498. 

Western  Screw  Co.  v.  Cousley:  193. 
Western    Security    Co.    v.    Douglas: 

934,  937,  940. 
Western  Stone  Co.  v.  Muscial:'  1618, 

1678. 

v.Whalen:   1632,  1644. 
Western  Storage  Co.  v.  Glasner:  2002. 
Western  Sugar  Ref.  Co.  v.  Helvetia 

Ins.  Co.:   1771. 
Western   Tel.    Co.   v.   Railroad    Co.: 

2137. 

Western  Transp.  Co.  v.  Barber:  1331. 
Western  Union  Cold   Storage   Co.   v. 

Winona  Produce  Co.:  2523,  2532. 
Western   Union   Tel.    Co.   v.   Blanch- 


.r 
m 


ard:  991. 

v.  Broesche:   2086. 
v.  Brown:  2015. 
v.  Cattell:  1960. 
V.Cunningham:  991. 
v.Flint  River  Lumber  Co.:  41. 
v.  Jackson :  1798. 
v.  Kerr:  2086. 
v.  Manker:  2063. 
v.  McMullen:  1619. 
v.  Moseley:   162. 
v.  Northcutt:   2059,  2063,  2086. 
v.  Prevatt:    991. 


118. 


Westlake  v.  Dunn:  2123,  2127. 
Weston  v.  Davis:  1519. 

V.Jordan:  2388. 

Westover  v.  Aetna  Ins.  Co.:  2311. 
Westropp  v.  Solomon:  2480. 
Westrup  v.  Commonwealth:   1466. 
Westurn  v.  Page:  716,  882. 
Westwood  v.  Bell:  1705. 
Wetherbee  v.  Fitch:   2163. 
Wetzel  v.  Linnard:   1808. 
Weyant  v.  Railroad  Co.:  1897. 
Weyerhauser  v.  Dun:  1316. 
W.  G.  Taylor  Co.  v.  Bannerman:  253. 
Whalen  v.  Gore:  2447 

v.  Rosnosky:  1619. 

Whaley  v.  American,  etc.,  Co.:   2003. 
Coast    Line    R. 


Co: 


v.  Atlantic 

2050. 

v.Duncan:  298,  739,  1984. 
Whaples  v.  Fahys:  1588. 


v.  Railroad  Co.: 
v.  Rust:   1860. 
v.  Semmes:   1552,  2244. 
v.  Shotter:  41. 
v.  Smith:  2015. 
v.Walker:  2063. 
v.West:  1783. 
v.  Yopst:  1780. 
Western  Wheeled  Scraper  Co.  v.  Mc- 

Millen:   1139. 

v.  Steckleman:   1165,  1157. 
Western  White  Bronze  Co.  v.  Port- 

rey:  946. 
Westfield    Bank    v.    Cornen:     1817, 

1848,  1852. 

Westheimer  v.  State  Loan  Co.:  285. 
Westinghouse  Co.  v.  Callaghan:  1621. 

2428 


Wharton  v.  Christie:  615. 

v.  Hammond:  2290. 

v.  Tolbert:  230. 
Wheat  v.  Dotson:  1594. 

v.  Van  Tine:  367. 
Wheatcroft,  In  re:  2267.    ' 
Wheatley  v.  Tutt:  132.  185. 

v.Williams:  2307. 
Wheaton  v.  Trimble:  171,  986. 
Wheeler  v.  Alderman:   2183. 

v.  Barr:  282,  1987,  1995. 

v.  Benton:   263. 

v.  Buck:  2425. 

v.  Citizens'  Bank:   462. 

v.  Guild:  2165. 

v.Harrison:   2236. 

v.  Haskins:  1341. 

v.  Home,  etc.,  Bank:  368. 

v.  Knaggs:   563. 

V.McGuire:     395,    628,    755,    914, 
915,  1803,  1808. 

Y. Metropolitan  Stock  Exchange: 
112. 

v.  Nevins:  212,  215. 

v. Northwestern  Sleigh  Co.:   395, 
412,  850. 

V.Patterson:  1498. 

v.Reed:  1410. 

v.  Riviere:  2236. 

v.  Walden:   1172 

v.Wason  Mfg.  Co.:  1624,  1637. 

v.Willard:  2290. 


TABLE  OF    CASES    CITED 


[Referencea  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2688,  Vol.  II.] 


Wheeler,    etc.,    Co.    v.    Boyce:    2015, 

2016. 

Wheeler     &     Wilson     Mfg.     Co.     v. 
Aughey:    410,    411,    446,    448. 

v.  Boyce:   1975. 

v.  Givan:  866,  894,  895,  897,  2114, 

2513. 

Wheelock  v.  Winslow:   1124. 
Whelan  v.  McCreary:  1815. 

v.  Reilly:  935,  955,  2181. 

V.Washington  Lumber  Co.:  1671, 
Wheless  v.  Davis:  1980. 
Whigham  v.  Fountain:  2567. 
Whinery  v.  Brown:  2208,  2236. 
Whipple  v.  Barton:  2292. 

v.  Fowler:   2075. 

v.  Whitman:  2163. 
Whistler  v.  Forster:   2111. 
Whitaker  v.  Engle:  2470. 

v.  Hicks:  435. 

Whitam  v.  Dubuque,  etc.,  R.  Co. :  285. 
Whitbeck  v.  New  York,  etc.,  R.  Co.: 

1528. 

Whitcomb  v.  Bacon:  2435,  2457. 
White,  Ex  parte:  48,  1350,  2499. 
White  v.  Bank:  1156. 

V.Ben  ton:    619,    625,    2436,    2445, 
2446,  2456. 

T.  Chapman:  2476. 

v.Chouteau:   2035,  2488,  2568. 

v.  Clow:  832. 

V.Connecticut  F.  Ins.  Co.:  2368. 

v.  Cooper:  501,  920,  921. 

v.  Corlies:  2452. 

v.  Curry:  233. 

v.  Cuyler:  1088. 

v.  Dahlquist:   1178. 

v.  Dahlquist  Mfg.  Co.:  2320,  2322, 
2359. 

V.Davidson:    198,   306,    312,   395, 
963,  2174. 

v.  Dolliver:  2132,  2141. 

v.  Duggan:   214,  231. 

v.  Edgman:  156. 

v.  Elgin  Creamery  Co. :   287. 

v.  Equitable  Nuptial  Benefit  Un- 
ion:  117. 

v.  Esch:  2166,  2230. 

v.  Fuller:  1268,  2404. 

v.  Furgeson:   765,  766,  769. 

v.  Gainer:  1691. 

v.  Graves:  138. 


White  v.  Hildreth:  2163. 

v.  Insurance  Co.:   2368. 

V.Johnson:    2182. 

v.King:  1809. 

v.  Langdon:  460. 

v.  Lee:  2430. 

v.  Leech:  1201,  1226. 

v.  Ltighton:  280. 

v.  Levi:   1869. 

v.  Madison:  1395,  1397,  1398,  1400. 

v.Mann:   156. 

v.  Massey:   905. 

v.  Meeker  County  Bank:  965. 

v.  Miller:  1782,  1783. 

v.  Moose:  1494. 

v.  New  York,  etc.,  Ins.  Co.:  1985, 
1995. 

v.  Oeland:  160. 

v.  Proctor:  2320. 

V.Sanders:  439,  441,  465,  492. 

v.  Sawyer:  1987,  1995. 

v.  Sellmeyer:  2435. 

v.  Sheffield,  etc.,  R.  Co. :   1695. 

v.  Skinner:  1102,  1155,  1395,  1397. 

v.  Smith:  641,  2414,  2415. 

v.  Stanley :   2023. 

v.  State:  2297. 

v.  Stephens:  659. 

v.Taylor:  1444. 

v.  Templeton:   2426. 

v.  Thacker:  2311. 

T.Thomas    Inflatable    Tire    Co.: 
116. 

v.  War:  178. 

v.  Ward:  1198. 

v.Webb:  2050. 

v.  Whitteman  Lithographing  Co. : 
1671. 

v.  Young:  780,  784. 
White  City  State  Bank  v.  St.  Joseph 

Stock  Yards  Bank:  300. 
White  Dental  Mfg.  Co.  v.  Hertzberg: 

113. 
White   Lake   Lumber   Co.   v.   Stone: 

990. 

White  Mountain  Bank  v.  West:  2566. 
White  Sewing  Mach.  Co.  v.  Shaddock: 
594. 

v.  Hill:  474. 

v.  Horkan:  285. 

White-Wilson-Drew    Co.    v.    Egelhof: 
315. 


2429 


TABLE   OF    CASES    CITED 


[Reference  are  to  •ectlonm:  §§  1-1705,  Vol.  I; 


1706-2588,  Vol.   II.] 


Whitecomb  v.  Jacob:  2090. 
Whitechurch  v.  Cavanagh:  1723,  1801. 
Whiteford  v.  Burckmyer:    17S3. 
Whitehead  v.  Greetham:  2211. 

v.  Izod:  1607. 

v.  Jessup:  2281,  2287. 

v.  Lord:  2262. 

v.Lynn:  120o. 

v.  Potter:  2020,  2568. 

v.  Reddicks:  1419. 

v.  Tuckett:  60,  284,  734,  856. 

v.  Wells:    374,    1327,    1337,    1346, 

1347. 

Whitehouse  v.  Drisler:   1734. 
Whiteley  v.  Pepper:  1890. 
White's  Case:   2146. 
Whitesell  v.   New   Jersey,  etc.,   Co.: 

2255. 

Whiteside    v.    Adams    Express    Co.: 
1779. 

v.  United  States:  707,  763. 
Whitesides  v.  Hunt:  111,  112. 
Whitestown  Milling  Co.  v.  Zahn: 

2161. 

Whitewell  v.  Warner:  368. 
Whitfleld  v.  Brand:  2576. 

v.  Ruling:  2479, 

v.  Lord:  Le  Despencer:   1502. 

v.  Riddle:  489. 
Whitford  v.  Laidler:   1099. 
Whiting  v.  Barney:  2302,  2305,  2311. 

v.  Bough  ton:  446. 

v.  Crawford  Co. :   2042. 

v.  Davidge:   2293. 

v.  Doughton:    169,   446,  447. 

v.  Massachusetts   Mutual  L.   Ins. 
Co.:  373,  525. 

v.  Saunders:  178,  1405,  1414,  1590. 

v.  Stage  Co.:  998. 
Whitley  v.  James:   462,  816. 

v.Murray:   1577. 
Whitley  Partners,  In  re:  80,  125,  212, 

235. 
Whitlock  v.  Hicks:   1162. 

v.  Washburn:    312. 
Whitman  v.  O'Brien:  2190. 

v.  Atchison,  etc.,  R.  Co.:  1973. 
Whitman   Agricultural   Co.   v.   Horn- 
brook:  2499. 

Whitmarsh  v.  Hall:  155,  1599. 
Whitmire  v.  May:   659. 
Whitmore  v.  State:   90. 


Whitnam  v.  Wisconsin,  etc.,  R.  Co.: 

1644. 
Whitney  v.  Abbott:  2206,  2212. 

v.  City  of  New  Orleans:   2261. 

V.Clifford:  1918. 

V.Dutch:   141,  142,  144,  145. 

v.  Esson:  1305. 

v.  Martine:   1275,  1279. 

v.  Merchants'    Union    Exp.    Co.: 
1245,  1271. 

v.  State  Bank:  894,  946. 

v.  Woodmansee:  1410. 

v.  Wyman:   382,  1162,  1168,  1172, 

1182,  1405,  1422,  1710. 
Whittemore  v.  Hamilton:  453. 
Whitten  v.   Bank  of  Fincastle;    970, 
972,  998. 

v.  Jenkins:  1808. 
Whittier  v.  Child:  296. 
Whittington  v.  Ross:  954. 
Whittle    v.    Vanderbilt    Mining    Co.: 

1845. 

Whitton  v.  Sullivan:  737. 
Whitwell  v.  Aurora:   2283. 
Whitwood  Chemical  Co.  v.  Hardman 

643. 
Whitworth  v.  Ballard:   620. 

v.  Hart:  160. 

v.  Pool:   229. 

Whyte  v.  Nashville:  313. 
Wichita   Savings   Bank   v.   Atchison 

etc.,  R.  Co.:  760,  1801. 
Wickersham    v.    Chicago    Zinc    Co.: 

1815,  1845. 

Wickes  v.  Carlisle:   2479. 
Wicks   v.   Dean:    2305. 

v.  German    Loan    &    Investment 

Co.:  300. 

Wicktorwitz  v.  Insurance  Co.:  291. 
Wickmire  v.  Bryan:  1494. 
Widig  v.  Taggart:   155,  1599. 
Widner  v.  Lane:   410. 
Widwood's  Sons  Co.  v.  Alaska:   2542. 
Wiehle  v.  Safford:  2059,  2063,  2067. 
Wieland  v.  White:  2161,  2162,  2184. 
Wiener  v.  Whipple:  1178. 
Wiers  v.  Treese:  1134,  1162. 
Wigaud  v.  De  Wertheimer:   1721. 
Wiger  v.  Carr:   238,  564,  579,  590. 
Wiggett  v.  Fox:   1644. 
Wiggins  v.  Burkham:  1351,  2547. 

V.Chicago:   2319. 


2430 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   g§  1-1705,  Vol.  I;  §§   1706-2588,    Vol.  II.] 


Wiggins  v.  Hathaway:  1502,  1503. 

v.  United  States:   507,  546. 

v.Wilson:   2428,  2431,  2437,  2477. 
Wiggins  Sons  Co.  v.  Cott-A-Lap  Co.: 

1211. 

Wight  v.  Rindskopf:   102. 
Wigmore  v.  Jay:  1644. 
Wikle  v.  Louisville,  etc.,  R.  Co.:  273. 
Wilber  v.  Forgione  Co.:  1861. 
Wilbur  v.  Lynde:   1202. 

v.  Stoepel:   105. 
Wilburn  v.  Larkin:  1108. 

v.  Spofford:   659. 
Wilcox  v.  Andrews:  2426. 

v.Chicago,  etc.,  R.  Co.:  263. 

v.Clarke:  1410. 

v.  Eadie:  285,  959. 

v.  Edwards:  111. 

v.  Railroad  Co. :  708. 

v.  Routh:   710. 

v.  Williamson:   1494. 
Wilcox,  etc.,  Organ  Co.  v.  Lasley:  946. 
Wilcox  &  Gibbs  S.  M.  Co.  v.  Ewing: 

566. 
Wilcox-Rose    Const.    Co.    v.    Evans: 

2115. 
Wildberger  v.  Hartford  Fire  Ins.  Co.: 

55,  1078,  1204. 
Wilder  v.  Beebe:  408. 

v.  Beede:   393,  1458. 

v.  Cowles:  1413,  1427,  2419. 

v.  Ranney:    198. 

v.  Secor:  1347,  2209. 

v.  Stanley:  1596. 

v.  Weakley:  134. 
Wildey  v.  Collier:  94. 

v.  Crane:   2236. 
Wildner  v.  Ferguson:  39. 
Wilhelm  v.  Voss:  206. 
Wiler  v.  Fiegel:  163. 
Wiley    v.    California    Hosiery    Co.: 
1532. 

v.  Hellen:  230. 

v.  Knight:  1828. 

v.  Kraslow  Const.  Co.:  2470. 

v.  Shank:  1154. 

v.Logan:  1299,  1340. 

v.  Mahood:   946,  2183. 

v.  Moor:  213. 

v.Pratt:  2156,  2158. 
Wiley,  Banks  &  Co.  v.  Knight:  1809. 


Wilke  v.  Harrison:   1556. 

v.  Wackershauser:  371. 
Wilkes  v.  Ellis:   2330. 
Wilkie  v.  Reynolds:   2162. 
Wilkin  v.  Voss:  814. 
Wilkins  v.  Carmichael:   2275. 

v.  McGehee:  577,  659. 

v.  Reed:  1760. 

v.  State  Ins.  Co.:  1062. 
Wilkins,   etc.,   Realty   Co.   v.    Jones: 

1458. 
Wilkinson  v.  Black:  1559,  1561. 

v.Campbell:   2334. 

V.Elliott:    169. 

v.  Griswold:   1315,  2204. 

V.Harwell:  489,  515,  520. 

v.  Heavenrich:    514,  601. 

v.  Holloway:    946,  2183. 

v.King:   2112. 

V.Martin:   2437. 

v.  McCullough:    1588,  2474. 

v.  Oliveira:  110. 

v.  Steel  &  Spring  Works;   296. 

v.Wilkinson:   134. 

v.Williams:  2535. 

Wilks  v.  Back:  1102,  1106,  1108,  1117. 
Wilmerding  v.  Postal  Tel.  Co.:   1984. 
Willard  v.  Buckingham:  710,  716,  915, 
1782. 

v.  Denise:   1806,  1844. 

v.  Goodrich:  2184. 

v.  Key:   1458,  1487,  1987,  2011. 

v.  Pittsburg,  etc.,  R.  Co.:   2235. 

v.  White:  2484. 

v.Williams:  2246. 

v.  Wood:  1734. 

v.Wright:  2430,  2435. 
Willborn  v.  Southern  R.  Co.:   1045. 
Willcox  v.  Arnold:  190. 

v.Hines:  295,  296,  1774. 
Willcox  &  Gibbs  Co.  v.  Ewing:   592, 

594. 

Willet  v.  Chambers:  198. 
Willey  v.  Bank:  2115. 

v.  Fidelity  Co.:   2036. 
William  v.  Merle:  2423. 
William  Butcher  Steel  Works  v.  At- 
kinson: 1579. 
William   Cameron  Co.  v.  Blackwell: 

1783. 
Williams  v.  Anderson:   870,  872. 

v.  Armistead:  652. 


243T 


TABLE    OF    CASES    CITED 


[Reference  are  to  section*  s  gg  1-1705,  Vol.  I;  §g  1700-2588,  Vol.  II.] 


Williams  v.  Ashe:   2122. 
v.Bacon:   2063. 
v.  Bayley :    360. 
v.  Birbeck:  634,  636. 
v.  Blumenthal:  2307. 
v.  Brandt:  296. 
v.  Brown:   2246. 
v.Bryan:   2003. 
v.Butler:  365. 
v.  Canal  Co.:  2154. 
v.  Carr:  112. 

V.Chicago  Coal  Co.:  1559,  1562. 
v.  Cochran:  775. 
v.Crosby  Co.:  471. 
v.  Crutcher:  212,  213. 
v.  Dorrier:   2099. 
v.  Dotterer:   127G. 
v.Edwards:  1783. 
v.Empire  Ins.  Co.:  1119. 
v.  Evans:   2325,  2328. 
v.Everett:   1447. 
v.  Fitch:   2297. 
v.Fresno  Canal  Co.:   219. 
v.Fresno  Canal,  etc.,  Co.:  1918. 
v.  Frost:   1009. 
v.  Fuller:   1980. 
v.  Gay:  90. 

v.  German  Ins.  Co. :   1076. 
v.Getty:  710,  716,  1043. 
v.  Gibbs:   2198. 
v.Gill:  1934,  1935,  1936. 
v.  Gilman:  1268. 
v.  Glenny:  2247. 
V.Goldberg:  833,  1987. 
v.Hammond:   611. 
V.Harris:    1126. 
v.  Hathaway:  1517. 
v.  Hendricks:  2009. 
v.  Higgins:  1258. 
v.  Hippie:  1125. 
v.  Hollingsworth :   515. 
v.  Ingersoll:   2278,  2286. 
v.  Inman:   2221. 
V.Johnston:    894,  946,  2158. 
v.Jones:  1909. 
v.  Kerrick:  1043. 
v.  Kimberly:   1632. 
v.  Kimberly   &    Clark   Co.:    1626, 

1630,  1632,  1634. 

v.  Koehler:  1868,  1900,  1901,  1906, 
v.  Littlefield:  2525. 
v.  Lumber  Co.:  1652. 


Williams  v.  Magee.   1734. 
v.  Mason:  125. 
v.  McKay:  1282. 
v.  Merle:   1456,  1457. 
v.   Merrett:  473. 
v.  Mershon:  229. 
V.  Willington:     2033,    2034,    2325, 

2328,  2351. 
V.Mitchell:  710. 
V.Moore:  308,  317,  319,  468,  1207, 

1701,  1702. 

v.Moore-Gaunt  Co.:  1201,  1206. 
V.Niagara  Fire  Ins.  Co.:  1067. 
v.  North    China    Insurance    Co.: 

385,  524. 

v.  Ocean  Ins.  Co.:  2033,  2371. 
v.Oregon  Short  L.  R.  Co.:  1G57. 
v.  Paine:  169,  694,  696. 
v.  Palace  Car  Co.:  1939. 
v.  Payne:  2314. 
v.  Pelley:  958,  2122. 
V.Philadelphia:   2236. 
v.  Poor:  2335. 
V.Pullman    Car    Co.:     416,    475, 

1978. 

V.  Quebrada:    2304. 
v.  Reed:  2189. 
v.  Robbins:  1161. 
v.Robinson:   601. 
v.  Sapieha:  135. 
v.  School  District:  199.  • 
v.  Second    National   Bank:    1141, 

1154. 

v.  Shackleford :  1262. 
V.Simmons:  2162. 
v.  Sleepy  Hollow  Min.  Co.:   1618. 
V.  Smith:  2221. 
v.  State:  2182. 
v.  Stearns:  386. 
v.  Storm:  352,  395,  463. 
v.  Storrs:   1337,  1339,  1341. 
V.  Tilt:  2561,  2565. 
v.  Tolbert:  1924,  1952. 
v.  Tracey:  2162. 
v.Wagner  Co.:  1671. 
v.  Walker:  936,  937,  955,  2180. 
v.  Weaver:  1498. 
v.Williams:  1335. 
v.Williamson:  285. 
v.Wilmington,  etc.,  R.  Co.:  1801. 
v.  Woods:  208,  315. 
v.  Young:    2307. 


2432 


TABLE   OF    CASES    CITED 


[References  are  to  sections:   §§   1-1705,   Vol.  Ij  §§   1706-2588,  Vol.  II.] 


Williams,  Black  &  Co.  v.  Wilmington 

R.  Co.:  760. 

Williams  Mower  Co.  v.  Raynor:  2499. 
Williamson  v.  Barbour:  1352. 

v.  Barton:  1182. 

v.  Berry:  2512. 

v.  Brown:  1828. 

V.Cambridge  R.  Co.:  1798. 

v.  Canaday:  882. 

v.  Lumber  Co. :  294. 

v.  Monroe:  1193. 

v.  Moore:  186. 

v.  Moriarity:   2290. 

v.  North  Pacific  L.  Co. :  310,  1023. 

v.Robinson:    312. 

v.  Taylor:   598. 

v.Tyson:   285,  1987.  - 
Williamson  Paper  Co.  v.  Bosbyshell: 

2169. 

Willin  v.  Burdette:   2290,  2296. 
Willingham    v.    Rusbing:    585,    1601, 

2567,  2585. 

Willis  v.  Atlantic  &  D.  R.  Co.:  1792, 
1798. 

v.  Baddeley:  2047. 

v.  Bellamy:  1102,  1119. 

v.  Chowning:  2162,  2163. 

v.  Gorrell:  946. 

v.  Greiner:  187. 

v.  Joyce:  628. 

v.  Lym'an:  2162. 

V.Oregon,  etc.,  R.  R.:    1644. 

V.Plymouth  Telephone  Co.:  1619. 

v.  St.  Paul  Sanitation  Co.:   1030. 

v.  Valette:  1808,  1814,  2176. 
Willis  Cab  Co.  v.  General  Assurance 

Co.:  285. 

Willis  &  Bros.  v.  McNeill:  2015. 
Willmarth  v.  Cardoza:  1657. 
Willner  v.  Seale:  2474. 
Willner  v.  Silverman:  1980. 
Willoughby  v.  Allen:  359,  367. 

v.  Thomas:  1557. 
Wills  v.  Barrister:  1684. 

v.Kane:  2252. 

v  The  Belle  Ewart  Ice  Co.:  1903. 
Willson  v.  Clark:  233. 

v.  Crawford:  2447. 
.ge^-v.  Fertilizer  Co.:  1278. 

v.Nicholson:  1154. 

v.  Underbill:  169. 


Wilson,  In  re:  2264,  2267,  2271,  2272, 

2274,  2273,  2278. 
Wilson  v.  Alexander:  2468. 
v.  Assurance  Co. :  710. 
v.  Banner  Lbr.  Co. :  1652. 
v.  Barker:  507. 
v.  Blanck:  1716. 
v.  Board  of  Education:   1576. 
v.Brett:  1280,  1283. 
v.Campbell:  941,  945. 
v.Canadian  Devel.  Co.:  1047. 
v.  Cantrell:  2290. 
v.Clark:  1536. 
v.  Commercial    Un.    Assur.    Co.: 

732,  10G5,  1067. 
v.  Dame:   364,  500,  1521. 
v.  Edmonds:  652,  663. 
v.  Fones:   274,  933. 
v.  Garrard:  156. 
v.  G-reensboro:  1292. 
v.  Groelle:  868,  2072. 
v.  Harris:  687. 
v.  Hart:   2059,  2063. 
v.Hartford  F.  Ins.  Co.:   2368. 
v.Hayes:   361. 
v.  Herbert:  162,  163,  166. 
v.  House:   2276. 
v.  Kelso:    285. 
v.  Kisri:  1560. 
v.  La  Tour:  938. 
v.Lester:  836. 
v.  Lewiston  Mills:  488. 
v.  Linville:  216,  225,  1038. 
v.  Loeb:  848. 
v.  Loring:  2356. 
v.Madison,  etc.,  R.  Co.:  1644. 
v.  Marsh:  1498. 
v.Martin:  1684,  1694. 
v.  Mason:   1536,  2431,  2443,  2448. 
v.  Mayor:  1494,  1501. 
v.  McCullough:  1843,  1852,  1854. 
v.  Metropolitan  Elevated  R.  Co.: 

754,  760. 
V.Minnesota,     etc.,     Ins.     Ass'n: 

1808,  1809. 
v.  National    Fowler    Bank:     111, 

1602. 

v.  Pauly:  1818. 
v.  Peverly:  1506,  1898,  1909. 
v.  Rastall:  2312. 
v.  Rogers:  1479. 
v.  Russ:   1279,  2194. 


153 


2433 


TABLE   OF    CASES    CITED 


(References  are  to  sections:   gg  1- 

Wilson  v.  Sale:   833,  1987,  1989. 
v.  Smith:   318,  332,  1594,  1595. 
v.  Southern  Pacific  Co.:  1799. 
v.  Spring:  2161,  2162. 
v.  Stewart:  669,  673. 
v.  Stratton:  871. 
v.  Sturgis:  1536,  2439. 
v.  Tolson:  2023. 
v.  Troup:  659. 
v.Truman:   386. 
v.  Tumman:    346,    357,    411,    506, 

507. 

v.  White:  1918. 
v.  Willimantic   Linen   Co.:    1640, 

1654. 
v.Wilson:   1225,  1247,  1265,  1291, 

1515. 

V.Wilson-Rogers:  784,  894. 
v.  Wold:  1438,  1442. 
v.  Wyandance  Springs  imp.  Co.: 
909. 

v.  Zulueta:  1417. 

Wilson  Case  Lumber  Co.  v.  Mountain 

Timber  Co.:  2060. 
Wilson   Cotton   Mills   v.    Randleman 

Cotton  Mills:  2191. 
Wilson  Sewing  Mach.  Co.  v.   Sloan: 

1782. 

Wilt  v.  Redkey:  1331,  1332. 
Wilton    v.    Middlesex   R.    Co.:    1874, 

1892. 

Wilts  v.  Morrell:  1245. 
Wiltshire  v.  Sims:   2404. 
Wimberly  v.  Windham:   998. 
Wimple  v.  Paterson:   1458. 
Winans  v.  Grable:  2272. 
Winborn  v.  Byrd:  2172. 
Winch  v.  Edmunds:   798. 
Winchell    v.    National    Express   Co.: 

710. 
Winchester  v.  Baltimore,  etc.,  R.  Co.: 

1845,  1852. 

v.  Heiskell:  2276,  2280. 
V.Howard:  1771,  2041,  2059,  2063, 

2068,  2070. 

Winderly  v.  Windham:  972. 
Winders  v.  Hill:  816. 
Windett  v.  Union  Mut.  L.  Ins.  Co.: 

2246. 

Windsor  v.  St.  Paul,  etc.,  R.  Co.:  407, 
843. 


1705,  Vol.  I;  gg  1700-2588,  Vol.  II.] 

Windstanley   v.   Second   Nat.   Bank: 

1350. 

Winer  v.  Bank:  933. 
Winfree  v.  First  Nat.  Bank:  784. 
Winfrey  v.  Lazarus:  1912 
Wing  v.  Click:  1148. 

v.  Milliken:  1457,  2529. 

v.  Neal:   2513. 

Wingate  v.  Mechanics'  Bank:  1314. 
\Vinkelman  v.  Brickert:  246. 
Winkleback    v.    National    Exchange 

Bank:  322,  333. 
Winkler,  Matter  of:   2283. 
Winkler  v.  Fisher:  156. 

v.  Racine  Carriage  Co.:  1557. 
Winn  v.  Dillon:  192,  1194,  1210. 
Winne  v.  Hammond:  2498,  2551,  2559, 

2566. 
Winnesheik    Ins.    Co.    v.    Holzgrafe: 

1055. 

Winona  Lumber  Co.  v.  Church:  1389. 
Winona    Technical    Inst.    v.    Stolte: 

1861. 

Winship  v.  Base  Ball  Ass'n:  1573. 
Winslow  v.  Mayo:  598. 

v.  Murphy:  243,  2281. 

v.  Staton:   2575. 
Winslow  Bros.  v.  Staton:   2075,  2077, 

2079. 

Winsor  v.  Commonwealth:  116. 
Winston  v.  Miller:  1350. 
Winter  v.  Carey:  2412. 

v.  Coit:  1686,  2559,  2562  . 

v.Colt:  2566. 

v.  Elevator  Co.:  954. 

v.  Geroe:  1202. 

v.  McMullan:    1203. 
Winterbottom  v.  Wright:  1642. 
Wintermute  v.  Torrent:  2023. 
Winters  v.  Means:  2154. 

v.  Winters:  2311. 

Winthrop  Land  Co.  v.  Utley:  2435. 
Wipfler  v.  Warren:  2287. 
Wires  v.  Briggs:  2216,  2217. 
Wirt  v.  McEnery:  822,  823.  ' 
Wirth  v.  Calhoun:  1557. 
Wiruth  v.  Lashmett:  2138. 
Wischam  v.  Rickards:  1658. 
Wisconsin    Central    R,    R.    v.    Ross: 
1623. 


2434 


TABLE   OF    CASES    CITED 


[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II. J 


Wise  v.  Ackerman:  1620 

v.  Perpetual    Trustee    Co.:     187, 

189,  190. 
v.  South  Covington,  etc.,  R.  Co.: 

1935. 

Wiseart  v.  Dietz:  2447. 
Wiseman  v.  Vandeputt:  1698. 
.Wiser    v.     Springside    Coal     Mining 

Co.:  2074,2078. 
Wishard  v.  McNeill:  287,  919. 
Wiskie  v.  Montello  Granite  Co.:  1654. 
Wisotzkey  v.  Niagara  Fire  Ins.  Co.: 

1067. 
Witcher  v.  Brewer:  295. 

V.Gibson:   435,  896,  908,  911,  913, 

915,  918,  982. 
v.  McPhee:  953,  970,  999. 
Witherbee    v.    Walker:     2435,     2457, 

2459. 

Witherell  v.  Murphy:  808,  1536,  2447. 
Withington  v.  Herring:  793. 
Withnell  v.  Gartham:   199. 
Witman  v.  Felton:  1331. 
Witte  v.  Storm:   1219,  1588. 
Wittenbrock  v.  Bellmer:  530. 

v.Parker:   1814,  1820,  1829,  1840, 

2176. 

Wittich  v.  Allison:  2547. 
Wittkowski  v.  Harris:  2557. 
Witz  v.  Gray:  926,  986. 
W.  K.  Niver  Coal  Co.  v.   Piedmont, 

etc.,  Co.:  285.     . 
Woerz  v.  Shumacher:  2556. 
Wolber  v.  Chambers:  2449. 
Wolf  Cigar  Stores  v.  Kramer:  615. 
Wolf,  In  re:  2207. 
Wolf   v.    Dwelling    House    Ins.    Co.: 

1063. 

v.  Gerr:   1578. 
v.  Studebaker:  1559. 
v.  Tait:   2437. 
v.  United  Railways:  2281. 
v.  Van  Metre:  2327. 
Wolf  Co.  v.  Bank  of  Commerce:  368. 

v.  Salem:  1344. 
Wolfe    v.    Howes:    1570,    1572,    1582, 

1583. 

v.  Luyster:   854,  2335. 
V.Missouri    Pacific   R.    Co.:    2C8, 

2028,  2035,  2568,  2571. 
v.  Pugh:  1987,  1993,  1995. 
Wolff  v.  Koppel:   1322,  2534. 


)oV7 


Wolff e  v.  The  State:    2099. 
Wolford  v.  Herrington:  1192,  1194. 
Wolfsheimer  v.  Frankel:  596,  1533. 
Womach    v.    Case    Threshing    Mach. 

Co.:  905. 
Wonder   v.    Baltimore,   etc.,   R.    Co.: 

1615,  1624,  1654. 

Wonderly  v.  Martin:  2170.       -,T  v 
Wonsettler  v.  Lee:  1579. 
Wood,  Re:  2146. 
Wood  v.  American  F.  Ins.  Co.:  1051,. 
1061,  1062. 

V.Anders:   2276. 

v.  Arbuthnot:  2079. 

v.  Armour:  169. 

v.Auburn,  etc.,  R.  Co.:  215,  1086. 

v.  Ayers:  1516,  1517. 

v.  Bangs:  2181. 

v.  Barker:  610. 

v.  Baxter:  2342. 

v.  Blaney:  1208,  1279,  1345. 

v.  Boylston  National  Bank:  2099, 
2100,  2111. 

v.  Brewer:  1410,  1413,  1519. 

v.  Casserleigh:  110. 

v.  City  of  New  York:  2183, 

v.  Cobb:  1860,  1917. 

v.  Finch:  187,  190. 

v.  Fireman's  Ins.  Co.:  1071. 

v.  Goodridge:   216,  784,  813,  1089, 
1114,  1115,  1117. 

v.  Hayes:  2388. 
'°  V.Jones:  2540. 

v.  Kerkeslager:  581. 

v.  Manchester  F.  Ins.  Co.:  105. 

v.  McCain:    60,  64,  385,  483,  486, 
783,  1024. 

v.  McCann:  92. 

v.  New  Bedford  Coal  Co.:  1654. 

v.Orser:   2572. 

v.  Pierson:  1G84. 

v.Rabe:  1192. 

v.  Railroad  Co. :  993. 

v.Ravenscroft:  611. 

v.  Rowcliffe:  1343. 

v.  Smith:   2430,  2435. 

v.  Stephens:  2437. 

v.  Trust  Co.:  934. 

v.  Water  Co.:  2310. 

v.  Weir:  2223. 

v.  Wells:  2435,  2458. 

v.Whelen:  374,  382. 


2435 


TABLE   OF    CASES    CITED 


[Reference*  are  to  aectlong:  §§  1-1 7O5,  Vol.  I;  gg  1706-2588,  Vol. 


Wood  v.  Wise:   215. 

v.  Wood:  2162. 

Wood  Mowing,  etc.,  Machine  Co.  v. 
Crow:  285,  707,  752,  753,  808. 

v.  Thayer:  2557. 

Wood  River  Bank  v.  First  Nat.  Bank: 
1313 

v.Kelley:   1783. 

Woodall  v.  Foster:  625,  2430,  2456. 
Woodbury  v.  Blair:  1396. 

v.  Lamed:   285,  395,  935,  946. 
Woodbury  Savings  Bank  v.  Charter 

Oak,  etc.,  Ins.  Co.:  1053. 
Woodcock  v.  Merrimon:  358. 
Wooddy  v.   Old   Dominion   Ins.   Co.: 

1060. 

Woodfolk  v.  Blount:  1803. 
Woodford  v.  McClenahan:  881,  882. 
Woodhouse  v.  Crandall:  1350. 
Wooding  v.  Bradley:  742. 

v.  Thorn:  1866,  186?! 
Woodling  v.  Knickerbocker:  1980. 
Woodman  v.  Davis:  1216. 

v.  rnnes:  98. 

v.  Joiner:  1909. 

Woodruff   v.    American    Road    Mach. 
Co.:  895,  946. 

v.  Dubuque:  587. 

y.  Dubuque,  etc.,  R.  Co.:  586. 

y      T,T_^,_l OAPO 


2063. 

v.  Munroe:  361. 

y.  Nashville  R.  Co.:   2562,  2563. 

v.  Railroad  Co:  992. 

v.  Stewart:  1494. 
Wood's  Appeal:  2119. 
Woods  v.  Banks:  1783. 

v.  Case  Threshing  Mach.  1532. 

v.  Dickinson:  2286. 

v.  Hart:   113,  565. 

v.  Love:  2449. 

v.Lowe:  2426",  2435. 

v.Russell:  1576. 

v.  Verry:   2283. 
Woodstock  Iron  Co.  v.  Extension  Co. 

118. 
Woodward  v.  Bixby:  282. 

v.  Cowing:  187. 

v.  Harlow:  489. 

v.Ragland:   475,  2015. 

v.  Suydam:  491,  1351. 

v.  Washburn:  2134. 
Woodward  Iron  Co.  v.  Jones:  1631. 


Woodworth  v.  Smith:  148. 

Woolen  Co.  v.  McKinnon:  2059,  2063. 

Wooley  v.  North  London  R.  Co. :  1784. 

v.  Constant:  213. 

Woolfe  v.  Home:  2326,  2344,  2351. 
Woolley  v.  Lowenstein:  2470. 

v.Mears:  233. 

v.  Schmal:  2443. 


oaiW 


Woolsey  v.  Haynes:  1783. 

v.  Henke:  1098. 

v.  Tompkins:  198. 
Wooster  v.  Nevills:  2119. 
Wooten,  In  re:  2091. 
Wooten  v.  Denmark:  2280. 

V.Wilmington,  etc.,  R.  Co.:  2126. 
Worachek    v.    New    Denmark    MuL 

Home  F.  Ins.  Co.:  1067. 
Worcester  Co.  Bank  v.  Dorchester  & 

Milton  Bank:  2111. 
Word  v.  Winder:   1574. 
Work  v.  Bennett:  2529. 
Workman  v.  Culberg:  2463,  2473. 

v.  Wright:  358,  361,  392. 
World's  Columbian  Exp.  v.  Richards: 

1043,  1557. 

Worlds  v.  Georgia  R.  Co.:  1668. 
Worley  v.  Spurgeon:   2000. 
Wormell   y.  .Maine    Central   R.    Co.: 

-ICftA       1C1P 

1624,  1676. 
Wormsdorf   v.    Detroit   City   R.    Co: 

1795. 
Worrall  v.  Munn:'  215,  229,  236,  424, 

Worsley  v.  Ayres:  Sir,,  R58. 

V.Scarborough:   1808,  1814, 
Cowles: 


1182, 


1413, 


Worthington   v. 

1422,  2364,  2419. 

y.  Given:  1782. 

v.  Park  Improvement  Co.  :  1562. 

v.  Sudlow:  598 

y.  Tormey:  2480. 

v.  Vette:  2110,  2127. 
Worthy  v.  Johnson:  1202. 
:       Wortman  v.  Price:  169. 

Wray  v.  Carpenter:   2430,  2441,  2448. 
Wrayton  v.  Naylor:  23  18. 
Wreidt  v.  State:   2008. 
Wrenn  v.  Cooksey:  279. 
Wrexham,  etc.,  R.  Co.,  In  re:  1030. 
Wright  v.  Aldrich:   2225. 

v.Atlanta:  2319. 

v.  Bank  of  Metropolis:  2415,  2529. 

2436 


TABLE   OF    CASES    CITED 


tReference*  are  to  sections:  §§  1-1705,  Vol.  I;  g§  1700-25SS,  Vol. 


Wright  v.  Beach:  2430. 

v.  Big  Rapids,  etc.,  Co.:  1917. 

v.  Boynton:  306,  463. 

V.  Brown:  2441,  2458. 

V.Cabot:  869,  2072,  2079. 

v.  Calhoun:  1985. 

v.Campbell:  2314. 

v.  Carter:  2293. 

v.  Central  R.  Co. :  1278. 

V.  Cobleigh:  2267,  2278. 

v.  Couch:  167. 

v.  Crabbs:   113,  121. 

v.  Daily:  946. 

v.  Dannah:  180,  208,  2043,  2320. 

v.  Duffie:  1254,  1342. 

v.Eaton:   546. 

v.  Fargo:  1046. 

v.Gihon:  1580. 

V.  Glyn:  910. 

v.  Graves  Land  Co.:  617. 

v.  Hake:  2279. 

v.  Herrick:  628. 

v.  Hooker:  1808. 

v.  Isaacks:  319. 

v.  Lake:  610. 

V.London,  etc.,  R.  Co.:  1658. 

v.  McCampbell:  2258 

v.Meyer:  2300. 

v.  Nelson:  1493. 

v.  New  York  Cent.  R.  Co.:   1644. 

V.Northampton,     etc.,     R.     Co.: 

1657. 
v.  Northwestern  Mut.  L.  Ins.  Co.: 

1073. 

v.  Parks:  2162. 
v.  People:  2544. 
v.Rankin:   252. 
v.  Rauson:  1620. 
v.Reusens:  1782. 
V.Snell:  1696. 
v.Solomon:  716,  2509. 
V.Stewart:  1782. 
v.  Tebbetts:   2236. 
v.  Terry:  1686. 
v.  Treadwell:  2281. 
v.  Vaughan:  112. 
v.Walker:  2290. 
v.Ward:  1333. 
v.Wilcox:  1926,  1958. 
v.  Wold:  1437. 
v.Wright:   2276. 
v.  Young:  2467. 


Wright  Engine  Works  v.  Cement  Co.: 

1861. 

Wright  &  Deklyne,  Lessee  of:  2322. 
Wright's     Adm'r.     v.     Northwestern 

Mut.  L.  Ins.  Co.:  1053. 
Wronkow  v.  Oakley:   169. 
Wrought  Iron  Range  Co.  v.  Graham: 

1782. 

Wuhtrecht  v.  Fasnacht:  1866. 
Wullenwaber  v.  bunigan:  1987. 
Wuotilla  v.  Duluth  Lumber  Co.:  1667. 
Wunderlin  v.  Cadogan:  213. 
Wurzburg  v.  Webb:  2020. 
Wust  v.  Erie  Iron  Works:  1630. 
Witta  v.  Interstate  Iron  Co.:  1624. 
Wyatt  v.  Arnot:  1494. 

v.  Walton  Guano  Co. :  208. 
Wyck  v.  Brasher:  137. 
Wycoff  v.  Bergen:  2182. 

v.  Bishop:  1533. 

v.  Davis:  386,  437,  897. 
Wyckoff  v.  Bliss:  2435. 

v.  Kerr:  2433. 

Wyland  v.  Griffith:  2302,  2309. 
Wylie  v.  Coxe:   668,  2231,  2236,  2259, 
2260,  2286,  2314. 

v.  Marine  Nat.  Bank:  1536,  1550, 

2435,  2437,  2442,  2445. 
Wyllie  v.  Palmer:  1860. 

v.  Pollen:  18S4, 
Wymann  v.  Berry:  1988. 

v.  Smith:   1447,  1448,  1449. 
Wynegar  v.  State:  26. 
Wynkoop  v.  Shoemaker:  819. 
Wynne  v.  Parke:   779. 

v.  Schnabaum:    2523,   2533,   2537, 

2540. 

Wynnewood  v.  Cox:  1798. 
Wytheville  Ins.  Co.  v.  Teiger:  2369. 

X. 

Xenia  Bank  v.  Stewart:  1779,  1782. 
:  ,3m  ,S£H  .OIH 
Y. 

Yager  v.  Atlantic,  etc.,  R.  Co.:   1644. 
Yale,  Ex  parte:  2146,  2147. 
Yamaoka  v.  Kloeber:  2420. 
Yarborough  v.  Bank  of  England:  219. 
Yard,  Appeal  of:   960. 
Yardley  v.  State:  2305. 
Yarmouth  v.  France:  1668. 
Yarslowitz  v.  Bienenstock:  1454,  1486. 


2437 


TABLE   OF    CASES    CITED 


[References  are  to  sectional   gg  1-1705,  Vol.  I;  §g   1706-2588,  Vol.    II.] 


1615, 


Co. 


Yates  v.  Appleton:  1537. 

v.  Foot:  2037. 

v.  Freckleton:  307,  2180. 

v.  Hoppe:  581,  1447. 

v.  Lansing:  1494. 

v.  Repetto:  1731,  1755. 

v.Robertson:  91,  2234. 

v.  Yates:  739,  742. 
Yauger  v.  Skinner:  134. 
Yazel  v.  Palmer:  812. 
Yazoo  &  Mississippi  Valley  R.  Co.  r. 

Jones:  1799. 

Yeager  v.  Kelsey:  1533,  2443. 
Yeager's  Appeal:  1195. 
Yeamans  v.  James:  2290. 
Yeaton  v.  Boston,  etc.,  R.  Co. 

1624. 

Yedinskey  v.  Strouse:  2479. 
Yellow    Jacket    Silver    Min. 

Stevenson:   1852. 
Yellow  Poplar  Lumber  Co.  v.  Rule: 

604. 

Yerby  v.  Grigsby:  814. 
Yerger  v.   Barz:    1808,   1809. 
Yerkes  v.  Crum:  2290. 

v.  Northern  Pacific  R.  Co.:   1630. 
Yerrington  v.  Greene:  668,  1566. 
Ye  Seng  Co.  v.  Corbitt:  1410. 
Yoakum  v.  Tilden:   2182. 
Yoder  v.  Haworth:  48,  2499. 

v.  Randol:   2430,  2447. 
Yon  v.  Blanchard:  2549.- 
Yonge  v.  St.  Louis  Transit  Co.:  2281, 
2283. 

v.  Toynbee:  676,  1378,  1379,  1380, 

2216,  2314. 

Yorden  v.  Hess:  2308. 
York  v.  Nash:  1536,  2447. 
York  Bank  v.  Appleton:  2163. 
York    Buildings    Co.    v.    McKenzie: 

1225. 

York    County    Bank    v.    Stein:    299, 
1410,  1423,  1715,  1748. 

v.  Stine:  716. 
Yorke  v.  Grenaugh:  1687. 
Yoshimi  &  Co.  v.  United  States  Ex- 
press Co.:   285,  1780,  1782. 
Yost  v.  Ramey:  1039. 
Youmans  v.  Smith:  2224. 
Young,  In  re:  2311,  2312. 


Young  v.   Board  of  Education:    436, 
439. 

v.  Chi  Psi  Cattle  Co. :  910. 

v.  Dearborn:  2276,  2279. 

v.  Glendenning:  112. 

v.  Goodhue:   1216,  1217,  2138. 

v.  Harbon  Point  Club  Ass'n:  742, 
784. 

v.Hartford   Fire   Ins.   Co.:    1060, 
1062. 

v.Hughes:    1221,   1588,   2477. 

v.  Inman:  374,  389,  1764. 

v.  Iowa  Protective  Ass'n:  1238. 

v.  Lanznar:    2248,  2253,  2254. 

v.Lewis:  603. 

v.  Lohr:   2063. 

v.  Mason  Stable  Co.:  1626. 

v.  Murphy:   2291. 

v.Newark  Fire  Ins.  Co:    2368. 

v.  Powell:  1344. 

v.  Renshaw:  2281,  2283. 

v.Robinson:   285. 

v.  Ruhwedel:  2431,  2434,  2441, 
2447. 

V.Scott:  2509.     >QW 

v.  Seaboard    Air    Line    R.    Co.: 
1794,  1799. 

v.  Smith:  1920. 

v.  Snell:  1667. 

v.  State:   366,  2311. 

v.  Stein:  993. 

v.  Stevens:  134. 

v.  Swan:  914. 

v.  Thompson:  110. 

v.  Thurber:  2037,  2046. 

v.  Trainor:  1533,2474. 

v.  Union  Sav.  Bank  &  Trust  Co.: 
1027. 

v.Wright:   2178. 
Youngash    v.    Saskatchewan    Engine 

Co.:  610. 

Youngberg  v.  Lamberton:  1560-  -r 
Youngblood  v.  S.  C.,  etc.,  R.  Co.:  1671. 
Young's    Estate,    In   re:   1515,   2304, 

2308. 

Y'ount  v.  Denning:   2479. 
Yourt  v.  Hopkins:  2321. 
Yowell  v.  Dodd:  1131. 
Yuengling  v.  Betz:  2255. 
Yuill  v.  Robson:  1298. 


2438 


•-> 


[References  are  to  sections:   §§  1-1705,  Vol.   I;  §g  1706-2588,  Vol.  IT.] 


Z. 

Zabawa  v.  Oberbeck  Mfg.  Co.:  1644. 

Zabriske  v.  Woodruff:  2230. 

Zacharie  v.  Rogers:  2546 

Zaleski  v.  Clark:  858. 

Zambelli    v.    Johnson    &    Son    Co.: 

1888. 
Zanesville  v.  Zanesville  Tel.   &  Tel. 

Co.:  313. 

Zang  v.  Hubbard  Bldg.  Co.:   946. 
Zappas  v.  Roumeliote:  1231. 
Zarst  v.   Singer   Sewing  Mach.   Co.: 

1782,  1977. 

Zearfoss   v.  Norway   Iron  Co.:    1668. 
Zeccardi  v.  Yonkers  R.  Co.:  1936. 
Zeidler  v.  Walker:   2443. 
Zeigler  v.  Galvin:  171. 
v.Hughes:   2290. 
v.  Illinois  T.  &  S.  Bank:  91. 
Zeimer  v.  Antisell:  2427,  2438. 
Zelenka  v.  Port  Huron  Machine  Co.: 

435,  874,  1016. 
Zellers  v.  White:  2000. 
Zender  v.  Seliger  Toothill  Co.:  1556. 
Zentmire  v.  Brailey:  2276,  2280. 
Zerrahn  v.  Ditson:  1514. 
Ziegan  v.  Strieker:  938. 
Ziegler  v.  Fallon:  1170,  1176,  1424. 
Zilberman  v.  Friedman:  870. 


Zimmer  v.  New  York,  etc.,  R.   Co.: 

1046. 
Zimmerman  v.  Dwelling  House  Ins. 

Co.:  1078,  1203. 
v.  Heil:  1249,  2415,  2416,  2527. 
v.Weber:  2480. 
v.  Zehender:  233. 
Zinck  v.  Walker:  2560. 
Zindel  v.  Finck:   1342. 
Zinke,  In  re:  261. 
Zinnell  v.  Bergdoll:  1566. 
Zinpelman  v.  Keating:  427. 
Zinsmeister  v.  Rock  Island  Canning 

Co.:    1783,  1789. 
Zipperlen  v.   Southern   Pac.   R.   Co.: 

1799. 

Zittle  v.    Schlesinger:    1523. 
Zoebisch  v.  Rauch:  395. 
Zogbaum  v.  Parker:  2276. 
Zorn  v.  Livesley:  1044. 
Zottman  v.  San  Francisco:   347,  354, 

385. 

Zouch  v.  Parsons:   144. 
Zuber  v.  Roberts:   51. 
Zulick  v.  Markham:   2423. 
Zulkee  v.  Wing:  1287. 
Zurn  v.  Noedel:  2551. 
Zweigardt  v.  Birdseye:  1480. 
Zowlanck  v.  Baker  Mfg.  Co.:  1550. 


2439 


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[Referenced   are  to  elections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.J 

. 
ABANDONMENT  OF  AGENCY, 

agent  may  generally  abandon  agency  at  any  time,  641. 

cannot  usually  be  prevented  by  injunction,  642,  643. 

specific  performance  not  granted,  642.        ,e$ 

abandonment  may  be  treated  as  renunciation,  646.  ,i  tjj'i 

abandonment  lawful  if  agent  required  to  do  illegal  acts,  647. 

abandonment  justified  by  principal's  misconduct,  648. 

effect  of,  on  agent's  right  of  compensation,  1573  et  seq. 

how  when  abandonment  lawful,  1573. 

how  when  unlawful,  1574. 
brief  absences  do  not  constitute,  1580. 
condonation  of,  1581. 

excuses  for,  1582. 

- 
ABSTRACTER  OF  TITLES. 

to  whom  liable  for  negligence,  1480,  n. 

ACCEPTANCE, 

agent  must  accept  appointment,  252,  253. 

ACCEPTANCES, 

see  NEGOTIABLE  INSTRUMENTS. 

•»3£  lo  -tfiiotttus  Imlqxo  wo/Ja  oi 
ACCOMMODATION  PAPER, 

agent  to  manage  business,  no  power  to  make,  1003. 
authority  to  make  negotiable  paper  does  not  authorize  making  of  accom- 
modation paper,  976. 

ACCOUNT, 

copy  of,  no  evidence  of  authority  to  collect,  864. 

ACCOUNT,  ALLOWANCE  OF, 

contracts  to  use  influence  to  secure,  void,  120. 

ACCOUNT,  DUTY  OF  AGENT  TO, 

agent  owes  duty  to  account  to  principal  for  money  and  property,  1327. 

accounting  to  joint  principals,  1328. 

accounting  by  joint  agents,  1329. 
.171  subagents  account  to  whom,  1330.  hno- 

agent  not  to  dispute  his  principal's  title,  1331. 

may  not  set  up  illegality  of  transaction  to  defeat  accounting,  1332. 

may  not  compel  principal  to  interplead  with  stranger,  1333.     >!i  -i 

2441 


INDEX 
[References  are  to  gectlong)  88  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

ACCOUNT,  DUTY  OF  AGENT  TO—  Continued. 
agent's  duty  to  keep  correct  accounts,  1334. 

agent's  duty  to  keep  principal's  property  and  funds  separate  from  his 
own,  1335. 

liability  &r  commingling,  1335. 
at  what  time  agent  must  account,  1336-1338. 
necessity  for  demand  before  action  by  principal,  1339,  1340. 
agent's  liability  for  interest,  1341. 
in  what  form  of  action  duty  to  account  enforced,  1342. 

when  equitable,  1343. 

burden  of  proof  in  action  for  accounting,  1344. 
method  of  proof,  1345. 
statute  of  limitations,  1346-1348. 
agent's  right  of  set-off,  1349. 
how  far  principal  may  follow  his  funds,  1350. 

conclusiveness  of  agent's  accounts  —  failure  to  object  account  stated,  1351. 
re-opening  accounts  —  impeaching  for  fraud  or  mistake,  1352. 
factor's  duty,  2544. 

,£T<3I  Julwfil  ia^maobaads  aexlw  wod 
ACCOUNTS, 

duty  of  agent  as  to  keeping,  1334. 

conclusiveness  of  agent's  accounts,  1345,  1351.        Jggl   1o  aoUfi£tofmo3 

re-opening,  1352. 

impeaching  for  fraud  or  mistake,  1352. 

factor's  duty  to  keep,  2542. 

.a  ,08*  t  .Qoaesilssa  to!  sMsil  modw  oj 
ACKNOWLEDGMENT, 

of  written  authority  of  agent,  when  required,  224. 

.To^  ,!Tcf  ,fa3mtntoqq£  Jq-woB  iaura 


ACQUIESCENCE, 

in  similar  acts,  proofs  of  agency  by,  263. 

to  show  expired  authority  of  agent  continuing,  264. 

to  construe  authority  of  agent,  265. 

proof  of  agency  by  acts  so  notorious  as  to  justify  inference  of,  266. 

in  agent's  act,  ratifies,  451. 

meaning  of  acquiescence,  452. 

mere  silence  or  failure  to  repudiate,  453. 

hoAv  differs  from  estoppel,  454,  455. 

other  statements  of  the  rule,  457. 

relations  of  the  parties,  458. 


...  ,.  ,    .  .     .     .       ,          .    ._h    , 

failure  to  dissent  as  between  principal  and  agent,  459. 

as  between  principal  and  other  party,  461,  462. 
principal  must  act  within  a  reasonable  time,  463-465. 
how  when  assumed  agent  is  a  mere  stranger,  466-469. 
how  when  former  agent  continues  to  act,  470. 

acquiescence  coupled  with  conduct  inconsistent  with  disapproval,  471. 
illustrations  of  ratification  by  acquiescence,  472-474. 
retaining  in  employment,  475. 
rale  applies  only  to  principals,  476. 

2442 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 

ACTING  WITHOUT  AUTHORITY, 

liability  of  agent  to  third  .persons  for,  see  LIABILITY  OF  AGENT  TO  THIRD 
PERSONS. 

ACTION, 

RIGHT  OF  PRINCIPAL  TO  MAINTAIN  ON  CONTRACTS  MADE  BY  AGENT. 

A.  The  Disclosed  Principal, 

,        .        ,    .  nAr  .  .    ''.'in    "111 

may  sue  on  contracts  made  in  his  name,  2054. 

may   usually   sue   on   contracts   made    in   his   behalf   though   in 

onrr 

agent  s  name,  2055. 

may   usually  sue  on  unauthorized  contracts  subsequently  rati- 
fied, 2056. 

B.  The  Undisclosed  Principal, 

may  usually  sue  on  contracts  made  in  his  behalf  though  in  agent's 

name,  2059  et  seq. 
not  on  sealed  instruments,  2064. 
not  on  negotiable  instruments,  2065. 

not  in  contracts  based  on  elements  of  personal  trust  and  confi- 
dence in  agent,  2067  et  seq. 

not  where  terms  of  contract  exclude  him,  2070  et  seq. 
RIGHT  OF  AGENT  TO  MAINTAIN, 

right  of  on  contracts  made  by  agent  usually  in  principal  alone,  2020. 
agent  may  sue  when  clothed  with  title  or  authority  for  that  purpose, 

2023. 

or  when  contract  made  with  him  personally,  2024  ct  setftq  utui 
or  when  he  has  a  beneficial  interest,  2023  et  seq. 
but  principal's  right  usually  paramount,  2037.     u 
effect  of  statutes  requiring  suits  by  real  party  in  interest,  2028. 
agent  only  may  maintain  on  sealed  or  negotiable  instruments  made 

in  his  name,  2038. 

right  of  assumed  agent  to  show  himself  principal  and  enforce,  con- 
tracts, 2040  ct  seq. 

agent  may  sue  to  recover  money  paid  away  by  him  by  mistake,  2044. 
what  defenses  open  to  third  person  if  agent  sues,  2045  et  seq. 

*    JO     X-^  '  '* 

agent  may  sue  in  tort  for  personal  injuries,  2049. 
when  agent  may  sue  for  injuries  to  principal's  property,  2050. 
when  factor  may  sue,  2568-2571. 
when  auctioneer  may,  2355. 
OTHER  CASES, 

ratification  of  unauthorized,  529. 

principal's  right  of,  against  sub-agent  for  money  collected,  1321. 

against  agent  for  money  received,  1327  et  seq. 

form  of,  1342. 

when  equitable,  1343. 

for  wrongful  discharge  of  servant  or  agent,  1553  et  seq. 
commencement  of,  as  election  to  hold  agent,  1758. 

ACTUAL  AGENCY, 

agencies  classified  into  actual  and  ostensible,  57. 

2443 


INDEX 
[Reference*  are  to  section*:  §§  1-1705,  Vol.  I;  §§  170O-25S8,  Vol.  II.] 

ADMINISTRATOR, 
ratification  by,  373. 

when  appointed  after  the  act,  379. 

ADMISSIONS, 

agent's  authority  cannot  be  established  by  his  own,  285-288. 

but  they  may  be  introduced  after  other  evidence,  285,  a. 
of  one  agent  to  prove  agency  of  another,  285n. 
of  agent  to  disprove  his  agency,  285,  n. 
by  agent,  principal's  responsibility  for,  1773  et  seq. 
of  agent,  generally  not  competent  to  charge  principal,  1792. 
how  when  constituting  part  of  res  gestae,  1793. 
illustrations  of,  1798,  1799. 

'  .a. 

see  STATEMENTS,  REPRESENTATIONS. 

' 

ADOPTION, 

rather  than  ratification  of  acts  by  corporation  subsequently  organized,  382. 
ADVANCES  AND  DISBURSEMENTS, 
right  of  agent  to  be  reimbursed  for. 

see  REIMBURSEMENT. 
broker's  right  to. 
see  BROKERS. 
0c0  .factor's  right  to.        ^if^ 

see  FACTORS. 
ADVERSE  INTEREST, 

when  person  dealing  with  agent  charged  with  notice  that  he  ifl  dealing 

adversely  with  interest  of  principal,  754. 
agent  may  not  acquire  or  represent,  1188  et  seq. 
see  LOYALTY:  DUTIES  OF  AGENT  TO  PRINCIPAL. 
disqualification  of  agent  from,  176-180. 
ADVERSE  RIGHTS, 

when  agent  may  not  acquire  in  principal's  property,  1218  et  seq. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

- 

ADVERTISE, 

authority  of  agent  to  advertise  property  for  sale,  892. 
ADVERTISEMENT,  .,1^ 

newspaper,  made  by  agent,  inadmissible  to  prove  agency,  285,  n. 
AFFIDAVIT, 

making  by  agent,  125. 
AGENCY, 

In  general, 

meaning  of,  1. 

forms  of  acting,  2. 

lines  of  distinction,  3. 

other  forms  of  acting,  4,  5. 

direct  and  indirect  representation,  6. 

degrees  of  authority,  7. 

2444 


INDEX 
[Reference*  are  to  sections:   §§   1-1705,    \  ol.  1}  §§  1706-2588,  Vol.  II.] 

AGENCY — Continued. 

nomenclature  adopted,  8. 

is  there  a  law  of,  9. 

belongs  to  a  commercial  age,  10. 

a  modern  title  in  our  law,  11-15. 

In  Roman  Law,  16-20. 

other  historical  references  to,  21. 

in  modern  Continental  systems,  22. 

early  treatises  upon,  23. 

legislation  in  English  and  American  law,  24. 

defined,  25. 

relation  of  principal  and  agent  defined,  26. 

parties  involved,  27. 

relation  usually  a  voluntary  one,  28,  29. 

authority  created  by  law  or  by  necessity,  29. 

contractual-consensual,  30,  31. 

as  status,  32. 

as  a  contract  relation,  33,  34. 

"contract  of  agency,"  "power  of  attorney,"  defined,  35. 

compared  with  relation  of  servant,  36-39. 

compared  with  relation  of  independent  contractor,  40. 

public  instrumentalities  like  mail,  telegraph,  etc.,  not  usually  agents, 

41. 

differs  from  trust,  42,  43. 
distinguished  from  sale,  44-50. 

how  determined-law  or  fact,  50. 
differs  from  partnership,  51. 
differs  from  lease,  52. 
differs  from  license,  53. 
differs  from  bailment,  54. 
differs  from  borrowing,  55. 

compared  with  relation  of  officials  in  church  organization,  55,  n. 
compared  with  cotenancy,  55,  n. 
compared  with  joint  venture,  55,  n. 

vendor  delivering  goods  to  carrier  not  agent  of  buyer,  55,  n. 
vendor  obtaining  deed  to  perfect  his  own  title  not  agent  of  buyer, 

cr     n 
' 

differs  from  receivership,  55,  n. 
For  What  Purposes  Created. 

general  rule — for  any  lawful  purpose,  80. 
exceptions — illegal  and  personal  acts,  81. 

in  general — contracts  of  agency  contrary  to  law  or  opposed  to  public 
policy  are  void.  83-88. 

effect  of  the  element  of  contingent  compensation,  86. 

employment  to  commit  crimes,  misdemeanors,  trespasses,  etc.,  89. 

employment  to  carry  on  forbidden  occupation,  90. 

employment  of  unlicensed  person,  91. 

2445 


INDEX 
ITteference*   are  to  sections:   8§   1-1705,  Vol.  I;   88   1700-2KSS,  Vol.  If.] 

AGENCY— Continued. 

employment  to  secure  legislation — lobbying,  92-96. 

obtaining  consent  of  property  owners,  97. 

procuring  contracts  from  government  or  heads  of  departments, 

98-100. 

service  in  prosecuting  claims,  101. 
compromise  of  crime,  102. 
encouragement  of  crime — agreements  to  defend  future  violations, 

103. 

services  in  securing  appointment  of  office,  104. 
same  rule  applies  to  private  offices  and  employments,  105. 
services  in  improperly  influencing  elections,  106,  107. 
services  in  securing  pardons,  108,  109. 
services  in  procuring  or  suppressing  evidence,  110. 
unlawful  dealing  in  stocks  and  merchandise,  111,  112. 
employments  creating  monopolies  or  in  restraint  of  trade,  113. 
employment  to  induce  violation  of  contract,  114. 
deception  or  defrauding  of  third  persons  or  the  public,  115. 
voting  trusts,  116. 
marriage  brokerage,  117. 

corruption  of  agents,  corporate  officers,  etc.,  118. 
corruption  of  public  officers,  119. 
other  cases  involving  same  principles,  120. 
agent  must  participate  in  unlawful  purpose,  121. 
whole  contract  void  when  entire,  122. 

distinction  between  illegal  and  merely  void  contracts,  123. 
personal   duty,   trust"  or   confidence   cannot   be   delegated   to   agent, 

124-126 
How  Created. 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS. 
How  Terminated. 

see  TERMINATION. 
AGENCY  BY  REFERENCE, 

when  arises,  by  referring  one  person  to  another,  276,  n. 
AGENT 

J  who  may  be— In  general,  152. 

less  competency  required  in  agent  than  in  principal,  154. 

infant  as  agent,  155. 

child  as  agent  of  parent,  156. 

parent  as  agent  of  child,  157. 

slaves  as  agents,  158. 

women,  159. 

married  women — as  agents  for  third  person,  160. 

wife  as  agent  for  husband,  161-168. 

husband  as  agent  for  wife,  169-172. 

corporations  as  agents,  173. 

partnerships  as  agents,  174. 

2446 


INDEX 
[References  are  to  sections:   §§   1-1705,  Vol.  I;  §§   1706-2588,  Vol.   II.] 

AGENT — Continued. 

alien  enemies  as  agents,  175. 
disqualification  of  agent  from  adverse  interest,  176-180. 

one  cannot  be  agent  if  duty  and  interest  conflict,  177. 

one  cannot  usually  be  agent  of  both  parties,  178. 

one  cannot  be  both  party  and  agent  for  opposite  party,  179. 

other  party  as  agent  to  sign  memorandum  under  statute  of  frauds, 

180. 

lack  of  professional  standing  may  disqualify,  181. 
former,  continuing  to  act,  ratification  of  acts  of,  by  acquiescence,  470. 
classified. 

see  CLASSIFICATION  OF  AGENTS. 

AGENT— DUTIES  AND  LIABILITIES  OF, 

see  DUTIES  OF  AGENT  TO  PRINCIPAL;  LIABILITY  OF  AGENT  TO  THIRD  PER- 
SONS. 

AGENT— RIGHTS  OF, 

see  RIGHTS  OF  AGENT  AGAINST  PRINCIPAL;   RIGHTS  OF  AGENT  AGAINST 

THIRD  PERSONS. 
AGRICULTURAL  IMPLEMENTS, 

warranty  of  workmanship,  sound  material  and  fitness  for  the  purpose  by 
agent,  885. 

ALIENS, 

as  principals,  151. 
as  agents,  175. 

ALTERATION, 

' 

agent  authorized  to  make  a  contract  for  the  sale  of  land  has  no  authority 

to  alter  its  terms  after  it  is  made,  827. 
how  in  case  of  personal  property,  929. 
AMBIGUOUS  AUTHORITY, 

construction  adopted  in  good  faith  usually  sufficient,  793. 
where  instructions  ambiguous,  departure  from  may  be  excused,  1266  et  seq. 
ANTAGONISTIC  RELATIONS, 

agent  must  not  put  himself  in  such  relations  to  his  principal,  1189  et  seq. 

see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 
APPARENT  AGENCY, 

distinguished  from  apparent  ownership,  848. 
APPARENT  AUTHORITY, 
what  meant  by,  720,  721. 

whether  undisclosed  principal  can  be  held  upon,  1767,  1768. 
effect  of  private  instructions  upon  authority  of  agent  authorized  to  sell 

personalty,  854. 
APPARENT  OWNERSHIP, 

distinguished  from  apparent  agency,  848. 
APPOINTMENT, 

to  office,  contracts  for  services  in  procuring,  104. 
same  rule  applies  to  private  offices  and  employments,  105. 

2447 


INDEX 
[Reference*  are  to  section*:  §§  1-1705,  Vol.  I;  §8  1706-2588,  Vol.  II.) 

APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS, 
I.  BY  THE  PRINCIPAL. 
1.  Methods. 

use  of  persons  as  Instrumentalities  but  not  as  agents — acts  done 

in  the  presence  of  the  principal  and  by  his  direction,  208. 
two  persons  involved  here,  209. 
only  by  the  act  of  the  principal,  210. 
the  method  to  be  pursued,  211. 
authority  to  execute  instruments  under  seal  must  be  conferred 

by  instrument  under  seal,  212. 
authority  to  fill  blanks  in  deeds  and  bonds,  213. 
estoppel,  214. 

how  when  seal  superfluous,  215. 
how  when  instrument  executed  in  presence  and  by  direction 

of  principal,  216. 

how  when  principal  adopts  deed  prepared  by  another,  217. 
instrument  not  good  as  deed  sometimes  effective  as  contract, 

218. 

appointment  by  corporations,  219. 
*d  oaoqiuq  91!     to  execute  deeds  of  corporate  realty,  220. 

common  law  rules  do  not  require  written  authority,  221. 
statutes   often   require   it  for  selling  or   leasing   land — English 

statute  of  frauds,  222. 
American  statutes  requiring  writing,  223. 
acknowledging  or  recording,  224. 
statutes  requiring  written  authority  in  other  cases — suretyship — 

written  instruments,  225. 
employments  for  more  than  one  year,  226. 
what  writing  sufficient  when  writing  required,  227. 
in   other  cases   no   formal   method   of  conferring  authority  re- 
quired, 228. 

authority  by  parol— to  sell  or  lease  land,  229. 
to  purchase  land,  230. 
to  deliver  deed,  231. 
to  demand  and  collect  rent,  232. 

to  find  purchaser  for  land — employment  of  broker,  233. 
to  grant  licenses  respecting  land— to  sell  standing  timber, 

234. 

to  subscribe  for  stock,  235. 

to  execute  written  instruments  not  under  seal,  236. 
to  fill  blanks  in  written  instruments,  237. 
to  buy  or  sell  goods,  238." 

to  "accept  and  receive"  under  statute  of  frauds,  239. 
authority  may  be  partly  written  and  partly  oral,  240. 
authority  need  not  be  express — authority  by  implication,  241. 
conferring  certain  powers  by  the  creation  of  others— Incidental 


powers,  242. 


2448 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS— Continued. 
customary  powers,  243. 

powers  established  by  the  course  of  business,  244. 
powers  resulting  from  estoppel,  245,  246. 
intention  to  create  agency,  247. 
names  not  controlling,  248. 
when  principal's  act  becomes  effective,  249. 
agent  must  be  notified  of  appointment,  251. 
agent  must  accept  appointment,  252. 
how  acceptance  established,  253. 
S.  Evidence  of  Appointment. 

authority  must  be  proved— burden  of  proof,  255. 
proof  of  authority  under  seal  or  in  writing,  256. 
when  written  authority  must  be  produced,  257. 
not  in  collateral  inquiry,  258. 
unnecessary  writing,  259. 

In  other  cases  authority  may  be  proved  by  parol,  260. 
proved  by  informal  writings — by  conduct — by  facts  and  circum- 
stances, 261. 
•     proved  by  proof  of  agency  on  other  occasions,  262. 

proved  by  acquiescence  in,  and  recognition  of,  similar  acts,  263. 
acquiescence  to  show  expired  authority  continuing,  264. 
acquiescence  to  construe  authority,  265. 

proved  by  acts  so  notorious  as  to  justify  inference  of  acquies- 
cence, 266. 

proved  by  regular  and  public  exercise  of  office  or  agency,  267. 
presumptions  based  upon  ordinary  conduct — answering  letters, 

telephone,  etc.,  268. 

proved  by  an  express  authority  to  which  the  authority  in  ques- 
tion is  an  incident,  269. 
proved  by  a  custom  covering  the  case,  270. 
proved  by  an  established  course  of  dealing,  271. 
limitations  upon  rules  of  proof  of  appointment  and  authorization, 

273. 

illustrations  of  facts  sufficient  to  prove  appointment  and  authori- 
zation, 274-280. 

illustrations  of  facts  not  sufficient  to  prove,  281-284. 
cannot  be  established  by  his  own  statements  or  admissions,  285. 
or  by  evidence  that  he  made  no  declarations,  285,  n. 
nor  are  statements  usually  admissible  to  disprove  agency, 

285,  n. 
nor  are  statements     admissible  to  prove  agency  of  another 

agent  of  same  principal,  285,  n. 
when  admissible,  286. 

to  show  attitude  or  intention  of  parties,  287. 
order  of  proof  not  vital,  288. 
cannot  be  proved  by  his  own  acts  only,  289. 
cannot  be  proved  by  general  reputation,  290. 
154  2449 


INDEX 
[Reference*   are  to  sections:   §§   1-1703,  Vol.  1}  gg  1706-2588,  Vol.  II.J 

APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS— Continued. 
may  be  shown  by  agent's  testimony,  291. 

effect  of  agent's  testimony,  292.  s 
how  question  of  agency  determined — court  or  jury,  293. 

construction  of  writing  for  court,  294. 

effect  of  undisputed  facts  to  be  determined  by  court,  295. 

in  other  cases  question  is  for  the  jury,  296. 

under  proper  instructions  from  the  court,  297. 
burden  of  proving,  298. 
whose  agent  is  the  agent,  300. 

stipulations  declaring — testimony  of  parties,  301. 
II.  BY  OTHEB  AGENTS. 

see  DELEGATION  OF  AUTHORITY. 
1.  Authority  to  delegate  7m  own  authority, 
delegatus  non  potest  delegari,  305. 
general  rule,  306. 

judgment  and  discretion  not  to  be  delegated,  307,  308. 
attorneys  may  not  delegate  personal  undertaking,  309. 
arbitrators  may  not  delegate  their  powers,  310. 
auctioneers,  brokers  and  factors  may  not  delegate,  311. 
-    executors,  etc.,  may  not  delegate  personal  trusts,  312. 

rule  applies  to  pubJic  and  private  corporations  and  officers,  313. 
exceptions  and  modifications  of  the  general  rule,  314. 

subagent  may  be  employed  to  perform  acts  mechanical  or 
ministerial,  315. 

when  the  proper  conduct  of  the  business  requires  it,  316,  317. 

when  justified  by  usage  or  course  of  trade,  318. 

when  originally  contemplated,  319. 

•when  necessity  or  sudden  emergency  justifies  it,  320. 
assistants  employed  by  servants,  321. 

ratification  of  an  unauthorized  employment,  322. 
care  required  in  making  authorized  appointment,  323. 
re-delegation — sub-delegation,  324. 
what  the  delegate  may  be,  325. 
whose  agent,  etc.,  is  the  sutagent,  326-329. 
is  there  privity  between  the  principal  and  subagent,  330,  331. 
effect  of  employment — subagent  is  principal's  agent  when  appoint- 
ment as  such  authorized,  332. 
• 

but  he  is  the  agent's  agent  in  other  cases,  333. 

£.  Authority  of  an  agent  to  employ  agents,  servants  and  others  for 

his  principal. 

agents  generally  have  no  such  authority,  334. 
nor  servants,  335. 
nor  independent  contractors,  336. 
authority  to  appoint  may  be  expressly  conferred,  337. 
or  may  arise  by  implication,  338. 
suddtn  emergency  or  special  necessity  may  justify  it,  339. 

2450 


INDEX 
[Reference*   are  to  sections:   §§  1-1705,   Vol.  I;  g§  170O-2588,  Vol.  II.] 

APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS— Continued. 

authority  arising  from  emergency  or  necessity  a  narrow  one, 

340. 

employment  of  physicians  and  surgeons  in  emergencies,  341. 
privity  between  principal  and  persons  thus  employed,  342. 
ARBITRATION, 

agent  to  collect  has  no  authority  to  submit  claim  to  arbitration,  966. 

agent  to  sell  land  has  no  such  authority,  843. 

agent  to  settle  claim  has  no  such  authority,  1023. 

authority  of  attorney  to  consent  to,  2162. 

authority  of  broker  to  consent  to,  2406. 

authority  of  factor  to  consent  to,  2516. 

ARBITRATOR, 

may  not  delegate  duties,  310. 
ARCHITECTS, 

authority  of,  992. 

up  wori 

ARREST,  MjuJsJa 

liability  of  principal  or  master  for  unauthorized,  1973. 
ASCERTAINING  THE  EXISTENCE  OF  AGENT'S  AUTHORITY, 
persons  dealing  with  agent  must  ascertain  his  authority,  743. 

what  meant  by  this  rule,  744. 

what  such  persons  bound  to  ascertain,  745. 

other  theories  concerning,  747,  748. 
through  whom  must  authority  be  ascertained,  750. 
persons  dealing  with  agent  must  deal  in  good  faith,  751.          aoiJjJtei 

must  exercise  reasonable  prudence,  752. 

must  take  notice  of  limitations,  753. 

must  take  notice  of  adverse  interests,  754. 

effect  of  principal's  negligence,  755. 
must  ascertain  whether  necessary  conditions  exist,  756. 
may  usually  not  rely  on  agent's  representations  as  to  conditions,  757,  758. 

how  when  facts  peculiarly  within  agent's  knowledge,  759,  760. 

how  when  fixed  pecuniary  limit,  761. 

how  when  dealing  with  corporate  agents  respecting  matters  of  inter- 
nal management,  762. 

authority  of  public  agent  must  be  ascertained,  763. 
ASSAULTS, 

liability  of  carriers  for  assaults  by  servants  or  agents,  1933  et  seq. 
liability  of  other  principals  or  masters  for,  1977  et  seq. 
ASSIGNEE, 

ratification  by,  when  appointed  after  the  act,  379. 

ASSIGNMENT, 

of  cause  of  action,  ratification  of,  530. 

for  benefit  of  creditors,  delegation  of  statutory  power  to  make,  126. 

agent  for  sale  of  land  has  no  authority  to  make  an  assignment  of  it 
for  the  benefit  of  the  principal's  creditors,  824. 

245  * 


INDEX 
[Reference*  are-  to  Mectlon*:  §g  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  II.J 

ASSOCIATIONS, 

as  joint  principals,  187-192. 
personal  liability  of  those  acting  for,  1389. 
ASSUMPTION  OF  MORTGAGE, 

agent  having  general  authority  to  deal  in  land  may  agree  to,  828,  846. 
ASSUMPTION  OF  RISKS, 

servant  by  accepting  employment 'assumes  risks  inherent  in  business,  1615. 
servant  by  remaining  in  employment  usually  held  to  assume  risks  of 

master's  negligence,  1659  ct  seq. 
discussion  of  this  rule,  1660  et  seq. 
how  when  risks  not  obvious,  1667. 
how  when  servant's  act  not  voluntary,  1668. 
how  when  servant  young  and  inexperienced,  1670. 
how  in  cases  of  emergencies,  1669. 

how  when  master  has  not  complied  with  statutes,  1671. 
how  assumption  of  risk  differs  from  contributory  negligence,  1673. 
how  question  of  assumption  determined,  court  or  jury,  1674. 
statutes  changing  rules,  1679. 
ATTORNEY  AND  CLIENT, 

dealings  between,  good  faith  and  perfect  fairness  required,  2289. 
purchases  from  and  sales  to  client — adverse  purchases,  2290. 
private  purchases  of  client's  property,  2291. 
gifts  by  client  to  attorney,  2292. 
other  dealings,  2293. 

contracts  for  compensation  made  after  relation  exists,  2294. 
relation  of  attorney  and  client  must  exist,  2295. 

former  relation  terminated,  2296. 
ATTORNEYS  AT  LAW, 

I.  OF  THE  OFFICE. 

who  meant  by  attorney  at  law,  71,  2144. 

attorney  at  law  defined,  2145. 

is  an  officer  of  the  court,  2146. 

who  may  be,  2147. 

party  may  appear  in  person,  2148. 

may  not  appear  by  agent,  2149. 

II.  OF  THE  RELATION  OF  ATTORNEY  AND  CLIENT. 

1.  A  Relation  of  Agency. 

rules  of  agency  govern,  2150. 

2.  How  created. 

no  formal  power  necessary,  2151. 

III.  APPEARANCE  PBESUMPTIVELY  AUTHORIZED. 

presumption  of  authority,  2152. 

the  presumption  not  conclusive,  2153. 

_  '  d  A 

a.  While  Proceedings  are  Pending, 

1.  opposite  party  may  require  production  of  authority,  2154. 

2.  what  evidence  sufficient,  2155. 

3.  client  may  dispute  authority,  2156. 

2452 


INDEX 
[References  are  to  aectlona:  §§  1-1705,  Vol.  Ij  |g  1706-2588,  Vol.  II.] 

ATTORNEYS  AT  LAW—  Continued. 

6.  In  Actions  upon  the  Judgment, 

1.  foreign  judgments,  2157. 

2.  domestic  judgments,  2158. 
IV.  IMPLIED  AUTHORITY  OF  ATTORNEY. 

has  general  control  of  conduct  of  suit,  2160. 
presumption  of  authority,  2161. 
has  implied  authority:  — 

to  make  affidavits  in  case,  2162. 

.'  K  ni 

to  waive  a  verification,  2162. 

to  serve  and  accept  service  of  papers,  etc.,  2162. 

to  waive  formal  notice,  2162. 

to  waive  or  extend  time  for  proceedings,  2162. 

to  consent  to  reference  of  cause,  2162. 
<  '  ••)[;« 

to  submit  pending  cause  to  arbitrators,  2162. 

to  dismiss  or  discontinue  action,  2162. 

to  consent  to  a  nonsuit,  2162. 

to  admit  facts  for  purposes  of  trial,  2162. 

to  stipulate  issues  to  be  tried,  2162. 

to  waive  formalities  and  technicalities,  2162. 

to  release  attachment  lien  before  judgment,  2162. 

to  stipulate  that  judgment  in  one  action  shall  be  same  as  In 

4.1.  0-,™ 

another,  2162. 

to  bring  new  action  before  nonsuit-  2162« 
to  suspend  execution,  2162. 

to  remit  damages,  2162. 

...  •.'  LUA 

to  stipulate  form  of  judgment,  2162. 

to  confess  judgment  or  consent  to  decree,  2162. 
has  no  implied  authority:  — 

to  admit  or  accept  service  of  original  process,  2163. 

to  enter  a  retraxit  when  it  is  a  final  bar,  2163. 

to  agree  that  dismissal  of  action  shall  bar  action  for  ma- 
licious prosecution,  2163. 

to  compromise  the  claim  of  his  client,  2163. 

to  release  client's  cause  of  action,  2163. 

to  stipulate  not  to  appeal  or  move  for  new  trial,  2163. 

to  release  defendant's  property  from  levy  or  judgment,  2163. 

to  release  client's  security  without  payment,  2163. 

to  discharge  or  release  surety  or  endorser,  2163. 

to  discharge  defendant  from  custody  without  satisfaction, 
2163. 

to  suspend  proceedings  on  judgment,  2163. 

to  release  a  garnishee  from  attachment,  2163. 

to  release  interest  of  parties,  2163. 

to  give  extension  of  time  upon  the  demand,  2163. 

to  assign  or  transfer  the  demand  to  another,  2163. 

to  consent  to  stay  execution,  2163. 

2453 


[Reference*  are  to  sections:   §§   1-1705,  Vol.  I;   S3   1706-2588,  Vol.   II.] 

ATTORNEYS  AT  LAW— Continued. 

to  waive  right  to  an  inquisition,  2163. 

to  give  up  demand  and  take  other  security,  2163. 

to  stipulate  that  cause  shall  not  be  tried  during  certain 
periods,  2163. 

to  appeal  the  case,  2163. 

may  not  delegate  his  authority,  309,  2164,  2165. 
may  not  employ  counsel,  2166. 
may  employ  subordinates,  2167. 
authority  to  institute  action,  2168. 
authority  to  incur  expense  on  client's  account,  2169. 
authority  to  bind  client  by  contracts,  2170. 
authority  to  bind  client  by  bonds,  2171-2174. 
authority  to  bind  client  by  receipt  of  notice — notice  to  attorney 

as  notice  to  client,  2175-2177. 

authority  to  bind  client  by  admissions,  2178,  2179. 
authority  to  receive  payment,  2180,  2181. 

after  judgment,  2182. 

what  constitutes  payment,  2183. 
authority  to  enforce  judgment,  2184-2186. 
ratification,  2187. 

V.  DUTIES  AND  LIABILITIES  OF  ATTORNEY  TO  CLIENT. 

bound  to  highest  honor  and  integrity,  2188. 

duty  to  disclose  adverse  interests — must  not  assume  antagonis- 
tic positions,  2189. 
duty  to  remain  loyal,  2190. 

effect  on  opposite  party,  2191. 
duty  to  use  reasonable  care  and  skill,  2192. 

errors  in  law  or  judgment,  2193-2195. 

negligence  in  collecting,  2196,  2197. 

negligence  in  bringing  suit,  2198-2200. 

*>ni  -LI 

negligence  in  trial  of  action,  2201. 

negligence  in  examining  titles,  2202. 

negligence  in  preparing  contracts,  etc.,  2203. 

neglect  of  partners,  clerks,  etc.,  2204. 

neglect  of  subagent  in  collecting,  2205. 

neglect  of  correspondents,  1315. 

liability  for  exceeding  authority,  or  violating  instructions,  2206. 
liability  for  money  collected,  2207. 

when  action  may  be  brought,  2208. 

statute  of  limitations,  2209. 

liability  for  interest,  2210. 

attorney  liable  though  acting  gratuitously,  2211. 
burden  of  proof  and  measure  of  damages,  2212. 

VI.  LIABILITY  OF  ATTORNEY  TO  THIRD  PERSONS. 

not  liable  for  breach  of  duty  owing  to  client  alone,  2213. 
cases  in  which  he  would  be  liable,  2214,  2215. 

2454 


INDEX 
[References   are  to  sections:   g§  1-1705,  Vol.  Ij  §§  1706-2588,  Vol.  II.] 

ATTORNEYS  AT  LAW— Continued. 

liable  where  he  contracts  personally,  2216. 

liability  for  clerk's,  officer's,  witness's,  and  other  fees,  2217. 

liability  to  third  person  in  tort,  2218-2223. 

liability  for  words  written  or  spoken,  2224. 

liability  for  money  received,  2225. 

VII.  LIABILITY  OF  CLIENT  TO  THIRD  PERSON. 

in  contract,  2226. 
in  tort,  2227,  2228. 

VIII.  LIABILITY  OF  CLIENT  TO  ATTORNEY. 

1.  Attorney's  Right  to  Reimbursement  and  Indemnity. 

attorney  entitled  to  reimbursement  and  indemnity,  2229. 

2.  Attorney's  Right  to  Compensation. 

a.  in  general. 

attorney  entitled  to  compensation,  2230. 
attorney  may  sue  for  compensation,  2231. 

b.  amount  of  compensation. 

(1)  where  there  was  a  special  contract  parties  may  agree 

upon  amount  of  compensation,  2233. 
where   such   a   contract   is   fairly   made   it   is   con- 
clusive, 2234. 
extra  compensation,  2235. 
contracts  for  contingent  compensation,  2236. 
what  contracts  champertous,  2237. 
statutory  changes,  2238. 
effect  of  champerty,  2239. 
what  contracts  barratrous,  2240. 

quantum  meruit  when  contract  void  for  champerty,  2241. 
agreements  restricting  settlement,  2242. 
contract  for  contingent  fees  do  not  defeat  settlement  by 

client,  2243. 
but  attorney  may  recover  from  client,  2244. 

(2)  where  there  was  no  special  contract  attorney  entitled 

to  statutory  or  usual  rate,  if  any,  otherwise  to  reason- 
able value  of  his  services,  2245. 
tafl9ll  10 

what  evidence  admissible,  2246. 

what  evidence  not  admissible,  2247. 

c.  when  compensation  deemed  earned. 

in  cases  of  ordinary  retainer,  2248. 

compensation  under  express  contract  earned  when  undertak- 
ing substantially  performed,  2249. 
lack  of  success  no  defense,  2250. 
negligence  or  bad  faith  may  be  shown,  2251. 
fees  forfeited  by  breach  of  trust,  2252. 
how  when  attorney  abandons  service,  2253. 
what  will  justify  abandonment,  2254. 
when  discharged  by  client,  2255. 

245  5 


INDEX 
are  to  nectiona:  gg  1-1705,  Vol.  Ij  8!  1706-2588,  Vol.  11.1 

ATTORNEYS  AT  LAW— Continued. 

in  violation  of  agreement,  2256. 
what  will  justify  discharge,  2257. 
effect  of  death  of  attorney  or  client,  2258. 

irrevocable  powers — powers   coupled   with  an   Interest, 

2259-2260. 

right  to  interest,  2261. 

when  attorney's  claim  barred  by  limitation,  2262. 
S.  Attorney's  Right  to  Lien. 

two  kinds  of  lien,  2263. 
the  general  or  retaining  lien, 
general  nature  of  this  lien,  2264. 
.    declared  by  statute  in  some  states,  2265. 
what  this  lien  adheres  to,  2266. 

(1)  upon  papers,  2267. 

(2)  upon  property,  2268. 

(3)  upon  money,  2269. 

what  charges  the  lien  secures,  2270. 
against  what  parties  lien  prevails,  2271. 
how  lien  may  be  lost,  2272. 
how  lien  may  be  waived,  2273. 
enforcement  of  lien,  2274. 
b.     the  special  or  charging  lien. 

general  nature  of  this  lien,  2275. 

in  what  states  it  exists,  2276. 

whom  it  protects,  2277. 

what  it  protects,  2278. 

when  it  attaches,  2279. 

to  what  it  attaches,  2280. 

how  lien  protected— settlement — set-oft—notice,  2281. 

abandonment — discharge,  2282. 
how  lien  enforced,  2283. 

if  the  judgment  has  resulted  in  a  fund,  2284. 
statute  of  limitations,  etc.,  2285. 
liens  by  contract — equitable  protection  independent  of  liens, 

2286. 

how  lien  lost  or  waived,  2287. 
by  what  law  governed,  2288. 
IX.  DEALINGS  BETWEEN  ATTORNEY  AND  CLIENT. 

in  general — good  faith  and  perfect  fairness  required,  2289. 
purchase  from  and  sales  to  client — adverse  purchases,  2290. 

.private  purchases  by  the  attorney  of  the  client's  property,  2291. 
gifts  from  client  to  attorney,  2292. 
other  dealings,  2293. 

contracts  for  compensation  made  after  relation  exists,  2294. 
relation  of  attorney  and  client  must  exist,  2295. 
former  relation  terminated,  2296. 
2456 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  I)  §§  1700  2588,  Vol.  II.] 

X.  PRIVILEGED  COMMUNICATIONS. 

confidential  communications  privileged,  2297,  2298. 

what  communications  included  by  client  to  attorney,  2299,  2 

by  attorney  to  client,  2301. 
under   what  circumstances   privileged — no   suit  must  be  pending- 
must  be  confidential,  2302. 

criminal  acts,  2303. 

fraudulent  or  illegal  acts,  2304. 
non-confidential  communications,  2305. 

non-professional  employments,  2306. 

collateral  facts,  2307. 
relation  of  attorney  and  client  must  exist,  2308. 

attorney  as  scrivener,  2309. 

communications  must  have  been  made  to  an  attorney,  2310. 
privilege  is  the  client's — waiver,  2311. 
how  long  it  continues,  2312. 
attorney  may  disclose  for  his  own  protection,  2313. 

XI.  TERMINATION  OF  THE  RELATION. 
by  operation  of  law,  2314. 

by  act  of  the  parties,  2315. 

notice  of  termination,  2316. 
AUCTION 

see  AUCTIONEERS. 

authority  to  sell  does  not  authorize  sale  at  auction,  2321,  853. 
authority  to  sell  at  private  sale  does  not  authorize  auction  sale,  853. 
authority  to  sell  at  auction  does  not  authorize  private  sale,  2330. 
sending  goods  to  auction  room  implies  authority  to  sell  at  auction,  2321. 
sale  of  A's  property  at  B's  sale  does  not  bind  purchaser,  2341. 
AUCTIONEER, 

L  OF  THE  AUCTION  EEB. 

definition,  2318. 

who  may  be,  2319. 

whose  agent  he  is,  2320. 

II.  How  AUTHORIZED. 

like  other  agents,  2321. 

III.  AUCTIONEER'S  IMPLIED  AUTHORITY. 
to  fix  terms  of  sale,  2322. 

to  accept  the  bid,  2323. 

to  make  the  necessary  memorandum,  2324. 

to  receive  the  price,  2325. 

to  sue  in  his  own  name  for  the  price,  2326. 

none — to  delegate  his  authority,  2327. 

none — to  sell  on  credit,  2328. 

none — to  rescind  or  alter  sale,  2329. 

none — to  sell  at  private  sale,  2330. 

none— to  bid  for  himself,  2331. 

none— to  warrant  quality,  2332. 

2457 


INDEX 

f.H   Ao'f  £8B£  «071   88   il  .IoV   .25171-1   ri  :jm o i  t-j -,«..,, t    ., 
[References  are  to  flections:  §§  1-1705,  Vol.   I:  |g  1706-2588,  Vol.  II.] 

AUCTIONEERS-tfonttnued. 

IV.  AUCTIONEER'S  DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 
bound  for  reasonable  skill  and  diligence,  2333. 
to  cact  with  loyalty  and  good  faith,  2334. 
to  obey  instructions,  2335. 
to  account  for  proceeds,  2336. 
to  take  care  of  goods,  2337. 
to  sell  for  cash  only,  2338 


to  sell  to  third  parties  only,  2339. 

-  i.Ita-- 

. 


to  sell  in  person,  2340. 


to  disclose  his  principal,  2341. 

*  ft 

V.  AUCTIONEER'S  DUTIES  AND  LIABILITIES  TO  THIRD  PERSONS. 

liable  where  he  conceals  principal,  2342. 

liable  where  he  exceeds  his  authority,  2343. 

liable  where  he  contracts  personally,  2344. 

liable  for  selling  property  of  stranger,  2345. 

not  liable  for  not  holding  auction  as  advertised,  2346. 

.    -*  r  tfSTfT          T  "*£ 

liable  for  refusing  to  surrender  property  bought,  2347. 
liability  for  money  received,  2348. 

VI.  AUCTIONEER'S  RIGHTS  AGAINST  PRINCIPAL. 
compensation — reimbursement — indemnity,  2349. 
recoupment  of  damages  of  principal,  2350. 
auctioneers  lien,  2351. 

can  not  dispute  principal's  title,  2352. 

VII.  AUCTIONEER'S  RIGHTS  AGAINST  THIRD  PERSONS. 
right  to  sue  bidder,  2353. 

right  to  sue  wrong  doer,  2354. 

VIII.  PRINCIPAL'S  RIGHTS  AGAINST  THIRD  PERSONS. 

to  recover  purchase  price,  2355. 

•iO    \ 
where  bidder  refuses  to  complete  purchase,  2356. 

IX.  RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 
principal's  liability  for  auctioneer's  acts,  2357. 

liability  for  breach  of  contract,  2358. 

. 

liability  for  not  holding  sale,  withdrawing  property,  etc.,  2359. 
liability  for  failure  of  title  to  goods  sold,  2360. 
AUTHORITY  BY  LAW, 

authority  may  be  created  by  law,  203. 
AUTHORITY  BY  NECESSITY, 
nature  of,  205. 
limitations  upon,  718,  719. 
AUTHORITY,  INCIDENTAL, 

see  INCIDENTAL  AUTHORITY. 

AUTHORITY  COUPLED  WITH  AN  INTEREST, 
when  not  revocable  by  principal,  570-591. 
when  not  terminated  by  death  of  principal,  655-667. 
by  death  of  agent,  672. 
by  Insanity  of  principal,  679. 

2458 


INDEX 
[References   are  to  section*:   §§   1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

0  YT1HOHTUA 


AUTHORITY  COUPLED  WITH  AN  INTEREST— Continued. 


by  insanity  of  agent,  682. 

v    v  *      •     •     i    /.on  NsaionaJ 

by  bankruptcy  of  principal,  689. 

...      ~.         „  ' 

by  bankruptcy  of  agent,  691. 

AUTHORITY  OF  AGENT, 
, 
how  conferred. 

. 
see  APPOINTMENT  OF  AGENT. 


evidence  of. 

see  EVIDENCE  OF  AGENCY. 
nature  of,  as  express  or  implied,  707,  708. 
an  attribute  of  character  bestowed  by  principal,  709. 
apparent  authority  cannot  be  limited  by  secret  instructions,  710. 
distinction  between  authority  and  power,  711. 

what  constitutes  authority,  713. 

, 
elements  of  authority:  — 

1.  authority  intentionally  and  directly  conferred,  714. 

2.  incidental  authority — ordinary  and  necessary  acts,  715. 

3.  authority  resulting  from  custom  or  usage,  716. 

4.  customs  of  the  particular  business  or  the  established  course  of 

business,  717. 

5.  authority  by  necessity  or  emergency,  718,  719. 

6.  apparent  authority,  720,  721. 

7.  liability  by  estoppel,  722-726. 

8.  liability  by  ratification,  727. 
the  effect  of  instructions,  730. 

what  constitute  instructions,  731-735. 
universal,  general,  and  special  authority,  736. 
distinction  between  general  and  special  agents,  737-739. 
general  agency  not  unlimited,  740. 

principal  only  bound  within  scope  of  authority,  741. 
special  agent's  authority  must  be  strictly  pursued,  742. 
person  dealing  with  agent  must  ascertain  authority,  743,  744. 

what  he  is  bound  to  ascertain,  745-749. 

through  whom  must  authority  be  ascertained,  750. 

998 

person  dealing  with  agent  must  act  in  good  faith,  751. 
must  exercise  reasonable  prudence,  752. 

notice  of  limitations,  753. 

notice  of  adverse  interests,  754. 

effect  of  principal's  negligence,  755. 
must  ascertain  whether  necessary  conditions  exist,  756. 

agent's  representations  as  to  authority  not  usually  to  be  relied  upon, 
757,  758. 

how  when  facts  peculiarly  within  agent's  knowledge,  759,  760. 

how  when  authority  subject  to  known  pecuniary  interest,  761. 

how  in  case  of  corporate  agents,  762. 
authority  of  public  agents  must  be  ascertained,  763. 
construction  of  authority. 

see  CONSTRUCTION  OF  AUTHORITY. 

2459 


INDEX 
[Reference*  are  to  soot  Ion,:  §§  1-1705,  Vol.  Ij  §§  1706-2588,  Vol.  n.] 

AUTHORITY  OP  AGENT—  Continued. 

termination  of  authority. 

_.  ;..i  vd 

see  TERMINATION  OF  AUTHORITY. 

,.  ,  '  ! 

«ecuuon  of  authority 

see  EXECUTION  OF  AUTHORITY. 

,   ,  ,    .,„.-  loo  wod 

agent's  duty  not  to  exceed,  1240. 

- 

agent's  duty  to  know  extent  of,  1242. 

_,**•  f*t 

agent's  liability  to  principal  for  exceeding,  1243.  *" 

liability  of  agent  who  acts  without,  1359  et  seq. 

rnf  TO  aao-KjXH  gi;  ,3o  9H/JB0 


AUTHORITY  OF  NECESSITY, 
when  exists,  205. 
limitations  upon,  718,  719. 

AUTHORITY  TO  BIND  PRINCIPAL  AS  SURETY. 

see  SURETY. 

.1 

AUTHORITY  TO  BORROW  MONEY, 
see  BORROWING  MONEY. 

AUTHORITY  TO  CARE  FOR  PROPERTY, 

see  CARE  OF  PROPERTY. 

.''-•  .  vd  yjhoxijus     .2 

AUTHORITY  TO  COLLECT  OR  RECEIVE  PAYMENT, 

see  PAYMENT.  COLLECTION  OR  RECEIPT  OF. 

-f    £u     £jluu£tl      .\ 

AUTHORITY  TO  EMPLOY, 
see  EMPLOYMENT. 

AUTHORITY  TO  LEASE  LAND, 

see  LEASE  OF  LAND. 

is  bns  [£19033  fl99v/i»d 


AUTHORITY  TO  LEND  MONEY, 
see  LOAN. 

AUTHORITY  TO  MAKE  OR  INDORSE  NEGOTIABLE  PAPER, 
see  NEGOTIABLE  INSTRUMENTS. 

AUTHORITY  TO  MANAGE  BUSINESS, 

,,  .„ 

see  MANAGEMENT  OF  BUSINESS. 
AUTHORITY  TO  PURCHASE  PERSONAL  PROPERTY, 

see  PURCHASE  OF  PERSONAL  PROPERTY. 
AUTHORITY  TO  PURCHASE  LAND, 

see  PURCHASE  OF  LAND. 

AUTHORITY  TO  REPRESENT  INSURERS, 

see  INSURANCE  AGENTS. 
AUTHORITY  TO  SELL  LAND, 

O  T       , 

see  SALE  OF  LAND. 

-'•«•  //on 
AUTHORITY  TO  SELL  PERSONAL  PROPERTY, 

see  SALE  OF  PERSONALTY. 
AUTHORITY  TO  SETTLE, 
see  SETTLEMENT. 


INDEX 
TReferenceB  nr«  to  sections:   §§  1-1705,  Vol.  I;   §§  1700-2588,  Vol.  II.] 

AUTHORITY  TO  SHIP  GOODS, 
see  SHIPMENT  OF  GOODS. 

AUTHORITY  TO  EXECUTE  INSTRUMENTS  UNDER  SEAL, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS. 

.a  ,08«I 
AUTHORITY  TO  FILL  BLANKS, 

in  deeds  and  bonds,  213-216. 

,          ...  .         ,  .  ,    „,_  UJJB 

in  written  instruments,  conferred  by  parol,  237. 

'o  ai 

AUTHORIZATION  OF  AGENTS, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS. 
differs  from  ratification,  347. 

AUTOMATON, 

agent  who  acts  as.  simply,  or  as  mere  messenger  not  usually  liable  on 

contracts,  1416. 
nor  in  tort  cases,  1462. 

AUTOMOBILE, 

liability  of  master  for  servant's  negligence  while  using,  1902,  n,  1905,  n, 
1912,  n. 

not  a  "dangerous  instrumentality,"  1950. 

• 
BAGGAGE  MASTER, 

authority  to  contract,  993. 

BAILMENT, 

differs  from  agency,  54.          ; 

BANKS, 

liability  for  defaults  in  collecting,  1312. 
for  neglect  of  the  notary,  1313. 
for  defaults  of  their  correspondents,  1314. 
BANKRUPTCY 

of  principal  usually  terminates  business  agency,  687-690.'   ' 
mere  insolvency  not  enough,  688. 
how  when  authority  coupled  with  interest,  689. 
of  agent  usually  terminates  business  agency,  691. 
when  notice  required,  701-703. 
BARTER, 

11    j  j.    •        i-c         on? 

authority  to  sell  does  not  justify,  895. 

factor  has  no  implied  authority  to,  2513. 

.25  .-/oassB  rno'il  aff>fii&  worf 
BILLS  AND  NOTES, 

see  NEGOTIABLE  INSTRUMENTS. 

BILL  BROKER, 

definition  of,  2364. 

•<\\ 
liable  as  seller  where  principal  concealed,  2364. 

warrants  his  authority  to  sell,  2364. 
and  genuineness  of  signatures,  2364. 
but  not  solvency  unless  he  indorses,  2364. 

2461 


INDEX 
[Reference*   are  to  sections:   8§  1-1705,  Vol.   1$  §g  1706-2588,  Vol.  II.] 

BILL  OF  LADING, 

whether  principal  bound  by  when  no  goods  received,  759,  760,  1801. 

BLACK-LISTING,  3TrJ03X3  OT  YTIflOHTUA 

liability  of  principal  or  master  for  blacklisting  by  agent  or  servant, 
1980,  n. 

BLANKS, 

authority  to  fill  in  deeds  and  bonds,  213-216. 

.          .,  ...          .  00-  •  •  Hi 

in  other  written  instruments,  237. 

liability  of  principal  where  agent  fills  in  unauthorized  manner: — 

in  case  of  notes,  978. 

in  case  of  deeds  and  bonds,  214. 

instruments  in  blank  as  evidence  of  ownership  or  agency  to  sell,  2123, 

;  /.i. >  i  /  in > !  .j /i 

91  97 

i"        Trtr'i        zv  Ion  -.  oism  &K  10  .vlqrafa  .BB  B*DB  otfvr  Jn9§B 

BOARDS, 

execution  of  joint  public  agency  by  majority  of,  200. 
BOND, 

authority  to  fill  blanks  in,  213-216..  ^•r,ISV1^ 
authority  of  attorney-at-law  to  bind  client  by,  2171-2174. 
may  indemnify  sheriff  against  levy,  2171-2174. 
but  may  not  execute  appeal  bond,  2171-2174. 
or  replevin  bond,  2171-2174. 

or  indemnify  surety  on  injunction  bond,  2171-2174. 
BOOKS, 

entries  in  agent's  inadmissible  to  prove  agency,  285,  n. 
BORROW  MONEY, 

authority  of  agent  to 

when  authority  exists,  1026. 
not  readily  implied,  1026. 
authority  of  managing  agent  to,  1001,  1002. 
what  execution  authorized,  1027. 

limits  on  the  authority,  1027. 
authority  to  give  necessary  securities,  1028. 

qualifications,  1028. 
authority  to  receive  the  money,  1029. 
liability  of  principal  for  money  borrowed  without  authority,  1030. 

ratification,  1030. 

r«J'l  'on  .J  yjnoilJus 

BORROWING, 

how  differs  from  agency,  55.  ^  ^  ^^ 

"BOUGHT  AND  SOLD  NOTES," 

in  English  practice,  2378. 

English  rule  as  governing,  2379-2380. 

use  of,  in  the  United  States,  2381. 
BOUNDARIES,  CHANGE  OF, 

agent  authorized  to  sell  or  rent  real  estate  has  no  authority  to  agree  to 
a  change  of  the  boundaries,  821. 

2462 


INDEX 
[Referenced   are  to  sections:   §§  1-1705,  Vol.  I;  §§   1700-2588,  Vol.  II.] 

BRIBES, 

right  of  principal  to  recover  against  third  persons  for  bribing  or  corrupt 

ing  his  agent,  2137. 
when  principal  entitled  to  bribes  acquired  by  agent,  1227  et  seq. 

see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL,. 
BROKERS, 

I.  DEFINITIONS  AND  DIVISIONS. 

brokers— in  general,  2362. 
different  kinds  of  brokers,  2363. 
bill  and  note  brokers,  2364. 
exchange  brokers,  2365. 
insurance  brokers,  2366. 

distinctions,  2367-2369. 

broker's  duties  to  employer,  2370. 

right  to  sue,  2371. 

right  to  lien,^2372. 
merchandise  brokers,  2373. 

as  agents  of  both  parties,  2374. 

how  authorized,  2375. 

when  special  agents,  2376. 

when  not  authorized  to  sign,  2377. 

"bought  and  sold  notes"  in  the  English  practice,  2378. 

English  rules  governing  "bought  and  sold  notes,"  2379-2380. 

"bought  and  sold  notes"  in  the  United  States,  2381. 
pawnbrokers,  2382. 
real  estate  brokers,  2383. 
ship  brokers,  2384. 
stock  brokers,  2385. 
New  York    rules  governing  relation,  2386. 

broker  a  pledgee,  2387. 
Massachusetts  rules,  2388. 

New  York  view  generally  adopted — substitution   of  other  shares — 
repledge,  2389. 

II.  APPOINTMENT  AND  TERMINATION. 

appointed  like  other  agents,  2390. 

parol  authority  sufficient  to  find  purchaser  for  land,  233. 
how  authority  terminated,  2391. 

III.  IMPLIED  AUTHORITY  OF  BROKERS. 
in  general,  2392. 

how  affected  by  usage,  2393. 

local  usages  or  customs,  2394. 
usual  and  necessary  authority,  2395. 

authority  to  make  and  sign  necessary  memorandum,  2396. 
effect  of  instructions,  2397. 
acting  for  both  parties,  2398. 
may  not  delegate  his  powers,  2399. 
usually  must  act  in  the  name  of  his  principal,  2400. 

2463 


INDEX 
[Reference*  are  to  sectional  §§  1-1705,  Vol.  I)  §g  1700-2588,  Vol.  II. J 

BROKERS— Continued. 

implied  authority  to  fix  the  price,  2401.    lVt  D) 

terms  of  sale,  2402. 

may  sell  with  warranty — when,  2403.'  ot  l> 
when  may  sell  on  credit,  2404. 
no  authority  to  receive  payment,  2405. 
no  authority  to  rescind  or  arbitrate,  2406.         (1yjA 
no  authority  to  accept  or  waive  performance,  2407.:; — a 
authority  to  sell  property  purchased  by  him,  2408* .? 
authority  to  pledge  property,  2409. 

IV.  DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 

reasonable  skill  and  diligence  required,  2410.   ,fo-id  aoas-i 
fidelity  to  his  principal — concealing  facts — dealing  with  or  for  him- 
self, 2411.  .0782  ,i9TjoIqmy  oJ  BdWifb-B'TSJloid 

acting  for  both  parties,  2412 

how  when  mere  "middleman,"  2413t7,  ' 
duty  to  obey  instructions,  2414. 

illustrations,  2415.        kjj 

imperiling  broker's  security,  2416. 

duty  to  keep  and  render  accounts  and  to  pay  proceeds  and  deliver 
property,  2417. 

V.  DUTIES  AND  LIABILITIES  TO  THIRD  PERSONS.  ;,,a  5aB  jrfst/oJ" 

not  liable  when  he  contracts  for  a  principal  disclosed,  2418. 
liability  when  principal  concealed,  2419. 
liable  when  he  expressly  charges  himself,  2420". 
liable  when  he  acts  without  authority,  2421.     >Trf'  *» 
liability  for  money  received,  2422. 
when  guilty  of  a  conversion,  2423. 

VI.  RIGHTS  OF  BROKER  AGAINST  PKINCIPAL,  ,^vo^ 
J.  Right  of  Compensation. 

entitled  to  compensation,  2424. 

how  amount  determined,  2425. 

broker  must  show  employment — volunteer — ratification,  2426. 

broker  must  have  performed  undertaking,  2427. 

real  estate  broker — nature  of  his  undertaking,  2428-2429. 

usually  need  not  conclude  a  binding  sale — find  purchaser  ready, 
willing  and  able  to  buy,  2430. 

where  is  such  purchaser  "found"?  2431-2432. 

contract  in  particular  cases  may  require  less,  2433.  >§  ai 

contract  with  broker  need  not  be  in  writing,  2434. 

broker  must  be  procuring  cause — may  be  such  though  not  pres- 
ent at  sale — directness  of  cause,  2435-2436.       tis  I  KM  air 

must  be  on  terms  required — 1.  where  terms  were  prescribed, 

2437.  ;  .enoiJ'M/iJeni  lo  i 

2.  .  where  no  terms  were  prescribed,  2438. 

must  be  within  time  limited,  2439. 

readiness  and  willingness  of  purchaser,   2440. 
2464 


INDEX 
[Reference*   are  lo  Nectlonn:   §§  1-1705,  Vol.  I;  §§   1706-25SS,  Vol.  II.1 

BROKERS— Continued. 

pecuniary  responsibility  of  purchaser,  2441. 
abandonment  by  broker  before  success,  2442. 
mast  be  sale,  not  mere  option  or  conditional  contract,  2443. 
must  be  sale,  not  exchange,  2444. 

sale  by  principal  in  person — exclusive  agencies,  2445. 
giving  time,  2446. 
broker's  right  not  defeated,  how — principal's  default,  2447. 

buyer's  default,  2448. 
revocation  of  authority,  2449. 

reasonable  time  in  which  to  find  purchaser,  2450. 
definite  time — contract  for,  2451. 

when  such  contract  exists — consideration  for,  2452-2454. 
performance    liberally   viewed    in    order    to   avoid   hardship   to 

broker,  2455. 

employment  of  two  or  more  brokers,  2456. 
which  one  entitled — how  determined,  2457. 

same  subject — interpleader,  2458. 

abandonment  by  one  broker — termination  of  his  authority, 
2459. 

duty  to  notify  principal,  when  purchaser  found,  2460. 
how  much   compensation  broker   entitled  to— quantum,  meruit, 

2461. 

at  what  time  commission  payable,  2462. 
broker  to  sell  chattels,  2463. 

abandonment  by  broker,  2464. 

revocation  of  authority,  2465.  [  s*fc 

several  brokers,  2466. 
broker  to  effect  loan,  2467. 
broker  to  effect  exchange,  2468. 

bringing  parties  to  terms,  2469. 

failure  of  contract,  2470. 
broker  to  purchase  land,  2471. 
broker  to  find  a  tenant,  2472. 
other  cases  within  the  same  principles,  2473. 
commissions  from  both  parties,  2474. 

how  in  case  of  mere  middlemen,  2475. 
how  affected  by  misconduct,  2476. 
how  affected  by  disloyalty,  double  dealing,  etc.,  2477. 
no  compensation  where  undertaking  illegal,  2478. 
how  when  not  licensed,  2479. 
2.  Right  to  Reimbursement  and  Indemnity. 
entitled  to  reimbursement,  2480, 

needless  expenses — illegal  transactions,  2481. 
how  when  undertaking  not  performed,  2482. 

155  2465 


INDEX 
are  to  section*:   g£   1-1705,  Vol.  1}  g§   1706-2588,   Vol.  II.] 

BROKERS — Continued. 

3.  Right  to  a  Lien. 

no  general  lien,  2483. 

liens   in  special   cases — stock  brokers — real  estate   brokers — In- 
surance brokers,  2484. 
equitable  liens,  2485. 
no  lien  except  for  debt  due  from  principal,  2486. 

VII.  RIGHTS  OF  BROKER  AGAINST  THIRD  PERSONS. 

1.  In  Contract. 

in  general,  no  right  of  action  on  contracts,  2487. 

when  he  may  sue,  2488. 

what  defenses  may  be  made  when  broker  sues,  2489. 

2.  In  Tort. 

may  recover  when  he  sustains  injury  in  the  line  of  his  busi- 
ness, 2490. 

VIII.  RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS. 

same  as  in  other  cases  of  agency,  2491. 
no  set-off  of  broker's  debt  or  obligations,  2492. 
rfiwft     right  to  recover  money  and  property,  2493. 

IX.  RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

same  as  in  other  cases  of  agency,  2494. 

no  remedy  if  broker  did  not  act  as  defendant's  agent,  2495. 
BURDEN  OF  PROOF, 

on  whom  in  principal's  action  against  agent  for  accounting,  1344. 
BUSINESS  OF  AGENCY, 

agent  may  not  deal  in  on  his  own  account,  1191  et  seq. 

see  LOYALTY";  DUTIES  OF  AGENT  TO  PRINCIPAL. 
CARE  OF  PROPERTY, 

authority  of  agent  authorized  to  care  for  property —    ,  >ioirf 
nature  and  extent  of  authority,  1048. 

will  not  justify  selling,  1048. 
CARRIERS, 

agent  to  ship  goods  may  enter  into  contract  limiting  liability  of  carrier, 

1046,  1047. 

authority  of  agent  to  ship  goods  to  choose  between,  1044,  1045. 
liability  for  servant's  assaults  upon  passengers,  1933  et  seq. 
liability  for  assaults  upon  other  patrons,  1933  et  seq. 
liability  for  servant's  use  of  excessive  force,  1951  et  seq. 
liability  for  servant's  misuse  of  engines,  cars,  torpedoes,  etc.,  1945  et  seq. 
CASH, 

factor's  liability  when  instructed  to  .sell  for,  2530. 

see  SALES  FOR  CASH. 
CERTIFICATE  OF  STOCK, 

whether  principal  bound  by   issue  of,  when  no   former  certificate  sur- 
rendered, 759,  760. 
CERTIFIED  CHECKS, 

liability  of  principal  upon  checks  certified  by  agent,  180L 

2466 


INDEX 
[References   are   to  sections:   §§  1-1705,   Vol.  I;  §§   1706-2588,  Vol.   II.] 

CHAMPERTY, 

what  contracts  by  attorney  at  law  deemed  champertous,  2237  et  seq. 
CHATTELS, 

authority  of  agent  to  sell. 

see  SALE  OF  PERSONALTY. 
CHECK, 

agent  to  receive  payment  has  no  authority  to  accept,  949. 
authority  of  agent  to  sell  personal  property  to  accept,  895. 
see  PAYMENT. 

CHURCH   OFFICIALS, 

relation  of,  compared  with  agency,  55,  n. 
CLAIM  AGENTS, 

authority  to  settle,  1021,  1022. 

CLAIMS, 

validity  of  contracts  to  prosecute  claims  against  governments  or  munici- 
palities, 101. 

CLASSIFICATION  OF  AGENTS, 

actual  and  ostensible  agencies,  57. 
universal,  general  and  special  agents,  58-69. 

general  agent,  denned,  60. 

special  agent,  denned,  61. 

mere  messenger,  denned,  62. 

person  used  merely  as  mechanical  aid  or  instrumentality,  63. 

uses  of  distinctions  as  to  classification,  67. 

difficulty  of  determination  of  classification,  68. 

how  determined,  69. 
special  forms  of  agency — professional  and  non-professional  agents,  70-75. 

attorneys  at  law,  71. 

auctioneers,  72. 

brokers,  73. 

factors  or  commission  merchants,  75. 

traveling  salesmen  or  drummers,  75. 
officers  of  ships,  76. 
partners,  77. 
bank  officers,  78. 

CLERK, 

authority  to  fix  price,  855. 
authority  to  institute  attachment  suits,  1010. 
authority  to  receive  payment  at  time  of  sale,  868. 
no  authority  to  execute  negotiable  paper,  972. 

CLIENT, 

see  ATTORNEY  S-AT-LAW. 

CLUBS, 

as  joint  principals,  187-192. 
personal  liability  of  agent  of,  1389. 

2467 


INDEX 
(Reference*  «re  to  sections:  §§  1-1705,  Vol.  I)  §8  1709-2588,  Vol.  II.] 

CO-AGENT, 

liability  of  one  agent  for  his  co-agent's  negligence,  1289. 
COLLECT, 

authority  to,  see  PAYMENT. 
COLLECTION  AGENT, 

authority  of,  may  be  expressly  conferred,  933. 

not  implied  merely  from  fact  that  he  negotiated  contract  out  of  which 

money  becomes  due,  934. 
implications  where  he  has  possession  of  securities,  936,  937. 

possession  indispensable,  937. 
implication  from  conduct,  938. 

estoppel,  939. 

apparent  authority  when  owner  of  record,  941. 
when  agent  ostensible  principal,  942. 
Implied  authority  where  he  has  securities  to  deliver,  943. 

where  he  sold  the  goods  or  land,  944. 

authority  to  receive  interest  does  not  extend  to  principal  sum,  945. 
may  usually  receive  nothing  but  money,  946. 
debt  payable  in  goods,  947. 
checks,  certificates  of  deposit,  etc.,  949-951. 

where  authorized  to  receive  check,  etc.,  has  no  implied  authority  to  en- 
dorse and  collect  it,  952,  953. 

has  no  implied  authority  to  release  or  compromise  claim,  954. 
may  usually  not  take  part  payment,  955. 
may  not  extend  time,  956. 

or  change  terms  of  contract,  957. 
may  usually  not  receive  before  due,  958. 

nor  accelerate  maturity,  959. 
may  not  sell  debt,  960. 
may  not  deal  with  proceeds,  961. 
may  give  proper  receipt  or  discharge,  962. 
when  may  sue,  963. 

in  his  own  name,  964. 
when  may  foreclose  mortgages,  etc.,  965. 
may  not  submit  claim  to  arbitration,  960. 
when  may  employ  attorneys,  967. 
authority  to  appoint  sub-agents,  968. 
liability  of  agent  to  principal  for  neglect  In  making  collections,   1299 

et  seq. 

negligence  as  to  medium  of  payment,  1301.  rJl^or 

negligence  in  proceedings,  1303-1306. 
negligence  in  advising  principal  of  material  facts,  1307. 
negligence  in  permitting  or  granting  delays,  extensions,  or  forbear- 
ances, 1308. 

,H£] 
negligence  in  keeping  the  money,  1309. 

negligence  in  remitting  the  money,  1247,  1310. 
liability  for  neglect  of  correspondents  and  sub-agents,  1311. 

2468 


INDEX 
[Reference*   are  to  section*:  §§  1-1705,  Vol.   I;  §§  1706-2588,  Vol.  II.] 

COLLECTION  AGENT — Continued. 
liability  of  collecting  banks,  1312. 

for  the  neglect  of  their  notaries,  1313. 

for  the  neglect  of  correspondent  banks,  1314. 
liability  of  attorneys,  1315. 

liability  of  mercantile  or  collection  agencies,  1316-1318.       Od 
liability  of  express  companies,  1319. 
measure  of  damages  for  neglect,  1320. 
right  of  principal  to  recover  money  from  sub-agent,  1321. -.raw  .III 

COLLUSION, 

rights  of  principal  against  third  persons  who  have  colluded  with  his 
agent,  2138  et  seq. 

COMMERCIAL  TRAVELER, 

see  TRAVELING  SALESMAN. 

•I    Q9£tW 

COMMINGLING, 

agent's  duty  to  keep  principal's  property  and  funds  separate  from  his 

own,  1335.  ,  j0  |j{w  ; 

liability  for  commingling,  1335. 

COMMISSION  MERCHANT, 
see  FACTORS. 

authority  to  receive  payment  as  ostensible  owner,  867. 
denned  as  a  special  form  of  agent,  74. 

COMMISSIONS, 

of  real  estate  broker,  2428  et  seq. 

of  broker  to  sell  chattels,  2463  et  seq. 

of  broker  to  obtain  loan,  2467. 

of  broker  to  exchange  properties,  2468  et  seq. 

of  broker  to  purchase  land,  2471  et  seq. 

of  broker  to  find  a  tenant,  2472. 

when  broker  entitled  to,  see  BROKER;   REAL  ESTATE  BROKER. 

COMMITTEES, 

as  joint  principals,  187-192. 

personal  liability  of  members  of,  1390. 

COMPENSATION, 

I.  AGENT'S  RIGHT  TO  COMPENSATION. 

when  agent  entitled  to  compensation,  1513. 

agreements  about  conclusive,  1514. 

when  agreement  must  be  express,  1515. 

when  agreement  to  pay  will  not  be  implied,  1516. 

when  agreement  to  pay  will  be  implied,  1518-1520. 

unauthorized   agent  entitled   to   compensation   if  acta   ratified,   500, 

1521. 

no  compensation  if  agency  unlawful,  1523. 
compensation  for  extra  services,  1522. 

compensation — right  of  subagent  against  principal  for,  1701. 

2469 


INDEX 
[Reference*  are  to  neetlons:   gg  1-1705,   Vol.  I)  gg  1706-2588,   Vol.  II.] 

COMPENSATION— Continued. 

II.  THE  AMOUNT  or  COMPENSATION. 

express  contract,  if  any,  governs,  1524. 

how  determined  if  no  contract — market  value,  usage,  reasonable 
value,  1526. 

how  reasonable  value  determined,  1527,  1528. 

compensation  after  expiration  of  term  presumptively  same  as  be- 
fore, 1530. 

III.  WHEN  COMPENSATION  DEEMED  TO  BE  EARNED. 
ordinarily  when  undertaking  fully  performed,  1532. 

rfjj     when  full  performance  a  condition  precedent,  1533,  1534. 
agent's  right  not  defeated  by  principal's  default,  1535,  1536. 
no  defense  that  principal  realized  no  profit,  1538. 

IV.  EFFECT  OF  TERMINATION  OF  AGENCY. 

when  agent  entitled  to  compensation  if  agency  terminated  before 

performance,  1539,  1540. 
no  compensation  after  agency  rightfully  terminated,  1541. 

agency  at  will  of  principal,  1542,  1543. 

agency  terminable  on  contingency,  1544. 

agency  terminable  on  breach  of  express  or  implied  condition, 
1545. 

agency  terminable  for  agent's  misconduct,  1546-1548. 
damages  for  loss  of  compensation  when  agency  wrongfully  termi- 
nated, 1549-1551. 

damages  where  employed  to  do  particular  acts,  1552. 

damages  for  breach  of  continuing  contract,  1553-1555. 

when  action  may  be  brought  for,  1556. 

measure  of  damages  for,  1557,  1558. 
duty  of  agent  to  seek  other  employment,  1559. 

new  employment  offered  by  principal,  1560. 

i  c         j-.ee  ir/.-i      '(?    i>    "a^ 

employment  of  a  different  sort,  1561. 

working  for  himself,  1562. 
when  right  of  action  accrues,  1563,  1564. 

no  damages  if  agent  acquiesces  in  discharge,  1565. 
no  damages  where  agency  terminated  by  death  of  principal,  1566. 

joint  principals,  partnerships,  1567. 

how  where  agency  terminated  by  insanity  of  principal,  1568. 
how  where  terminated  by  bankruptcy  of  principal,  1569. 
how  where  terminated  by  death  of  agent,  1570. 
how  where  terminated  by  agent's  sickness  or  incapacity,  1572. 
how  where  agent  lawfully  abandons  service,  1573. 
how  where  agent  wrongfully  abandons  service,  1574. 

entire  and  severable  contracts,  1575-1578. 
how  where  contract  unenforcible  under  statute  of  frauds,  1579. 
what  constitutes  abandonment,  1580. 
condonation  of  abandonment,  1581. 

excuses  for  abandonment — sickness,  epidemics,  physical  violence, 
1582. 

2470 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  II. J 

COMPENSATION— Continued. 

compensation  during  illness,  1584. 

contracts  not  to  terminate  without  notice — forfeiture  of  compensa- 
tion for  breach,  1586,  1587. 

V.  EFFECT  OF  AGENT'S  DISLOYALTY  ON  COMPENSATION. 

disloyal  agent  cannot  recover  compensation,  1588. 

good  faith  does  not  save  nor  custom — divisible  transactions,  1589. 

VI.  EFFECT  OF  AGENT'S  WILLFUL  DISOBEDIENCE. 

wilful  disobedience  usually  forfeits  compensation,  1593. 

COMPENSATION  OF  ATTORNEYS, 
see  ATTORNEYS  AT  LAW. 

COMPENSATION  OF  AUCTIONEERS, 
see  AUCTIONEEKS. 

COMPENSATION  OF  BROKERS, 
see  BROKERS. 

COMPENSATION  OF  FACTORS^ 
see  FACTORS. 

COMPETENCY, 
to  be  principal, 

see  PRINCIPAL. 
to  be  agent, 

see  AGENT. 
COMPROMISE, 

authority  of  agent  to  sell  personal  property  to  compromise  principal's 

claim,  901. 
attorney-at-law  has  not  implied  authority  to,  2163. 

CONCEALED  PRINCIPAL, 

personal  liability  of  agent  who  acts  for,  1410  et  seq. 

CONDUCT, 

authority  conferred  by,  241-246. 
proof  of  agency  by,  261. 

CONDONATION, 

of  agent's  misconduct  prevents  discharge,  611  et  seq. 

CONDUCTOR, 

authority  to  secure  medical  aid,  994. 

has  implied  authority  to  hire  temporary  brakeman,  989. 

CONFESS  JUDGMENT, 

attorney  has  implied  power  to,  2162. 

CONFIDENTIAL  INFORMATION, 

agent  may  not  use  to  make  profit  for  himself,  1209. 

trade  secrets,  formulae,  lists  of  customers,  etc.,  1211. 
information  leading  to  outside  profit,  1213. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL, 

2471 


INDEX 
[References  are  to  «ectlona:   §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 

CONFLICT  OF  LAWS. 

where  ratification — law  of  what  place  governs,  488.  uoli&e. 

CONSIDERATION, 

no  new,  required  for  ratification,  351. 

CONSTRUCTION  OF  AUTHORITY  IN  GENERAL, 

I.  WHEN  AUTHORITY  is  CONFERRED  BY  WRITING. 

construction  of  writing  for  court,  765. 

i  j.  -./>/» 

intention  to  govern,  166. 

how  intention  discovered — language  used,  767. 

entire  writing— other  writings,  768. 

when  drawn  with  reference  to  statute,  to  be  interpreted  in  light  of 

statute,  769. 
admissibility  of  parol  evidence — to  show  surroundings  of  the  parties, 

770. 

latent  and  patent  ambiguities,  771. 
identifying  subject  matter,  772. 

to  show  usage  of  business  of  agents  of  a  particular  class,  773. 
parol  evidence  cannot  enlarge  authority,  774. 
parol  evidence  cannot  contradict  writing,  775. 
effect  must  be  given  to  every  word  and  clause,  776. 
transaction  to  be  upheld  rather  than  defeated,  777. 
authority  to  be  interpreted  in  light  of  lex  loci,  778. 
authority  limited  by  ordinary  meaning  of  words  and  by  plain  import 

of  language,  779. 

general  powers  limited  by  specific  object  or  recital,  780. 
authority  by  joint  principals  usually  to  be  exercised  only  in  behalf 

of  all  jointly,  781. 
power  of  attorney  referring  to  several  interests  can  not  be  applied 

to  joint  interests,  782. 

power  construed  to  apply  only  to  principal's  private  business,  783. 
formal  powers  strictly  construed — only  those  powers  expressly  given 

or  necessarily  implied,   784. 
practical  construction  by  the  parties  may  aid,  785. 

II.  WHERE  AUTHOIUTY  is  UNWRITTEN  OR  IMPLIED. 

where  authority  is  unwritten  but  express,  786. 

where  authority  is  unwritten  but  implied,  787. 

authority  to  be  construed  in  the  light  of  established  usages,  788. 

authority  carries  with  it  every  power  necessary  to  accomplish  object, 

789. 

implied  authority  not  to  be  extended  beyond  its  legitimate  scope,  790. 
implied  power  limited  to  principal's  business,  791. 

III.  WHERE  AUTHORITY  is  AMBIGUOUS. 

duty  of  principal  to  make  his  instructions  clear,  792. 
when  ambiguous  construction  adopted  in  good  faith  sufficient,  793. 
CONSTRUCTIVE  SERVICE, 

doctrine  of,  generally  repudiated,  1554. 

2472 


INDEX 
[Reference*  are  to  se<-(i<ms:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.   II.] 

CONTINGENT  COMPENSATION, 

effect  in  determining  whether  contract  of  agency  held  void,  86. 
of  attorney,  see  ATTORNEYS  AT  LAW. 

CONTINGENT  FEES, 

.  .         ,      .  .    „„„., 
contract  tor,  by  attorney-at-law,  lawful,  2236. 

CONTRACT, 

agency  as  a  contract  relation,  33-35. 

I.  How  TO  BE  EXECUTED  BY  AGENT. 

in  general,  1164. 

1.  Written  Contracts. 

proper  manner,  1165. 

intention   of  parties  as  expressed   in  Instrument  the  true 

test,  1166. 
principal  alone  bound  by  contract  made  in  his  name  by 

authorized  agent,  1167. 

presumption  that  known  agent  does  not  intend  to  bind  him- 
self, 1168. 

agent  bound  who  conceals  fact  of  agency  or  name  of  princi- 
pal, 1169. 
known  agent  may  bind  himself  by  express  words,  1170,  1171. 

contrary  intention  manifest,  1172-1174. 
personal  liability  excluded  by  terms  of  contract,  1175. 
admissibility  of  parol  evidence  to  show  intent,  1176. 
right  acquired  under  agent's  contract,  1177. 
contracts  involving  statute  of  frauds,  1178. 
2.  Oral  Contracts. 

how  executed,  1179. 

principal  presumptively  bound  where  agency  disclosed,  1180. 
agent  may  bind  himself  by  special  agreement,  1181. 
how  question  determined,  1182. 
or  by  failing  to  disclose  his  principal,  1183. 

II.  PRINCIPAL'S  RIGHT  TO  ENFORCE  AGAINST  OTHER  PARTY. 

disclosed  principal  may  usually  enforce  contracts  made  in  his  name 

or  on  his  account,  2054  et  seq. 

principal  may  ratify  unauthorized,  and  enforce,  509  et  seq. 
must  take  contract  as  he  finds  it,  2057. 
subject  to  what  defenses,  2058. 
undisclosed   principal  may   usually   enforce  all  contracts  made  on 

his  account  though  in  agent's  name,  2059  et  seq. 
but  not  instruments  under  seal,  2064. 
or  negotiable  instruments,  2065. 

or  contract  based  on  personal  trust  or  confidence  In  agent,  2067. 
or  contracts  whose  terms  exclude  him,  2070. 
what  defense  open,  2074  et  seq. 

III.  RIGHT  OF  AGENT  TO  ENFORCE  CONTRACTS  MADE  IN  BEHALF  OF  PRINCIPAL. 
right  of  action  usually  in  principal  alone,  2020. 

2473 


INDEX 
[Reference*  are  to  *«><•( IOIIM:   SS   1  -17O5,   Vol.   I;  §§  1706-2588,  Vol.  II.] 

CONTRACT— Continued. 

agent  may  sue  when  clothed  with  title  or  authority  for  that  par- 
pose,  2023. 

may  sue  on  contracts  made  with  him  personally,  2024. 
may  sue  when  he  has  a  beneficial  interest,  2033. 
agent  only  can  sue  on  sealed  or  negotiable  instruments  made  in  his 

name,  2038. 
right  to  enforce  contracts  made  with  him  as  ostensible  principal, 

2040  et  seq. 

IV.  LIABILITY  OF  PKINCIPAL  UPON  CONTRACTS  MADE  BY  AGENT. 
1.  The  Disclosed  Principal. 

liable  on  contracts  made  in  his  name  on  his  authority,  1709. 
liable  on  informal  contracts  not  expressly  binding  agent,  1710. 
informal  entries  or  charges  against  agent  not  conclusive, 

1711. 
may  often  be  liable  altho  agent  also  bound,  1712. 

whether    liable    where   written   contract   made    in   agent's 

name,  1713-1716. 

not  liable  where  credit  given  exclusively  to  agent,  1717. 
for  what  contracts  and  acts  principal  liable,  1718  et  seq. 
f.  The  Undisclosed  Principal. 

undisclosed  principal  usually  liable  when  discovered,  1729-1731. 
rule  applies  to  all  simple  contracts  whether  written  or  unwrit- 
ten, 1732. 

parol  evidence  admissible  to  identify  principal,  1733. 
rule  does  not  apply  to  contracts  under  seal,  1734,  1735. 
rule  does  not  apply  to  negotiable  instruments,  1736. 
certain  exceptions  made  to  general  rule,  1737  et  seq. 

a.  where  principal  has  settled  with  agent  before  third  per- 

son intervenes — change  in  accounts — misleading  con- 
duct, 1738-1744. 

what  is  misleading  conduct,  1744. 

effect  of  delay,  etc.,  1745-1747. 

b.  where  third  person  has  elected  to  hold  agent,  1750. 
theories  of  election,  1751. 

knowledge  necessary,  1752,  1753. 
what  constitutes  an  election,  1754. 

1.  before  discovery  of  principal,  1755. 

2.  after  discovery  of  principal,  1756. 
presenting  claim,  1757. 
commencement  of  action,  1758. 
taking  judgment  against  agent,  1759. 
taking  agent's  note,  1760. 
charging  goods  to  agent,  1761. 
mere  delay,  1762. 

rule  does   not  apply   unless   alleged   agent  was  really  agent, 

1764-1766. 
apparent  authority  in  such  cases,  1767,  1768. 

2474 


,  INDEX 

[References  are  to  sections:   §§  1-1705,  Vol.  I;  §§  170tt-2688,  Vol.  II.] 

CONTRACT—  Continued. 

how  when  apparent  agent  the  real  principal,  1770. 

how  when  principal's  liability  excluded  on  terms  of  contract, 

1771. 

other  cases  in  which  agent  may  not  be  liable,  1772. 
VM  LIABILITY  OF  AGENTS  UPON. 

liability  of  agent  who  makes  without  authority,  1356  et  seq. 

of  agent  who  conceals  fact  of  agency  or  name  of  principal,  1410 

et  neq. 

of  agent  who  pledges  his  own  responsibility,  1419  et  seq. 
CONTRACT  OF  AGENCY, 
defined,  35. 
illegal  or  opposed  to  public  policy. 

see  AGENCY — FOB  WHAT  PURPOSES  CREATED. 

distinction  between  validity  of  and  lawfulness  of  the  services,  87. 
if  illegal  in  part,  whole  contract  void  when  entire,  122. 
distinction  between  illegal  and  merely  void  contracts,  123. 

CONTRACT  IN  WRITING, 

whether  principal  can  be  held  on  when  made  in  agent's  name,  1713  et  seq. 
CONTRACTOR, 

independent. 

see  INDEPENDENT  CONTRACTOR. 

CONTRIBUTORY  NEGLIGENCE, 

of  principal  as  affecting  agent's  liability,  1287. 

of  fellow-servant  as  affecting  agent's  or  servant's  liability,  1287,  n. 
of  servant  bars  recovery  from  master,  1676  et  seq. 
statutes  changing  this  rule,  1679. 

CONVERSION, 

when  agent's  breach  of  instructions  amounts  to  conversion,  1253  et  seq. 
liability  of  agent  to  third  persons  for,  1457. 
liability  of  principal  or  master  for  conversion  of  agent  or  servant, 

1922  et  seq. 
liability  of  auctioneer  for. 

see  AUCTIONEERS. 
liability  of  broker  for. 
see  BROKERS. 

liability  of  factor  for. 

/._ 
see  FACTORS. 

CONVEYANCE, 

authority  of  agent  to  make, 
see  SALE  OF  LAND. 

CONVICTION, 

illegal,  validity  of  employment  to  procure  pardon  when,  109. 

CORPORATIONS, 

private,  as  principal,  130. 
public,  as  principal,  131. 

2475 


INDEX 
[Reference*  are  to  Motions t  g§  1-1705,  Vol.  If  §§  1706-2688,  Vol.  H.1 

CORPORATIONS — Continued. 
as  agents,  173. 

appointment  of  agents  by,  219,  220. 
appointment  of  agents  by  inchoate,  193. 
liability  of- agent  before  corporation  fully  organized,  1383. 
ratification  by,  of  acts  done  before  its  organization,  380-383. 
notice  to  agent  of,  as  notice  to  corporation,  1825-1843. 
municipal,  may  ratify,  367. 
private,  may  ratify,  368. 
may  ratify  by  acquiescence,  464,  465. 
penal  liability  of,  for  acts  of  agent,  2008,  n. 
CORRUPTION  OF  AGENTS, 

employment  for  this  purpose,  void,  118. 
COSTS, 

when  agent  liable  to  principal  for  costs  caused  by  agent's  negligence, 

1292. 
COTENANCY, 

compared  with  agency,  55,  n. 
COURSE  OF  DEALING, 

authority  resulting  from,  717. 

COURSE  OF  EMPLOYMENT, 

what  meant  by,  1879,  1960. 
COVENANTS, 

authority  of  agent  of  lessee  to  make  in  lease,  831. 

of  warranty — authority  of  agent  to  insert  in  contract  for  sale  of  land. 

812. 
CREDIT, 

authority  of  agent  of  lessee  to  pledge  own,  831. 

authority  of  agent  to  manage  business  to  purchase  on  principal's  credit. 

see  MANAGEMENT  OF  BUSINESS. 
authority  of  agent  to  purchase  personal  property  to  make  representations 

concerning  principal's  credit,  924. 

authority  of  agent  to  sell  personal  property  to  give,  893. 
authority  of  manager  to  pledge  principal's. 

see  MANAGEMENT  OF  BUSINESS. 

authority  of  purchasing  agent  to  buy  on  credit,  913-918. 
when  furnished  with  funds,  913-917. 
when  not  supplied  with  funds,  918. 
authority  to  sell  land  on  credit  implies  power  to  grant  a  reasonable  time, 

816. 

traveling  salesman  may  pledge  to  hire  horses,  875-877. 
auctioneer  has  no  implied  authority  to  sell  on  credit,  2328. 
implied  authority  of  factor  to  sell  upon,  2504. 
liability  of  agent  for  giving,  to  irresponsible  parties,  1324. 
CRIMES, 

see  CRIMINAL  ACTS,  PENAL  ACTS. 
employment  to  commit,  illegal,  89. 

2476 


INDEX 
[Reference*  are  to  sections:   §§  1-17O5,  Vol.  I;  §§  1706-2588,   Vol.  II.] 

CRIMES — Continued. 

undertaking  involving  compromise  of,  void,  102. 

encouragement  of — agreement  by  attorney  to  defend  future  prosecutions, 
103. 

•  CRIMINAL,  ACTS, 

t  [T  A  JIG 

A.  Civil  Liability  For. 

principal  or  master  may  be  civilly  liable  for  agent's  criminal  or 

penal  act,  1999  et  seq. 
assaults  et  cetera,  1999. 
statutory  torts,  2000. 
usury,  2002-2005. 
thefts,  2001,  n. 

B.  Criminal  or  Penal  Liability  For. 

principal  or  master  usually  not  criminally  liable  for  acts  of  servant 
or  agent,  2006. 

unless  he  directs,  aids,  or  encourages  the  acts,  2006. 
may  be  penally  liable  for  penalty  imposed  though  act  done  by  serv- 
ant or  agent,  2007  et  seq. 

sales  of  intoxicating  liquors,  2007,  2008. 

keeping  open  saloons,  2007,  2008. 

adulteration  of  goods,  2007,  2008. 

other  similar  cases,  2007,  2008. 

contrary  holdings,  2009. 

CUSTODIAN, 

authority  of  mere  custodian  of  property,  1048. 

CUSTOM, 

how  affects  agent's  duty  to  obey  instructions,  1268  et  seq. 

agency  proved  by  proof  of  a,  270. 

when  authority  results  from,  716. 

what  customs  recognized,  716. 

limitations  upon  effects  of  custom,  716. 

customs  of  a  particular  business,  717. 

cannot  justify  right  of  disloyal  agent  to  compensation,  1589. 

may  justify  delegation  of  agent's  authority,  318. 

how  affects  authority  of  brokers,  2393  et  seq. 

as  affecting  authority  of  traveling  salesman  to  receive  payment  for  goods 
sold,  870. 

as  conferring  authority  to  receive  payment,  933. 

.  may  justify  agent  in  commingling  principal's  goods  with  others  for  pur- 
pose of  sale,  851. 

ME,  "I     rp 

CUSTOMERS, 

liability  of  principal  or  master  for  assaults  upon  by  his  agent  or  servant, 
1939  et  seq. 

as 
DAMAGES, 

see  MEASURE  OF  DAMAGES;    EXEMPLARY  DAMAGES. 

2477 


INUliX 
[References  are  to  flection*:  g§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

DANGEROUS  APPLIANCES,  TOOLS,  MACHINERY  AND  PREMISES, 
liability  of  principal  or  master  to  agent  or  servant  for.  1618  et  seq. 
DANGEROUS  INSTRUMENTALITIES, 

liability  of  master  for  servant's  wrongful  use  of,  1945  el  seq. 
what  deemed  to  be,  1950. 
DEATH, 

of  principal  usually  terminates  authority,  65?  cl  seq. 
not  when  coupled  with  an  interest,  655. 
what  constitutes  such  interest,  656-663. 
how  if  death  unknown,  664-667. 
effect  on  contracts  of  employment,  668  et  teg. 
of  partner  or  joint  owner,  669. 

how  principal's  death  affects  authority  of  substitute,  670. 
of  agent  usually  terminates  authority,  671. 

not  when  coupled  with  an  interest,  672. 
death  of  one  of  two  agents,  673. 

how  agent's  death  affects    authority  of  substitutes,  675. 
when  notice  required,  701-703. 

of  principal,  no  damages  when  agency  terminated  by,  1566. 
of  agent,  same  rule,  1570. 
liability  of  agent  to  third  persons  for  acting  after  principal's,  1378  et 

seq.,  1385. 
DEBTS, 

agent  no  right  to  use  principal's  property  to  pay  his  own,  825,  894. 
recovery  of  property  by  principal  in  case  of,  2090  et  seq. 
recovery  of  property  by  principal  in  case  of,  2090  et  seq.,  2129  et  seq. 
agent  for  sale  of  land,  no  authority  to  transfer  in  payment  of  principal's 

debts,  824. 

authority  of  manager  of  business  to  pay  principal's  debts,  1008. 
DECEIT, 

see  FRAUD,  FALSE  REPRESENTATIONS. 
when  action  of  can  be  maintained  against  principal  for  deceit  practiced 

by  agent,  1995  et  seq. 

agent  liable  to  third  persons  for  his  own,  1458. 
liability  of  agent  in,  for  acting  without  authority,  1363. 
DECLARATIONS, 

agency  not  provable  by,  agent's,  285. 

evidence  of  non-declarations  of  agent  not  admissible  to  prove  agency, 

285,  n. 

admissibility  of  agent's  declarations  to  bind  principal,  1773  et  seq. 
see  ADMISSIONS,  REPRESENTATIONS,  STATEMENTS,  RES  GESTAR. 

DEDICATION  TO  PUBLIC  USE, 

agent  for  sale  of  land  no  implied  authority  to  make,  823. 
DEED, 

ancient,  presumption  of  valid  power  to  execute  in  case  of,  212,  n. 

parol  authority  to  deliver,  231. 

u 

2478 


INDEX 
[References  are  to  sections:   §§   1-1705,  Vol.  I;  §§  1706-25S8,  Vol.  II. I 

DEED — Continued. 

authority  to  fill  blanks  in,  213-216. 

adoption  by  principal  of  deed  prepared  by  another,  217. 

instrument  not  good  as,  may  sometimes  be  effective  as  contract,  218. 

of  corporate  realty,  authority  to  execute,  220. 

authority  to  execute,  how  conferred,  212-217. 

unauthorized  execution  of,  how  ratified,  420,  425. 

execution  of,  in  general,  1090  et  seg. 

deed  by  agent  to  bind  principal  must  purport  to  be  made  and  sealed  in 

principal's  name,   1093. 

except  where  power  exercisable  in  name  of  donee,  1094. 
rule  different  in  Texas,  1095. 
changed  by  statute  in  some  states,  1096. 
effect  of  statutes  abolishing  seals,  1097. 
how  when  seal  not  necessary,  1098. 

deed  not  so  executed  not  operative  as  a  conveyance,  1100. 
may  be  good  as  contract,  1100. 
agent  may  be  liable  on  covenants,  1100. 
may  be  sufficient  to  estop  agent,  1100. 

deed  not  principal's  merely  because  agent  described  as  such,  1102* 
nor  where  agent  appears  as  grantor  and  signer,  1103,  1104. 
how  when  agent  named  as  grantor  but  deed  signed  in  name  of  princi- 
pal, 1105. 
how  when  principal  named  as  grantor,  but  deed  signed  in  agent's  name, 

1108. 
how  when  agent  purports  to  act  "as  agent"  or  "for  or  in  behalf  of"  a 

principal,  1106. 

such  descriptive  words  will  not  change  personal  grants  or  covenants, 
1111. 

distinction  in  case  of  public  agents,  1113. 
whether  necessary  that  fact  of  agency  appear,  1114-1118. 
ratification  of. 

see  SEALED  INSTRUMENT. 

DEFENSES, 

what  principal  subject  to  when  suing  on  contract  made  by  agent,  2074 

et  seq. 

those  arising  out  of  contract  itself,  2074. 
payment  to  agent,  2075. 
set-off  of  claims  against  agent,  2077. 
performance  by  agent,  2080. 
release  by  agent,  2081. 
assignment  by  agent,  2082. 
DELAY, 

liability  of  collecting  agent  for  permitting,  1308. 

DEL  CREDERE  COMMISSION, 
._., 

see  FACTORS. 

defined,  74. 

2479 


INDEX 
[Reference*  are  to  flection*!  g§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

DELEGATION  OF  AUTHORITY, 
general  rule,  305,  306.  • 

judgment  and  discretion  not  to  be  delegated,  307,  308. 
attorneys  may  not  delegate  personal  trust,  309. 
nor  arbitrators,  310. 
nor  auctioneers,  brokers,  and  factois,  311. 

see  AUCTIONEERS,  BKOKERS,  FACTORS. 
nor  executors,  312. 

nor  officers  of  public  and  private  corporations,  313. 
but  there  are  exceptions  and  modifications  to  the  general  rule,  314. 

subagent  to  perform  mechanical  or  ministerial  acts,  315. 

when  the  proper  conduct  of  the  business  requires  it,  316,  317. 

when  justified  by 'usage  or  course  of  trade,  318. 

when  originally  contemplated,  319.          y— -* 

In  case  of  necessity  or  sudden  emergency,  320,  321. 

ratification,  322. 

care  required  in  making  authorized  appointment,  323. 
re-delegation — sub-delegation,  324. 
whose  agent  is  the  subagent,  326-329. 
privity  between  principal  and  subagent,  330,  331. 
effect  of  employment  of  subagent,  332,  333. 

fvirraia   f>9eh   lucl   10JH£13  '""   wod 

DELIVERY, 

of  deed,  authority  to  make,  conferred  by  parol,  231. 

DEMAND, 

necessity  for  demand  upon  agent  before  action  by  principal,  1339. 

exceptions,  1340. 
ratification  of  unauthorized,  534.;  joa 

DEPARTURE, 

from  service,  master  not  liable  for    servant's    negligence    during,  1899 

et  seg. 

. 

DESCRIPTIO  PERSONAE, 

use  of  does  not  prevent  personal  liability   on   negotiable   instruments, 
1139. 

in  other  cases,  1408,  1419-1421. 

j    . 

DETOUR, 

liability  of  master  for  servant's  negligence  during,  1899  et  seq. 

DIRECTOR, 

of  corporation,  effect  of  notice  to,  1851-1853. 

DISAFF1RMANCE, 

of  unauthorized  act,  delay  in  bringing  suit  in,  no  ratification,  450. 

DISCHARGE, 

of  servant  or  agent,  see  REVOCATION;  EMPLOYMENT;  TERMINATION. 
agent's  right  to  compensation  and  damages  when  wrongfully  discharged, 
1649  et  seq. 

2480 


INDEX 
[Reference*  are  to  sections:   §§  1-1705,  Vol.   I)  §§  1706-2688,  V«l.  II.] 

DISCHARGE— Continued. 

agent's  remedies,  1553  et  seq.  • 

when  action  may  be  brought,  1556. 
measure  of  damages,  1557  et  seq. 
duty  of  agent  to  seek  other  employment,  1559. 
new  employment  offered  by  principal,  1560. 
employment  of  a  different  sort,  1561. 
effect  of  doing  work  for  himself,  1562. 
when  right  of  action  accrues,  1563  et  seq. 
no  damages  where    employment    terminated    by   operation  of  law,  1566 

et  seq. 

how  when  terminated  for  agent's  sickness  or  incapacity,  1572. 
DISCLOSING  PRINCIPAL, 

duty  of  agent  if  he  would  escape  personal  liability,  1410  et  seq. 

DISHONESTY, 

. 
agent  may  be  discharged  for,  607  et  seq. 

forfeits  compensation,  1588  et  seq, 

DISLOYALTY, 

agent  may  be  discharged  for,  608  'et  seq. 
forfeits  compensation  by,  1588. 

DISOBEDIENCE, 

agent  may  be  discharged  for,  607  et  seq. 
effect  of  on  compensation,  1593. 

see  OBEY   INSTRUCTIONS;    INSTRUCTIONS;   DUTIES   AND   LIABILITIES   OF 
AGENT  TO  PRINCIPAL. 

DISPUTE  PRINCIPAL'S  TITLE, 
agent  not  permitted  to,  1331. 

'3* 
DISSENT, 

principal's   failure   to,   from   agent's  unauthorized   acts,   as   ratification, 
459-462. 

DISSOLUTION  OP  THE  AGENCY, 
see  TERMINATION  OF  RELATION. 

DIVIDING  COMMISSIONS, 

effect  of  agreement  as  to,  upon  agent's  right  to  compensation,  1590. 
DOUBLE  AGENCY, 

agent  may  not  represent  other  party  aitio  without  principal's  consent, 

1206  et  seq. 

see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

agent  cannot  recover  compensation  when  double  agency  unknown,  1590. 
how  when  agent  mere  middleman,  1591. 

see  BROKERS;  MIDDLEMAN. 

how  when  double  agency  fully  known  and  assented  to,  1592. 
remedies  of  principal  against  other  party  in  case  of,  2137. 

DOUBLE-DEALING, 

remedies  of  principal  against  third  persons  for,  2137. 
156  2481 


INDEX 
[References  are  to  aectlonK:   §§   1-1705,  Vol.  I;  g§  1706-2588,  Vol.   II.] 

"DRUMMER," 

traveling  salesman  denned  as  a  special  form  of  agent,  75. 
see  TRAVELLING  SALESMAN. 

DRUNKARDS,  HABITUAL, 

as  principals,  not  competent,  134-137. 

as  principals,  ratification  or  disaffirmance  by,  138. 

DUAL  AGENCY, 

see  DOUBLE  AGENCY. 

rights  of  principal  against  third  person  where  his  agent  also  acting  for 
them,  2138  et  seq. 

DURESS, 

person  under,  ratification  by,  371. 

DUTIES  OF  PRINCIPAL  TO  AGENT, 

see  RIGHTS  OF  AGENT  AGAINST  PRINCIPAL 

DUTIES  OF  PRINCIPAL  TO  THIRD  PERSONS, 
see  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS. 

DUTIES  OF  THIRD  PERSONS  TO  PRINCIPAL, 
see  LIABILITY  OF  THIRD  PEKSON  TO  PRINCIPAL. 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  HIS  PRINCIPAL, 
in  general — duty  the  measure  of  liability,  1187. 
I.  To  BE  LOYAL  TO  His  TRUST. 

loyalty  to  his  trust,  the  first  duty  of  agent,  1188. 

may  not  put  himself  in  relations  antagonistic  to  principal,  1189, 

1190. 

may  not  deal  in  business  of  his  agency  for  own  benefit,  1191. 
agent  authorized  to  purchase  for  principal,  may  not  purchase 

for  himself — agent  charged  as  trustee,  1192. 
same  principle  applies  to  leases,  1193. 
what  evidence  of  trust  sufficient,  1194. 
when  rule  does  not  apply,  1195,  1196. 
agent  authorized  to  sell  cannot  sell  for  himself,  1197. 
agent  authorized  to  sell,  exchange  or  lease  may  not  become  the 

purchaser  or  lessee,  1198.V 

Injury  to  principal  not  test — sale  at  fixed  price,  1199. 
public  sale  equally  voidable,  1200. 
effect  of  fraud  or  concealment,  1201. 
to  what  agents  this  rule  applies,  1202. 
further  of  this  rule — indirect  attempts,  1203. 
agent  authorized  to  insure  may  not  issue  policies  to  himself, 

1204. 
agent  authorized  to  purchase  or  hire  may  not  purchase  or  hire 

of  himself,  1205. 

double  agency — agent  may  not  represent  other  party  also  with- 
out consent  of  principal,  1206. 
2482 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  1}  §§  1700-2588,  Vol.  II.] 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  HIS  PRINCIPAL— Continued- 
agent  must  fully  inform  principal,  1207. 
agent  liable  for  misrepresentations,  1208. 

agent  may  not  take  advantage  of  confidential  information  ac- 
quired in  the  business  to  make  profit  at  principal's  ex- 
pense, 1209. 

after  termination  of  agency,  1210. 
information  respecting  trade  secrets,  names  of  customers, 

etc.,  1211. 

ordinary  experience,  learned  in  the  business,  1212. 
information  leading  to  outside  profit,  1213. 
information  leading  to  patents  or  inventions,  1214. 
agent  employed  to  settle  claim,  may  not  buy  and  enforce  It 

against  his  principal,  1215. 
agent  may  not  acquire  rights  against  principal  based  on  own 

neglect  or  default,  1216,  1217. 
agent  may  not  acquire  adverse  rights  in  principal's  property 

confided  to  his  care,  1218,  1219. 
these  rules  cannot  be  defeated  by  usage,  1220. 
agent  may  purchase,  sell,  etc.,  with  principal's  consent,  1221. 
principal  may  ratify  act,  1222. 
gratuitous  agents — volunteers,  1223. 

profits  made  in  course  of  agency  belong  to  principal,  1224,  1225. 
illustrations,  1226. 

further  illustrations — rebates,  commissions,  rewards,  over- 
charges, 1227. 

profits  must  be  fruits  of  the  agency,  1228. 
Whether  principal  entitled  to  agent's  earnings,  1229. 
work  out  of  hours,  1230. 
gratuities,  1231. 

representing  other  principals — exclusive  service,  1232. 
remedies  of  the  principal,  1233,  1234. 
agency  must  exist,  1235. 
other  limitations,  1236. 
proof  of  the  agency,  1237. 
against  whom  trust  enforced,  1238. 
principal  must  not  have  consented  to,  waived  or  condoned  the 

act,  1239. 

•  -•.•II 

II.  Nor  TO  EXCEED  His  AUTHORITY. 

duty  of  agent  not  to  exceed  authority,  1240. 
duty  of  principal  to  make  clear  extent  of  authority,  1241. 
duty  of  agent  to  know  extent  of  authority,  1242. 
liability  of  agent  for  exceeding  authority,  1243. 
III.  To  OBEY  INSTRUCTIONS. 

agent's  duty  to  obey  instructions,  1244. 

results  of  disobedience — agent  liable  for  losses  caused  bj  it, 

1245,  1246. 

illustrations,  1247-1252. 
2483 


INDEX 
[Reference*  are  to  section* :  gg  1-1705,  Vol.  1}  §g  17O6-Z588,  Vol.  H.l 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  HIS  PRINCIPAL— Continued, 
form  of  action — when  agent  liable  in  trover,  1253. 
mere  breach  of  instructions,  1254. 
conversion,  1255,  1256. 
rule  stated — intent  immaterial,  1257. 
how  when  agency  is  gratuitous,  1258. 
exceptions  to  rule  requiring  obedience,  1259. 

agent  not  bound  to  perform  illegal  or  immoral  act,  1260. 
agent  not  bound  to  impair  own  security,  1261. 
departure  from  instructions  may  be  justified  by  sudden 

emergency,  1262,  1263. 
limitations,  1264. 

where  authority  has  been  substantially  pursued,  agent  not  lia- 
ble for  immaterial  departure,  1265. 
where  instructions  are  ambiguous  and  agent  acts  in  good 

faith,  1266,  1267. 
how  affected  by  custom,  1268. 

when  presumption  as  to  custom  conclusive,  1269. 
no  presumption  of  disobedience,  1270. 
measure  of  damages,  1271. 
ratification,  1272. 
liability  for  subagents,  1273. 
IV.  NOT  TO  BE  NEGLIGENT. 
in  general,  1274. 

agent  bound  to  exercise  ordinary  and  reasonable  care,  1275. 
agent  bound  to  exercise  usual  precautions,  1276. 

but  not  liable  for  mere  accident  or  mistake,  1277. 
not  bound  to  exercise  highest  care,  1278. 
good  faith — reasonable  diligence,  1279. 
when  agent  warrants  possession  of  skill,  1280. 
how  when  agency  is  gratuitous,  12,81. 

when  employed  in  capacity  which  implies  skill,  1282. 
bound  to  exercise  the  skill  he  possesses,  1283. 
agent  not  liable  for  unforeseeable  dangers,  1284. 

but  liability  increased  if  special  risks  disclosed,  1285. 
agent  presumed  to  have  done  his  duty,  1286. 
agent  not  liable  if  principal  also  negligent,  1287. 
when  agent  liable  for  neglect  of  subagent,  1288. 
when  agent  liable  for  neglect  of  co-agent,  1289. 
effect  of  ratification  upon  agent's  liability,  1290. 
the  measure  of  damages,  1291. 

judgments,  costs,  counsel  fees,  1292. 
the  principal's  remedies,  1293. 
illustrations  of  agent's  liability,  1294. 

1.  Neglect  of  agents  in  making  loans  and  investments. 
degree  of  care  required,  1295. 
liability  for  resulting  loss,  1296. 
2484 


INDEX 
[Referencea  are  to  sections:  §§  1-1705,  Vol.  I:  fg  1706-2588,  Vol.  II.l 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  HIS  PRINCIPAL—  Continued. 

2.  Neglect  of  agent  to  affect  insurance. 

when  duty  to  insure  arises,  1297. 
what  the  duty  requires,  1298. 

3.  Neglect  of  agent  in  making  collections. 

liable  for  loss  from  negligence,  1299. 

forms  of  negligence,  1300. 

negligence  as  to  medium  of  payment,  1301. 

illustrations,  1302. 

negligence  in  proceedings,  1303-1306. 
neglect  to  give  principal  notice  of  material  facts,  1307. 
neglect  in  granting  or  permitting  delays,  extensions, 

or  forbearances,  1308. 
neglect  in  keeping  the  money,  1309. 
neglect  in  making  remittances,  1310. 
liability  for  neglect  of  correspondents  and  subagents, 

1311. 
liability  of  banks,  1312. 

for  neglect  of  notary,  1313. 
for  neglect  of  a  correspondent  bank,  1314. 
liability  of  attorneys,  1315. 
liability  of  mercantile  agencies,  1316-1318. 
liability  of  express  companies,  1319. 
measure  of  damage  for  agent's  negligence,  1320. 
principal's  right  of  action  against  subagent,  1321. 
del  credere  agents — how  liable  to  principal,  1322. 
4-  Neglect  of  agent  in  making  sales. 
nature  of  duty,  1323. 
when  agent  liable  for  selling  to  irresponsible  parties, 

1324. 

conditions  of  agent's  liability,  1325. 
5.  Neglect  of  agent  in  making  purchases. 

nature  of  duty,  1326. 

V.  To  ACCOUNT  FOB  MONEY  AND  PROPERTY. 
in  general,  1327. 

account  only  to  principal — joint  principals,  1328. 
accounting  by  joint  agents,  1329. 
subagents — account  to  whom,  1330. 
agent  may  not  dispute  principal's  title,  1331. 
may  not  allege   illegality  of  transaction  to  defeat  principal's 

claim,  1332. 

when  may  maintain  interpleader,  1333. 
agent's  duty  to  keep  correct  accounts,  1334. 

duty  to  keep  principal's  property  and  funds  separate  from 

his  own — liability  for  commingling,  1335. 
at  what  time  agent  should  account,  1336-1338. 
necessity  for  demand  before  action,  1339. 
exceptions,  1340. 

2485 


INDEX 
[Referent-**  are  to  nections:  8§   1-1 7O5,  Vol.   I;  83   1700-25S8,  Vol.  II.l 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  HIS  PRINCIPAL— Continued, 
when  agent  liable  for  interest,  1341. 
form  of  action,  1342. 

when  equitable,  1343. 
the  burden  of  proof,  1344. 

proof  of  amount  due — special  method  agreed  upon — conclusive- 
ness  of  agent's  account,  1345. 

when  liability  barred  by  statute  of  limitations,  1346-1348. 
of  agent's  right  of  set-off,  1349. 
how  far  principal  may  follow  trust  funds,  1350. 
conclusiveness   of   account — failure   to   object — account   stated, 

1351. 
reopening  of  account — impeachment  for  fraud  or  mistake, 

1352. 
VI.  To  GIVE  NOTICE  TO  PRINCIPAL  OF  MATERIAL  FACTS. 

duty  of  agent    to    give    principal    notice    of    facts  material  to 
agency,  1353. 

EARNINGS, 

whether  principal  entitled  to  agents',  1229  et  seq. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PBIXCIPAL. 

ELECTION, 

between  responsibility  of  principal  and  responsibility  of  agent,  1424. 

whether  taking  contract  in  writing  of  one  or  the  other  conclusive, 

1424,  1713,  2070,  2071. 
undisclosed  principal  not  liable  where  other  party  has  elected  to  hold 

agent,  1750  et  seq. 
theories  of  election,  1751. 
knowledge  of  facts  necessary  to,  1752,  1753. 
what  constitutes,  1754-1756. 

presenting  claim,  1757. 

commencement  of  action,  1758. 

taking  judgment  against  agent,  1759. 

taking  agent's  note,  1760. 

charging  goods  to  agent,  1761. 

mere  delay,  1762. 

ELECTIONS, 

contracts  for  services  in  improperly  influencing,  106. 
what  services  legitimate  in  influencing,  107. 

EMERGENCY, 

authority  arising  from,  718. 

may  justify  agent  in  appointing  other  agents  for  principal,  320,  321,  339. 
authority  arising  from,  narrow,  340,  718. 
employment  of  physicians  and  surgeons  in,  341,  944. 
when  will  justify  departure  from  instructions,  1262  et  seq. 
when  justifies  factor's  departure  from  instructions,  2536. 
authority  of  clerk  to  institute  attachment  suit  in,  1010. 

2486 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,   Vol.  II.] 

EMPLOY, 

see  EMPLOYMENT;  CONTRACTS  OF  EMPLOYMENT. 
__j=-      implied  authority  of  one  agent  or  servant  to  employ  another,  334  et  seq; 

1041. 

express  authority  may  be  given,  334  et  seq;  1041. 
emergency  when  justifies,  1042. 

what  contracts  of  justified,  when  authority  exists,  1043. 
EMPLOYER  AND  EMPLOYEE, 

see  MASTER,  SERVANT,  MASTER  AND  SERVANT. 
EMPLOYERS'  LIABILITY, 

see  MASTEB,  SEBVANT,  ASSUMPTION  OF  RISK,  CONTRIBUTORY  NEGLIGENCE, 

FELLOW  SERVANTS. 

statutes  giving  employee  right  to  compensation  for  liability,  1679. 
,  EMPLOYMENT, 

right  of  agent  to  be  employed  in  pursuance  of  contract,  1508. 
right  to  be  received  into  the  employment,  1509. 
right  to  be  given  work  to  do,  1510. 

retention  in,  as  evidence  of  ratification  of  agent's  torts,  475. 
authority  of  agent  to  employ,  when  exists,  1041,  1042. 
general  rule,  1042. 
emergency,  1042. 

what  employment  authorized,  1043. 
may  be  general  or  special,  1043. 
EMPLOYMENT,  CONTRACTS  OF, 
what  valid,  80  et  seq. 
when  right  to  terminate  exists,  592. 
employments  at  will,  592. 
employments  if  satisfactory,  593. 
termination  for  causes  specified,  594. 
termination  for  breach  of  implied  conditions,  595. 
contracts  for  a  definite  time,  597-600. 
contracts  for  definite  time  implied,  602,  603. 
contracts  for  "permanent"  employment,  604. 
termination  without  legal  cause  makes  principal  liable,  596. 
contract  may  be  terminated  subject  to  such  liability,  612. 
though  for  definite  time  employment  may  be  rightfully  terminated  for 

agent's  incompetence,  606. 

for  disobedience,  dishonesty  or  other  misconduct,  607. 
for  agent's  disloyalty,  608. 
illustrations,  609,  610. 
waiver  or  condonation  of  misconduct,  611. 
when  terminated  by  death,  668,  669. 
when  terminable  for  agent's  sickness,  1585. 
right  to  compensation  or  wages  under,  see  COMPENSATION. 
ENDORSEMENTS, 

when  agent  liable  upon. 

see  NEGOTIABLE  INSTRUMENTS. 

2487 


INDEX 
are  to  sections:  §§  1-1 705,  Vol.  I ;  g§  1706-2588,  Vol.  II.l 

ENGINEER, 

authority  to  secure  medical  aid,  994. 

ENTICING  AWAY, 

action  by  principal  against  third  persons  who  entice  away  his  servant, 
2133. 

ENTIRE  CONTRACT, 

what  contracts  of  employment  are,  1575. 
compensation  where  agent  wrongfully  breaks,  1577. 

EQUITY 

principal's  right  to  maintain  equitable  action  against  agent  for  money 
or  property  received,  1343. 

ESTOPPEL, 

as  conferring  authority  to  receive  payment,  939. 
authority  resulting  from — holding  out,  245,  246. 
estoppel  to  deny  authority  in  general,  722. 
how  differs  from  ratification,  348,  454-457. 
how  differs  from  apparent  authority,  722,  723. 
limitations  upon,  724. 

results  only  from  principal's  conduct,  725. 

person  asserting  must  have  acted  in  good  faith  and  used  reasonable  pru- 
dence, 726. 

to  justify  filling  blanks  in  deeds,  etc.,  214. 
to  assert  forgery,  364. 

EVIDENCE, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS. 

of  agency,  when  necessary,  255. 
»       j,  j, 

burden  of  proof,  255,  298. 

formal  evidence,  sealed  instruments — written  instruments,  256  et  seq. 

parol,  sufficiency  of,  260  et  seq. 

circumstantial,  261. 

agency  on  other  occasions,  262. 

conduct,  263. 

acquiescence,  263. 

presumptions  arising  from  conduct,  268. 

course  of  dealing,  271  et  seq. 

agent's  statements  not  admissible,  285  et  seq. 

or  conduct  or  reputation,  289,  290. 
agent's  testimony  competent,  291. 
of  ratification — burden  of  proof,  479. 

amount  of  proof,  480. 

court  or  jury,  481. 
validity  of  employment  to  procure  or  suppress  evidence,  110* 

EXCESSIVE  FORCE, 

liability  of  master  for  servant's  use  of,  1951  et  seq. 

2488 


INDEX 
[Reference*  are  to  flections:  §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 

EXCHANGE, 
see  BARTER. 

agent  for  sale  of  goods  no  implied  authority  to  exchange  or  barter,  895. 
agent  to  sell  land  no  impled  authority  to  exchange  or  barter,  817. 
broker  to  effect,  2468. 

EXCLUSIVE  MARKET, 

* 

authority  of  sales  agent  to  guarantee,  900. 

EXCLUSIVE  SERVICE, 

whether  principal  entitled  to  agent's,  1232. 

EXECUTION  OF  AUTHORITY— IN  GENERAL* 
general  rules  respecting,  1080  et  seq. 
primary  purpose  to  bind  principal  and  not  agent,  1080. 
agent  must  act  within  his  authority,  1081. 
slight  deviation  may  not  invalidate,  1085. 
when  execution  separable,  authorized  part  may  stand,  1086. 
if  transaction  entire,  whole  will  fail  if  part  unauthorized,  1086. 
excessive  execution  will  not  vitiate  if  authorized  part  can  be  separated, 

1086. 

if  execution  lacks  an  essential  element  whole  must  fail,  1087,  1088. 
execution  should  be  in  name  of  principal,  1089. 
in  behalf  of  joint  principals  usually  to  be  executed  jointly,  194. 
of  private  joint  agency  usually  must  be  executed  by  all,  198. 
of  public  joint  agency  may  be  executed  by  majority,  199,  200. 

EXECUTION  OF  CONTRACTS— BY  AGENT, 
when  under  seal. 

see  DEEDS. 
when  negotiable. 

see  NEGOTIABLE  INSTRUMENTS. 
when  in  writing. 

see  CONTRACTS;  1.  "Written  Contracts. 

EXECUTOR, 

may  not  delegate  personal  trust,  312. 

,._     ..       ,       „,__ 
ratification  by,  373. 

may  not  purchase  as  his  own  sale,  1202. 

EXEMPLARY  DAMAGES, 

not  recoverable  for  wrongful  discharge,  1557,  n. 
for  torts  of  agent  or  servant,  2013  et  seq. 

EXPIRED  AUTHORITY, 

liability  of  agent  for  acting  under,  1375. 

EXPRESS  AUTHORITY, 

limitations  in  must  be  observed,  707. 

EXPRESS  COMPANIES, 

liability  for  defaults  of  their  correspondents,  1319. 

2480 


INDEX 
[References  are  to  section*  s  88  1-1705,  Vol.  I)  §§  1709-2588,  Vol.  IT.] 

EXTENSION  OF  TIME, 

agent  to  receive  payment  may  not  give,  956. 
factor  may  not  grant,  2518. 

EXTORTION 

• 

liability  of  agent  for  money  obtained  by,  1440  et  seq. 


EXTRA  SERVICES, 

when  agent  entitled  to  extra  compensation  for,  1522. 
FACTOR, 

defined  as  a  special  form  of  agent,  74. 

when  called  a  supercargo,  74. 
FACTORS, 

I.  DEFINITIONS  AND  DISTINCTIONS. 

how  defined,  2497. 

how  differs  from  broker,  2497. 

del  credere  commission  means  what,  2498. 

supercargo  defined,  2498. 

factor  often  called  consignee,  2498. 

may  be  factor  though  is  to  do  work  on  goods   before  ready  for 

sale,  2498. 

may  be  factor  though  paid  fixed  salary  instead  of  commissions,  2498. 
factor  may  buy  as  well  as  sell,  2498. 
distinction  between  factor  and  purchaser,  2499. 

II.  How  FACTORS  APPOINTED. 

no  formal  method  necessary,  2500. 

parol  appointment  suffices,  2500. 

appointment  may  be  inferred  from  conduct,  2500. 

III.  IMPLIED  AUTHORITY  OF  FACTORS. 

factor  presumptively  has  incidental  authority  reasonably  necessary 

for  the  purpose,  2501. 
usage  very  largely  determines,  2502. 
•what  customs  and  usages  material,  2502. 
implied  authority  to  fix  price  and  terms^  2503. 

to  sell  oa  credit,  2504. 

»        ji       ., 

is  ordinarily  permitted  to,  2504. 

unless  instructions  or  custom  not  to,  2504. 
to  sell  in  his  own  name,  2505. 

usually  permitted  to,  2505. 

on  such  sale  may  take  negotiable  paper  in  his  own  name  In 

payment,  2504. 
to  warrant  quality,  2506. 
to  warrant  title,  2507. 
to  receive  payment,  2508. 

may  receive  payment  In  ordinary  course  of  business,  2508. 

not  after  his  agency  ended,  2508. 

right  to  subordinate  to  principal's,  2508. 
•to  pledge,  2509. 

2490 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

FACTORS— Continued. 

ordinarily  has  no  authority  to,  2509. 

right  to  pledge  documents,  2509. 

implied  authority  to  pledge  for  principal's  benefit,  2510. 

right  under  factor's  acts,  2511. 

characteristics  of  these  acts,  2511. 
who  protected  under  them,  2511. 
to  pay  his  own  debt  with  principal's  goods,  2512. 
no  such  authority  usually  exists,  2512. 
local  custom  ca'nnot  justify,  2512. 
to  barter  or  exchange,  2513. 
to  delegate  his  authority,  2514. 
to  compromise  or  compound  the  debt,  2515. 
to  submit  disputes  to  arbitration,  2516. 
to  rescind  the  sale,  2517. 
to  extend  time  of  payment,  2518. 
to  make  negotiable  paper,  2520. 
to  insure  the  property,  2521. 
to  sell  to  himself,  2522. 
IV.  DUTIES  AND  LIABILITIES  TO  PRINCIPAL. 

bound  to  exercise  reasonable  care  and  prudence,  2523. 

even  though  acting  gratuitously,  2523. 
must  be  loyal  to  principal's  interests,  2524. 

may  not  represent  both  parties  without  principal's  consent,  2524. 
must  ordinarily  obey  principal's  instructions  as  to  sales,  2525. 
is  liable  for  losses  caused  by  not  doing  so,  2525. 
unless  instructions  ambiguous  or  disobedience  ratified,  2625. 
illustrations  of  rule,  2526. 

factor  who  has  made  advances  on  goods  not  bound  to  obey  in- 
structions to  sell  which  would  deprive  him  of  his  security  un- 
less principal  reimburses  him,  2527. 
measure  of  damages  for  disobedience,  2528. 
treating  disobedience  as  a  conversion  of  the  goods,  2529. 
instructions  to  sell  for  cash  only,  2530. 
instructions  to  insure  property,  2531. 

must  give  principal  information  which  factor  has  material  for  prin- 
cipal to  know,  2532. 
must  exercise  reasonable  care  to  sell  only  to  responsible  buyers,  2533. 

liability  where  he  sells  for  a  del  credere  commission,  2534. 
must  exercise  reasonable  care  and  prudence  in  caring  for  property, 

2535. 

unforeseen  contingencies  or  sudden  emergency  may  excuse,  2536. 
must  exercise  reasonable  care,  skill,  and  diligence  in  selling  the 

goods,  2537. 

place  at  which  sale  may  be  made,  2538. 
time  at  which  sale  may  be  made,  2539. 
price  at  which  sale  may  be  made,  2540. 

2491 


INDEX 
[Reference*  are  to  flection*:  §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  IT.] 

FACTORS — Continued. 

must  exercise  reasonable  care  and  diligence  in  collecting  price  of 

goods  sold,  2541. 
must  keep  true  and  proper  accounts,  2542. 

not  obliged  to  keep  principal's  funds  separate,  2543. 
must  account  for  money  and  property  to  principal,  2544. 
what  this  duty  of  accounting  includes,  2545. 
factor's  right  of  set-off,  2546. 
conclusiveness  of  account,  2547. 
must  exercise  reasonable  care  and  prudence  in  remitting  proceeds, 

2548. 
when  principal  may  sue  factor  for  proceeds,  2549. 

factor's  liability  for  interest,  2549. 
factor's  liability  for  acts  of  subagent,  2550. 

V.  RIGHTS  OF  FACTOR  AGAINST  PRINCIPAL. 

A.  Commissions. 

factor  ordinarily  entitled  to  compensation,  2551. 

how  amount  determined,  2551. 

forfeited  by  misconduct,  2551. 

right  to  commissions  from  both  parties,  2552. 

when  commissions  earned,  2553. 

upon  what  sums  computed,  2553. 

B.  Reimbursement. 

factor   entitled    to    reimbursement   for   advances   and    expenses 

made  to  or  for  the  principal,  2554. 
del  credere  commission  does  not  change  this  rule,  2555. 
factor  ordinarily  entitled  to  interest  upon  his  advances,  2556. 
conclusiveness  of  factor's  accounts  as  to  his  advances,  2557. 

C.  Indemnity. 

factor  entitled  to  indemnity  against  losses  properly  sustained  in 
course  of  business,  2558. 
illustrations,  2558. 

D.  Lien. 

factor  usually  has  general  lien  on  goods  to  secure  general  bal- 
ance of  accounts,  2559. 

when  lien  does  not  exist,  2560. 
nature  of  factor's  lien,  2561. 
•when  it  attaches,  2562. 

where  advances  made  on  goods  yet  to  be  consigned,  2563, 
2564. 

who  may  confer  lien,  2565. 
how  lien  lost,  2566. 
how  lien  may  be  enforced,  2567. 

VI.  RIGHTS  OF  FACTOR  AGAINST  THIRD  PERSONS. 
A.  In  Contract. 

factor  may  usually  sue  in  his  own  name  for  price  of  goods  sold, 

2568. 

principal's  right  usually  paramount,  2563. 
2492 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

FACTORS— Continued. 

unless   principal's  action   would   defeat  factor's   lien,   2568, 

2569. 

whether  factor  who  sues  adversely  to  principal  must  indem- 
nify purchaser  against  subsequent  action  by  principal,  2569. 
defenses  which  may  be  made  when  factor  sues  for  price,  2570. 
factor  may  sue  on  contracts  made  in  own  name,  2571. 
S.  In  Tort. 

factor  may  maintain  trespass,  replevin,  or  trover  based  upon  his 
special  property,  2572. 

VII.  RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS. 

A.  In  Contract. 

may  sue  for  price  of  goods  sold,  2574. 

right  to  sue  usually  paramount  to  factor's,  2574. 

what  defenses  principal  subject  to,  2575. 

principal's  right  to  follow  or  recover  property  or  proceeds,  2576. 

application  of  trust  fund  theory,  2576,  2577. 

following  money  into  funds  or  the  hands  of  third  persons, 
2577. 

B.  In  Tort. 

principal  may  sue  for  injuries  to  or  ftonversion  of  the  goods  to 
extent  of  his  general  ownership,  2578. 

VIII.  RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

principal  liable  on  contracts  made  by  factor  within  scope  of  author- 
ity, 2579. 

even  though  then  undisclosed,  2580. 
unless  exclusive  credit  given  to  factor,  2581. 

IX.  RIGHTS  OF  THIRD  PERSONS  AGAINST  FACTOR. 

factor  liable  to  third  persons  where  he  conceals  his  principal,  exceeds 

his  authority,  or  pledges  his  own  responsibility,  2582. 
factor  liable  for  conversion  where,  though  in  good  faith,  he  sells  goods 
of  stranger,  2583. 

foreign  factor  now  stands  on  same  basis  as  other,  2584. 

X.  How  RELATION  TERMINATED. 

as  in  other  cases  of  agency,  2585. 
principal  may  revoke,  2585. 

though  not  so  as  to  defeat  factor's  lien,  2585. 
factor  may  renounce  authority,  2586. 
authority  may  expire  by  lapse  of  time,  etc.,  2587. 

FACTOR'S  ACTS, 

purpose  and  effect  of,  2511. 
in  what  states  exist,  2511,  n. 

FALSE  IMPRISONMENT, 

liability  of  principal  or  master  for,  1973  et  seq. 

FALSE  REPRESENTATIONS, 

liability  of  principal  for  agent's,  1987  et  seq. 
must  be  within  scope  of  employment,  19S7. 

2493 


INDEX 
[Reference*  are  to  gertlonii:   g§  1-1705,  Vol.  I)  §§   1706-258S,  Vol.  II.] 

FALSE  REPRESENTATIONS— Continued. 

no  liability  it  any  representation  outside  of  authority,  1988. 

representations  within  apparent  authority,  1989. 

whether  representation  must  be  made  for  principal's  benefit,  1990. 

representation  concerning  facts  upon  which  authority  depends,  1991,  1992. 

liability  by  ratification  or  adoption  of,  1993. 

effect  of,  1994. 

remedies  for,  1994. 

whether  action  of  deceit  can  be  maintained,  1995. 

FELLOW-SERVANTS, 

master  usually  not  liable  to  one  servant  for  negligence  of  other  servant, 

1643  et  seq. 
who  are,  1649. 

association  or  consociation  rule,  1650. 

departmental  rule,  1651. 

superior  servant  distinction,  1652. 
volunteer — assisting  servant  regarded  as,  1658. 
what  risks  fall  within  the  general  rule  of,  1657. 
statutes  abolishing  rule,  1679. 
one  liable  to  other  for  his-  own  negligence,  1483. 

FICTITIOUS  PRINCIPALS, 

personal  liability  of  agents  of,  1383  et  seq. 
FIDELITY, 

fidelity  in  agent  to  principal's  interest  strictly  required,  1189  et  seq. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

FIRE, . 

liability  of  master  for  negligence  of  servant  in  starting  or  controlling, 

1909. 

factor  not  liable  for  loss  for  accidental,  2537. 
but  may  be  if  he  disobeyed,  2539. 

FOREIGN  PRINCIPAL, 

personal  liability  of  agent  of,  1417. 
liability  of  factor  who  acts  for,  2584. 
FOREIGN  INSURANCE  COMPANY, 

cannot  revoke  statutory  agency  to  receive  service  of  process  without  ap- 
pointing another,  640. 

:  Y.«zn  lojuai 

FORFEITURE  OF  COMPENSATION, 

for  quitting  without  notice,  1586. 

for  disloyalty  to  principal's  interest,  1588. 

for  disobedience  to  lawful  instructions,  1593. 
FORGERY, 

can  it  be  ratified,  360-363. 

estoppel  to  assert,  364. 
FOREMAN  OF  A  FARM, 

authority  to  buy  necessary  supplies,  908,  984 

2494 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 

FORM, 

of  executing  contracts  by  agent. 

see  DEEDS,  CONTEACTS,  NEGOTIABLE  INSTRUMENTS. 

FRAUD, 

liability  of  principal  for  agent's  fraudulent  or  deceitful  acts,  1984  et  seq. 
whether  principal  liable  to  arrest  for,  2006,  n. 
agent  liable  to  third  persons  for  his  own,  1458. 
employments  to  practice  not  enforceable,  115. 

FRAUDULENT  REPRESENTATIONS, 

liability  of  principal  for  agent's,  1987  et  seq. 
see  FALSE  REPRESENTATIONS. 

FROLIC  OF  HIS  OWN, 

master  not  liable  for  negligence  of  servant  during,  1898  et  seq. 

FUNDS, 

liability  of  associations,  clubs,  etc.,  may  be  limited  to,  189. 
principal's  right  to  follow. 

see  MONEY. 
agent  furnished  with,  no  authority  to  purchase  on  credit,  913-918. 

"FUTURES " 

'  I  A  'IT'lXr'l*-!    f*T    T  "• 

employment  in  gambling  in,  not  enforceable,  111,  112. 

GAMBLING, 

in  "futures,"  employment  in,  111,  112. 

GENERAL  AGENTS, 

who  deemed  to  be,  737. 

how  distinguished  from  special  agents,  738,  739. 

known  agency  presumed  general  rather  than  special,  739,  n. 

general  agency  not  unlimited,  740. 

bind  principal  only  when  acting  within  scope  of  authority,  741. 

authority  to  agree  on  purchase  price,  922. 

GENERAL  MANAGER, 

see  MANAGER. 
liability  of  principal  for  statements,  representations,  or  admissions  of, 

1780. 

GENERAL  POWERS, 

must  be  limited  by  specific  object,  780. 
must  be  confined  to  principal's  business,  781. 

GENERAL  SALES  AGENT, 

authority  to  receive  payment,  866. 

GENERAL  SUPERINTENDENT, 

see  MANAGER. 

liability  of  principal  or  master  for  negligence  of,  1640. 
for  statements  or  admissions  of.  1780. 

2495 


INDEX 
[Reference*  are  to  oectlon*:  §§  1-1705,  Vol.  I)  g§  1700-2588,  Vol.  II.] 

GENERAL  WORDS, 

limited  by  recitals,  550. 

by  context  and  evident  purpose,  780. 

GIFT, 

agent  for  sale  of  land  no  authority  to  make,  818. 
from  client  to  attorney  closely  scruntinized,  2289,  2290. 
to  agent,  when  must  account  to  principal  for,  1231  et  seq. 
see  TIPS;  GRATUITIES. 

GOODS, 

authority  to  buy  and  sell  may  be  conferred  by  parol,  238. 
to  "accept  and  receive,"  under  statute  of  frauds,  239. 

GOVERNMENT, 

validity  of  employment  to  procure  contracts  from,  or  from  heads  of  de- 
partments, 98-100. 
validity  of  contracts  to  prosecute  claims  against,  101. 

GOVERNMENTAL  OFFICERS, 

not  usually  subject  to  private  action,  1493. 

GRATUITIES, 

whether  principal  entitled  to  gratuities  received  by  agent,  1231  et  seq. 
see  LOYALTY;  DUTIES  or  AGENT  TO  PBINCIPAL. 

GRATUITOUS  AGENTS, 

not  liable  for  not  entering  upon  agency,  1258. 
charged  with  the  duty  of  loyalty  like  any  other  agents,  1223. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PBIXCIPAL. 
liable  for  breach  of  instructions,  1258. 
liable  for  negligence,  1281. 
GRATUITOUS  SERVICES, 

no  compensation  for  services  intended  to  be,  1517. 
not  good  consideration  for  promise  to  pay,  1517. 

00   O'TIgfi  Oi 


authority  of  manager  to  employ,  988. 
see  EMPLOY. 

HOLDING  OUT, 

as  a  means  of  conferring  apparent  authority,  245,  246. 

HOLDING  OVER, 

after  termination  of  prior  employment,  605. 
HORSES, 

authority  of  traveling  salesman  to  hire,  875,  876,  877. 

authority  of  agent  to  sell  to  warrant  soundness,  886. 

.IK 

HOTEL, 

authority  of  agent  to  purchase  supplies  for,  on  credit,  983. 
HUSBAND  AND  WIFE, 

authority  of  husband  as  manager  of  wife's  business,  985. 

authority  of  wife  as  domestic  manager,  987. 

2496 


INDEX 
[References  are  to  sections:   §§   1-1705,  Vol.  I;  §g  1706-2588,  Vol.   II.] 

HUSBAND  AND  WIFE— Continued. 
husband  as  agent  for  wife,  169-172. 
wife  as  agent  of  husband  in  domestic  affairs,  161  et  seq. 

in  non-domestic  affairs,  167  et  seq. 

. 
IDIOTS, 

as  principals,  not  competent,  134-136. 

as  principals,  ratification  or  disaffirmance  by,  138. 

•     •  - 

ILLEGAL, 

acts,  cannot  be  ratified,  359. 

acts  cannot  be  made  subject-matter  of  valid  agency,  80  et  seq. 
transactions,  right  of  broker  to  commissions  and  reimbursement  when 
acting  in,  2481. 

i!  IT- 
ILLEGALITY, 

ki 
of  contract  of  agency. 

see  AGENCY — FOR  WHAT  PURPOSES  CREATED. 

agent  not  permitted  to  assert  in  order  to  defeat  principal's  claim  to  ac- 
counting, 1332. 

rw.fi    • 
IMPLIED  AUTHORITY, 

extent  of,  708. 

facts  to  be  given  their  natural  significance,  708. 

to  do  ordinary  and  necessary  acts,  715. 

implied  from  custom  or  usage,  716. 

implied  from   customs  of  particular  business  or  established   course  of 

dealing,  717. 
implied  from  special  emergency  or  necessity,  718,  719. 

IMPUTED  KNOWLEDGE, 

see  NOTICE. 

when  sufficient  for  valid  ratification,  407. 
by  agent  authorized  to  represent  insurers, 

see  INSURANCE  AGENTS. 

INCAPACITY, 

of  agent,  compensation  when  employment  terminated  for,  1572. 
see  DEATH,  INSANITY,  MARRIAGE,  SICKNESS. 

INCHOATE  CORPORATIONS, 
-, 

see  CORPORATIONS. 

INCIDENTAL  AUTHORITY, 

conferred  by  creation  of  express  authority,  242. 

proved  by  showing  an  express  authority  to  which  this  Is  Incident,  269. 

as  element  in  determining  scope  of  authority,  715. 

INCOMPETBNCY, 
to  be  principal, 

see  PRINCIPAL. 
to  be  agent, 

see  AGENT. 

157  2497 


INDEX 
[Reference*  are  to  «<•<•!  iou«:   §§   1-17O5,  Vol.  I)  §§   1700-2588,  Vol.   II.] 

INCOMPETENT  PRINCIPAL, 

liability  of  agent  who  acts  for,  1386  et  seq. 

INCOMPETENT  SERVANTS, 

cu 
liability  of  principal  or  master  to  agent  or  servant  for  Injuries  caused  by 

employment  of,  1632. 

INDEMNITY, 

:  &f> 
agent  entitled  to  indemnity  from  principal  against  loss  properly  incurred 

in  course  of  agency,  1603  et  seq. 
no  indemnity  where  agent  in  default,.  1608. 
no  indemnity  where  agent  exceeded  authority,  1364,  1609. 
no  indemnity  where  act  was  unlawful,  1611. 
necessity  that  agent  show  loss,  1613. 
subagent,  right  to  against  principal,  1703. 
of  auctioneer,  2349. 
of  attorney  at  law,  2229. 

of  factor,  2558. 

36  oi  bottinnoq  Jon 


INDEMNITY  BOND, 

authority  of  attorney  to  execute,  2171  et  seq. 

„  ,YTIflOHTUA  <T3KI(IMI 
INDEPENDENT  CONTRACTOR, 

how  compared  with  agent,  40. 

no  authority  to  employ  agents  or  servants  for  principal,  336. 
liability  of  employer  for  negligence  of,  1870,  1871,  1917-1920. 
how  when  performing  master's  duties,  1641  et  seq. 

INDICIA  OF  OWNERSHIP, 

as  apparent  authority  to  sell,  848. 

documents  of  title  as  conferring,  2119. 

possession  coupled  with,  as  giving  power  to  sell,  2115. 

INDORSE, 

see  NEGOTIABLE  INSTRUMENTS. 
agent  to  receive  check  has  no  authority  to  indorse  and  collect  it,  952. 

INDORSEMENT, 

when  agent  liable  upon. 

see  NEGOTIABLE  INSTRUMENTS. 

INFANTS, 


.      jawoITAflOqjK>r) 

as  principals, 

.aviorr/.HO'jHoO  993 
see  PRINCIPAL, 

as  agent, 

see  AGENT. 

personal  liability  of  agent  of,  1392. 
principal  cannot  recoup  damages  against,  1599. 
ratification  by,  370. 
INFORMATION, 

duty  of  agent  to  give  to  principal,  1207  et  seq. 
see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

2498 


INDEX 
[Referenced!  are  to  sections:   §§  1-1705,  Vol.   I;  §g   1700  2588,  Vol.  11.] 

INJUNCTION, 

to  prevent  breach  of  agency  contract  not  usually  granted,  642. 
how  when  service  is  unique,  643. 

INN  KEEPERS, 

liability  of,  to  guests  for  assaults  by  servants,  1939  et  seq. 

for  thefts  by  servants,  2001,  n. 

. 

INSANITY, 

of  principal  usually  terminates  agency,  677,  678. 

how  when  authority  coupled  with  interest,  679.  f  8TviaM,Jflr 

what  evidence  necessary,  680. 
of  agent  usually  terminates  agency,  682. 

1  1     j         -Au  A     /-co  'tfl3 

•unless  coupled  with  an  interest,  682. 
,,..,.  „„_ 

how  when  insanity  unknown,  683. 

.  ,  .      ... 

insanity  of  one  of  several  agents,  684. 

-Hrr  •         i»    x  ,.„,-  rfw  wod 

effect  on  subagents,  685. 

when  notice  required,  701-703. 
agent's  right  to  damages  when  relation  terminated  by  principal's,  1568. 

to  compensation  when  terminated  by  agent's,  1571. 
principal's  liability  to  third  persons  for  torts  of  insane  servant,  1938. 
agent's  liability  to  third  person  when  acting  for  insane  principal,  1394. 

when  acting  after  previously  sane  principal  becomes  insane,  1380. 
no  ratification  by  insane  person,  371. 

•am 

INSTALMENTS, 

of  purchase  price,  authority  of  agent  for  sale  of  land  to  receive,  814. 
of  rent,  authority  of  agent  to  receive,  834. 

INSTRUCTIONS 

see  SECRET  INSTRUCTIONS. 

agent's  duty  to  obey  instructions  of  principal,  1244. 
liable  for  losses  caused  by  disobedience,  1245,  1246. 

illustrations  of  liability,  1247-1252. 
in  what  form  of  action  liable,  1253. 

when  liable  for  conversion,  1253-1257. 
how  when  agency  gratuitous,  1258,  1259. 
departure  from  instructions,  when  justified  by  sudden  emergencies,  1262 

et  seq. 

how  when  departure  from  instructions  immaterial,  1265. 
how  when  instructions  ambiguous,  1267. 
how  matter  affected  by  custom,  1268,  1269. 
'  i'<-  disobedience  not  presumed,  1270. 
measure  of  damages  for,  1271. 

INSTRUMENTALITY, 

person  may  be  used  as,  rather  than  as  agent,  63. 

rules  governing  appointment  inapplicable  to  use  of  person  as  Instru- 
mentality but  not  as  agent,  208. 

2499 


INDEX 
[Reference*   are  to  ncrtlonn:   §8   1-1705,  Vol.  I;  gg  1706-2688,   Vol.  II.l 

INSTRUMENTALITY— Continued. 

human,  use  of  to  make  a  signature,  208,  n. 

burden  of  proof  of  execution  when  by  human  Instrumentality, 

208,  n. 

what  meant  by  "in  the  presence  of"  the  principal,  208,  n. 
sufficiency  of  the  signature,  208,  n. 
method  of  expressing  direction  or  assent,  208,  n. 
delegation  of  power  to  act  as,  315. 
responsibility  of  principal  who  ratifies  for,  411,  412. 

INSTRUMENTS  UNDER  SEAL, 

authority  to  execute  must  be  conferred  by  instrument  under  seal,  212. 
same  to  fill  blanks  in  deeds  and  bonds,  213. 
estoppel  to  deny  authority,  214. 
how  when  sealed  superfluous,  215. 

how  when  instruments  executed  in  presence  and  direction  of  princi- 
pal, 216. 

how  when  principal  adopts  deed  prepared  by  another,  217. 
instrument  not  good  as  deed  sometimes  good  as  contract,  218. 

execution  of,  see  DEEDS. 

i 
INSURANCE,  fl9rfw  floa 

see  INSUBE. 
ratification  by  principal  of  unauthorized,  524,  525. 

INSURANCE  AGENTS, 

what  agents  included,  1049. 

distinguished  from  brokers,  1049. 
general  discussion,  1049. 
classification  of  agents,  1050. 

issuing  agents,  1050. 

soliciting  agents,  1050. 
how  relationship  is  created,  1051. 

standard  policy,  1051. 
whose  agent  he  is,  1052. 

cannot  be  agent  of  insured  also,  1052. 
what  kind  of  agent,  1053. 
authority  to  appoint  subagents,  1054. 
authority  to  make  oral  contract,  1055. 
authority  to  renew,  1056. 

orally,  1056. 

authority  to  alter  or  waive  terms — in  general,  1057. 
authority  to  alter  policy  or  strike  out  a  provision  therein — at  the  time 

of  issuance,  1058. 
parole  waivers  at  time  of  issuance,  1059. 

waiving  prepayment  of  premium,  1060. 

in  the  face  of  provision  in  the  policy,  1060. 
taking  note  for  premium,  1060. 
implied  waiver  at  time  of  issuance,  1061. 
restrictions  on  authority  to  waive,  1062,  1063. 

2500 


INDEX 
[Heforencon   are  to  sections:   §§   1-1705,  Vol.  I;  §§  1706-2588,  Vol.   II.] 

INSURANCE  AGENTS— Continued. 

waiver  by  agent  after  issuance,  1064,  1065. 

authority  to  waive  forfeiture,  1064. 

express  restrictions  on  the  authority,  1065. 
knowledge  of  agent  imputed  to  principal,  1066-1069. 

in  general,  1066. 

existing  facts  affecting  the  risk,  1067,  1068. 
delivery  of  policy,  1068. 

misstatements  in  application,  1069. 
subsequent  grounds  of  forfeiture,  1070-1072. 

express  restrictions  in  the  policy,  1071. 

statutes,  1071. 

limitations  on  the  rule,  1072. 
misconduct  of  agent  in  taking  application,  1073. 
authority  to  waive  proof  or  notice  of  loss,  1074. 

express  restrictions  on  the  power,  1074. 
authority  to  adjust  losses,  1075. 

authority  to  make  admissions,  representations,  etc.,  1076. 
territorial  limitations  on  the  authority,  1077. 
may  not  act  in  own  behalf,  1078. 
authority  to  execute  negotiable  paper,  972. 

INSURANCE  BROKERS, 

as  distinguished  from  insurance  agents,  1049. 

who  are,  2366. 

distinctions,  2367-2369. 

duties  to  employer,  2370. 

right  to  sue,  2371. 

right  to  lien,  2372. 

' 
INSURE, 

agent  to  insure  liable  to  principal  for  losses  caused  by  disobedience,  1250 

or  by  neglect,  1297,  1298. 
agent  authorized  to  issue  policies  may  not  issue  to  himself,  1204. 

INSURERS, 
agent  of. 

see  INSURANCE  AGENTS. 

INTENTION, 

to  confer  agency,  authority  of  agent  not  always  dependent  upon,  247. 

INTEREST, 

when  agent  liable  to  principal  for,  1341. 

when  attorney  at  law  liable  to  client  for,  2210. 

authority  to  receive  interest  does  not  imply  authority  to  receive  the 

principal,  945. 

usurious,  authority  of  agent  to  stipulate  for,  1033. 
liability  of  principal  for  usurious,  exacted  by  agent,  see  USUBY. 
right  of  factor  to,  upon  advances,  2556. 

2501 


INDEX 
[Reference  are  to  lectloim:   §8  1-1705,  Vol.  I)  §§  1700-2588,  Vol.  II.] 

INTERPLEADER, 

agent  cannot  compel  principal  to  interplead  with  stranger  as  to  title  to 

property  or  money  received  from  principal,  1333. 
may  when  third  person  claims  thru  principal,  1333. 
between  rival  real  estate  brokers,  2458. 

INTOXICATING  LIQUORS, 

criminal  or  penal  liability  of  principal  or  master  for  wrongful  sale  by 
agent  or  servant,  2007,  2008. 

INVESTMENT, 

by  agent,  authority  to  sell  all  his  principal's  property  does  not  authorize 

agent  to  reinvest  the  proceeds,  829. 
INVITEES, 

liability  of  master  for  servant's  negligence  towards  servant's  invitees, 

1913. 
IRRESPONSIBLE  PURCHASER, 

liability  of  agent  for  selling  to,  1324. 
IRREVOCABLE   POWERS, 

see  TERMINATION;  REVOCATION;   AUTHORITY  COUPLED  WITH  AN  INTEREST. 

IRRIGATION, 

agreement  for,  in  lease,  authority  of  agent  to  make,  838. 

JOINDER, 

of  principal  and  agent  or  master  and  servant  in  action  for  agent's  or  serv- 
ant's torts,  1487,  2010  et  seq. 

JOINT  AGENTS, 

authority  to  several  agents,  195. 

legal  effect  of  appointing  joint  agents,  196,  197. 

private  joint  agency  must  usually  be  executed  by  all,  198. 

public  agency  may  be  executed  by  majority,  199,  200. 

,.  ,  ioon 

accounting  by,  1329. 

r.-aaf  ot 


JOINT  LIABILITY, 

of  principal  and  agent  on  contracts,  1426. 
JOINT  PRINCIPALS, 

one  person  as  agent  for  several,  182. 

usually  all  must  unite  in  appointing,  183. 

joint  power  must  be  contemplated,  184. 

partners,  185.  .HOITOHTOI 

joint  tenants  and  tenants  in  common,  186.  ^fl«»B  lelr 

associations  —  clubs  —  societies  —  committees,  187-192. 

inchoate  corporations,  193. 

authority  usually  to  be  executed  in  behalf  of  all  jointly,  194,  781. 

authority  referring  to  several  interests  not  to  be  applied  jointly,  782, 

accounting  to,  1328. 
JOINT  TENANTS, 

as  joint  principals,  186. 

appointment  of  agents  by,  186. 

;'  ,0}  to  Jan  t  3o 
2502 


INDEX 
[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

JOINT  TENANTS— Continued. 

when  one  may  appoint  for  all,  186. 
severance  of  interest  terminates  agency,  621. 
death  of  one  dissolves  agency,  669. 
JOINT  VENTURE, 

compared  with  agency,  55,  n. 
JUDGMENT, 

for   part  of  compensation  due  agent  when   bar  to   action   for   residue, 

1553,  n. 
against  agent  as  bar  to  claim  against  principal,  1759. 

unsatisfied,  in  tort  cases,  no  bar,  2017. 
against  agent,  when  concludes  principal,  2141,  2142. 
against  principal  for  agent's  default,  agent  must  answer  to  principal  for, 

1292. 

attorney  has  implied  authority  to  confess,  2162. 
authority  of  attorney  to  enforce,  2184-2186. 
JUDICIAL  OFFICERS, 

not  liable  for  acts  within  their  jurisdiction,  1494. 
JUDICIAL  NOTICE, 

of  what  are  usual  warranties  on  sale  of  chattels,  882,  885. 
JUS  DISPONENDI, 

right  of  agent  who  has  bought  goods  on  own  credit  for  principal  to  re- 
tain, 1700. 
KNOWLEDGE, 

see  NOTICE. 

of  agent,  when  deemed  to  be  knowledge  of  principal,  1803  et  seq. 
LAND, 

authority  to  sell,  see  SALE  OF  LAND. 
authority  to  purchase,  see  PURCHASE  OF  LAND. 
authority  to  lease,  see  LEASE  OF  LAND. 
commissions  for  sale- of,  see  REAL  ESTATE  BROKERS. 
LARCENY, 

master  or  principal  when  liable  for,  2001,  n. 
LEASE, 

difference  from  agency,  52. 

of  land,  statutes  often  require  written  authority  for — statute  of  frauds, 

222,  223. 

of  land,  authority  to  make  conferred  by  parol,  229. 
ratification  of  contracts  for,  427. 

agent  who  acquires,  when  charged  as  trustee  for  principal,  1193  et  seq. 
LEASE  OF  LAND, 

I.  AUTHORITY  OF  AGENT  FOR,  IN  GENERAL. 
how  conferred,  222,  223,  229. 
requisites  of  the  authority,  830. 
what  authority  sufficient,  830. 
when  authority  under  seal  necessary,  830. 
what  execution  authorized,  831. 

2503 


INDEX 
[References  J»*e  to  Mectlons:  §§  1-1705,  Vol.  I)  §§  1706-2588,  Vol.  II.] 

LEASE  OF  LAND — Continued. 

II.  IMPI-IKD  AUTHORITY,  RESULTING  TO — 
accept  surrender  of  the  lease,  836. 
alter  terms  of  lease,  83 6. 
bind  principal  to  furnish  supplies,  838. 
consent  to  substitution  of  tenants,  836. 
execute  necessary  documents,  832. 
extend  the  term,  836,  837. 
give  notice  to  quit,  836. 
give  usual  information  to  tenant,  833. 
grant  license,  840. 

impair  or  defeat  principal's  title,  840. 
,-Krt  lB4l:>4nsert  usual  covenants,  832. 

insert  covenants  to  repair  or  rebuild,  831. 
mafce  lease  to  begin  in  the  'future,  835. 
make  collateral  agreements,  838. 
make  partnership  agreement,  838. 
make  representations. 

as  to  condition  of  premises,  833. 

as  to  ownership,  833. 

as  to  right  to  lease,  833. 
mortgage,  840. 

receive  payment  of  rent,  834. 
reduce  rent,  836. 
renew  the  lease,  837. 
terminate  the  tenancy,  836. 
waive  liens,  839. 

waive  payment  upon  premises  becoming  untenantable,  836. 
LEGISLATION, 

employment  to  secure,  92-96. 
LEGISLATIVE  OFFICERS, 

usually  exempt  from  civil  liability  for  official  action,  1500. 

'.am 
LETTERS, 

conferring  authority  by,  227. 

,    ,      ,    •   ' 
to  sell  land,  797  et  seg. 

.„_  <!  Jo 

answering,  may  raise  a  presumption  of  agency,  268. 

of  agent  inadmissible  to  prove  agency,  285,  n. 

.....         ,        .  .         „    ,    .-.    •  .basi  lo 

revoking  authority  by,  when  takes  effect,  624. 

. 

LIABILITY  OF  AGENT  TO  PRINCIPAL, 
see  DUTIES  OF  AGENT  TO  PRINCIPAL. 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS, 

A,  PRIVATE  AGENTS. 
I.  IN  CONTRACT. 

in  general,  1356. 

agent  not  personally  liable  upon  authorized  contract  made  in 
principal's  name,  1357. 

2504 


INDEX 


. 

oa  8 ' 

.TOfc 

^lin 


fReferencefl  are  to  sect  So  us:  §§  1-1705,  Vol.  I;  88  1706-2588,  Vol.  II.l 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS— Continued. 

liability  of  agent  as  here  discussed  assumes  that  agent  is  of 

normal  legal  capacity,  1358. 
1.  Where  He  Acts  without  Authority. 
in  general,  1359-1361. 
theories  of  liability,  1362. 

deceit — warranty  of  authority,  1363. 

agreement  to  indemnify,  1364. 

objection — a  fiction — conflict  with  Derry  v.  Peek,  1365. 

liability  not  based  on  theory  of  agent's  actual  wrong, 

1366. 
liability  based  on  representations  of  matters  of  fact  only, 

1367. 

doctrine  not  confined  to  making  of  contracts,  1368. 
how  where  other  party  knows  or  agent  discloses  all  facts 

relating  to  his  authority,  1369.' 
where  agent  disclaims  present  authority,  1370. 
how  in  case  of  public  agent,  1371. 
to  whom  the  liability  extends,  1372. 
application  of  these  rules,  1373. 

where  authority  never  conferred,  1374. 
where  authority  once  existing  has-  terminated,  1375. 
by  act  of  principal,  1376,  1377. 
by  death  of  principal,  1378,  1379. 
by  principal's  insanity,  1380. 
by  other  events,  1381. 
by  act  of  agent,  1382. 
where  no  principal  in  existence— inchoate  corporations — 

promoters,  1383. 

provisional  arrangements  with  promoters,  1384. 
principal   dead   at   time   authority  supposed   to   be 

conferred,  1385. 

where  principal  in  existence  but  had  not  authority  to 
confer — ultra  vires  acts — liability  of  corporate  di- 
rectors and  agents,  1386. 

where  principal,  temporarily  forbidden  to  act,  1387. 
where,    principal's    insolvency    destroys    his    legal 

status,  1388, 

when   no.  legally   responsible  principal — unincorpo- 
rated associations,  1389. 
meetings,  committees,  etc.,  1390. 
legal  competency  of  an  existing  principal,  1391. 
infant  principals,  1392. 
married  women,  1393. 

where  principal  insane  at  time  authority  was  sup- 
posed to  be  conferred,  1394. 
when  agent  liable  on  contract  itself,  1395,  1396. 
not  liable  merely  because  principal  is  not,  1397. 

2505 


— 
I  i 

, 


, 


.mi 


. 


INDEX 
[Referencea  are  to  aectlona:  g§   1-170.",   Vol.  I;  §§   17<H(-25SS,  Vol.  II.J 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS— Continued. 

in  what  form  of  action  is  agent  liable,  1398. 
burden  of  proof,  1399. 
measure  of  damages,  1400. 

to  give  damages  for  loss  of  particular  contract,  it 
must  have  been  one  of  value  against  principal  If 
authorized,  1401. 
effect  of  ratification,  1402. 
where  nominal  agent  is  real  principal,  1403. 
liability  of  pretended  agent,  1404.j;jf 

2.  "Where  Though  Authorized  to  Bind  Principal,  He  Binds  Him- 
.vjj  self  or  no  One. 

in  general,  1405. 

authorized  agent  contracting  in  name  of  principal  incurs  no 

personal  liability,  1406. 

where  agent  intending  to  bind  principal  binds  no  one,  1407. 
•Where  agent  intending  to  bind  principal,  inadvertently  uses 

apt  words  to  bind  himself,  1408. 
reformation  of  contract  to  release  agent,  1409. 
where  agent  conceals  fact  of  agency  or  name  of  principal, 

1410. 
disclosing   fact   of   agency,   but   concealing   identity   of 

principal,  1411. 

identity  of  principal  sufficiently  disclosed — what  terms 
sufficiently  exclude  personal  liability — liability  by  cus- 
tom, 1412. 
burden  on  agent  to  disclose  principal,  1413. 

disclose  when,  1414. 
agent  alone  liable  on  sealed  and  negotiable  instruments, 

1415. 
dealing  with  agent  must  have  resulted  in  contract,  etc., 

1416. 

where  agent  acts  for  a  foreign  principal,  1417. 
where  there  is  no  responsible  principal,  1418. 
where  agent  pledges  own  responsibility,  1419-1421. 
how  determined,  1422. 
what  facts  not  conclusive,  1423. 
principal  also  may  be  bound — election,  1424. 
agent  alone  liable  on  negotiable  and  sealed  instruments, 

1425. 

agent  may  be  jointly  liable  with  principal,  1426. 
agent  may  bind  himself  by  collateral  contract,  1427. 
how  in  case  of  public  agent,  1428. 
agent's  right  of  set-off  and  recoupment,  1429. 

3.  Where  the  Agent  has  Received  Money. 

a.  Where  paid  to  agent  for  principal. 

no  liability  for  money  properly  paid  to  which  principal 
was  entitled,  1431. 


INDEX 

\ 
[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS— Continued. 

liability  for  money  paid  to  him  by  mistake,  1432,  1433. 
liability  for  money  received  by  him  through  wrongful 

act  of  principal  alone,  1434. 

change  in  agent's  situation  as  equivalent  of  pay- 
ment, 1435. 

liability  where  principal's  right  terminated  after  pay- 
ment, 1436-1438. 
agent  liable   for   money   mispaid   though   paid   over,   if 

agency  was  not  known,  1439. 
agent  liable  without  notice  for  money  illegally  obtained, 

1440. 
agent  liable  without  notice  for  money  obtained  through 

his  misconduct,  1441. 

agent  liable  where  money  is  proceeds  of  act  which  prin- 
cipal could  not  lawfully  authorize,  1442. 
agent  liable  for  money  received  without  authority  and 

not  paid  over  to  principal,  1443. 

agent  personally  liable  for  return  of  deposits  where  he 
has  pledged  own  responsibility,  1444. 

where  agent  is  mere  stakeholder,  1445. 
agent   for    undisclosed   principal   liable   for   returnable 

deposit,  144G. 
b.  when  paid  to  agent  for  third  person. 

when  agent's  liability  to  such  third  person  attaches — 

revocation  by  principal,  1447. 
what  constitutes  assent — consideration,  1448. 
action  at  law  by  beneficiary  against  agent,'  1449. 
trusts  for  the  benefit  of  third  persons,  1450. 
II.  IN  TORT. 

in  general,  1451. 

agency  usually  no  defense  in  tort  cases,  1452. 

agent  liable  for  negligent  acts  outside  scope  of  agency,  1453. 

- 

when  agent  ostensible  principal,  1454. 
liability  of  agent  for  trespass,  1455. 

principal's  knowledge  or  direction  no  defense,  1456. 
liability  of  agent  for  conversion,  1457. 

agent's  liability  for  fraud,  misrepresentation  or  deceit,  1458. 
agent's  liability  for  wilful  or  malicious  acts,  1459. 
agent  liable  to  third  person  for  negligent  injuries  committed  by 

him  while  acting  in  performance  of  agency,  1460,  1461. 
agent  must  have  been  an  actor,  not  a  mere  automaton,  1462. 

mere  intermediate  agent  not  liable,  1463. 
agent's  liability  for  negligent  omissions — misfeasance — nonfeas- 

ance,  1464. 

certain  rules  quoted,  1465. 

attempted    distinction    between    misfeasance    and    nonfeasance, 
1466,  1467. 

2507 


INDEX 
[Reference*  are  to  Hertlonn:   88  1-17O5,   Vol.  I;  §g   1700-2588,   Vol.   II.] 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS—  Continued. 
further  of  this  distinction,  14G8-1470. 
effect  of  beginning  performance,  1471-1473. 
agent  liable  for  condition  of  premises  over  which  he  has  control, 

1474. 

agent  must  be  responsible,  1478. 
duration  of  liability,  1476. 

other  cases  involving  the  same  principle,  1477,  1478. 
cases  in  which  agent  held  not  liable,  1479-1481. 
agent  not  liable  in  tort  to  third  persons  for  breach  of  principal'^ 

contract  with  them,  1482. 

liability  of  servant  or  agent  to  fellow  servant  or  agent,  1483. 
no  liability  for  negligence  of  fellow  servant  or  agent,  1484. 
liability  in  respect  of  subagents,  1485. 

agent  who   conceals   principal,    liable   as   principal   to  sub- 
agent,  1486. 
Joinder  of  principal  and  agent  in  same  action,  1487. 

B.  PUBLIC  AGENTS, 
what  here  included,  1488. 

I.  LIABILITY  FOE  THEIB  CONTRACTS. 

already  considered,  1489. 

II.  LIABILITY  FOR  THEIB  OWN  TORTS. 

In  general— classification,  1490. 

• 

no  action  by  individual  for  breach  of  duty  owing  solely  to  pub- 
lic, 1491. 

liable  for  wrongs  committed  in  private  capacity,  1492. 
superior   governmental   officers   not   usually   subject   to   private 

action,  1493. 
Judicial  officers  not  liable  when  acting  within  their  jurisdiction, 

1494. 

liability  not  affected  by  motive,  1495. 

this  immunity  extends  to  judicial  officers  of  all  grades,  1496. 
gucm-judicial    officers   exempt    from    civil    liability    for   official 

actions,  1497. 
illustrations,  1498. 

liability  not  affected  by  motive,  1499. 
game  immunity  extends  to  legislative  action,  1500. 
ministerial  officers  are  in  general  liable  to  party  specially  in- 
jured, 1501. 

III.  LIABILITY  FOR  TOETS  OF  THEIB  OFFICIAL  SUBORDINATES. 

public  officer  of  government  not  liable  for  acts  of  his  official 

subordinates,  1502. 

to  what  officers  this  rule  applies — post  officers,  1503. 
public  trustees  and  commissioners,  1504. 
not  to  ministerial  officers,  1505. 
2508 


INDEX 
[ReferenceM  are  to  flection* :   g§  1-17O5,  Vol.  I;   §S   1706-2588,   Vol.   II.] 

LIABILITY  OF  AGENT  TO  THIRD  PERSONS— Continued. 

IV.  LIABILITY  FOE  TOUTS  OF  THEIR  PRIVATE  SERVANTS  OR  AGENTS. 
liable  for  torts  of  private  servant  or  agent,  1506. 

V.  EFFECT  OF  RATIFICATION. 

ratification  usually  releases  agent  in  contract  cases  from  lia- 
bility for  acting  without  authority,  542. 

limitations — ratification  after  suit  begun — change  in  con- 
ditions, 543. 

effect  of  failure  of  the  ratification,  544. 

does  not  release  agent  in  tort  cases  but  charges  principal,  546. 

. 

LIABILITIES  OF  PRINCIPAL  TO  AGENT, 
see  RIGHTS  OF  AGENT  AGAINST  PRINCIPAL. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS, 
I.  LIABILITY  ON  AGENT'S  CONTRACTS. 

1.  Disclosed  Principal. 

principal  liable  on  contracts  made  in  his  name  by  his  authority, 

1709. 
principal  liable  on  contracts  made  for  him  though  informal  if 

not  expressly  made  on  agent's  responsibility,  1710,  1711. 
principal  may  be  liable  though  agent  also  liable,  1712. 
principal   not   liable   where   credit   given   exclusively   to   agent, 

1717 

whether  making  written   contract   in   agent's  name  shows 

such  exclusive  credit,  1713-1716. 
principal  not  bound  where  agent  was  acting  adversely,  1728. 

2.  Undisclosed  Principal. 

usually   liable  on  all   simple  contracts   when  discovered,   1731, 

1732. 

•  • 

parol  evidence  admissible  to  identify  principal,  1733. 
rule  does  not  apply  to  contracts  under  seal,  1734,  1735. 
nor  to  negotiable  instruments,  1736. 

exceptions — prior  settlement  with  agent — change  in  accounts. 
1738-1749. 


election  to  hold  agent,  1750  et  seq. 
no  election  without -knowledge,  1752,  1753. 
no  election  before  discovery  of  principal,  1755,  1756. 
what  constitutes  election,  1754  et  seq. 
presenting  claim,  1757. 
commencing  action,  1758. 
taking  judgment,  1759. 
taking  note,  1760. 
charging  goods,  1761. 
mere  delay,  1762. 

not  liable  where  no  agency,  1763-1766. 
liability  under  apparent  authority,  1767,  1768. 
no  liability  where  excluded  by  terms  of  contract,  1771. 
2509 


INDEX 
[Reference*  are  to  nectioiui:   88   1-17O5,  Vol.  I;  §§  1706-2588,   Vol.  II.] 

LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSONS— Continued. 

II.  RESPONSIBILITY   FOB  AGENT'S    STATEMENTS,    REPRESENTATIONS   AND  AD- 

MISSIONS. 

principal     liable    for,    when     irapliedly     or    expressly    authorized, 
.BM    .  1776-1780. 

liable  for  when  incident  to  authorized  act— r<  s  gestae,  1781-1786. 
admissible  to  show  notice  to  or  knowledge  by  agent,  1787. 
admissible  when  made  to  qualify  or  explain  the  agent's  act,  1788, 

1789. 

statements  indicating  the  agent's  state  of  mind,  1790. 
admissions  of   agent   generally  not  competent  to   charge   principal, 

1792. 

how  when  constituting  part  of  the  res  gestae,  1793-1799. 
liability   for   agent's    representation   of    extrinsic    fact   upon    which 

authority  depends,  1800,  1801. 

III.  How  PRINCIPAL  AFFECTED  BY  AGENT'S  NOTICE  OR  KNOWLEDGE. 
notice  to  agent  usually  notice  to  principal,  1803-1807. 

how  when  acquired  prior  to  agency,  1808-1812. 
not  notice  when  privileged  communication,  1814. 
not  notice  when  agent  acting  adversely,  1815-1825. 
not  notice  when  party  claiming  benefit  colluded  with  agent,  1826. 
who  can  claim  benefit  of  notice,  1827. 
not  notice  unless  agent  was  his  agent,  1830. 

not  notice  unless  relating  to  matters  within  agent's  authority,  1831. 
not  notice  if  not  received  until  authority  terminated,  1832. 
not  notice  unless  of  some  material  matter,  1833. 
not  notice  unless  person  receiving  was  an  agent,  1834. 
how  when  agent  was  agent  of  two  principals,  1837-1839. 
how  when  several  agents  of  same  principal,  1840. 
how  of  notice  to  subagent,  1841. 
how  these  rules  apply  to  corporations,  1843-1S54. 

IV.  LIABILITY  FOR  AGENT'S  TORTS. 

1.  Not  Liable  if  Wrongdoer  not  His  Agent  or  Servant. 

when  that  relation  exists,  1859-1863. 
borrowing  servants,  1860. 
adopting  servants  of  others,  1860. 
hiring  work  done  by  servants  of  others,  1861. 
employing  persons  to  furnish  servants,  1862. 
strangers  assisting  servants,  1866-1869. 
Independent  contractors,  1870,  1871. 
subagents,  1872. 

2.  Liability  for  Acts  Expressly  Directed. 

principal  usually  liable  for  all  such  acts,  1873. 

3.  Liability  for  Negligent  Acts  of  Servant  or  Agent. 

liable  for  agent's  negligence  in  course  of  employment,  1874-1877. 
what  meant  by  course  of  employment,  1879-1884. 

principal's    prohibition    or    warning    does    not    relieve    him, 

1881. 

nor  his  ignorance  or  good  faith,  1883. 
2510 


[Referencei*   are  to  section*:   §§  1-1705,  Vol.  I?  §§  1706-2588,  Vol.  II.] 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS— Continued. 

illustrations  of  acts  for  which  principal  liable,  1888-1897. 

effect  of  combining  agent's  own  business  with  that  of  principal, 

1895. 

effect  of  using  master's  appliances  on  agent's  business,  1896. 
effect   of   agent's    being   under   direction    of    principal's    patron, 

1897. 
principal  not  liable  for  negligence  not  in  course  of  employment, 

1898  et  seg. 
distinction  between   departure   from   service   and   mere  detour, 

1899-1904. 

resuming  service  after  departure,  1905-1908. 
illustrations  of  acts  for  which  principal  not  liable,  1909-1912. 
not  liable  for  negligence  when  agent  off  duty,  1914-1916. 

4.  Liability  for  Trespass  or  Conversion. 

principal  liable  for  trespass  or  conversion  committed  in  course 

of  employment,  1922-1924. 
but  not  otherwise,  1925. 

5.  Liability  for  Wilfull  or  Malicious  Act  of  Agent. 

liability  in  special  cases,  1930. 

where  principal  owed  plaintiff  special  duty,  1931-1944. 

where  principal  confides  to  care  of  agent  dangerous  instru- 
mentality, 1945-1950. 

where  principal  entrusts  to  agent  duties  involving  use  of 

force,  1951-1956. 

principal  liable  for  malicious  acts  when  in  course  of  employ- 
ment, 1957-1972. 

false  imprisonment,  1973. 

unauthorized  duress,  1974. 

unfounded  prosecutions,  1975. 

malicious  prosecutions,  1976. 

assaults,  1977. 

shooting,  1979. 

slander  and  libel,  1980. 

6.  Liability  for  Fraudulent  Acts  and  Representations. 

principal  liable  for  fraudulent  acts  when  within  course  of  em- 
ployment, 1984-1986. 

principal  liable  for  agent's  false  or  fraudulent  representations 
when   making  of  such   representations   within  course   of  em- 
ployment, 1987-1990. 
liability    for    representations    of    facts    conditioning    authority, 

1991,  1992. 

effect  of  misrepresentations,  1994. 
remedies  for,  1994-1996. 

V.  LIABILITY  FOR  ACENT'S  CRIMINAL  ou  PENAL  ACTS. 
1.  Civil  Liability. 

principal  may  be  civilly  liable  for  agent's  criminal  or  penal  act 
committed  in  course  of  employment,  1999  et  seQ. 
2511 


INDEX 
rtteferencea  are  to  *ecttoiM:   §§  1-1705,  Vol.  I;   88    1700  25*8,  Vol.  II.] 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS— Continued. . 
statutory  torts,  2000. 
usury,  2002,  2063. 
2.  Criminal  or  Penal  Liability. 

principal  not  usually  criminally  liable  for  agent's;  criminal  or 

penal  acts,  2006. 

unless  participates  in,  aids,  or  abets  them,  2006. 
may  be  penally  liable  for  agent's  violation  of  statutory  provi- 
sions, 2007. 
ii/otefa  aasni   bifldulterating  food,  2007. 

keeping  open  saloons,  2007. 
selling  intoxicating  liquors,,  etc.,  2007. 
Vli  MATTEBS  RELATING  TO  PUOCEDURK.  j  aaoi 

joinder  of  principal  and  agent  in  one  action,  2010,  2011. 

principal  cannot  be  held  if  agent  cannot  be,  2012. 

measure  of  damages  against  principal,  2013. 

exemplary  damages  against,  2014-2016. 

unsatisfied  judgment  against  agent  no  bar  against  principal,  2017. 

principal  may  be  liable  altho  negligence  of  other  persons  contributed, 

2018. 

LIABILITY  OF  THIRD  PERSONS  TO  AGENT, 
I.  IN  CONTRACT. 

in  general — right  of  action  in  principal  alone,  2020. 

consideration  affecting  this  rule,  2021. 
how  cases  may  be  classified,  2022. 

agent  may  sue  when  principal  has  clothed  him  with  title  or  author- 
ity for  that  purpose,  2023. 

agent  may  sue  on  contracts  made  with  him  personally,  2024. 
undisclosed  principal,  2025. 
disclosed  principal,.,2026. 
when  agent  only  can  sue,  2027. 
statutes  requiring  suits  by  real  party  in  interest,  2028. 

assignees  of  bankrupt  agent,  2029. 

illustrations  of  rule  permitting  agent  to  sue,  2030-2032. 
agent  may  sue  when  he  has  a  beneficial  interest,  2033. 
what  meant  by  rule,  2034. 
what  interest  suffices,  2035,  2036. 
although  agent  may  thus  sue,  principal  may  usually  sue  or  control 

action,  2037. 
action  on  sealed  contract,  negotiable  instrument,  or  contract  made 

with  agent  personally  must  be  in  agent's  name,  2038. 
agent's  rights  depend  on  contract,  2039. 
right  of  assumed  agent  to  show  himself  principal,  2040. 
where  he  contracted  for  a  named  principal,  2041,  2042. 
where  he  contracted  for  an  unnamed  principal,  2043. 
agent  may  recover  money  paid  by  him  under  mistake  or  illegal  con- 
tract, 2044. 

2512 


INDEX 
are  to  sections:   §§  1-1705,  Vol.  Ij  gg  1706-2588,  Vol.   II. J 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS— Continued. 
what  defenses  are  open  to  third  person,  2045. 
set-off,  2046. 

admissions — discovery,  2047. 

what  damages  agent  may  recover  on  contract,  2048. 
II.  Ix  TORT. 

agent  may  sue  for  personal  trespass,  2049. 

when  agent  may  sue  for  injuries  to  principal's  property,  2050. 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL, 
I.  RIGHT  TO  SUE  ON  CONTRACTS  MADE  BY  AGENT. 
o.  The  Disclosed  Principal. 

in  contract,  right  of  principal  to  ratify  unauthorized  contract 

and  then  enforce  it,  509,  510. 
how  if  agent  and  other  party  have  previously  canceled,  511, 

512. 

how  if  other  party  has  previously  withdrawn,  513. 
how  if  nothing  has  been  done  to  cancel  contract,  514. 

the  Wisconsin  cases,  515. 

sshori,'  tlle  English  cases,  516-518.  wojj 

the  American  cases,  519-521. 
the  weight  of  authority,  522. 
applications  of  the  rule,  523-526. 

may  sue  on  contracts  made  in  principal's  name,  2054. 
may  usually  sue  on  contracts  made  for  him  but  in  agent's  name, 

2055. 
may  sue  on  contracts  made  on  his  account  without  his  authority 

but  subsequently   ratified,   2056. 
what  defenses  principal  subject  to,  2058. 

-       _,,        „      ,.       .  ,    _     .         .        ,  '    Of    TilUlH    ,11 

t.  The  Undisclosed  Principal. 

,  .  .     .    ,    .„  ,    ,   .         'uiia 

may  sue  on  contracts  made  on  his  behalf  but  in  agent  s  name, 

2059. 
one  of  several  undisclosed  principals  cannot  sue  on  entire 

contract,  2060. 

' 

one  of  several  apparently  joint  parties  may  show  himself  to 
be  the  real  principal,  2061. 

>  .UU  i 

right  of  one  who  contracted  as  agent  to  show  himself  prin- 
cipal, 2062. 
what  actions  included  under  general  rule,  2063. 


actions  for  goods  sold,  or  labor,  or  services  rendered,  2063. 
actions  for  money  loaned,  2063. 
actions  on  warranties  of  quality  or  title,  2t)63. 
actions  against  carriers  or  telegraph  companies,  2063. 
actions  for  specific  performance,  2063. 

in  such  actions  principal  may  avail  himself  of  memoranda  or 
other  evidence,  demands,  notices,  or  lack  of  notices,  2063. 

may  also  defend  or  justify  under  contract,  2063. 
_ 
158  2513 


INDEX 
I  References  are  to  sections  t  §g  1-17O5,  Vol.  I)  88  1700-2588,  Vol.  II.] 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL— Continued. 

exceptions — rule  does  not  apply  to  instruments  under  seal,  2064. 
nor  to  negotiable  instruments,  2065. 
principal's  remedies  in  these  latter  cases,  2066. 
how  when  contract  involved  elements  of  personal  trust  or  con- 
fidence, 2067. 

what  contracts  do  involve  such  elements,  2068,  2069. 
principal   cannot  sue  when  terms  of  contract  exclude  him  or 

when  contract  is  with  agent  solely,  2070-2071. 
principal's  right  of  action  usually  superior  to  agent's,  2072. 
principal's  rights  governed  by  the  contract,  2073. 
defenses  to  which  principal  subject,  2074. 

a.  those  arising  out  of  terms  of  contract  itself,  2074. 

b.  payment  to  agent,  2075. 

c.  set-off  of  claims  against  agent,  2077,  2078. 
limitations  on  this  rule,  2079. 

performance  to  agent,  2080. 
release  by  agent,  2081. 
assignment  by  agent,  2082. 
how   principal's  right  affected   by  repudiation   of  unauthorized 

contract  by  other  party,  2083. 
how  principal  affected  by  agent's  fraud,  2084. 
how  principal  affected  by  notice  to  or  knowledge  of  his  agent, 

2085. 

what  actions  principal  may  bring,  2086. 
measure  of  damages  which  principal  may  recover,  2086. 
third  person  cannot  defeat  principal's  recovery,  on  executed  con- 
tract by  showing  agent's  want  of  authority,  2087. 

II.  RIGHT  TO  RECOVER  MONET  PAID  OB  USED  BY  AGENT. 

principal  may  recover  his  money  obtained  from  his  agent  by  mis- 
take of  fact  or  fraud,  2089. 

principal  may  recover  his  money  wrongfully  disposed  of  by  agent 

,,  .    nnnn 

on  agent  s  account,  2090. 

may  follow  it  until  it  comes  into  hands  of  bona  fide  holder  for 
value,  2091-2094. 

bank  deposits,  2095-2100.  ***» 

other  cases,  2100-2103. 

restrictive  endorsements,  2104. 

III.  RIGHT  TO  RECOVER  PROPERTY  DISPOSED  OF  BY  AGENT. 

principal's  title  usually  not  divested  except  in  pursuance  of  his  au- 
thority, 2105-2107. 

recovery  of  property  disposed  of  by  agent  without  authority,  2108. 

recovery  of  property  wrongfully  disposed  of  by  one  alleged  to  be 
ostensible  agent  or  owner,  2109. 

possession  as  evidence  of  ownership  or  authority,  2110. 
money,  negotiable  paper,  2111. 

possession  confided  to  recogniztd  salesagent,  2112-2114. 


INDEX 
[References    are  to  Hectlons:   §g   1-17O5,  Vol.  I;  §§   170U-25SS,  Vol.  II.] 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL— Continued. 
possession  coupled  with  indicia  of  ownership,  2115. 
principal  may  lose  through  agent's  fraud,  211o. 
but  other  party  must  have  acted  in  good  faith  and  with  reason- 
able prudence,  2117. 
illustrations,  2118-2123. 
limitations,  2124,  2125. 

notice   of   principal's    rights    from    descriptive    words    in   docu- 
ments,- 2126. 
rule  respecting  documents  of  title  does  not  apply  to  ordinary 

chattels,  2127. 

possession  under  factor's  acts,  2128. 
principal  may  recover  his  property  seized  or  taken  to  pay  agent's 

debts,  2129. 

right  to  recover  securities  wrongfully  released,  2130.    .         a9il 
right  to  recover  property  sold  by  agent  acting  adversely,  2131. 

IV.  RIGHT  TO  RECOVEK  FOK  TORTS. 

principal  may  recover  for  injury  to  his  interests  by  third  person's 

torts,  2132. 

right  to  recover  for  enticing  agent  away,  2133. 
for  preventing  ugtut  from  performing,  2134. 
for  personal  injury  to  agent  causing  loss  of  service,  2135. 
third   person   not   liable   to   principal   for  agent's   fraud   or   neglect, 
2136. 

V.  REMEDIES  FOR  DOUBLE  DEALING. 

principal's  remedies  where  third  person  conspires  with  agent  to  de- 
fraud principal,  2137. 

remedies  when  agent  in  secret  employment  of  other  party,  2138, 
2139. 

one  of  two  principals  not  liable  to  other  for  defaults  of  common 
agent,  2140. 

VI.  CONCLLSIVENESS   AGAINST  PRINCIPAL  OF   JUDGMENT   AtiAl.XST   AGENT. 

principal  not  bound  by  judgment  respecting  property  rights  against 

agent  in  action  to  which  principal  was  not  a  party,  2141. 
otherwise  as  to  contract  rights,  2142. 

LIBEL, 

liability  of  principal  or  master  for  libel  of  agent  or  servant,  1980  et  svq. 

LICENSE, 

differs  from  agency,  53. 

authority  by  parol  to  grant  licenses  respecting  land,  234. 

employment  of  unlicensed,  where  license  necessary,  91. 

right  of  broker  to  collect  commissions  when  not  licensed,  2479. 

LIEN, 

agent's  right  to,  in  general  common  law  liens  denned,  1683. 
foundation  of  lien,  1684. 
nature  of  lien,  1685. 
possession  necessary  to,  1686. 

2515 


INDEX 
[Refrrenc**  are  to  ««-otIon«:   §§  1-17O5,  Vol.  I)  gfi  1706-2588,  VoL  BU] 

LI1CN — Continued. 

possession  must  have  been  lawfully  acquired,  1687. 

must  have  been  acquired  in  course  of  employment,  1689. 
must  be  continuous,  1688. 

no  lien  where  contract  or  intention  of  parties,  1690. 

•waiver  of  lien,  1690. 

waiver  by  inconsistent  conduct,  1691. 

claim  of  lien  does  not  waive  personal  remedies,  1692. 

how  lien  may  be  enforced,  1693. 

how  these  rules  apply  to  agents,  1694. 
illustrations,  1695. 

agent's   lien  ordinarily  a   particular  lien,  1698, 

for  what  sums  lien  attaches,  1697. 
subagent  when  entitled  to  lien,  1705. 
lien  of  attorneys. 

see  ATTORNEYS  AT  LAW. 
lien  of  auctioneers, 

see  AUCTIONEERS,  2351. 
lien  of  brokers. 

see  BROKERS,  2483. 
lien  of  factors. 

see  FACTORS. 

authority  of  general  manager  to  waive,  990. 
collecting  agent  no  authority  to  release,  954. 
LIMITATION  OF  ACTION, 

when  principal's  action  against  agent  barred  by  statute  of  limitations, 

1346  et  seq. 

when  client's  action  against  attorney  barred  by,  2209. 
authority  of  manager  to  revive  debt  barred  by,  997. 
LIMITATIONS  ON  AUTHORITY, 

principal  may  impose  at  pleasure. 

see  AUTHORITY;   SPECIAL  AGENTS. 
persons  dealing  with  agent  bound  to  observe. 

see  AUTHORITY — NATURE  AND  EXTENT  OF. 
LOAN, 

when  authority  to  loan  exists,  1031. 

by  implication,  1031. 

when  expressly  conferred,  1031. 

ratification,  1031. 
what  execution  authorized,  1032. 

limitations  on  the  power,  1032. 
usurious  interest,  1033. 

how  principal  affected  by,  2002,  2003. 
authority  to  receive  payment,  1034. 

when  intrusted  with  securities,  1034. 
authority  to  extend  time  or  change  terms,  1035. 
no  authority  to  loan  to  himself,  1036. 

2516 


INDEX 
[References  are  to  sections:   §§  1-1705,  Vol.  I;  g§  1706-25S8,  Vol.  II.] 

LOAN — Continued. 

authority  to  purchase  securities,  1037. 

liability  of  agent  for  not  obeying  instructions  as  to,  1251. 

liability  of  agent  for  negligence  as  to,  1295,  1296. 
LOAN  BROKER, 

entitled  to  commissions,  when,  2467. 

has  a  lien  upon  loan  for  commissions,  1694. 

LOBBYING, 

employment  to  secure  legislation — lobbying  agents,  92-96. 
LOCATION, 

representations  of  agent  to  sell  land  regarding,  809. 
LOTTERY, 

employment  to  sell  tickets  in  forbidden,  void,  120. 
contracts  to  operate,  void,  120. 
LOYALTY, 

agent's  duty  to  be  loyal  to  his  principal's  interest,  1188. 

must  not  assume  antagonistic  relations,  1189,  1190. 

may  not  deal  in  business  of  his  agency  for  his  own  benefit,  1191. 

agent  authorized  to   purchase  for  his  principal  may  not  purchase  fof 

himself,  1192. 

same  principle  applies  to  leases,  1193. 

If  agent  acquires  in  these  cases  he  may  be  charged  as  trustee,  1192. 
what  evidence  of  trust  sufficient,  1194. 
when  rule  does  not  apply,  1195,  1196. 
agent  authorized  to  sell  may  not  sell  for  himself,  1197. 
agent  authorized  to  sell,  exchange,  or  lease  may  not  acquire  for  himself, 

1198. 

injury  to  principal  not  necessary,  1199. 

payment  of  price  fixed  does  not  save,  1199. 

public  sale  equally  voidable,  1200. 

to  what  agents  this  rule  applies,  1202. 

applies  also  to  sub-agents,  clerks,  and  assistants,  1202. 
indirect  attempts  equally  voidable,  1203. 

agent  authorized  to  insure  may  not  issue  policies  to  himself,  1204. 
agent  authorized   to   purchase  or   hire  may   not  purchase   or   hire  out 
himself,   1205. 

good  faith  of  agent  does  not  save,  1205. 
indirect  action  equally  voidable,  1205. 

double  agency — agent  of  one  principal  may  not  represent  other  party 
also  without  consent  of  principal,  1206. 
if  he  does,  transactions  are  voidable,  1206. 
agent  loses  compensation,   1206. 
agent  must  fully  inform  principal  concerning  his  relations,  1207. 

and  of  all  facts  that  may  affect  principal's  judgment,   1207. 
agent   liable   for  misrepresentations   to   principal,   1208. 
or  for  failure  to  give  him  information,  1208. 

2517 


INDEX 
[Reference  are  to  nectloiun   g§  1-1705,   Vol.  I;  g§   17O«-2588,  Vol.  II.] 

LOYALTY — Continued. 

agent  may  not  take  advantage  of  confidential  information  to  make  profit 
for  himself,  1209. 

how  when  agency  terminated,   1210, 

agent   may    not    use    information    respecting    principal's    trade    secrets, 
formulae,  lists  of  customers,  etc.,  1211.  JjiJns 

how  as  to  information  leading  to  outside  profit,   1213. 
information  leading  to  patents   or  inventions,   1214. 
agent  employed  to  settle  claim  may  not  buy  and  enforce  against  his 

principal,  1215. 

agent  may  not  acquire  rights  against  principal  based  on  agents  neglect 
or  default,  1216. 

may  not  purchase  at  tax  or  mortgage  sales,   1216,  1217. 
agent  may  not  acquire  adverse  rights  in  principal's  property  confided 
to  his  care  1218. 

may   not   acquire   outstanding  liens,   claims,   or   titles   and   enforce 

against  principal,  1218,  1219. 
these  rules  cannot  be  defeated  by  usage,  1220. 
•transactions   may  stand   if  principal   freely   consents,   1221. 

principal  may  ratify  the  act,  1222. 
gratuitous  agents  and  volunteers  equally  within  these  rules,  1223. 

but  if  no  agency,  existed,  rules  do  not  apply,  1223. 
profits  made  in  course  of  the  agency  belong  to  principal,  1224. 
immaterial  how  profit  acquired  if  fruit  of  agency,  1225. 
profits   made   or   savings   gained   in   buying,   selling,    settling,   etc., 

belong    to    principal,    1226. 
rebates,   commissions,   rewards,  over-charges,   etc.,   within  the  rule, 

1227. 

whether   principal   entitled   to   agent's  earnings,   1229. 
or  to  money  earned  out  of  hours,  1230. 
or  to  mere  gratuities,  tips,  etc.,   1231. 
whether   principal   entitled   to   agent's   exclusive   service,    1232. 

representing   other   principals   also,    1232. 
remedies  of  principal  for  agent's   disloyalty,   1233. 

equitable  actions,  actions  in  tort,  etc.,  1233,   1234. 
agency  must  exist  or  rules  not  applicable,  1235. 
must  be  agent  of   principal   complaining,   1236. 
proof  of  the  agency  required,  1237. 
disloyal  agent  cannot  recover  compensation,  1588. 
good  faith  or  custom  will  not  save,  1589. 
how  when  contract  divisible,  1589. 

double  agency — agent  cannot  recover   compensation   from   either  party 
when  double  agency  unknown,  1590. 

. 

how  when  agent  mere  middleman,  1591. 

how  when  double  agency  fully  known  and  assented  to,  1592. 
LUNATICS, 

see  INSAXITV. 

as  principals,  nor  competent,  134-136. 

as  principals,  ratification  or  disaffirmance  by,  138. 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;  §g  1700-2588,   Vol.  II.] 

MACHINERY, 

authority  of  agent  to  warrant,  885. 

MAIL, 

not   usually   regarded   as   agent,   41. 

MALICIOUS   ACTS   OF  AGENT, 

I.  LIABILITY  OF  PRINCIPAL  OB  MASTER  for. 

general  considerations,  1926. 
special  classes  of  cases,  1930. 

1.  where  master  owed  plaintiff  a  special  duty,  1931  et  seq. 

2.  where  master  confides  to  servant  the  care  of  a  "dangerous 
instrumentality,"  1945  et  seq. 

3.  Where  master  entrusts  to  servant  performance  of  duties  in- 

volving use  of  force,  1951  et  seq. 
master  otherwise  not  liable  unless  malicious  act  done  in  course  of 

employment,  1957  et  seq. 
what  meant  by  course  of  employment,  1960. 
what  acts  deemed  to  be  within,  1964  et  seq. 
false  imprisonment  and  unauthorized  duress,  1973. 
unfounded  prosecutions,  1975. 
malicious  prosecutions,  1976. 
assaults,  1977. 
shooting,  1979. 

slander  and  libel,  1980.  hq  x 

II.  AGENT'S  OWN  LIABILITY  FOR. 

agent  liable  to  third  persons  for,  1459. 

MALICIOUS  PROSECUTIONS, 

liability  of  principal  or  master  for,  1976. 

MANAGER— MANAGEMENT  OP  BUSINESS, 
I.  AUTHORITY  OF  AGENT  FOR. 
in  general. 

what  is  meant,  979. 

extent  of  authority  depends  on  nature  of  business,  980. 
execution  must  be  confined  to  principal's  business  and  for  his 
benefit,  981. 

II.  IMPLIED  AUTHORITY  RESULTING. 

to  Pledge  principal's  credit,  982-988. 

supplies  for  store  or  business,  908,  982. 

i-         *         v.    *    i     noo         TIJ  !SDa 

supplies  for  hotel,  983. 

supplies  for  farm  or  plantation,  984. 

board  and  provisions  for  help,  985. 

supplies  procured  by  husband  as  manager  of  wife's  business,  985. 

supplies  procured  by  wife  as  domestic  manager,  987. 

hiring  help,  988. 
make  incidental  contracts,  989. 

waive  liens,  rights,  conditions,  notices,  etc.,  990,  991. 
make  representations,  admissions,  etc.,  1780. 

2519 


INDEX 
[References  are  to  Meet  long  t  §§  1-1705,  Vol.  I:  83  1TOB-2589,  Vol.   n.l 

MANAGER— MANAGEMENT  OF  BUSINESS— Continued. 

make  or  alter  contracts — special  kinds  of  agents,  992,  993. 

architects,  992. 

superintendents,  992. 

station  agent,  993. 

ticket  agent,  993. 

baggage  master,  993. 
make  contracts  for  medical  aid  or  nursing,  994. 

officers  and  agents  of  railroads,  994. 

officers  and  agents  of  mining  companies,  994. 
r        sell  product  of  business,  995. 

fix  term  of  sale,  995. 
collect  or  receive  payment,  996. 
receive  debt  barred  by  limitation,  997. 
make  negotiable  instruments,  998-1000. 

effect  of  limitations,  custom,  etc.,  1000. 
borrow  money,  1001,  1002. 

when  implied,  1002. 
make  accommodation  paper,  1003. 
pledge  or  mortgage  principal's  property,  1004. 
sell  or  lease  principal's  land,-  1005. 
embark  in  new  and  different  business,  1006. 
sell  the  business  or  property,  1007. 
pay  principal's  debts,  1008. 
make  assignment  for  creditors,  1009; 
sue,  1010. 
employ  attorney.  1011. 

"MARGINS," 

contracts  for  purchase  of,  when  void,  111,  112. 

MARKET  VALUE, 

of  services  when  no  contract,  1526. 

MARRIAGE, 

agency  in,  126. 

of  principal  when  terminates  agency,  692. 

of  agent  when  terminates  agency,  693. 

when  notice  required,  701-703. 

: 
MARRIAGE  BROKERAGE,  . 

marriage  brokerage  contract  void,  117. 

MARRIED  WOMEN, 
as  agents, 

see  AGENTS. 
as  principals, 

see  PRINCIPAL. 
ratification  by,  372. 
personal  liability  of  agent  of,  1393. 

2520 


INDEX 
[Reference*   are  to  sections:  g§  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  II.] 

MASTER, 

1.  Duties  to  Servant. 

to  give  him  employment  in  accordance  with  the  contract,  see  EM- 
PLOYMENT, DISCHARGE,  TERMINATION  OF  AGENCY. 

to  pay  him  his  compensation,  see  COMPENSATION,  MEASUBE  OF  DAM-. 
AGES,  DISCHARGE. 

to  reimburse  him  for  proper  outlays,  see  REIMBURSEMENT. 

to  indemnify  him  against  losses,  see  INDEMNITY. 

2.  Liability  to  Servant  for  Injuries. 

not  liable  for  injuries  caused  by  risks  incident  to  business  itself,  1615. 
master  responsible  for  his  own  negligence,  1617. 
master's  responsibility. 

1.  for  dangerous  premises,  1618  et  seq. 

2.  for  dangerous  appliances,  tools,  and  machinery,  1624  et  seq. 

3.  for  injuries  resulting  from  failure  to  repair  as  agreed,  1630 

et  seq. 

4.  for  employment  of  incompetent  servants,  1632  et  seq. 

5.  for  not  making  and  enforcing  rules,  1635. 

6.  for  not  furnishing  necessary  superintendence,  1636. 

7.  for  injuries  outside  of  employment,  1637. 

master  responsible  for  negligence  of  his  general  agent  or  superin- 
tendent, 1640. 
liable  for  negligence  of  independent  contractor  performing  master's 

duties,  1641. 

not  liable  for  negligence  of  fellow-servants,  1643  et  seq. 
not  liable  for  risks  assumed  by  servants,  1659  et  seq. 
assumption  of  risks  as  defense  to  master,  1660  et  seq. 
assumption  of  risks  in  violation  of  statute,  1671  et  seq. 
assumption  of  risks  different  from  contributory  negligence,  1673. 
master  not  liable  if  servant  guilty  of  contributory  negligence,  1676. 

et  seq. 

statutes  changing  these  rules,  1679. 
contracts  altering,  1681. 

3.  Liability  to  Third  Persons. 

see  NEGLIGENCE;  MASTER  AND  SERVANT. 

not  liable  where  servant  would  not  be,  2012. 
It.  Rights  against  Third  Persons. 

see  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL. 
5.  Rights  against  Servant. 

see  DUTIES  AND  LIABILITIES  OF  AGENT  TO  PRINCIPAL. 

MASTER  AND  SERVANT, 

how  relation  of,  compares  with  that  of  principal  and  agent,  36. 
person  not  responsible  for  negligence  of  alleged  servant  unless  relation 
exists,  1858. 

when  relation  exists,  1859-1863. 

. 
several  masters  of  one  servant,  1860. 

.p^*  *H  il>0  .!'.•"!  &  ;<u  '    -'^tt 


INDEX 
[Referenced   are  to  Mectionn:   88  1-1705,  Vol.   1}   gg   1706-2588,  Vol.  II.] 

MASTER  AND  SERVANT— Continued. 

general  and  special  master,  1860. 

borrowing  servants  from  others,  1860. 

adopting  servants  of  others,  1860. 

servant  under  immediate  direction  of  master's  patron,  1861. 

furnishing  persons  to  be  employed  by  others  as  their  servants,  1862. 

contractual  agreements  as  to  who  shall  be  master,  1865. 

strangers  assisting  servant  whether  master's  servant,  1866  et  seq. 

liability  of  master,  see  MASTER,  NEGLIGENCE,  TRESPASS,  CONVERSION,  FRAUD, 
FALSE  REPRESENTATIONS,  MALICIOUS  ACTS,  CRIMINAL  ACTS,  PENAL  ACTS. 

liability  of  servant  to  master,  see  DUTIES  AND  LIABILITIES  OF  AGENT  TO 
PRINCIPAL. 

liability  of  agent  to  third  persons,  see  LIAUILITY  OF  SERVANT  TO  THIRI> 

PERSONS. 
MATERIALS, 

authority  of  selling,  agent  to  warrant  soundness  of,  885. 
MATURITY, 

11        ^    T-  ^x.  l  -x  nr« 

agent  to  collect  has  no  authority  to  accelerate  maturity,  959. 

. 
MEASURE  OF  DAMAGES, 

against  principal  for  torts  of  agent,  2013  et  seq. 

against  principal  for  wrongful  discharge  of  agent,  1557. 

against  agent  for  disobedience  to  principal,  1271. 

against  agent  for  negligence  causing  loss  to  principal,  1291. 
in  collecting,  1320. 

against  agent  acting  without  authority,  1400. 

against  third  persons  in  actions  by  principal  on  contracts,  2086. 

against  factor  for  violating  instructions  as  to  sale  of  goods,  2528. 
MEDICAL  AID, 

authority  of  agent  or  employer  of  railroad  to  secure,  994. 
MERCHANDISE  BROKERS, 

nature  of  duties  of,  2373. 

how  authorized,  2375. 

"bought  and  sold  notes"  by,  2378-. 
MERCANTILE  AGENCIES, 

liabilities  for  defaults  of  their  correspondents,  1316. 
MESSENGER, 

distinguished  from  agent,  62. 

MIDDLEMAN, 

. 

right  of  agent  acting  as,  to  double  compensation,  1591. 

right  of  broker  to  commissions  from  both  parties  when  acting  as,  2475. 
MINE  SUPERINTENDENT, 

authority  to  purchase  supplies  on  credit,  985. 
MINISTERIAL  OFFICERS, 

liable  for  misfeasance  or  malfeasance  to  persons  specially  injured,  1501. 
MISCONDUCT, 

agent  may  be  discharged  for,  607  et  seq. 

2522 


INDEX 
[References   are  to   sections:   g§  1-1705,    Vol.  1}  gg  1700-2588,   Vol.  II.] 

MISDEMEANORS, 

employment  to  commit,  illegal,  89. 
MISFEASANCE, 

agent  liable  to  third  person  for,  1452  et  seq.,  1464  et  seq. 
MISREPRESENTATIONS, 

liability  of  principal  for  agent's,  1987  et  seq. 

see  FALSE  REPKKSE.XTATIOXS. 
effect  of,  1994. 
remedies  for,  1994  et  seq. 
liability  of  agent  to  third  persons  for,  1458. 
MISTAKE, 

liability  of  agent  to  whom  money  has  been  paid  by,  1432  et  seq. 
liability  of  principal  for  selling  agent's  mistake  in  fixing  price,  885. 
MONEY, 

1.  Liability  oj  Agent  to  Third  Persons. 

for  money  received  from  them  for  principal,  1430  et  seq. 

no  liability  where  money  properly  paid  to  which  principal  was 

entitled,  1431. 

liability  where  money  paid  by  mistake  but  not  yet  paid  to  prin- 
cipal, 1432. 
liability  where  money  paid  by  mistake  but  paid  to  principal, 

1432 
liability  for  money  received  by  agent  through  wrongful  act  of 

principal,  1434. 
liability  where  principal's  right  terminated  after  payment,  1436- 

1438. 

money  paid  on  judgments  subsequently  reversed,  1437. 
money  paid  on  contracts  subsequently  rescinded,  1438. 
liability  of  agent  where  agency  concealed,  1439. 
agent  personally  liable  where  money  illegally  obtained,  1440. 

OfO          Q'Oi.T 

where  money  extorted,  1440. 
where  money  obtained  by  misconduct,  1441. 

where  money  is  proceeds  of  act  which  principal  could  not  author- 
ize, 1442. 
liability  for  money  received  without  authority  and  not  paid  to 

principal,  1443. 
liability  for  deposits  where  agent  pledged  own  responsibility, 

1444. 

where  agent  mere  stakeholder,  1445. 
where  agent  acted  for  undisclosed  principal,  1446. 
Liability  of  Agent  to  Third  Persons. 

for  money  received  from  principal  for  them,  1447  et  seq. 
when  agent's  liability  to  them  attaches,  1447,  1448. 
right  of  principal  to  revoke  directions,  1447,  1448. 
action  at  law  against  agent,  1449. 
enforcing  trusts  against  agent,  1450. 

2523 


INDEX 
[Reference*  are  to  aectlona:  g§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  TT.] 

MONEY— Continued. 

3.  Right  of  Principal  to  Recover. 

from  third  persons  who  have  secured  it  from  his  agent  by  fraud  or 

mistake,  2089. 
principal's  right  to  recover  when  wrongfully  appropriated  to  agent's 

uses,  2090  et  seq. 

right  to  follow  as  trust  fund,  2090  et  seq.,  2111. 
4-  Liability  of  Collecting  Agent. 
for  neglect  in  keeping,  1309. 
for  neglect  in  remitting,  1310. 

duty  of  agent  to  account  for  money  received,  1327. 
see  ACCOUNT,  DUTY  TO. 

MONOPOLIES, 

employments  to  create,  113. 

MONTHLY  HIRING, 

not  implied  from  monthly  salary,  merely,  603. 
but  may  be  implied  from  other  circumstances,  603. 

instances  of  this  rule,  603,  n. 
continuance  for  second  month  implies,  on  same  terms,  605. 

MORTGAGE, 

authority  of  agent  to  collect  when  has  authority  to  foreclose  mortgage, 

965. 

authority  of  managing  agent  to,  1004. 
assumption  of,  by  agent  to  deal  in  land,  828,  846. 
discharge  of,  by  such  agents,  828. 

making,  by  agent  to  purchase  land,  847. 

,     .  .    O.n 

making,  by  leasing  agent,  840. 

making,  by  selling  agent,  813. 

receipt  of  principal  or  interest  upon,  authority  for,  934  et  seq. 

agent  authorized  to  sell  personal  porperty,  no  authority  to  mortgage,  878. 

MORTGAGEE, 

death  of,  does  not  defeat  power  of  sale,  672. 
nor  does  his  insanity,  682. 

MORTGAGOR, 

death  of  does  not  terminate  power  of  sale,  659. 
nor  his  insanity,  679. 
nor  his  bankruptcy,  689. 

MUTUALITY, 

in  contracts  of  employment,  necessity  for,  60L 

how  under  statute  of  frauds,  601. 

. 

NECESSARY  POWERS, 
when  implied,  715. 

NECESSITY, 

when  authority  arises  from,  718. 
limitations  upon,  718. 

2524 


[Referencee  are  to  Roctlonn:   §§  1-1705,  Vol.  I;  §§  170«-2588,  Vol.  II.  1 

NEGLIGENCE, 

I.  LIABILITY  OF  AGENT  TO  PRINCIPAL. 

agent  liable  to  principal  for  negligence  in  performing  his  undertak 

ing,  1274-1280. 

how  when  agency  gratuitous,  1281-1283. 
agent  ordinarily  not  liable  for  unforeseeable  dangers,  1284. 

but  may  be  if  rpecial  risks  were  disclosed,  1285. 
agent's  negligence  must  be  proved — is  not  presumed,  1286. 
agent  not  liable  if  principal's  negligence  contributed,  1287. 

contributory  negligence  of  fellow-servant,  1287,  n. 
liability  of  agent  for  neglect  of  subagent,  1288. 
liability  of  agent  for  neglect  of  co-agent,  1289. 
measure  of  damages,  1291. 
judgments,  costs,  counsel's  fees,  1292. 

1.  Neglect  of  Agent  in  Making  Loans  and  Investments. 

i  rt  i          -i   f\i\  f 

degree  of  care  required,  1295. 
liability  for  losses  resulting,  1296. 

2.  Neglect  oj  Agent  to  Effect  Insurance. 

when  duty  to  insure  exists,  1297. 
what  the  duty  requires,  1298. 
liability  of  agent  for  not  performing,  1298. 
5.  Neglect  of  Agent  in  Making  Collections. 

liable  for  losses  caused  by  his  negligence,  1299. 

as  to  medium  of  payment,  1301,  1302. 

for  negligence  in  taking  proceedings,  1303-1306. 

for  negligence  in  giving  principal  notice  of  material  facts, 
1307. 

for  negligence  for  granting  or  permitting  delays,  extensions, 
etc.,  1308. 

for  negligence  in  keeping  the  money,  1309. 

for  negligence  in  remitting  the  money,  1310. 
liability  for  neglect  of  correspondents  and  subagents,  1311. 
liability  of  banks,  1312. 

for  the  neglect  of  the  notary,  1313. 

for  the  neglect  of  correspondent  banks,  1314. 
liability  of  attorneys,  1315,  2196,  2197. 
liability  of  mercantile  or  collection  agencies,  1316,  1317. 
liability  of  express  companies,  1319. 
measure  of  damages,  1320. 

principal's  right  of  action  against  subagent,  1321. 
del  credere  agents  how  liable,  1322. 

4.  Neglect  of  Agent  in  Making  Sales. 

nature  of  agent's  liability,  1302,  1303. 

when  agent  liable  for  selling  to  irresponsible  parties,  1324. 

conditions  of  agent's  liability,  1325. 

5.  Neglect  of  Agent  in  Making  Purchases. 

when  liable,  1326. 

2525 


vM  are   to  •ections:   gg  1-1705,   Vol.  1;  gg   1704t-25S8,   Vol.  11.1 

NEGLIGENCE— Continved. 

6.  Of  Special  Classes  of  Agents. 

if*,  .obnu  *&  attorneys  at  law,  see  ATTORNEYS  AT  LAW. 
of  auctioneers,  see  AUCTIONEERS. 
of  brokers,  see  BROKERS. 
of  factors,  see  FACTORS. 

II.  INABILITY  OF  ACJK.NT  10  THIRD  PERSONS. 

agent  liable  for  his  negligent  acts  outside  the  scope  of  his  agency, 

° 
agent  liable  for  negligence  where  he  was  the  ostensible  principal, 

1454. 

agent  liable  for  negligent  injuries  while  acting  in  course  of  agency, 

" 
1460,  1461. 

but  agent  must  have  been  actor  not  mere  automaton,  1462. 

mere  intermediate  agent  not  liable,  1463. 

agent's  liability  for  negligent  omissions,  misfeasance — nonfeasance, 
1464  ct  seq. 

distinction  between  misfeasance  and  nonfeasance,  1466  ct  seq. 
agent  liable  for  condition  of  premises  over  which  he  has  control, 

-.  Ant 

1474  et  seq. 

agent  liable  for  his  negligence  to  fellow-servant  or  agent,  1483. 
not  liable  for  negligence  of  fellow-servant  or  agent,  1484. 
liability  for  negligence  of  subagents,  1485. 
joint  liability  of  agent  and  principal,  1487. 

III.  LIABILITY  OF  PRINCIPAL  OR  MASTER  TO  AGENT  OR  SERVANT. 

not  liable  for  injuries  caused  by  the  inherent  risks  of  the  business, 

1615 
but  master  liable  for  own  negligence,  1617. 

In  furnishing  dangerous  place  to  work,  1618. 

in  furnishing  dangerous  appliances,  tools,  and  machinery,  1624. 

in  not  repairing  as  agreed,  1630. 

in  employing  or  keeping  incompetent  servants,  1632. 

in  not  making  and  enforcing  proper  rules  and  regulations,  1635. 

in  not  furnishing  necessary  superintendence,  1636. 

in  sending  servant  into  dangerous  places,  1637. 
master  liable  for  negligence  of  his  general  superintendent,  1640. 
master  liable  for  negligence  of  independent  contractor  performing 

master's  duties,  1641. 
master  not  liable  to  one  servant  for  negligence  of  fellow  servant, 

1643. 

master  not  liable  to  volunteer  assisting  servant,  1658. 
master  not  liable  where  servant  assumed  the  risks,  1659. 
master  not  liable  where  servant  guilty  of  contributory  negligence, 

1676 

effect  of  statutes  changing  common  law  rules,  1679. 
validity  of  contracts  waiving  master's  liability,  1681. 

IV.  LIABILITY  OF  PRINCIPAL  OR  MASTER  TO  SURAGENT. 

liable  to  subagent  as  in  other  cases  if  subagent  is  his  agent,  1704. 

2526 


INDEX 

[References  are  to  sections:   gg  1-1705,  Vol.  I;  §§   1706-2588,  Vol.  II.] 

NEGLIGENCE— Continued. 

V.  LIABILITY  OF  PRINCIPAL  OK  MASTEU  TO  THIBD  PERSONS  FOR  NEGLIGENCE 

OF  AGENT  OR  SERVANT. 
not  liable  unless  relation  existed,  1858. 

where  relation  exists,  1859. 

•  several  masteis  of  one  servant — general  or  special  master — bor- 
rowed servants — hired  servants — adopted  servants,  1860-1863. 
strangers  or  volunteers,  assisting  servants,  1866-18G9. 
liable  when  negligent  act  in  course  of  employment,  1874-1877. 
what  meant  by  course  of  employment,  1879-1884. 
illustrations,  1881-1891. 
how  when  act  illegal  or  unlawful,  1886. 
how  where  act  forbidden,  1892,  1893. 
how  when  servant  had  large  discretion,  1894. 
how  when  servant  combined  own  business  with  that  of  master, 

1895. 

how  when  servant  using  master's  appliances  on  master's  busi- 
ness, 1896. 

how  where  servant  seeking  to  facilitate  masters'  business,  1896. 
how    where    servant    under    immediate    direction    of    master's 

patron,  1897. 

not  liable  when  negligence  not  in  course  of  employment,  1898. 
departure  from  service — merely  making  detour,   1899-1904. 
resuming  service  after  departure,  1905. 
negligence  when  servant  off  duty,  1914. 
master  cannot  be  held  responsible  for  servant's  negligence  if  servant 

not  liable  himself,  2012. 
NEGOTIABLE  INSTRUMENTS, 
I.  AUTHORITY  TO  EXECUTE. 

agent  specilically  authorized  to  make  or  endorse, 
important  power  not  lightly  conferred,  969. 
not  included  in  general  grants,  969. 
how  conferred,  970. 
estoppel,  970. 
ratification,  970. 
when  implied,  971-972. 

agent  authorized  to  manage  grocery,  972. 
agent  employed  in  manufacture,  972. 
clerk,  972. 

insurance  agent,  972. 
authority  strictly  construed,  973. 

illustrations  of  acts  not  authorized,  974. 
illustrations  of  acts  authorized,  975. 
must  be  confined  to  principal's  business,  976. 

effect  of  improper  exercise,  976. 
execution  must  be  confined  to  limits  specified,  977. 
duties  of  third  persons  dealing  with  agent,  977. 
illustrations  of  rule,  977. 

2527 


INDEX 
[Reference*  are  to  auctions :  gg  1-1705,  Vol.  I;  gg  1700-2588,  Vol.  II.] 

NEGOTIABLE  INSTRUMENTS— Continued. 

negotiable  paper  delivered  to  agent  in  blank,  978. 
authority  of  manager  to  make,  998-1000. 

II.  How  EXECUTED  BY  AGENT. 

in  general,  1121. 

1.  Form  and  Interpretation. 

In  general,  1122. 

general  rule  as  to  form,  1123. 

method  of  signing,  1124-1126. 

the  negotiable  instruments  act,  1127. 
not  necessary  that  agent's  name  appear,  1128. 
not  enough  that  principal  be  named  only  in  body  of  instru- 
ment, 1129-1132. 

where  intent  to  charge  principal  is  manifest,  1133,  1134. 
effect  of  printed  headings  or  titles  on  paper,  1135. 
effect  of  corporate  seal,  1136. 

other  evidences  of  intent — direction  to  charge  to  prin- 
cipal, 1137,  1138. 

•when  no  principal  is  disclosed,  agent  is  bound  notwithstand- 
ing he  signs  as  "agent,"  1139-1142. 
negotiable  papers  drawn  upon  an  agent  and  accepted  by  him, 

1143,  1144.      ' 
negotiable  paper  drawn  payable  to  an  agent  and  indorsed 

by  him,  1145. 

paper  payable  to  cashier  of  bank,  1146. 
other  similar  cases,  1147. 
how  when  made  by  public  agents,  1148,  1149. 

2.  Admissibility  of  Parol  Evidence  to  Show  Intent. 

in  general,  1150,  1151. 

cases  holding  such  evidence  admissible,  1152-1156. 

cases  holding  such  evidence  not  admissible,  1157,  1158. 

•what  rules  applied,  1159-1161. 

the  true  rules,  1162. 

further  of  these  rules,  1163. 

III.  ACTIONS  UPON. 

undisclosed  principal  not  liable  upon,  1736. 
undisclosed  principal  cannot  sue  upon,  2065. 

NEGOTIABLE  INSTRUMENTS  ACT, 

provisions  respecting  execution  by  agent,  1127. 
liability  of  agent  under,  1395. 

NONFEASANCE, 

agent's  liability  for,  1464  et  seq. 

what  meant  by,  1464  et  seq. 

attempted  distinction  between  misfeasance  and  nonfeasance,  1456  et  seq. 

agent  liable  for  negligent  omissions  where  he  was  the  responsible  party, 

1474  o.i  seq. 

cases  in  which  agent  not  liable,  1479  et  seq. 

2528 


INDEX 
[Referenced   are  to  section*:   8§  1-1705,  Vol.  I;   §g   1706-2588,  Vol.  II.] 

NOTARY  PUBLIC, 

when  bank  liable  for  negligence  of,  employed  by  it,  1313. 

NOTE, 

x, 
see  NEGOTIABLE  INSTRUMENTS. 

agent  to  receive  payment  has  no  authority  to  accept,  946. 
agent  to  sell  property  no  authority  to  take  in  payment,  814,  895. 
agent  may  not  take  in  payment  note  running  to  himself,  814. 
possession  of,  as  implying  authority  to  collect  it,  936. 
authority  of  agent  to  endorse  or  guarantee,  889. 
NOTE  BROKERS, 

definition  of,  2364. 

liable  as  seller  where  principal  is  concealed,  2364. 

warrants  his  authority  to  sell,  2364. 

and  genuineness  of  signatures,  2364. 

but  not  solvency,  unless  he  indorses,  2364. 
NOTICE, 

I.  NOTICE  TO  AGENT  AS  NOTICE  TO  PRINCIPAL. 

general  rule — notice  to  agent  deemed  to  be  notice  to  principal,  1803 

et  seq. 

notice  acquired  during  agency,  1807. 
notice  acquired  prior  to  agency,  1808. 
exceptions  to  rule.  1.  privileged  communications,  1814. 

2.  agent  acting  adversely  to  principal,  1815-1824. 

3.  collusion  of  party  claiming  benefit  of  notice,  1826. 
who  can  avail  himself  of  notice,  1827. 

actual  and  constructive  notice,  1828,  1829. 
not  notice  when  person  not  his  agent,  1830. 

. not  notice  unless  relating  to  matters  within  agent's  authority,  1831. 

not  notice  if  received  after  agency  ceased,  1832. 
not  notice  unless  relating  to  material  matters,  1833. 
not  notice  unless  person  receiving  was  an  agent,  1834. 
notice  to  agent  of  two  principals,  1837-1839. 
notice  to  two  agents  of  same  principal,  1840. 
notice  to  subagent,  1841. 

\   how  rules  apply  to  corporate  agents,  1825,  1843. 
x^       what  officers  are  agents  within  the  rule,  1844. 
when  notice  must  be  received,  1848-1850. 
notice  to  director,  1851-1853. 
notice  to  stockholder,  1854. 

principal  suing  on   agent's  contract  how  affected  by  notice  to   or 
knowledge  of  agent,  2085. 

II.  DUTY  or  AGENT  TO  GIVE  TO  PRINCIPAL. 

agent  must  give  principal  notice  of  facts  affecting  their  relations, 

1307. 
agent  must  inform  principal  of  facts  coming  to  agent's  knowledge 

material  for  principal  to  know,  1353. 
what  sort  of  facts  within  this  rule,  1353. 

III.  OTHER  QUESTIONS. 

of  conditions  on  the  sale  of  personal  property,  860. 
159  2529 


iiNDEX 
[References  are  to  sections:  §§  1-1705,  Vol.   I;  SS  1700-2588,  Vol.  II. J 

NOTICE] — Continued. 

of  private  instructions,  854,  753,  872. 

of  limitations  on  agent's  authority,  905.^ 

sufficiency  of,  872 - 

authority  of  agent  to  waive,  903-905. 

of  general  manager  to  waive,  990. 
authority  to  receive,  907. 

NOTICE  OF  INTENTION  TO  TERMINATE  AGENCY, 
agent  may,  by  contract,  be  required  to  give,  1586. 

contract  may  provide  for  forfeiture  of  wages  if  notice  is  not  given, 

1587. 

such  contracts  must  be  reasonable  and  fair,  1587. 
what  will  work  a  forfeiture,  1588. 

NOTICE  OF  RENUNCIATION, 

must  be  given  by  agent,  649. 
NOTICE  OF  REVOCATION, 
usually  necessary,  623. 
to  agent,  624-626. 
to  subagents,  627. 
to  third  persons,  628-639. 

usually  not  necessary  when  authority  terminated  by  operation  of  law, 
701-703. 

NOTICE  TO  QUIT, 

a  (•;-.!  ouvr 

ratification  of  unauthorized,  537. 
OBEDIENCE, 

see  DUTIES  OF  AGENT  TO  PRINCIPAL;  INSTRUCTIONS. 
agent's  duty  to  obey  instructions  of  principal,  1244. 
liable  for  losses  caused  by  disobedience,  1245,  1246. 

illustrations  of  liability,  1247-1252. 
in  what  form  of  action  liable,  1253. 

when  liable  for  conversion,  1253-1257. 
how  when  agency  gratuitous,  1258,  1259. 
departure  from  instructions,  when  justified  by  sudden  emergency,  1262 

et  seg. 

how  when  departure  from  instructions  is  immaterial,  1262. 
how  when  instructions  ambiguous,  1267. 
how  matter  affected  by  custom,  1268,  1269. 
disobedience  not  presumed,  1270. 
measure  of  damages  for,  1271. 
factor  usually  must  obey  principal's  instructions  as  to  sales,  2525. 

but  not  v/here  it  would  impair  the  factor's  security  for  advances, 

2527. 
OFFICE, 

contracts  for  services  in  procuring  appointment  to,  104. 
same  rule  applies  to  private  offices  and  employments,  105. 
contracts  for    services  in  influencing  election  to,  106,  107. 

2530 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  1 5  §g  1706-2588,  Vol.  1I.J 

OFFICERS, 

see  PUBLIC  AGENTS;  PUBLIC  OFFICERS. 

corporate,  employment  in  corruption  of,  void,  118. 

public,  employment  for  corruption  of,  void,  119. 
OPTIONS, 

ratification  of,  unauthorized,  538. 

agent  authorized  to  sell  land  has  no  authority  to  give  an  option,  819. 
ORAL  CONTRACTS, 

how  to  be  executed  by  agent,  1179. 

principal  presumptively  bound  on,  when  agency  disclosed,  1180. 

agent  may  bind  himself  by  special  agreement,  1181. 

how  decided  whether  he  has,  1182. 

authority  of  insurance  agent  to  make,  1055. 
OSTENSIBLE  AGENCY, 

agencies  classified  into  actual  and  ostensible,  77. 
OSTENSIBLE  AGENT, 

liability  where  he  is  really  principal,  1403. 

• 
OSTENSIBLE  AUTHORITY, 

what  meant  by,  720,  721. 
OSTENSIBLE  OWNER, 

payment  to  agent  as,  867. 
sales  by,  848  et  seq. 

OTHER  EMPLOYMENT, 

duty  of  agent  or  servant  to  seek  when  wrongfully  discharged,  1559. 
seek  where,  1559. 
with  whom,  1559. 
with  former  employer,  1560.     . 
what  sort,  1561. 
work  for  himself,  1562. 
OWNERSHIP, 

apparent,  distinguished  from  apparent  agency,  848. 

PARDONS, 

validity  of  employment  to  procure,  108. 

validity  of  employment  to  procure  when  conviction  illegal,  109. 

PARENT, 

child  as  agent  of,  156. 

as  agent  of  child,  157. 
PAROL  AUTHORITY, 

when  sufficient, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS. 
PAROL  EVIDENCE, 

to  show  agent's  authority,  260. 

admissibility  of  in  explaining  written  authority,  770,  778, 

can  not  enlarge  authority,  774. 

can  not  contradict  a  writing,  775. 

2531 


INDEX 
[Reference*  are  to  Motion*:  §§  1-1705,  Vol.  I;  gg  1706-2588,  Vol.  II.] 

PARQL  EVIDENCE—  Continued. 

admissibility  to  show  liability  on  negotiable  Instruments,  1150  et  seq. 

on  other  written  contracts,  1176  et  seq. 
may  be  used  to  identify  undisclosed  principal,  1733. 
PART  PAYMENT, 

agent  to  collect  has  no  authority  to  accept  part  payment,  955. 
PARTITION, 

agent  authorized  to  sell  and  convey  land  has  no  authority  to  authorize 
a  partition  of  the  land,  822. 

PARTNERS, 

may  ratify,  369. 
PARTNERSHIPS, 

differs  from  agency,  51. 

as  principal,  132. 

as  agents,  174. 

as  joint  principals,  185. 

ratification  of  deeds  by,  421. 

dissolution  of,  as  terminating  employment,  1567. 

a.  jBdw 
PASSENGERS, 

liability  of  carrier  for  servants'  assaults  upon,  1933  et  seq. 
liability  to  other  patrons  than  passengers,  1941. 

PATENTS  AND  INVENTIONS, 

made  or  acquired  by  agent  when  belong  to  principal,  1214. 

PAWNBROKERS, 

authority  and  duties  of,  2382. 

PAYMENT— COLLECTION  OR  RECEIPT  OF, 
I.  AUTHORITY  OF  AGENT  FOR. 
in  general. 

what  involved,  932. 
what  constitutes  such  authority,  933. 
when  implied  from  having  sold  the  goods,  863. 
when  implied  from  making  the  loan  or  negotiating  the  contract, 
934. 

payment  in  face  of  notice,  934,  n. 
when  implied  from  possession  of  the  securities,  935. 

possession  by  agent  who  negotiated  loan,  936. 

possession  indispensable,  937. 
authority  by  conduct  independent  of  possession,  938. 

estoppel,  939. 

limitations,  940. 

payment  to  agent  as  owner  of  record,  941. 
payment  to  agent  as  ostensible  principal,  942. 
when  implied  from  having  sold  the  goods  or  land,  944,  863,  814. 
authority  of  travelling  salesmen  to  accept,  870. 
authority  of  general  manager  to  receive,  996. 
authority  of  lending  agent  to  receive,  1034. 

2532 


INDEX 
[Reference*  are  to  section*:  §g   1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 

PAYMENT— COLLECTION  OR  RECEIPT  OF— Continued. 

implied  authority  of  broker  to  receive,  2405. 

implied  authority  of  attorney  at  law  to  receive,  2180  et  seq. 

of  factor  to  receive,  2508. 
II.  IMPLIED  AUTHORITY  RESULTING. 

to  receive  proceeds  of  securities  entrusted  to  agent  for  delivery,  943 
receive  principal,  when  receipt  of  interest  is  authorized,  945. 
receive  other  than  money,  946-951. 

note  or  bond,  895,  946. 

personal  property,  946. 

services,  946. 

where  debt  is  expressly  payable  in  goods,  947. 

enlarged  authority — by  conduct  or  ratification,  948. 

accept  checks,  certificates  of  deposit,  etc.,  949. 

bank  deposit,  950. 

<-     or-. 

conditional  payment,  951. 
indorse  and  collect  check  or  note,  952,  953. 
release  or  compromise  the  debt,  954. 
release  liens,  954. 
discharge  sureties,  954. 
surrender  securities,  954. 
admit  counterclaims,  954. 
accept  surrender  of  lease,  954. 
consent  to  discharge  of  tenant,  954. 
receive  part  payment,  955. 
extend  time,  956. 

change  terms  of  the  contract,  957. 
surrender  contract,  957. 
consent  to  substitution  of  debtors,  957. 
receive  before  due,  958. 
accelerate  maturity,  959. 
sell  or  dispose  of  debt,  960. 
deal  with  funds  collected,  961. 
give  receipt  or  discharge,  962. 
sue,  963. 

in  his  own  name,  964. 
foreclose  mortgage,  965. 
submit  claim  to  arbitration,  966. 
employ  counsel,  967. 
employ  subagents,  968. 
PECUNIARY  ABILITY, 

of  purchaser,  when  broker  must  show,  2441. 
PENAL  LIABILITY, 

of  principal  or  master  for  acts  of  agent  or  servant,  2006  et  seq. 
PERMANENT  EMPLOYMENT, 

contracts  for,  604. 
PER  PROCURATION, 

effect  of  agent's  so  signing,  707. 

2533 


INDEX 
[RefereBCea  are  to  Mections:  §§  1-1705,  Vol.  I)  R«  1706-2588,  Vol.  IT.] 

PERSONAL  CONFIDENCE  OR  DUTY, 

cannot  be  delegated,  124-126. 
PERSONAL  INJURIES, 

right  of  agent  to  recover  against  principal  for,  gee  RIGHTS  OF  AGENT 

AGAINST  PRINCIPAL,  MASTER,  NEGLIGENCE. 

right  of  third  person  to  recover  against  principal  or  master  for  injuries 
caused  to  them  by  his  servant  or  agent,  see  LIABILITY  OF  PRINCIPAL  TO 
THIRD  PERSONS,  MASTER,  NEGLIGENCE. 
right  of  principal  or  master  to  recover  against  third  persons  for  injuries 

to  his  servant  or  agent,  2135. 
PERSONAL  LIABILITY, 

of  agent  upon  sealed  instruments,  see  DEEDS.     . 
upon  bills  and  notes,  see  NEGOTIABLE  INSTRUMENTS. 
upon  written  contracts,  see  CONTRACTS,    1.  "Written  Contracts. 
for  acting  without  authority,  concealing  principal,  pledging  his  own  re- 
sponsibility, etc.,  see  LIABILITY  OF  AGENT  TO  THIRD  PERSONS. 
agent   not   personally    responsible   upon   contracts   made   in   principal's 

name,  1357. 

is  liable  where  he  uses  apt  words  to  charge  himself,  1408. 
PERSONAL  MALICE, 

principal  or  master  not  liable  for  agent's  or  servant's,  1953. 
PERSONAL  PROPERTY, 

authority  of  agent  authorized  to  sell  personal  property. 

see  SALE  OF  PERSONALTY. 
authority  of  agent  authorized  for  purchase  of. 

see  PURCHASE  OF  PERSONAL  PROPERTY. 
PERSONAL  SUPPLIES, 

authority  of  traveling  salesman  to  procure,  878. 
PERSONAL  TRUST, 

cannot  be  delegated,  124-126. 

PHYSICIAN, 

employment  by  agent  for  principal  in  emergency,  341. 
PLEDGE, 

authority  of  stock  broker  to  repledge,  2389,  2409. 

agent  authorized  to  sell  goods  has  no  authority  to  pledge  them,  897. 

authority  of  agent  to  pledge  principal's  property  in  case  of  agent  to  man- 
age business,  1004. 

implied  authority  of  factor  to,  2509. 

how  under  factor's  acts,  2511. 
POSSESSION, 

of  securities,  as  implying  authority  to  collect,  935,  936,  937. 

POSTMASTER, 

not  liable  for  neglect  or  default  of  clerks  and  assistants,  1503. 
unless  negligent  in  selecting  them,  1503. 
or  in  requiring  them  to  properly  qualify,  1503. 

2534 


INDEX 
[Reference*  are  to  sections:  g§  1-1705,  Vol.  I;  gg  1706-2R88,  Vol.  II.] 

POSTMASTER— Continued. 

or  in  superintending  affairs  of  his  office,  1503. 

or  unless  he  co-operates  in,  or  authorizes  the  act,  1503. 

POST  OFFICE, 

contracts  to  procure  location  of,  when  valid,  98,  n. 

POWER  OF  ATTORNEY, 
denned,  35. 

subsequently  granted  as  act  of  ratification,  425. 
formalities  in,  to  sell  land,  212,  n. 
presumption  of  in  case  of  ancient  deed,  212,  n. 

power  insufficient  to  support  deed  may  sustain  contract  to  sell,  798,  n. 
to  sell  land, 

see  SALE  OF  LAND. 
POWER  COUPLED  WITH  INTEREST, 

what  meant  by,  570,  655. 
PRESUMPTION, 

of  agency  based  on  ordinary  course  of  conduct — answering  letters,  tele- 
phone, etc.,  268. 

that  known  agent,  acting  as  such,  does  not  intend  to  bind  himself  person- 
ally, 1168,  1492. 

that  appearance  by  attorney  at  law  is  authorized,  2152. 
PRICE, 

authority  of  agent  to  fix  price,  854-857. 

authority  of  agent  to  purchase  goods  to  agree  upon  the  price,  922. 
limitations  on  the  authority,  922. 
private  instructions,  922. 
general  agent,  922. 

implied  authority  of  broker  to  fix,  2401. 
authority  of  agent  to  fix  price. 

agent  to  sell  personal  property,  855-857. 
railway  ticket  agent,  855. 
clerk,  855. 

traveling  salesman,  855. 

how  affected  by  the  possession  of  chattel,  856. 
statement  of  the  rule,  857. 
authority  of  agent  to  state  price — as  distinguished  from  authority  to  fix 

it,  855. 

agent  to  sell  personal  property, 
consequences  of  mistake,  855. 
reliance  on  price  stated,  855. 
intentional  misstatement,  855. 
future  prices,  855. 

effect  of  agent's  possession  of  chattel,  856. 
restrictions  as  to  price,  85C. 

authority  of  agent  to  guarantee  particular  prices, 
agent  to  sell  personal  property,  900. 

2535 


INDEX 
[Reference*  are  to  flection*:  §§  1-1705,  Vol.  I;  gg  1704J-2588,  Vol.  II.] 

PRICE — Continued. 

duty  of  factor  as  to,  in  selling,  2540. 

in  collecting,  2541. 
right  to  sue  for,  2568. 
PRINCIPAL, 

who  may  be — in  general  any  person,  129. 
private  corporations,  130. 
public  corporations,  131. 
partnerships,  132. 

persons  of  unsound  mind — idiots,  lunatics,  habitual  drunkards,  etc. — 

naturally  incompetent,  134-13.7. 
infants  legally  incompetent  as  principals,  140-147. 
married  woman  not  legally  competent  as  principal  at  common  law — 

now  generally  by  statute,  148-150. 
aliens — alien  enemies,  151. 
PRINCIPAL  SUM, 

authority  to  receive  not  implied  from  authority  to  receive  interest,  945. 
PRIVATE  DETECTIVES, 

liability  of  principal  or  master  for  unauthorized  arrests  or  imprison- 
ments, 1937,  1973.  ;MI  terfj 
PRIVATE  POLICEMAN, 

liability  of  principal  or  master  for  unauthorized  arrests  or  imprison- 
ments, 1937,  1973. 
PRIVATE  INSTRUCTIONS, 

instructions  regarding  price  as,  855. 

no  effect  on  purchasers  without  notice,  854. 

effect  upon  authority. 

agent  authorized  to  sell  personal  property,  854. 
as  effecting  authority  of  agent  to  agree  upon  price,  922. 

PRIVATE  SALE, 
sale  of  goods  at. 

invalid  under  authority  to  sell  at  auctions  only,  853. 
PRIVILEGED  COMMUNICATIONS, 

confidential    communications    between    attorney    and    client    privileged, 

2297,  2298. 
what  communications  included. 

by  client  to  attorney,  2299,  2300. 
by  attorney  to  client,  2301. 
under  what  circumstances  privileged — no  suit  must  be  pending — must  be 

confidential,  2302. 
criminal  acts,  2303. 
fraudulent  or  illegal  acts,  2304. 
non-confidential  communications,  2305. 
non-professional  employments,  2306. 
collateral  facts,  2307. 

relation  of  attorney  and  client  must  exist,  2308. 
attorney  as  scrivener,  2309. 

2536 


INDEX 
[Reference*  are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

PRIVILEGED  COMMUNICATIONS— Continued. 

communications  must  have  been  made  to  an  attorney,  2310. 
privilege  is  the  client's  waiver,  2311. 
how  long  it  continues,  2312. 

attorney  may  discharge  for  his  own  protection,  2313. 
PRIVITY, 

between  principal  and  subagent,  330,  331. 

between  principal  and  persons  employed  for  principal  by  agent,  342. 
PROCEEDS, 

receiving,  as  ratification,  437. 
PROFITS, 

made  by  agent,  when  belong  to  principal,  1224  et  seq. 

see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 
PROMISSORY  NOTES, 

see  NEGOTIABLE  INSTRUMENTS,  NEGOTIABLE  PAPER,  NOTES. 
PROMOTERS, 

personal  liability,  of,  1383. 
PROPERTY, 

principal's  title  to  ordinarily  not  divested  but  by  his  authority,  2107. 
principal's  right  to  recover  property  disposed  of  by  agent  in  excess  of 

authority,  2108. 
principal's  right  to  recover  when  wrongfully  disposed  of  by  one  alleged 

to  be  ostensible  agent  or  owner,  2109. 
possession  as  evidence  of  ownership  or  authority,  2110. 
possession  confided  to  recognized  sales  agent,  2112. 
possession  coupled  with  indicia  of  ownership,  2115. 
possession  of  documents  of  title,  2119  et  seq. 
paper  title  put  in  agent's  name,  2123  et  seq. 

notice  of  principal's  rights  from  descriptive  words  in  documents, 

2126. 

possession  under  factor's  acts,  2128. 
right  of  principal  to  recover  property  received  or  seized  in  payment  of 

agent's  debts,  2129. 

principal's  right  to  recover  securities  wrongfully  released,  2130. 
principal's  right  to  recover  property  sold  to  third  persons  for  agent's 

benefit,  2131. 

duty  of  agent  to  account  for,  1327  et  seq. 
care  of, 

see  CARE  OF  PROPERTY. 
PROSECUTIONS, 

agreement  by  attorney  to  defend  future  prosecutions,  103. 
liability  of  principal  for  unfounded  prosecutions  by  agent,  1975. 
PUBLIC  AGENCY, 

may  be  executed  by  a  majority,  199. 

but  all  must  be  present  or  have  opportunity  to  be  present,  199,  200. 
and  no  unfair  means  resorted  to,  199,  200. 
•when  not  revocable  at  will  of  principal,  640. 

2537 


INDEX 
[Reference*  are  to  section*:   §§  1-1705,  Vol.  I)  §§   1706-2G8S,  Vol.  II.] 

PUBLIC  AGENTS, 

persons  dealing  with,  must  ascertain  authority,  763. 

may  bind  themselves  personally  by  express  agreement,  1428. 

when  bound  on  negotiable  instruments,  1148. 

liability  of  for  their  own  torts,  1490  et  seq. 

liability  for  torts  of  their  official  subordinates,  1502  et  seq. 

liability  for  torts  of  their  private  servants  or  agents,  1506. 

PUBLIC  OFFICERS, 

see  PUBLIC  AGENTS,  GOVERNMENTAL  OFFICERS,  JUDICIAL  OFFICERS,  QUASI- 
JUDICIAL  OFFICERS,  LEGISLATIVE  OFFICERS,  MINISTERIAL  OFFICERS. 
liability  of,  for  acts  of  their  official  subordinates,  1502  et  scq. 
liability  of  for  torts  of  their  private  servants  or  agents,  1506. 

PUBLIC  POLICY, 

contracts  of  agency  opposed  to, 

see  AGENCY — FOB  WHAT  PURPOSES  CREATED. 

PUBLIC  USE, 

dedication  of  property  to. 
see  DEDICATION. 

PURCHASE, 

agent  to  make,  may  not  purchase  for  himself,  1192. 

may  not  purchase  of  himself,  1205. 

- 

liability  for  neglect  in,  1326. 

agent  authorized  to  sell  has  no  implied  power  to,  896. 

PURCHASE  OF  LAND, 

I.  AUTHORITY  OF  AGENT  FOB. 

in  general. 

how  conferred,  230. 

when  authority  exists,  841. 

when  implied,  841. 

how  conferred,  230,  841. 

usually  specially  conferred,  841. 

usually  a  special  authority,  843. 

delegation  of  the  authority,  843. 

II.  IMPLIED  AUTHORITY  RESULTING. 

to  agree  upon  terms,  843. 
assume  a  mortgage,  846. 
bind  principal  for  ordinary  expenses,  844. 

abstract  charges,  844. 

attorney's  fees,  844. 

recording  fee,  844. 
make  binding  contract,  842. 
mortgage,  847. 
receive  deed,  845. 

must  be  in  principal's  name,  846. 
sell,  847. 

2538 


INDEX 
[References  are  to  flections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

PURCHASE  OF  PERSONAL  PROPERTY, 

I.  AUTHORITY  or  AGENT  FOB. 

in  general. 

when  authority  exists,  908. 
conferred  by  parol,  238. 
when  power  is  essential,  908. 

101 

when  power  usually  exists,  90% 

f)   ^.r:-;>   nl 

authority  from  conducut,  909. 

limitations,  910. 
ratification,  911. 
may  be  exercised  only  for  principal,  931. 

II.  IMPLIED  AUTHORITY  RESULTING. 

to  buy  on  credit,  913-918. 

when  supplied  with  funds,  914-917. 
when  not  furnished  with  funds,  918. 
agree  upon  terms  of  sale,  919. 
select  seller,  919. 
select  particular  goods,  919. 
fix  time  and  method  of  delivery,  919. 
acknowledge  receipt  of  goods,  919. 
acknowledge  indebtedness,  919. 
agree  upon  price,  919-922. 

effect  of  market  price,  922. 

reasonable  price,  922. 

private  instruction,  922. 

duty  of  seller,  922. 

effect  of  place  and  circumstances,  922. 
limitations  on  the  authority,  919-923. 

limits  as  to  quantity,  920. 

limits  as  to  quality,  921. 

limits  as  to  species,  921. 

limits  as  to  price,  922. 

limits  as  to  persons  with  whom  he  may  deal,  923. 
make  representations  as  to  principal's  credit,  924. 
borrow  money  to  pay  for  goods,  925. 

t  O  0  '   i  >   .  ,*S 

execute  negotiable  paper,  926. 

guarantee  payment  by  his  vendor,  927. 

sell  goods,  928. 

alter  or  cancel  contract,  929. 

make  admissions  subsequent  to  purchase,  930. 

buy  for  himself,  931. 

PURPOSES  OF  AGENCY, 

see  AGENCY — FOR  WHAT  PURPOSES  CREATED. 

QUALITY, 

warranty  of,  by  agent  authorized  to  sell  personal  property,  880,  881. 
representations  concerning,  by  agent  to  sell,  809. 

2539 


INDEX 
[Reference*  are  to  Meetlong:  §§  1-1705,  Vol.  I)  SS  17O6-2B88,  Tol.  II.] 

QUANTITY, 

agent  to  buy  or  sell  may  not  exceed  limits  of  his  authority  regarding, 

920.  921. 

representations  of  selling  agent  as  to,  809. 
QUANTUM  MERUIT, 

for  services  rendered  when  no  contract,  1526. 
in  case  of  attorneys,  see  ATTORNEYS  AT  LAW. 
brokers,  see  BROKERS. 

QUASI-CONTRACT, 

personal  liability  of  agent  in,  to  third  persons,  1430  et  seq. 
QUASI-JUDICIAL  OFFICERS, 

usually  exempt  from  civil  liaiblity  for  official  action,  1497. 
QUORUM, 

majority  of,  when  may  execute  joint  public  agency,  200. 
RAILWAY  SUPERINTENDENT, 

authority  to  employ  physician,  994. 
RATIFICATION, 

I.  DEFINED,  347. 

not  authorization,  348. 

differs  from  estoppel,  349. 

not  contract,  350. 

no  new  consideration  required  for,  351. 

wholly  optional  with  principal,  352. 

II.  WHAT  ACTS  MAY  BE  RATIFIED. 

general  rule,  354. 

what  acts  need  ratification,  355. 

waiver  rather  than  ratification,  356. 
torts  as  well  as  contracts  may  be  ratified,  357. 
and  voidable  acts,  but  not  void  acts,  358. 
nor  illegal  acts,  359. 
forgery,  360-363. 

III.  WHO  MAY  RATIFY. 
general  rule,  365. 
state  may  ratify,  366. 
municipal  corporations,  367. 
private  corporations,  368. 
partners,  369. 

infants,  370,  142. 

insane  person, — person  under  duress,  371,  138. 

married  woman,  372. 

executor,  administrator,  etc.,  373. 

when  agent  may  ratify,  374. 

* " 

subagent,  375. 

IV.  CONDITIONS  OF  RATIFICATION. 
must  be  satisfied,  376. 

principal  must  have  been  identified,  377. 

2540 


INDEX 
are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.J 

RATIFICATION— Continued. 

and  must  have  been  in  existence,  378. 

administrator,  assignee,  etc.,  379. 

corporations  subsequently  organized,  380-383. 
transaction  must  still  stand,  384. 
principal  must  have  present  ability,  385. 
act  must  have  been  done  as  agent,  386-392. 
principal  must  have  knowledge  of  material  facts,  393-396. 

what  facts  material,  397. 

illustrations,  398-402. 

actual  knowledge  required,  403. 

wilful  ignorance,  404. 

presumption  of  knowledge,  405. 

knowledge  inferred  from  facts,  406. 

imputed  knowledge,  407. 

duty  to  inquire,  408. 

effect  of  ratification  without  knowledge,  409. 
no  ratification  of  part  of  act  only,  410. 

responsibility  for  instrumentalities  employed,  411.     ' 

limitations — collateral  contracts,  412,  413. 

collateral  stipulations  which  makes  whole  contract  illegal,  414. 

divisible  acts — involuntary  receipt,  415. 
intention  to  ratify,  416. 
V.  WHAT  AMOUNTS  TO  A. 
general  rule,  419. 
deed  at  common  law  ratified  only  by  instrument  under  seal,  420. 

rule  relaxed  in  partnership  cases,  421. 

Massachusetts  rule,  422. 

modern  rule  more  liberal,  423. 

unnecessary  seal  may  be  disregarded,  424. 

by  power  of  attorney  subsequently  granted,  425. 
where  authority  must  be  conferred  by  writing,  ratification  in  writing 

necessary,  426,  427. 

written  ratification  not  otherwise  required,  428. 
"lawfully  authorized"  under  statute  of  frauds,  429. 
implied  ratification— in  general,  430. 
variety  of  methods  of  implied  ratification,  431. 
by  declaring  approval,  432. 
by  proceeding  to  perform,  433. 
by  accepting  benefits,  434. 

must  take  benefits  with  burdens,  435. 

duty  to  restore  what  he  has  received,  436. 

principal  must  have  received  proceeds — money  apparently  free 
from  trust,  437. 

knowledge  of  facts  indispensable,  438. 

acceptance  and  receipt  must  have  been  voluntary  and  confirma 
tory,  439. 

2541 


[Reference*  are  to  H«-ctlon«:  §§  1-1705,  Vol.  Ij  §§  170(5-2588,  Vol.  II.] 

RATIFICATION— Continued. 

mere  efforts  to  avoid  loss  no  ratification,  440. 
illustrations,  441-445. 

by  bringing  suits  based  on  validity  of  agent's  act,  446. 
illustrations,  447,  448. 

suits  based  on  invalidity  of  agent's  act  no  ratification,  449. 
delay  in  suing  to  disaffirm,  450. 
by  acquiescence,  451. 
what  meant  by,  452. 

mere  silence  or  failure  to  repudiate,  453. 
how  differs  from  estoppel,  454,  455. 
other  statements  of  the  rule,  457. 
relations  of  the  parties,  458. 

failure  to  dissent  as  between  principal  and  age"nt,  460,  459. 
as  between  principal  and  other  party,  461,  462. 
principal  must  act  within  a  reasonable  time,  463. 
same  rule  applies  to  private  corporations,  464. 
and  to  municipal  and  g-wasi-municipal  corporations,  465. 
how  when  assumed  agent  is  a  mere  stranger,  466-468. 
silence  does  not  ratify  if  stranger  acts  in  his  own  name,  469. 
how  when  former  agent  continues  to  act,  470. 
acquiescence  coupled  with  conduct  inconsistent  with  disapproval, 

471. 

Illustrations  of  ratification  by  acquiescence,  472-474. 
retaining  in  employment  as  ratification,  475. 
rule  of  ratification  by  acquiescence  applies  only  to  principals. 

476. 
manifestation  necessary,  477. 

to  whom,  478. 

must  be  proved — burden  of  proof,  479. 
amount  of  proof,  480. 
court  or  jury,  481. 
VI.  RESULTS  OF. 

in  general,  483-489. 

usually  equivalent  to  precedent  authority,  483-485. 
cannot  affect  intervening  rights  of  third  persons,  486,  487. 
law  of  what  place  governs,  488. 

ratification  irrevocable — changing  repudiation  to  ratification,  489. 
results — as  between  principal  and  agent — in  general,  490. 
general  effect — releases  agent  from  liability,  491. 
limitations,  492,  493. 
methods  of  ratification,  494. 
ratification  of  entire  act,  495. 
knowledge  of  facts,  496. 
agent's  motives  unimportant,  497. 
acts  of  ratification  liberally  construed,  498. 
releases  liability  for  subagent,  499. 
2542 


INDEX 
[Reference!*   are  to  sections:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

RATIFICATION— Continued. 

gives   agent   claim   for   compensation   and   reimbursement,   500, 

1521. 

entitles  principal  to  benefits  as  against  agent,  501. 
results — as  between  principal  and  other  party  in  general,  502. 

a.  when  other  party  against  principal. 

considerations  involved,  503. 

1.  in  contract  cases,  504,  505. 

2.  in  tort  cases,  506,  507. 

b.  principal  against  other  party. 

what  considerations  involved  here,  508. 

1.  in  contract — right  of  principal  to  ratify  and  enforce 

unauthorized  contract,  509,  510. 
where   agent   and   other   party   have   attempted   to 

cancel,  511,  512. 

where  other  party  has  attempted  to  withdraw,  511. 
where  no  such  action  has  been  had,  514. 
the  Wisconsin  cases,  515. 
the  English  cases,  516-518. 
American  cases,  519-521. 

rules  compared — the  weight  of  authority,  522. 
applications  of  the  rule,  523-526. 

2.  in  tort  cases,  527. 

3.  other  acts  creating  rights  or  duties,  528. 

actions,  ratification  of  unauthorized,  529. 

assignment  of  causes  of  action,  530. 

adding  parties  to  existing  actions,  531. 

attachment  affidavits  and  bonds,  532. 

declarations  of  maturity  to  accelerate  action,  533. 

demand  of  payment,  delivery,  etc.,  534. 

notice  of  abandonment,  535. 

notice  of  dishonor,  536. 

notice  to  quit,  537. 

options,  538. 

stoppage  in  transit,  539. 
results — as  between  agent  and  other  party, 
in  general,  540,  541. 

ratification  generally  •  releases  agent  in  contract  cases,  542. 
limitations — ratification    after    suit    has    begun — change   In 

conditions,  543. 
failure  of  the  ratification,  544. 

ratification  releases  agent  on  justifiable  trespass,  545. 
in  other  tort  cases,  ratification  does  not  release  agent  but 
charges  principal,  546. 

REAL  ESTATE  BROKER, 

when  entitled  to  commissions,  2428. 
must  show  employment,  2426. 

2543 


INDEX 
[Reference*  are  to  flection* t  §§  1-1705,  Vol.  Ij  §§  1700  2588,  Vol.  II.] 

REAL  ESTATE  BROKER— Continued. 

must  have  performed  undertaking,  2427. 
What  it  is,  2428,  2429. 

usually  need  not  close  binding  contract,  2430. 
enough  to  find  buyer  "ready,  willing  and  able,"  2430. 
when  is  such  buyer  "found,"  2431  et  seq. 
broker  must  be  procuring  cause,  2435. 
buyer  found  must  be  on  terms  required,  2437. 

within  time  limited,  2439. 
readiness  and  willingness  to  buy,  2440. 
pecuniary  responsibility,  2441. 

must  show  sale,  not  mere  option,  exchange,  etc.,  2443. 
principal  may  make  sale  himself  although  broker  employed,  2445. 
\   fc»j     unless  he  has  surrendered  that  right,  2445. 

what  acts  do  not  defeat  broker's  claim,  2447. 
m  revocation  of  broker's  authority  before  sale,  2449. 

contracts  giving  definite  time,  2450  et  seq. 
employment  of  two  or  more  brokers.,  2456. 
which  one  entitled  to  commission,  2457. 
interpleader  of,  2458. 
how  much  compensation  broker  entitled  to,  2461. 

quantum  meruit,  2461. 
when  commission  payable,  2462. 

has  no  authority  to  make  binding  contract  for  sale  of  land,  797. 
or  to  execute  deed  of  conveyance,  797. 
REAL  PROPERTY, 

see  SALE  OF  LAND;  LAND. 
REASONABLE  VALUE, 

of  services  when  no  contract,  1526. 
REBATES, 

when  principal  entitled  to  rebates  acquired  by  agent,  1227  et  seq. 

see  LOYALTY;  DUTIFS  OF  AGENT  TO  PRINCIPAL. 
RECEIPT, 

agent  to  collect  may  give  receipt,  962. 
RECEIVE  PAYMENT, 

authority  of  agent  to,  see  PAYMENT. 

RECORDING, 

of  written  authority  of  agent,  when  required,  213,  n,  224. 
RECOUPMENT, 

principal  may  recoup  damages  for  agent's  or  servant's  negligence  when 

latter  sues  for  his  compensation,  1293. 
damages  for  non-performance,  1594. 

what  damages  may  be  recouped,  1595. 

right  not  cut  off  by  assignment,  1598. 

none  against  infant,  1599. 

agent's  right  of,  when  sued  on  contract  made  for  principal,  1429. 

right  of  principal  against  auctioneer,  2350. 

2544 


INDEX 
[References  are  to  sections:   §§   1-1705,  Vol.  I;  §§   1706-2588,   Vol.  IT.] 

REIMBURSEMENT, 

agent  entitled  to  be  reimbursed  for  proper  outlays  in  behalf  of  principal, 

1600  et  seq. 
not  for  unnecessary  or  unreasonable  outlays  or  outlays  caused  by 

his  own  misconduct,  1601'. 
subagent  when  entitled  to,  1703. 
unauthorized  agent,  if  act  ratified,  500. 
of  broker,  2480. 
of  auctioneer,  2349. 
of  factor,  2554. 

RELEASE, 

agent  authorized  to  sell  personal  property,  no  authority  to,  901,  902. 

REMOVAL  OF  ACTIONS, 

from  state  to  federal  courts,  how  affected  by  joining  servant  or  agent  as 
party,  2011,  n. 

RENT, 

see  LEASE. 

authority  by  parol  to  demand  and  collect,  232. 
RENUNCIATION  OF  AGENCY, 

agent  may  generally  renounce  at  any  time,  641. 
specific  performance  not  granted,  642. 
injunction  to  prevent,  642,  643. 
by  mutual  consent,  645. 

lawful  if  agent  required  to  do  illegal  acts,  647. 
justified  by  principal's  misconduct,  648. 
when  notice  of,  must  be  given,  649. 
REPAIR, 

liability  of  principal  or  master  to  agent  or  servant  for  failure  to  repair 

as  agreed,  1630,  1631. 
REPRESENTATIONS, 

liability  of  principal  for  agent's  representations,  declarations,  and  state- 
ments, 1776  et  scq. 
see  STATEMENTS. 
liability  of  principal  for  agent's  representation  concerning  extrinsic  acts 

upon  which  authority  depends,  1800. 
illustrations — bills   of   lading,   warehouse    receipts — certified   checks, 

1801. 
authority  of  agent  to  sell  goods  to  make  representations  concerning 

them,  890. 

respecting  quality  and  value  of  land,  809. 
respecting  title  to  land,  809. 

REPUDIATION, 

may  be  changed  to  ratification,  489. 

REPUTATION, 

general,  may  not  be  used  to  prove  agency,  290. 
160  2545 


INDEX 
IKeferenceM  are  to  aectiomn  gg  1-17O5,  Vol.  Ij  gg  1700-2588,  Vol.  II.] 

RESCIND, 

auctioneer — no  implied  authority  to,  2329. 

agent  to  sell  personal  property  has  no  implied  authority  to,  902. 

agent  authorized  to  make  contract  for  sale  of  land  has  no  implied  au- 
thority to,  827. 

factor  has  no  implied  authority  to,  2517. 
RES  GESTAE, 

admissibility  of  agent's  admissions,  declarations,  or  statements  as  con- 
stituting part  of  res  gestae,  1781,  1793. 

two  uses  of  the  phrase,  1782,  1794. 

what  sort  of  statements  admissible,  1783,  1795. 

illustrations  of,  1798,  1799. 

RESIGNATION, 

ea  j.request  for,  equivalent  to  discharge,  615. 

RESPONSIBLE  PRINCIPAL, 

personal  liability  of  agent  where  no  legally  responsible  principal,  1418. 
RESPONSIBLE  PURCHASER, 

duty  of  agent  to  sell  to,  1324. 

factor's  duty  to  sell  only  to,  2533. 
RESTRICTIVE  INDORSEMENTS, 

charge  third  persons  with  owner's  rights,  2104. 

principal  may  claim  and  recover  proceeds,  2104. 

RESTRAINT  OF  TRADE, 
employments  in,  113. 

RETAIN  TITLE, 

right  of  agent  who  has  bought  goods  on  his  own  credit  for  principal  to 
retain  title  until  paid  for,  1700. 

REVOCATION  OF  AUTHORITY, 

see  TERMINATION  OF  RELATION. 

authority  generally  revocable  by  principal  at  any  time 
that  authority  called  "exclusive"  or  "irrevocable"  makes  no  difference, 

565. 
rule  applies  though  agent  employed  for  a  definite  time,  566. 

but  principal  liable  for  breach  of  contract,  568. 
exceptions  "authority  coupled  with  interest,"  570-575. 
authority  given  as  security,  576,  589-591. 
authority  forming  part  of  contract,  577. 
authority  given  for  a  valuable  consideration,  578. 
authority  coupled  with  an  obligation,  579,  580. 
illustrations  of  these  rules,  585-587. 
how  authority  revoked,  613-622. 
notice  of  revocation,  623-639. 

REWARDS, 

when  principal  entitled  to  rewards  acquired  by  agent,  1227  et  seq. 
see  LOYALTY;  DUTIES  OF  AGENT  TO 

2546 


5,  563. 


INDEX 
[References   are  to  sections:   §§  1-1705,  Vol.  I;   §§   1706-2588,  Vol.  II.] 

RIGHTS  OF  AGENT  AGAINST  PRINCIPAL, 
I.  THE  AGENT'S  RIGHT  TO  EMPLOYMENT. 

agent's  right  to  be  received  into  the  employment,  1509. 

agent's  right  to  be  given  work  to  do,  1510. 

how  agent's  right  to  compensation  is  dependent  upon  work  done, 

1511. 
II.  THE  AGENT'S  RIGHT  TO  PAYMENT  OF  COMPENSATION. 

1.  Agent's  Right  to  Compensation. 

agreement  to  pay  compensation  may  be  express  or  implied,  1513. 

express  agreement  is  conclusive,  1514. 

when  agreement  must  be  express,  1515. 

when  agreement  to  pay  will  not  be  implied,  1516,  1517. 

when  agreement  will  be  implied,  1518-1520. 

unauthorized  agent  entitled  to  compensation  if  acts  are  ratified, 

1521. 

when  agent  can  recover  for  extra  services,  Io22. 
agent  cannot  recover  compensation  if  agency  was  unlawful,  1523. 

2.  The  Amount  of  the  Compensation. 

express  contract  governs,  1524. 
may  be  left  for  principal  to  determine,  1525. 
how  amount  determined  in  absence  of  express  agreement — mar- 
ket— usage — reasonable  value,  1526. 
what  elements  may  be  considered,  1527. 
what  evidence  as  to  value  is  admissible,  1528,  1529. 
agency  continuing  after  expiration  of  term  presumed  to  be  at 

prior  compensation,  1530. 
S.  When  Compensation  Deemed  Earned. 

compensation  considered  earned  when   undertaking  fully  com- 
pleted, 1532. 

when  full  performance  a  condition  precedent,  1533,  1534. 
agent's  right  to  compensation  not  defeated  by  principal's  default, 

1535-1537. 

no  defense  that  principal  realized  no  profit,  1538. 
4.  Effect  of  Termination  of  Agency. 

a.  Termination  by  Act  of  Principal. 

when  agent  entitled  to  compensation  If  agency  is  terminated 

before  performance,  1539,  1540. 
(1)  Agency  Rightfully  Terminated. 

when  agency  may  be  terminated  without  liability, 

1541. 

agency  at  will  of  principal,  1542,  1543. 
agency  terminable  on  contingency,  1544. 
agency  terminable  only  on  breach  of  express 

or  implied  conditions,  1545. 
when  terminated  for  agent's  misconduct,  1546- 
1548. 

2547 


INDEX 
[Reference*  nre  to  Mection*:   §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.   II.] 

RIGHTS  OF  AGENT  AGAINST  PRINCIPAL— Continued. 
(2)  Agency  Wrongfully  Terminated. 

when  agent  discharged  without  cause — breach  of 

implied  contract,  1549,  1550. 
•what  cases  involved,  1551. 
breach   of  contract  with  agent  to  do  particular 

acts,  1552. 
agent's  remedies  for  breach  of  express  contract 

for  employment,  1553. 
theory  of  these  remedies,  1554,  1555. 
when  action  may  be  brought,  1556. 
measure  of  damages,  1557,  1558. 
duty  of  agent  to  seek  other  employment,  1559. 
when  new  employment  offered  by  defend- 
ant, 1560. 
duty  of  agnt  to  take  service  of  a  different  sort, 

1561. 

duty  of  agent  to  work  for  himself,  1562. 
when  right  of  action  accrues,  1563,  1564. 
no  damages  if  agent  acquiesces  in  the  discharge, 

1565. 
b.  Termination  by  Operation  of  Law. 

where  terminated  by  death  of  principal  there  are  no  dam- 
ages, 1566. 

how  in  case  of  joint  principals  and  partnerships,  1567. 
where  terminated  .by  insanity  of  principal  same  rule  applies, 

1568. 

where  terminated  by  bankruptcy  of  principal,  1569. 
where  terminated  by  death  of  agent,  1570. 
where  terminated  by  insanity  of  agent,  1571. 
where  terminated  by  sickness  or  incapacity  of  agent,  1572. 
C.  Abandonment  by  Agent, 
when  lawful,  1573. 
when  wrongful,  1574. 
entire  and  severable  contracts — right  to  compensation,  1575, 

1576. 

full  performance  of  entire  contract  usually  required,  1577. 
the  more  liberal  rule — Britton  v.  Turner,  1578. 
recovery  for  services  under  contract  cut  off  by  statute  of 

frauds,  1579. 

brief  absences  as  abandonment,  1580. 
condonation  of  abandonment,  1581. 

excuses  for  abandonment,  sickness,  epidemic,  physical  vio- 
lence, 1582. 

recovery  for  services  actually  rendered,  1583. 
recovery  of  wages  during  illness,  1584. 
principal's  right  to  terminate  employment,  1585. 
2548 


INDEX 
[References   are  to  sections:   g§  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  II.] 

RIGHTS  OF  AGENT  AGAINST  PRINCIPAL— Continued. 
contracts  not  to  terminate  without  notice, 
forfeiture  for  breach,  1586. 
what  works  forfeiture,  1587. 

5.  Effect  of  Agent's  Disloyalty  on  Compensation. 

disloyal  agent  cannot  recover  compensation,  1588. 

good  faith  does  not  save — nor  custom — divisible  transactions, 

1589. 
double  agency,  if  unknown,  cuts  off  compensation  from  either 

party,  1590. 

how  when  agent  mere  middleman,  1591. 
may  recover  when  double  agency  was  fully  known  and  as- 
sented to,  1592. 

6.  Effect  of  Agent's  wilful  Disobedience. 

forfeiture  by  wilful  disobedience,  1593. 

7.  Principal's  Right  of  Recoupment. 

principal  may  recoup  damages,  1594.        ;:Kj«ti 
what  damages  may  be  recouped,  1595,  1596. 
limit  of  recovery,  1597. 
right  not  cut  off  by  assignment,  1598. 

no  recoupment  against  an  infant,  1599. 

III.  THE  AGENT'S  RIGHT  TO  REIMBURSEMENT. 

agent  must  be  reimbursed  for  proper  outlays,  1601. 
when  not  entitled  to,  1602. 

IV.  THE  AGENT'S  RIGHT  TO  INDEMNITY. 

agent  must  be  indemnified  against  consequences  of  lawful  acts,  1603. 

liability  must  be  a  direct  consequence  of  the  execution  of  the  agency, 
1604-1606. 

right  to  indemnity  extends  to  contractual  obligations  properly  in- 
curred, 1607. 

no  indemnity  where  loss  caused  by  agent's  default,  1608. 

no  indemnity  where  obligation  incurred  in  excess  of  authority,  1609. 
unless  lack  of  authority  attributable  to  principal's  default,  1610. 

no  indemnity  where  act  is  unlawful,  1611,  1612. 

agent  indemnified  only  against  loss,  not  mere  liability,  1613. 

V.  THE  AGENT'S  RIGHT  TO  PROTECTION  FROM  INJURY. 

1.  Risks  incident  to  the  Business. 

master  not  liable  for  risks  inherent  in  the  business,  1615. 

"assumption"  only  refers  to  ordinary  risks  not  augmented 
by  master's  negligence,  1616. 

2.  Negligence  of  Master. 

master  is  responsible  for  own  negligence,  1617. 

master    is    responsible    for    injuries   resulting   from    dangerous 

premises,  1618. 
master  need  not  warn  servant  against  inherent  or  obvious 

dangers,  1619. 

not  responsible  for  condition  of  premises  where  servant  had 
no  business  to  be,  1620. 

2549 


INDEX 
I  H«- 1>  re  •!••«•»  are  to  K*rU»u»:   §g  1-1705,  Vol.  1}  §8  17O6-258S,  Vol.    I  I.I 

RIGHTS  OF  AGEiNT  AGAINST  PRINCIPAL— Continued. 

not  liable  where  unsafeness  results  from   doing  the  work 

itself,  1621. 
nor  where  unsafeness   is   caused   by   condition   of  adjacent 

property,  1622. 

master  owes  duty  whether  he  owns  premises  or  not,  1623. 
master  is  responsible  for  injuries  resulting  from  his  negligence 
in  regard  to  dangerous  appliances,  tools,  and  machinery, 
1624. 

master  must  warn  servant  of  nonapparent  dangers,  1625. 
must  keep  appliances,  tools,  and  machinery   reasonably  in 

repair,  1626. 

owes  no  duty  to  servants  having  no  business  to  use,  1628. 
not  responsible  for  negligence  of  fellow  servant  in  using,  1629. 
master  is  responsible  for  failure  to  repair  as  agreed,  1630-1632. 
master  owes  duty  to  use  reasonable  care  to  employ  reasonably 

competent  servants,  1632. 
also  to  employ  a  sufficient  number,  1633. 
master  owes  duty  to  make  and  enforce  necessary  rules,  1635. 
master  owes  duty  to  furnish  necessary  superintendence,  1636. 
where  master  requires  service  outside  of  the  employment,  1637. 
8.  Negligence  of  Master's  General  Superintendent. 

master  cannot  relieve  himself  of  duties  to  servant  by  delegating 

them,  1639. 
master  liable  for  negligence  of  his  general  superintendent — vice 

principal,  1640. 
4-  Negligence  of  Independent  Contractor. 

master  liable  for  negligence  of  independent  contractor  perform- 
ing his  duties,  1641. 
when  liable  to  agents  of  contractor,  1642. 

5.  Negligence  of  Fellow  Servant. 

master  not  liable  to  one  servant  for  negligence  of  a  fellow  serv- 
ant, 1643-1648. 
who  is  a  fellow-servant,  1C49. 

association  rule,  1650. 

departmental  rule,  1651. 

superior  servant  distinction,  1652. 

the  general  rule,  1653-1656. 
what  risks  within  the  rule,  1657. 
volunteer  assisting  servant  cannot  recover,  1658. 

6.  Assumption  of  Risks. 

assumption  of  risks  resulting  from  master's  negligence,  1660-1666. 

obviousness  of  the  risk,  1667. 

voluntary  action — coercion — command,  1668. 

emergencies — assurances  of  safety,  1669. 

inexperience — youth,  etc.,  1670. 

assumption  of  risks  existing  in  violation  of  statute,  1671, 
1672. 

2550 


INDEX 
[References  are  to  sections:   g§   1-1705,  Vol.  I)  §§  1706-2588,   Vol.  II.] 

RIGHTS  OF  AGENT  AGAINST  PRINCIPAL— ConMntted. 

assumption  of  risk  distinguished  from  contributory   negli- 
gence, 1673. 

how  detei  mined — court  or  jury,  1674. 
protests  against  the  doctrine,  1675. 

7.  Contributory  Negligence. 

contributory  negligence  of  servant  defeats  his  recovery,  1676, 

1677. 
effect  of  express  command  of  master,  1678. 

8.  Statutes  Changing  Common  Law  Rules. 

statutory  changes,  1679,  1680. 

9.  Contracts  Waiving  Master's  Liability. 

usually  invalid,  1681. 

VI.  THE  AGENT'S  RIGHT  TO  A  LIEN. 

lien  denned — general  and  particular  lien,  1683. 
foundation  of  the  claim  of  a  lien,  1684. 
nature  of  a  lien,  1685. 
requisites  of  a  lien — possession,  1686. 

possession  must  have  been  lawfully  acquired,  1687. 

possession  must  be  continuous,  1688. 

possession  must  have  been  acquired  in  course  of  employment, 

1689. 
no  lien  if  contrary  to  intention  of  parties — waiver,  1690. 

waiver  by  inconsistent  conduct,  1691. 
how  lien  may  be  enforced,  1693. 
how  these  rules  apply  to  agents,  1694,  1695. 
agent's  lien  ordinarily  a  particular  lien,  1696. 
for  what  sums  the  lien  attaches,  1697. 

VII.  THE  AGENT'S  RIGHT  OF  STOPPAGE  IN  TRANSIT. 

agent  liable  for  price  of  goods  may  stop  them  in  transit,  1698. 

right  exercised  as  in  other  cases,  1699. 

right  of  such  agent  to  retain  the  title  until  paid  for,  1700. 

VIII.  RIGHTS  OF  SUBAGENT  AGAINST  PRINCIPAL. 
when  principal  liable  for  his  compensation,  1701. 

effect  of  ratification,  1702. 

same  rules  govern  reimbursement  and  indemnity,  1703. 
how  as  to  protection  against  injury,  1704. 
•  when  subagent  entitled  to  a  lien,  1705. 
RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSON, 
see  LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 

RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL, 
see  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS. 

RIGHT  TO  EMPLOYMENT, 

see  EMPLOYMENT. 

right  of  agent  to  be  employed  in  pursuance  of  contract,  1508. 
right  to  be  received  into  the  employment,  1509. 
right  to  be  given  work  to  do,  1510. 

2551 


INDEX 
[Reference*  are  to  sections:  §§  1-1706,  Vol.  I;  §g  1700-2588,  Vol.  II.] 

ROMAN  LAW, 

agency  In,  16-20. 

RULES  AND  REGULATIONS, 

duty  of  master  to  servant  to  make  and  enforce,  1635. 

SAFE, 

authority  of  agent  to  warrant,  889. 

SALARY, 

. 

see  COMPENSATION,  COMMISSIONS,  FEES. 

SALE, 

of  land,  statutes  often  require  written  authority  for,  statute  of  frauds, 

222,  223. 

of  land,  authority  to  make  conferred  by  parol,  229. 
of  standing  timber,  authority  to  make,  conferred  by  parol,  234. 
of  goods,  authority  to  make,  conferred  by  parol,  238. 

SALE  OF  LAND, 

I.  AUTHORITY  OF  AGENT  FOB. 

in  general. 

how  conferred,  222,  223,  229. 

distinguished  from  authority  merely  to  find  a  purchaser,  797. 

distinguished  from  authority  of  broker,  797. 

distinction  between  authority  to  contract  and  authority  to  con- 
vey 803 

what  will  not  constitute  such  authority,  798. 

power  of  attorney  insufficient  to  authorize  execution  of  deed 
may  sustain  a  written  contract  to  sell,  798,  n. 

mere  preliminary  correspondence  or  negotiations  not  sufficient, 
800 

cannot  be  inferred  from  mere  authority  to  act,  801. 

terms  must  be  agreed  upon,  800. 

may  be  conditional,  801. 

may  be  qualified,  801. 

must  be  conferred  in  clear  language,  801. 

what  general  grants  of  power  will  authorize  sale,  802,  803. 

must  very  clearly  describe  land  to  be  sold,  804. 

written  authority  usually  requisite,  796. 

when  authority  under  seal  necessary,  796. 

II.  CONSTRUCTION  OF  THE  AUTHORITY. 

sale  must  be  within  the  terms  of  the  power,  807. 

conveyance  must  be  for  consideration  moving  to  principal,  815. 

particular  land  sold  must  be  very  clearly  within  the  language  of  the 

power,  804. 

what  land  may  be  sold,  804,  805. 
subsequently  acquired  property,  805. 
when  authority  must  be  exercised,  806. 
within  time  fixtd  by  the  power,  806. 

2552 


INDEX 
[Reference*   lire  to  sections:  §§  1-1705,  Vol.  I;  §§  1706  2588,  Vol.  II.] 

SALE  OF  -LAND-Continued. 

authority  to  sell  "immediately,"  806. 

authority  to  sell  within  "a  short  time,"  806. 
when  contract  but  not  conveyance  is  authorized,  811. 
what  execution  authorized,  807,  808. 
III.  IMPLIED  AUTHORITY  RESULTING. 
to  alter  contract,  827. 

assign  land  for  benefit  of  principal's  creditors,  824. 
assume  a  mortgage  as  part  of  the  purchase  price,  829. 
change  boundaries,  821. 
convey,  811. 

convey  in  payment  of  agent's  own  debts,  825. 
convey  in  payment  of  joint  debt  of  agent  and  principal,  825. 
convey  for  support  of  principal's  child,  826. 
convey  in  settlement  of  pre-existing  claim  against  principal,  824. 

dedicate  to  public  use,  823.    . 

* 
discharge  a  mortgage,  828. 

• 
exchange  or  barter,  817. 

give  credit,  816. 

implies  authority  to  grant  a  reasonable  time,  816. 
give  option  to  buy,  819. 
insert  covenants  of  warranty,  812. 

effect  of  unauthorized  insertion,  812. 
invest  proceeds  of  sale,  829. 
make  written  contract,  810. 
mortgage  the  property,  813. 
make  a  gift  of  the  property,  818. 
make  representations,  809. 

as  to  value,  809. 

as  to  quality,  809. 

as  to  quantity,  809. 

as  to  location,  809. 

as  to  title,  809. 
partition  the  property,  822. 
permit  waste,  820. 
rescind  contract,  827. 
release  a  mortgage,  828. 
receive  payment,  814. 

in  full,  814. 

subsequent  payments,  814. 

in  installments,  814. 

must  accept  cash,  814. 
no  authority  to  receive  notes,  814. 
sell  "property."  804. 
sell  at  auction,  807. 

sell  partly  for  cash  and  partly  on  credit,  808. 
sell  timber  separate  from  the  land,  820. 
speculate  with  proceeds  of  sale,  829. 

2553 


INDEX 

[Reference**  are  *o  section*:   S3  1-1705,  Vol.  I;  g§  1706-2588,  Vol.  IT.] 
SALE  OF  PERSONAL  PROPERTY, 

I.    ACTHORITY  OF  AGENT  FOR. 

in  general. 

when  authority  exists,  848. 

cannot  be  inferred  from  mere  possession,  848. 

apparent  agency,  848. 

what  sufficient  for,  848. 

distinguished  from  apparent  ownership,  848. 
authority  from  relationship,  848,  n. 
distinguished  from  mere  authority  to  solicit,  849. 
limited  or  qualilied  authority,  849. 
what  may  be  sold — all — part,  850. 
sale  must  be  of  amount  authorized,  850. 
duty  to  keep  principal's  goods  separately,  851. 
commingling  goods  with  others  for  purpose  of  sale,  851. 
when  authority  to  be  executed,  852. 

upon  a  particular  day,  852. 

in  a  single  instance,  852. 
effect  of  private  instructions,  854. 
duty  of  purchaser  to  use  reasonable  care,  854. 

IT    T    PLIED  AUTHORITY  RKSLLTI^G. 
to  sell  at  auction,  853. 
select  purchaser,  854. 
agree  on  terms  of  delivery,  854. 
fix  usual  terms  of  sale,  854. 

effect  of  unreasonable  terms,  854. 
fix  price,  854-857. 

in  general,  854,  855. 

railway  ticket  agent,  856. 

clerk,  856. 

traveling  salesman,  856. 

as  distinguished  from  merely  stating  It,  855. 

effect  on  agent's  possession  of  the  chattel,  856. 

when  directed  to  bargain,  857. 

statement  of  the  rule,  857. 
state  price,  855. 

in  general,  855. 

railway  ticket  agent,  855. 

clerk,  855. 

traveling  salesman,  855. 

consequences  of  mistake,  855. 

reliance  on  price  stated,  855. 

Intentional  misstatement,  855. 

future  prices,  855. 
attach  terms  or  conditions,  858,  859. 
effect  of  failure  to  impose  conditions  prescribed  by  principal,  860. 

2554 


INDEX 
[Reference*  are  to  scctlong:  §g  1-1705,  Vol.  1}  §§   1700  2588,  Vol.  II.] 

SALE  OF  PERSONAL  PROPERTY— Continued. 
make  binding  contract,  861,  862. 

as  distinguished  from  mere  authority  to  find  a  purchaser,  861. 
how  conferred,  861. 
implication,  861. 
by  custom,  861. 
secret  reservation,  8C1. 
execute  necessary  documents,  862. 
receive  payment. 
in  general,  863. 
at  time  of  sale,  863. 
subsequent  to  sale,  863. 

•whether  implied  from  possession  of  bill  of  account,  864. 
when  agent  is  authorized  to  deliver  goods  sold,  865. 
when  price  is  to  be  paid  in  installments,  865. 
implied  from  principal's  conduct,  865. 
general  sales  agency,  866. 
accept  note  payable  to  himself,  866. 
accept  property  transferred  to  him,  866. 
accept  discharge  of  debts  due  from  him,  866. 
where  agent  is  ostensible  owner  and  authorized  to  sell  in  his  own 

name,  867,  868. 

distinction  between  factor  and  broker,  867. 
knowledge  of  purchaser,  868. 
limits  of  the  rule,  868. 
where  character  is  equivocal,  868. 
agent  to  sell  or  solicit,  without  possession,  869. 
traveling  salesman,  870-874. 
effect  of  custom,  870. 
payment  to,  part  of  terms  of  sale,  871. 
authority  to  accept  goods  in  part  payment,  871. 
notice  of  want  of  authority,  872. 
what  may  be  received  in  payment,  873. 
when  purchaser  can  set  off  debt  due  agent,  874. 
hire  horses,  to  travel  from  place  to  place,  875. 
upon  principal's  credit,  875,  876,  877. 

traveling  salesman,  876,  877. 
procure  personal  supplies,  878. 

traveling  salesman,  878. 
Bell  or  pledge  his  samples,  879. 

traveling  salesman,  879. 
warrant,  880. 
quality,  880. 

as  a  necessary  incident,  881. 
because  warranty  usual,  882. 
warranties  which  the  law  would  imply,  883. 
in  accordance  with  descriptions  furnished  by  principal,  884. 
commercial  character  of  promissory  notes,  885. 

2555 


INDEX 
are  to  Mectlona:  gg  1-1705.  Vol.  I;  §§  1706-2688,  Vol.  II.] 


SALE  OP  PERSONAL  PROPERTY— 
workmanship,  885. 
materials,  885. 

fitness  for  the  purpose,  883-885. 
conformity  to  sample,  885. 
soundness  of  horses,  886. 

as  affected  by  custom,  887. 
limited  authority,  888. 
title,  891. 

condition  of  liquors,  889. 
•  burglar  proof,  889. 
soundness  for  a  definite  time,  889. 
limits  of  the  rule,  889. 

goods  not  usually  sold  with  a  warranty,  889. 

under  circumstances  where  a  warranty  is  not  usually  given, 

889. 

unusual  or  extraordinary  warranty,  889. 
warranty  of  goods  subsequently  sold  by  principal,  889. 
guarantee  payment  of  negotiable  notes,  889. 
indorse  negotiable  notes,  889. 
sell  upon  trial,  885. 
sell  upon  condition,  885. 

authority  to  waive  condition,  885. 
make  representations  concerning  the  goods,  890. 
advertise  the  property,  892. 

goods  usually  sold  by  public  advertising,  892. 

authorized  to  sell  in  a  manner  usually  involving  such  advertising, 

892. 

reimbursement  for  expenses  already  incurred,  892. 
extend  credit,  893. 
appropriate  to  agent's  own  use,  894. 

sell  or  deliver  in  payment  of  agent's  own  debt,  894. 
pledge  as  security  for  agent's  own  debt,  894. 
may  be  expressly  conferred,  894. 
exchange  or  barter,  895. 
accept  notes  or  checks,  895. 
buy  goods,  896. 
pledge  goods.  897. 

on  principal's  account,  897. 
on  agent's  account,  S97. 
mortgage,  898. 

promise  commission  for  sub-sales,  899. 
guarantee  exclusive  markets,  particular  prices,  etc.,  900. 
compromise  claims,  901. 
release  debts,  901. 
alter  security,  901. 
rescind  sale,  902. 
alter  terms  of  sale,  902,  904. 

2556 


INDEX 
[Referenced   are  to  sections:   §§   1-1705,  Vol.  I;  §§  1700-2588,  Vol.  II.] 

SALE  OF  PERSONAL  PROPERTY— Continued. 
release  purchaser,  902. 
insert  condition  in  sale,  902. 
waive  performance  of  terms  of  contract,  903. 
notice,  903. 
time  limit,  904. 

limitations  on  agent's  authority,  905. 
sell  to  or  deal  with  himself,  906. 
receive  notice,  907. 
SALOON  KEEPER, 

liability  of,  for  assault  by  servant  upon  patron,  1940. 
criminal  or  penal  liability  for  acts  of  agent  or  servant,  2007,  2008. 
SAMPLE,  SALE  BY, 

authority  of  agent  to  warrant  that  goods  sold  shall  conform  to  the  sample, 

885. 
SAMPLES, 

authority  of  traveling  salesman  to  sell  or  pledge,  879. 
SCOPE  OF  AUTHORITY, 

what  meant  by,  709. 
SEALED  INSTRUMENTS, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  AGENTS;   DEEDS. 

1.  authority  to  execute  must  be  under  seal,  212,  796. 

to  fill  blanks  in,  must  be  under  seal,  213. 

estoppel  to  deny,  214. 

superfluous  sea]  may  usually  be  disregarded,  215. 
if  executed  in  principal's  presence  and  by  his  direction,  no  other  authority 

necessary,  216. 

principal  may  sometimes  adopt  deeds  prepared  by  others,  217. 
instrument  not  good  as  deed  may  sometimes  be  good  as  contract,  218. 
appointment  by  corporations,  219,  220. 

2.  ratification  of  unauthorized,  must  usually  be  under  seal,  420. 

rule  relaxed  in  partnership  cases,  421. 
Massachusetts  rule,  422. 
modern  rule,  423. 
superfluous  seal  disregarded,  424. 

3.  manner  of  executing  by  agent, 

see  Book  II,  Chapter  II. 

4.  liability  on,  confined  to  parties  to,  1734. 

undisclosed  principal  not  liable  on,  1734,  1735. 

5.  rights  of  action  on,  confined  to  parties  to,  2064. 

undisclosed  principal  cannot  sue  upon,  2064. 

SECRET  INSTRUCTIONS, 

apparent  authority  not  limited  by,  710,  730. 

what  constitute  such  instructions,  731. 
SECURITIES, 

see  PAYMENT. 

possession- of,  by  agent  as  implying  authority  to  collect,  935,  936. 

2557 


INDEX 
[References  are  4o  sectional  §§  1-1705,  Vol.  I;  gg  1700-2588,   Vol.  II.] 

SECURITIES— Continued. 

authority  of  agent  to  purchase. 

agent  authorized  to  loan  money,  1037. 
SELL, 

agent  to  sell  may  not  sell  to  or  for  himself,  1197,  1198. 

see  LOYALTY;   DUTY  OF  AGENT  TO  PRINCIPAL. 
is  liable  to  principal  for  losses  caused  by  his  disobedience  to  instructions, 

1249. 

for  losses  caused  by  his  negligence,  1323. 
for  selling  to  irresponsible  or  forbidden  parties,  1324,  1325. 
agent  to  purchase  has  no  authority  to  sell,  928. 
agent  to, 

see  SALE  OF  LAND;  SALE  OF  PERSONAL  PROPERTY. 

SERVANT, 

see  MASTER;  MASTER  AND  SERVANT. 
how  differs  from  agent,  36. 

when  relation  of  master  and  servant  exists,  1859-1863. 
being  servant  of  more  than  one  master,  1860. 
being  servant  of  one  master  though  working  under  immediate  direction 

of  that  master's  patron,  1861. 

liability  of,  to  principal  or  master,  see  DUTIES  OF  AGENT  TO  PRINCIPAL. 
liability  of,  to  third  persons,  see  LIABILITY  OF  AGENT  TO  THIRD  PERSONS. 
rights  of  against  master  for  compensation,  see  COMPENSATION. 

for  indemnity,  see  INDEMNITY. 

for  reimbursement,  see  REIMBURSEMENT. 

rights  of,  to  protection  against  injury,  see  MASTER,  NEGLIGENCE. 
authority  of,  when  acting  as  agent,  same  as  any  agent,  36-39. 

none  ordinarily  to  employ  servants  or  agents  for  principal,  335. 
emergency,  when  justifies,  321. 

SET  OFF, 

by  third  person  when  sued  by  agent  on  contract  made  for  principal,  2046. 
by  third  person  when  sued  by  principal,  2077.  . 
by  agent,  when  sued  by  principal,  1349. 

by  agent,  when  sued  on  contracts  made  for  principal,  1429. 
SETTLEMENT, 

authority  of  agent  empowered  to  make, 
nature  of  the  authority,  1012. 
burden  of  proof,  1013. 
when  authority  exists,  1014-1016. 
when  implied,  1014. 
when  expressly  conferred,  1015. 
ratification,  1016. 
what  terms  binding,  1017-1021. 

may  be  expressly  prescribed,  1017. 
when  sufficient  to  put  other  party  on  inquiry,  1018. 
illustrations,  1019-1021. 
may  receive  the  proceeds,  1022. 

2558 


INDEX 
[References   are  to  sections:  g§  1-1705,  Vol.  I;  §§  1700  2588,  Vol.  II.] 

SETTLEMENT — Continued. 

may  not  submit  to  arbitration,  1023. 
may  not  assign  the  demand,  1024. 
may  not  assign  or  transfer  proceeds,  1025. 
may  not  buy  claim  and  enforce  against  principal,  1215. 
may  not  give  notes  in,  971. 
settlement  between  principal  and  agent  as  bar  to  liability  of  undisclosed 

principal,  738  et  seq. 
SEVERABLE  CONTRACTS, 

what  contracts  of  employment  are,  1575. 
compensation  when  agent  violates,  1575,  1576. 
SHIP  BROKERS, 

authority  and  duties  of,  2384. 
SHIPMENT  OF  GOODS, 

authority  of  agent  authorized  to  ship  goods, 
how  authority  arises,  1044. 

choice  of  means  of  transportation,  1044. 
how  authority  to  be  exercised,  1045-1047. 
agreeing  upon  terms  of  shipment,  1045. 
agreements  limiting  liability  of  carrier,  1046,  1047. 

after  contract  of  carriage  is  made,  1047. 
SHOP  KEEPER, 

liability  of,  to  patrons  for  assaults  by  servants,  1941. 
SHOOTING, 

liability  of  principal  or  master  for  shooting  by  agent  or  servant,  1979. 
SICKNESS, 

right  to  compensation  when  agency  terminated  by  agent's  sickness,  1572, 

1582. 

wages  during  sickness,  1584. 

principal's  right  to  terminate  agency  because  of  agent's  sickness,  1585. 
SIGNATURE, 

when  made  by  one  acting  as  mere  human  instrumentality,  208,  n. 
SILENCE, 

see  ACQUIESCENCE;  ESTOPPEL. 
as  ratification,  453. 
SLANDER, 

liability  of  principal  or  master  for  slander  by  agent  or  servant,  1980 

et  seq. 
SLAA'ES, 

as  agents.  158. 

SLEEPING  CAR  COMPANIES, 

liability  to  passengers  for  assaults  of  servants,  1933  et  seq. 

for  thefts  by  servants,  2001,  n. 
SOCIETIES, 

as  joint  principals,  187. 

personal  liability  of  agents  of,  1389. 

2559 


INDEX 
[Reference  are  to  mectlong:  §§  1-1705,  Vol.  I;  §§  1700  2588,  Vol.  II.] 

SPECIAL  AGENT, 

what  meant  by,  737. 

how  distinguish  from  general  agent,  738,  739. 

authority  of,  must  be  strictly  pursued,  742. 

person  dealing  with,  must  ascertain  his  authority,  742. 

authority  strictly  limited  to  that  which  is  either  expressly  given  or 

necessarily  implied,  799. 
agent  for  sale  of  land  is,  799. 
agent  for  purchase  of  land  is,  843. 

SPECIFIC  PERFORMANCE, 

of  agency  contracts  not  usually  enforced,  642. 

STAKEHOLDER, 

liability  of  agent  who  holds  money  as,  1445. 

STATE 
' 
may  ratify,  366. 

STATEMENTS, 

see  ADMISSIONS;  DECLARATIONS. 
made  by  agent,  liability  of  principal  for: — 
principal  liable  when  expressly  authorized,  1777. 
liability  for  statements  of  agent  expressly  or  impliedly  referred  to  for 

information,  1778,  1779. 
liability  for  statements  made  by  agent  as  incident  to  position — general 

managers — general  agents,  etc.,  1780. 

liability  for  statement  of  agent  made  as  incident  to  authorized  act,  1781. 
liability  for  statements  called  part  of  res  gestae,  1781,  1782. 

what  statements  within  the  rule,  1783,  1784. 
liability  for  statements  showing  notice  to  agent,  1787. 
liability  for  statements  made  to  qualify  or  explain  agent's  act,  1788,  1789. 
liability  for  statements  indicating  agent's  state  of  mind,  1790. 

STATION  AGENT, 

authority  to  contract,  993. 

state  rate  of  transportation,  855,  993  et  seg. 
STATUS, 

agency  as,  32. 
STATUTE  OF  FRAUDS, 

other  party  as  agent  to  sign  memorandum  under,  180. 

who  may  sign  memorandum  under,  when  acting  as  a  mere  instrument, 

208,  n. 
requires  agent  for  sale  of  land  to  have  written  authority,  222. 

American  statutes  on  this  point,  223. 
agent  to  "accept  and  receive"  goods  under,  may  be  authorized  by  parol, 

239. 

"lawfully  authorized"  under,  includes  ratification,  429. 
STATUTE  OF  LIMITATION, 
see  LIMITATION  or  ACTION. 

2560 


INDEX 
[Reference*  are  to  flections:  §§  1-1705,  Vol.  I;  §§  1706-268K,  Vol.  II.] 

STATUTORY  AGENCY, 

of  husband,  169,  n,  172,  203,  n. 
STATUTORY  AUTHORITY, 

not  usually  revocable  at  will  of  principal,  640. 
STOCKS, 

employment  in  unlawful  dealings  in,  void,  111,  112. 

parol  authority  to  subscribe  for,  23"). 
STOCK  BROKERS, 

authority  and  duty  of,  2385. 

New  York  rules  governing  relation,  2386. 

Massachusetts  rule,  2388. 

authority  to  repledge  shares,  2389. 

authority  to  substitute  other  shares,  2389. 

authority  to  close  the  transaction,  2386,  n. 

right  to  demand  more  margin,  2386,  n. 

duty  to  give  notice  before  selling,  2386,  n. 

measure  of  damages  for  a  wrongful  sale,  2386,  n. 
STOCKHOLDER, 

of  corporation,  effect  of  notice  to,  1834. 
STOPPAGE  IN  TRANSIT, 

agent  who  has  bought  goods  on  his  own  credit  and  shipped  them  to  prin- 
cipal may  stop  on  principal's  insolvency,  1698. 

when  right  does  not"  exist,  1698. 

how  right  exercised,  1699. 

right  of  agent  to  retain  title  until  goods  paid  for,  1700. 

ratification  of  unauthorized,  539. 

STORE-KEEPER, 

liability  of  to  patrons  for  assaults  by  servants,  1941. 

SUB- AGENT, 

see  DELEGATION  OF  AUTHORITY. 
agent  usually  no  authority  to  appoint,  305  et  seq. 
exceptional  cases  justifying,  314  et  seq. 

by  insurance  agent,  1054. 
whose  agent  he  is,  326  et  seq:  332  et  seq. 
ratification  of  unauthorized  appointment  of,  322,  499. 

of  acts  of,  375. 

wife  as  implied  of  husband,  168. 
agent  when  liable  for  acts  of,  322,  333,  1281. 
liability  to  principal  for  money  collected,  1321. 
accounting  by,  to  principal,  1330. 
liability  to  third  persons  for  misconduct,  1485. 
notice  to,  when  notice  to  principal,  1841. 
authority  to  employ. 

see  EMPLOYMENT. 

when  principal  liable  for  his  compensation,  1701,  1702. 
when  entitled  to  reimbursement  from  principal,  1703. 
161  2561 


INDEX 
[References  are  to  sectional  g§  1-1705,  Vol.  I)  §8  1706-2588,  Vol.  II.] 

SUB-AGENT — Continued. 

when  entitled  to  indemnity  from  principal,  1703. 

when  may  recover  for  injuries  caused  by  principal's  negligence,  1704. 

when  entitled  to  lien,  1705. 
SUB-DELEGATION, 

of  authority,  when  justified,  324. 

SUBROGATION, 

when  agent  entitled  to  as  against  principal,  1600,  n. 

SUB-SALE, 

agent  authorized  to  sell  personal  property  has  no  authority  to  promise 

commissions  for,  899. 
SUBSTITUTION, 

agent  authorized  to  make  a  contract  for  the  sale  of  land  has  no  author- 
ity to  substitute  another  for  it,  after  it  is  made,  827. 
SUE, 

see  ACTIONS. 
agent  to  collect  has  authority  to  sue,  963. 

authority  of  agent  authorized  to  manage  business  to  sue,  1010. 

• 
SUIT, 

'TP 

see  ACTIONS. 
bringing,  based  on  validity  of  agent's  act  ratifies,  446-448. 

suits  based  on  invalidity  of  agent's  acts,  no  ratification,  449. 
delay  in  suing  in  disaffi nuance  of  the  act,  450. 

SUPERCARGO, 
defined,  74. 

SUPERINTENDENT, 
authority  of, 

see  MANAGER. 
authority  to  purchase  necessary  supplies,  908. 

SUPPLIES, 

authority  of  agent  authorized  as  manager  to  purchase,  982-987. 

SURETY, 

authority  to  sign  as  surety  does  not  authorize  signing  as  principal,  974. 
authority  of  agent  authorized  to  bind  principal  as  surety,  1038. 
where  authority  exists,  1038. 
authority  strictly  construed,  1039. 

SURETYSHIP, 

statute  requiring  authority  to  create  the  relation  by  agent  to  be  in  writ- 
ing, 225. 

SURGEON, 

employment  by  agent  for  principal  in  emergency,  341. 

TAXES, 

agent  to  pay  may  not  acquire  property  at  tax  sale,  1216,  1217. 
gee  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

2562 


INDEX 
[References  are  to  sections:  §§  1-1705,  Vol.  I;  §§  1706-2588,  Vol.  II.] 

TEAM, 

liability  of  master  for  negligence  of  servant  in  using,  1888,  1891,  1894, 

1896,  1898-1905,  1911,  1912,  1914. 
TELEGRAPH, 

not  usually  regarded  as  agent,  41. 
TELEGRAPH  COMPANY, 

liability  of,  for  wrongful  use  of  instruments  by  its  agent  or  servant,  1941. 

TELEPHONE, 

answering,  may  raise  a  presumption  of  agency,  268. 

TENANT, 

agent  to  collect  rent  has  no  authority  to  discharge,  954. 
authority  of  agent  to  consent  to  substitution  of,  836. 

TENANTS  IN  COMMON, 
as  joint  principals,  186. 

TERMINATION  OF  RELATION, 
I.  BY  ACT  OF  THE  PARTIES. 

1.  By  Force  of  Their  Original  Agreement. 

by  efflux  of  time,  550,  551. 

by  accomplishment  of  object,  552-554. 

where  object  contemplated  involved  a  series  of  acts,  555. 

authority  docs  not  necessarily  continue  until  object  accom- 
plished, 556. 
termination  in  pursuance  of  a  term  in  the  contract,  557. 

2.  By  Their  Subsequent  Acts. 

what  here  included,  558. 

A.  Termination  by  Mutual  Consent. 

authority  so  terminable,  559. 

B.  Revocation  by  the  Principal. 

rules  different  in  public  and  private  agency,  560. 
1.  Private  Agency. 

a.  Power  of  Revocation, 
in  general,  561,  562. 
general  rule — authority  revocable  at  any  time, 

563. 

if  not  already  executed,  564. 
rule  applies  tho  authority  called  "exclusive"  or 

"irrevocable,"  565. 

rule  applies  though  principal  may  have  agreed 
that  authority  should  continue  for  a  definite 
period,  566. 
or  tho  agent  may  have  performed  some  service 

or  incurred  some  expense,  567. 
distinction  between  power  to  revoke  and  right 
to  revoke — between  authority  and  contract  of 
employment,  568. 
exceptions — authority  not  revocable,  569. 

2563 


INDEX 


[Reference*  are  <•  section*:   S3  1-1705,  Vol.  If  If  17O6-46S8,  Vol.  II. I 

TERMINATION  OF  RELATION— Continued. 

1.  authority  "coupled  with  an  interest,"  670. 

variety  of  forms,  571. 
American  use  of  term,  572. 
English  use  of  term,  573. 
difference  In  results,  574. 
power  irrevocable  by  death,  Irrevocable  by 
act  of  principal,  575. 

2.  power     given     as     security     and     therefore 

"coupled  with  an  interest,"  576. 
power  forming  part  of  a  contract,  577. 
power  given  for  a  valuable  consideration, 

578. 

3.  authority  "coupled  with  an  obligation,"  579, 

580. 

"interest"  of  third  person,  581. 
provisions    for    agency    in    contracts    with 

third  persons,  582. 
"interest"  and  authority  from  same  source, 

58?,. 

express  language  as  to  revocability,  584. 
illustrations  —  sufficient  interest  —  powers 

given  for  security,  585. 
what  interest  not  sufficient — instances,  586. 
bare  powers,  587. 
new  nomenclature  needed,  588. 
what  may  be  the  subject  matter  of  power 

given  as  security,  589. 

necessary  characteristics  of  such  a  power, 
[Bqiax:  590. 

against  whom  power  given  as  security  en- 
forceable, 591.       i  .1 

contracts    of    employment — when    right    to 
terminate    exists — employments    at    will, 

592. 

employment     on     condition — "satisfac- 
tion"— "good  cause,"  593. 
termination  for  cause  specified,  594.. 
implied  conditions,  595. 
contract  for  definite  time  cannot  be  termi- 
nated   without    liability    except    for 
legal  cause,  596. 
what  amounts  to  contract  for  a  definite 

time,  597. 

unilateral  stipulations,  598,  599. 
contrary  views,  600. 
mutuality  under  statute  of  frauds,  601. 
2564 


>H    D'-ti 

.T«'' 


INDEX 
[Reference*  are  to  sections:   §§  1-1705,  Vol.  1}  §§  1706-2588,  Vol.  II.] 

TERMINATION  OF  RELATION — Continued. 

contract  for  a  definite  time  implied  from 

circumstances,  602. 
implications  from  yearly  or  periodical 

salary  or  accountings,  603. 
stipulation    for    "permanent"    employment, 

604. 

continuing  under  prior  contract,  605. 
agency  terminable  for  agent's  incompetence, 

606. 

when  for  agent's  sickness,  1585. 
agency  terminable  for  agent's  disobedience, 
dishonesty,  or  other  misconduct,  607. 
agency    terminable    for    agent's    disloyalty, 

608. 

illustrations,  609,  610. 
limitations— waiver— condonation,    611. 
even    though    employed    for   definite    time, 
agent  may  be  discharged  subject  to  liabil- 
ity for  damages,  612. 

b.  Manner  of  Revocation. 

how  authority  may  be  revoked,  613. 

by  sealed  instrument,  614. 

express  revocation  not  required,  615. 

revocation  may  be'  implied,  616. 
reducing  rank,  changing  duties,  etc.,  617. 
acts  not  working  a  revocation,  618. 
by  disposing  of  subject  matter,  619. 
by   dissolution   of   partnership   or   corporation, 

620. 

by  severance  of  a  joint  interest,  621. 
subagent's  authority  terminated  by  termination 
of  principal's  authority,  622. 

c.  Notice  of  Revocation. 

notice  usually  necessary,  623. 

to   the   agent — when   notice   must  be   given   to 

him,  624. 

when  notice  not  necessary,  625. 
constructive  notice,  626. 

to  subagents — when  notice  must  be  given,  827. 
to  third  persons — where  authority  was  general, 

628.  ' 

where  authority  was  special,  629-631. 
theory  of  necessity  of  notice,  632,  633. 
notice  how  given — what  sufficient,  634,  635. 
•when   power   of   attorney   recorded,   revocation 

should  be  recorded,  636. 
notice  should  be  unequivocal,  637. 

2565 


INDEX 
rnefcr,-iu-.:4  are  to  »ectlons:  §§  1-1705,  Vol.  I;  gg  1706-2688,  Vol.  II.] 

TERMINATION  OF  RELATION— Continued. 

how  sufficiency  determined,  638. 
burden  of  proof  as  to  notice,  639. 
2.  Public  Agency. 

statutory  authority  not  revocable  at  will  of  princi- 

•  -       ',  ,  „-,,.,.,,  ,,••,„,.. 
pal,  640. 

C.  Renunciation  by  Agent. 

general  rule, — agent  may  renounce  at  any  time,  641. 
enforcement  of  contract — specific  performance — injunc- 
tion to  prevent  breach,  642. 
injunction  when  services  unique  and  damages  not 

adequate,  643. 
mutuality,  644. 

renunciation  by  mutual  consent,  645. 
abandonment  may  be  treated  as  renunciation,  646. 
agent  may  lawfully  renounce  if  required  to  do  illegal 

acts,  647. 
agent's   abandonment— may    oe   justified   by   principal's 

misconduct,  648. 
notice  of  renunciation,  649.  • 
IT.  Br  OPERATION  OF  LAW. 
in  general,  650. 

1.  By  Death  of  One  of  the  Parties. 
a.  by  death  of  the  principal, 
in  general,   651. 

general  rule — death  of  principal  terminates  agency,  652. 
even  though  not  terminable  by  principal's  act  in  his 

life  time,  653. 

consideration  of  this  rule,  654. 
authority  not  revocable  by  death  when  coupled  with  an 

interest,  655. 

what  constitute  such  an  interest,  656. 
what  meant  by  interest— difficulty  in  applying  rule, 

657. 
the  real  reason— that  the  agent  may  act  in  his  own 

name,  658. 

what  interest  sufficient — instances,  659-661. 
what  interest  not  sufficient — instances,  662,  663. 
how  when  death  unknown,  664,  665. 

instances,  666,  667. 
effect  of  principal's  death  on  contract  of  employment, 

668. 

death  of  partner  or  joint  owner  dissolves  agency,  669. 
death  of  principal  dissolves  authority  of  substitute,  670. 
b.  by  death  of  the  agent. 

general  rule— death  of  agent  terminates  agency,  671. 

not  when  coupled  with  an  interest,  672. 
when  death  of  one  of  two  agents  terminates  agency,  673. 
2566 


INDEX 
[References   are  to  sections:   §8  1-17O5,  Vol.  1}  §§   1706-2588,  Vol.  II.] 

TERMINATION  OP  RELATION— Continued. 

dissolution  of  artificial  person  which  was  the  agent,  674. 
effect  of  agent's  death  on  authority  of  substitute,  675. 
8.  By  Insanity  of  One  of  the  Parties. 

a.  by  insanity  of  the  principal. 

in  general,  676. 

i          i        a<-r, 

general  rule,  677. 

.  ,         ,.      „__ 
ignorance  of  insanity,  678. 

when  authority  coupled  with  an  interest,  679. 
what  evidence  of  insanity  required,  680. 

b.  By  insanity  of  the  Agent. 

in  general,  681. 

general    rule — terminates   agency   unless    coupled   with 

interest,  682. 

how  when  insanity  unknown,  683. 
Insanity  of  one  of  two  or  more  agents,  684. 
effect  on  subagents,  685. 
S.  By  Bankruptcy  of  One  of  the  Parties. 
in  general — effect  of  bankruptcy,  686. 

a.  Bankruptcy  of  Principal. 

general  rule — bankruptcy  of  principal  terminates 
agent's  authority,  687. 

mere  insolvency  not  enough,  688. 

authority  not  terminated  when  coupled  with  inter- 
est, 689. 

how  when  bankruptcy  unknown,  690. 

b.  Bankruptcy  of  the  Agent. 

general  rule,  691. 

4.  By  Marriage. 

marriage  of  the  principal,  692. 
marriage  of  the  agent,  693. 

5.  By  War. 

in  general — war  between  countries  of  principal  and  of  agent 
terminate  commercial  agency,  694-696. 

6.  By  Destruction  of  Subject  Matter. 

destruction  of  subject  matter  usually  terminates  agency,  697. 

7.  /)'!/  Termination  of  Principal's  Interest  in  Subject  Matter. 

usually  terminates  authority,  698. 

8.  By  Termination  of  Principal's  Authority . 

principal's  removal  from  office  removes  subordinates,  699. 

9.  By  Change  in  Law. 

change  in  law  rendering  prosecution  of  agency   unlawful, 
700. 

10.  "Notice  of  the  Termination. 

notice  not  generally  necessary  when  authority  terminated 

by  operation  of  law,  701-703. 
III.  EFFECT  OF. 

compensation  where  agency  terminated  before  performance,  1539. 

2567 


INDEX 
[Reference*  are  to  «ee<Ion«:  88  1-1705,  Vol.  Ij  §9  1706-2588,  Vol.  II.l 

TERMINATION  OF  RELATION— Continued. 

how  when  rightfully  terminated,  1541  et  seq. 
how  when  wrongfully  terminated,  1549  et  seq. 

liability  of  agent  to  third  persons  for  acting  after,  1376  et  seq. 

TERRITORIAL  LIMITATIONS, 
on  authority  of  agent,  756,  n. 

of  agent  authorized  to  represent  insurer's. 

see  INSURANCE  AGENTS. 
TESTIMONY, 

of  agent,  admissible  to  prove  his  agency,  291. 

effect  of  agent's,  292. 

of  parties,  to  prove  whose  agent  he  is,  301. 
contracts  to  procure,  validity  of,  110. 

THEFT, 

by  agent  or  servant,  principal  usually  not  liable,  2001,  n. 
by  agent  of  innkeeper,  carrier,  etc.,  liable,  2001,  n. 
THIRD  PERSONS, 

dealing  with  agent,  bound  to  ascertain  his  authority,  743  et  seq.,  977. 

must  act  in  good  faith,  751. 

must  exercise  reasonable  prudence,  752. 

must  ascertain  existence  of  conditions,  756. 

liability  of  agent  to, 

see  LIABILITY  OF  AGENT  TO  THIRD  PERSONS. 
liability  of  principal  to. 

see  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS. 
liability  of,  to  agent. 

see  LIABILITY  OF  THIRD  PERSONS  TO  AGENT. 
liability  of,  to  principal. 

see  LIABILITY  OF  THIRD  PERSONS  TO  PRINCIPAL. 
TICKET  AGENT, 

authority  to  contract,  993. 
authority  as  to  price,  855. 
TIPS, 

whether  principal  entitled  to  tips  received  by  agent,  1231  et  seq. 

see  LOYALTY;  DUTIES  OF  AGEJST  TO  PRINCIPAL. 
TITLE, 

representations  of  agent  regarding,  809. 
to  chattels,  authority  of  agent  to  warrant,  891. 
agent  may  not  dispute  his  principal's  title,  1331. 
TORTS, 

in  general. 

may  be  ratified,  357. 

ratification  makes  principal  liable,  506,  507. 

but  does  not  release  agent,  546. 
actions  for. 

agent  may  sue  for,  to  principal's  property,  when,  2049-50. 

2568 


INDEX 
[Reference*  are  to  flections:  §§  1-1705,  Vol.  I;  g§   ITOfi  25SS,  Vol.  II.] 

TORTS— Continued. 

principal  may  sue  third  persons  for  injuries  to  his  rights,  2132. 
for  enticing  agent  away,  2133. 
for  preventing  him  from  performing,  2134. 
for  disabling  him  from  performing,  2135. 
may  not  hold  third  party  for  neglect  or  default  of  principal's 

own  agent,  2136. 
liability  for. 

agent  or  servant  liable  to  third  persons  for  his  torts,  1452  et  seq. 
principal  or  master's  liability  for  torts  of  agent  or  servant,  see  NEG- 
LIGENCE, TRESPASS,  CONVERSION,  MALICIOUS  ACTS,  FALSE  REPRESEN- 
TATIONS, FRAUD,  ASSAULT,  FALSE  IMPRISONMENT,  CRIMINAL  ACTS,, 
USURY,  LIBEL,  SLANDER,  MALICIOUS  PROSECUTIONS,  ABBEST,  DECEIT,, 
FRAUD,  CRIMES,  PENAL  ACTS,  EXCESSIVE  FORCE,  SHOOTING,  BLACK- 
LISTING. 

liability  of  insane  principal  for,  136. 
infant  principal,  147. 
married  woman,  150. 
TRADE, 

see  BARTER. 

TRAVELING  SALESMAN, 

denned  as  special  form  of  agent,  75. 
authority  to  make  binding  contract,  849,  861. 

to  fix  price  and  terms,  855  et  seq. 

to  collect  notes  received,  869. 

to  receive  payment,  870-874. 

notice  of  want  of  authority,  872. 

to  procure  personal  supplies,  878. 

to  hire  horses,  875. 

to  sell  or  pledge  his  samples,  879. 

to  warrant  quality,  880  et  seq. 

to  make  representations,  890. 

to  give  credit,  893. 

to  guarantee  markets  or  prices,  900. 

to  rescind  sale,  902. 

to  alter  terms,  902. 

to  release  purchaser,  902. 

to  waive  performance,  903. 

to  receive  notice,  907. 

TRESPASS, 

agent  liable  to  third  persons  for,  1455. 
principal's  directions  for  no  defense,  1456. 

effect  of  ratification,  545. 
principal  or  master  liable  for,  1922  et  seq. 
TROVER, 

when  agent  liable  to  principal  in,  1253. 
see  CONVERSION. 

2569 


fRefcrence.  «re  to  .ection.:  §§  lriT05,  Vol.  1}  §§  1706-2688,  Vol.  H.l 

TRUST, 

differs  from  ageucy,  42,  43.  , 

TRUST  FUNDS, 

right  of  principal  to  follow,  1350. 

right  of  principal  to  follow  property  or  proceeds  wrongfully  disposed  of 
by  factor,  2576  et  seq. 

TRUSTEE, 

agent  charged  as,  who   acquires   for   himself   what   he   should   have  ac- 
quired for  his  principal,  1192  et  seq. 
-j5x     ,   see  LOYALTY;  DUTIES  OF  AGENT  TO  PRINCIPAL. 

UNAUTHORIZED  AGENT, 

liability  of,  to  third  persons,  see  LIAUTI.ITY  OF  AGENT  TO  THIRD  PERSONS. 

UNAUTHORIZED  CONTRACT, 

liability  of  agent  who  makes  without  authority,  see  LIABILITY  OF  AGBM 
TO  THIRD  PERSONS. 

UNDISCLOSED  PRINCIPAL, 

1.  generally  liable  when  discovered,  1731. 

/  'JHT* 
rule  applies  to  written  as  well  as  unwritten  contracts,  1732. 

parol  evidence  admissible  to  identify  principal,  1733. 
rule  does  not  apply  to  instruments  under  seal,  1734,  1735. 

not  to  negotiable  instruments,  1736. 
application  of  rule  where  principal  has  settled  with  agent — English 

rule — American  rule,  1738-1749. 
application  of  rule  where  third  person  has  elected  to  hold  agent, 

1750-1754. 

no  election  till  after  principal  discovered,  1756. 
what  constitutes  election — presenting  claim,  1757. 

commencing  action,  1758. 

taking  judgment  against  agent,  1759. 

taking  agent's  note,  1760. 

charging  goods  to  agent,  1761. 

mere  delay,  1762. 

rule  does  not  apply  unless  alleged  agent  really  such,  1763-1766. 
apparent  authority  in  such  cases,  1767,  1768. 
how  when  apparent  agent  the  real  principal,  1763,  1770. 
how  when  principal's  liability  inconsistent  with  terms  of  contract,. 

1771. 
other  cases  in  which  agent  may  not  be  liable,  1772. 

2.  may  sue  on  contracts  made  in  liis  behalf  though  in  agent's  name, 

2059. 

one  of  several  cannot  sue  on  entire  contract,  2060. 
one  of  several  apparently  joint  parties  may  show  himself  the  real 

principal,  2061. 
right  of  one  who  contracted  as  agent  to  show  himself  the  principal, 

2062. 

. 

•What  actions  within  rule,  2063. 

25/0 


INDEX 
[References  are  to  sections:   §§  1-17O5,  Vol.  I;  §§  1706-25SS,  Vol.   IT.] 

UNDISCLOSED  PRINCIPAL—  Continued. 
not  instruments  under  seal,  2064. 
not  negotiable  instruments,  2065. 

not  contracts  involving  personal  trust  or  confidence,  2067. 
not  contracts  whose  terms  exclude  him,  2070. 
principal's  rights  governed  by  contract,  2073. 
what  defenses  subject  to,  2074  et  seq. 

right  to  recover  property  wrongfully  disposed  of  by  his  agent,  2107. 
3.  personal  liability  of  agent  of,  1410  et  seq. 

what  constitutes  sufficient  disclosure,  1411,  1412. 
burden  on  agent  to  disclose,  1413. 
when  to  be  disclosed,  1414. 

UNINCORPORATED  ASSOCIATIONS, 

personal  liability  of  those  acting  for,  1389. 

UNIVERSAL  AGENTS, 

when  can  exist,  736. 
UNLICENSED  AGENT, 

right  of  broker  to  recover  when  not  licensed,  2479. 
USAGE, 

see  CUSTOM. 

when  authority  results  from,  716. 

what  usage  recognized,  716. 

limitation  upon  effect  of  usage,  716. 

may  justify  delegation  of  authority,  318. 

may  determine  value  of  services  when  no  contract,  1526. 

may  justify  giving  credit,  893. 

may  justify  warranty  of  quality,  882. 

how  affects  authority  of  brokers,  2393  et  seq.. 
USURY, 

when  principal  liable  for  usurious  interest  exacted  by  agent,  2002,  2003. 

authority  of  agent  to  borrow  to  stipulate  for  usurious  interest,  1033. 
VALUE, 

representations  of  agent  regarding,  809. 

VENDOR, 

delivering  goods  to  carrier  not  agent  of  buyer,  55,  n. 

obtaining  deed  to  perfect  his  own  title  not  agent  of  buyer,  55,  n. 
VICE  PRINCIPAL, 

principal  or  master  liable  for  negligence  of,  1640. 

mere  superior  servant  not  usually  regarded  as,  l(i«52. 

VIOLATION  OF  CONTRACTS, 

employment  to  induce,  void,  114. 

VOID, 

acts,  cannot  be  ratified,  358. 

VOIDABLE, 

acts,  may  be  ratified,  358. 

2571 


INDEX 
[Reference*  are  to  section* t  §i  1-1705,  Vol.  I)  9%  170O-2588,  Vol.  II.] 

VOLUNTEER, 

assisting  servant  cannot  recover  of  master  for  such  servant's  negligence, 
1658. 

liability  of  master  to  third  persons  for  negligence  of,  1866  et  seq. 
VOTING, 

may  not  be  accomplished  by  agent,  125. 
"VOTING  TRUSTS," 

contracts  involving,  116. 
WAIVER, 

when  resorted  to  rather  than  ratification,  356. 

contracts  by  servant  to  waive  master's  liability  usually  invalid,  1681. 

acts  waiving  agent's  lien,  1690. 

waiver  by  inconsistent  conduct,  1691. 

claim  of  lien  nt  waiver  of  personal  remedies,  1692. 

by  general  manager,  990. 

authority  of  agent  to  waive  lien,  839. 

authority  of  agent  authorized  to  sell  personal  property  to  waive  terms 

of  contract,  903,  904,  905. 
WAGES, 

see  COMPENSATION,  COMMISSIONS,  FEES. 
WAR, 

when  agency  terminated  by,  694-696. 

when  notice  required,  701-703 
WAREHOUSE  RECEIPT, 

whether  principal  bound  by  when  no  goods  received,  759,  760,  1801. 
WARNING, 

duty  of  master  to  warn  servant  of  dangers,  1619,  1625. 

WARRANTY, 

authority  of  agent  to  warrant. 

I.  ON  SALE  OF  PERSONAL  PBOPKBTY. 
quality,  880. 

as  a  necessary  incident,  881. 

because  warranty  usual,  882. 
warranties  which  the  law  would  imply,  883. 
in  accordance  with  descriptions  furnished  by  principal,  884. 
promissory  notes. 

commercial  character,  885. 

payment,  889. 
•workmanship,  885. 
soundness  of  materials,  885. 
fitness  for  the  purpose,  885. 
soundness  of  horses,  886. 

as  affected  by  custom,  887. 

limited  authority,  888. 
title  to  personal  property,  891. 
condition  of  liquors,  889. 

2572 


INDEX 
[Reference*  are  to  Motions:  §g  1-17O5,  Vol.  Ij  g§  1706-2588,  Vol.  II.] 

WARRANTY—  Continued. 

burglar  proof,  889. 

soundness  of  goods  for  a  definite  time,  889. 

limits  of  the  rule,  889. 

goods  not  usually  sold  with  a  warranty,  889. 

goods   sold   under   circumstances   when   a  warranty   is  not 

usually  given,  889. 

unusual  or  extraordinary  warranty,  889. 
warranty  of  goods  subsequently  sold  by  principal,  889. 
II.  ON  SALE  OF  LAND. 

agent  to  sell  and  convey  may  insert  usual  warranties,  812. 
of  quality,  auctioneer  has  no  implied  authority  to  give,  2332. 

^WT  ' 

judicial  notice  of  what  are  usual,  882. 
WARRANTY  OF  AUTHORITY, 

agent  liable  upon  who  acts  without  authority,  1363. 
based  on  representations  of  matters  of  fact  only,  1367. 
rule  extends  to  other  acts  than  making  of  contracts,  1368. 
no  such  warranty  where  other  party  knows  or  agent  discloses  all  the 
facts,  1369. 

X        .,,  ,        .  ,1-  -,  ,0^ 

none  where  agent  disclaims  authority,  1370. 

,- 
none  in  case  of  public  agent,  1371. 

to  whom  agent  liable  upon,  1372. 

„        H          «, 

cases  to  which  rule  extends,  1373-1394. 

In  what  form  of  action  agent  liable,  1398. 

measure  of  damages,  1400. 

not  liable  where  contract  lost  would  have  been  of  no  value,  1401. 
WASTE, 

agent  authorized  to  sell  land  has  no  authority  to  license  any  one  to  com- 
mit waste  thereon,  820. 
WATER, 

liability  of  master  for  servant's  negligent  use  of,  1893,  1910,  1970. 

WIFE, 

as  agent  for  husband,  161-168. 

see  MARRIED  WOMEN. 
mechanics'  liens  on  property  of,  under  contract  with  husband,  170,  n. 

WILL, 

making  of,  cannot  be  delegated,  126. 

attorney  not  liable  to  third  persons  for  mistakes  in  drafting,  2214. 
WILFUL  ACTS, 

agent  liable  to  third  persons  for,  1459. 
WITNESS, 

agent  may  be,  to  prove  his  own  agency,  291,  292. 

WORKMEN'S  COMPENSATION. 

see  MASTER,  SERVANT,  ASSUMPTION  OF  RISK,  CONTRIBUTORY  NEGLIGENCE, 

FELLOW  SERVANTS. 
statutes  giving  workman  compensation  for  injury,  1679. 

2573 


INDEX 
[Reference*  are  to  •ectlons:   88  1-1705,  Vol.   1?  |g  170O-258S,   Vol.  1I.J 

WRITING, 

when  required  In  authorization  of  agent, 

see  APPOINTMENT  AND  AUTHORIZATION  OF  ACJE.NTS. 
proof  of  agency,  by  informal,  261. 
construction  of,  for  court,  294. 
necessity  of,  in  ratification,  426-429. 

see  RATIFICATION. 
WRITTEN  AUTHORITY, 

limitations  in,  must  be  observed,  707. 

see  AUTHORITY  OF  AC;ENT. 
WRITTEN  CONTRACTS, 

how  should  be  executed  by  agent,  see  DEEDS,  NEGOTIABLE  INSTRUMENT*, 

CONTRACTS. 

whether  principal  can  be  held  upon,  when  in  agent's  name,  1713  et  seq. 
WRITTEN  INSTRUMENTS, 

when  required  to  confer  authority  upon  agent,  see  APPOINTMENT  AND  AU- 

THORIZATION OF  AGENTS. 

where  authority  to  execute  required  by  statute  to  be  in  writing,  225. 
parol  authority  to  execute,  when  not  under  seal,  236. 
parol  authority  to  fill  blanks  in,  237. 
construction  of,  for  court,  256. 
ratification  by,  when  necessary,  426. 

under  statute  of  frauds,  429. 

. 

YEARLY  HIRING,  .aasfiuifib  lo 

not  implied  from  yearly  salary  merely,  603. 
but  may  be  implied  from  circumstances,  603. 
instances  of  this,  603. 

continuance  for  second  year  deemed  to  be,  and  on  same  terms,  60S. 

. 

2574 

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